                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2635
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                      Chad Taylor

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: August 12, 2015
                               Filed: October 9, 2015
                                    [Published]
                                   ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

PER CURIAM.

       Chad Taylor pled guilty to possessing a prohibited object in prison in violation
of 18 U.S.C. § 1791(a)(2). Taylor received a sentencing enhancement for committing
a "crime of violence" under the career offender guideline, U.S.S.G. § 4B1.1(a). On
appeal, Taylor argues that his sentence is unlawful because the language in the
guideline is unconstitutionally vague. We held this appeal in abeyance pending the
Supreme Court's anticipated decision in Johnson v. United States.

       In Johnson, the Court held that the residual clause of the Armed Career
Criminal Act (ACCA) is unconstitutionally vague. 576 U.S. ___, ___, 135 S. Ct.
2551, 2563 (2015). That clause defines a "violent felony" to include any felony that
"otherwise involves conduct that presents a serious potential risk of physical injury
to another." 18 U.S.C. § 924(e)(2)(B)(ii). The residual clause of the sentencing
guideline uses identical language to the ACCA, including as a "crime of violence"
any felony that "otherwise involves conduct that presents a serious potential risk of
physical injury to another." U.S.S.G. § 4B1.2(a)(2). We requested supplemental
briefing to address the relevance of the Supreme Court's decision to Mr. Taylor's case.

       The United States concedes that the sentence imposed by the district court
should be vacated and the case remanded for resentencing in light of Johnson. After
Johnson, the Supreme Court vacated and remanded for reconsideration two guideline
sentences using the residual clause. E.g., United States v. Maldonado, 581 F. App'x
19, 22–23 (2d Cir. 2014), vacated and remanded, 135 S. Ct. 2929 (2015). The Sixth
Circuit recently vacated a guideline sentence using the residual clause and remanded
to the district court for reconsideration in light of Johnson. United States v. Darden,
605 F. App'x 545, 546 (6th Cir. July 6, 2015).

      In United States v. Wivell, our circuit concluded that the sentencing guidelines
are "not susceptible to a vagueness attack." 893 F.2d 156, 159 (8th Cir. 1990). We
reasoned there that the due process vagueness doctrine does not apply to the
guidelines because they do not "attempt[] to proscribe or prescribe conduct," but only
provide guidance in sentencing convicted criminals. Id. at 159–160. Wivell does not
foreclose Taylor's challenge, however, because a prior panel ruling does not control
"when the earlier panel decision is cast into doubt by an intervening Supreme Court
decision." United States v. Anderson, 771 F.3d 1064, 1067 (8th Cir. 2014).

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       In Johnson, the Supreme Court explained that the Fifth Amendment principles
prohibiting vague or standardless criminal laws "apply not only to statutes defining
elements of crimes, but also to statutes fixing sentences." 135 S. Ct. at 2557. The
ACCA residual clause stricken by the Court was a sentencing statute, not a statute
proscribing conduct. See 18 U.S.C. § 924(e). Although the guidelines are not
statutes, district courts must consider them and correctly calculate the advisory
guideline range. Gall v. United States, 552 U.S. 38, 49, 51 (2007); United States v.
Feemster, 572 F.3d 455, 460–61 (8th Cir. 2009) (en banc). The reasoning in Wivell
that the guidelines cannot be unconstitutionally vague because they do not proscribe
conduct is doubtful after Johnson. See 135 S. Ct. at 2557. We leave for the district
court on remand the question of whether the residual clause of the career offender
guideline is unconstitutional.

       For these reasons, we vacate Taylor's sentence and remand to the district court
for resentencing.

COLLOTON, Circuit Judge, dissenting.

       Chad Taylor appeals the sentence imposed for his unlawful possession of a
“prohibited object”—i.e., a 5.75-inch rod with a sharpened tip—in prison. The
district court, in calculating an advisory sentencing range under the sentencing
guidelines, determined that Taylor was a career offender under USSG § 4B1.1(a), and
sentenced him to thirty-seven months in prison pursuant to 18 U.S.C. § 3553(a). The
court concluded that Taylor’s offense of conviction, see 18 U.S.C. § 1791(a)(2), was
a “crime of violence” within the meaning of the guidelines, because it “involve[d]
conduct that presents a serious potential risk of physical injury to another.” USSG
§ 4B1.2(a)(2). Taylor, citing Johnson v. United States, 135 S. Ct. 2551 (2015),
argues that the sentence must be vacated because the quoted clause from
§ 4B1.2(a)(2) is unconstitutionally vague. Johnson held that the comparably-worded



                                         -3-
“residual clause” of 18 U.S.C. § 924(e)(2)(B)(ii), which set a statutory minimum term
of imprisonment for certain firearms offenses, is unconstitutionally vague.

       Taylor’s vagueness argument is foreclosed by circuit precedent. In United
States v. Wivell, 893 F.2d 156 (8th Cir. 1990), this court held that “the Sentencing
Guidelines are simply not susceptible to a vagueness attack.” Id. at 159. The court
reasoned that “[b]ecause there is no constitutional right to sentencing guidelines—or,
more generally, to a less discretionary application of sentences than that permitted
prior to the Guidelines—the limitations the Guidelines place on a judge’s discretion
cannot violate a defendant’s right to due process by reason of being vague.” Id. at
160. This court, in an unpublished decision, continued to apply Wivell after the
guidelines were rendered advisory. United States v. Jefferson, 267 F. App’x 483, 484
(8th Cir. 2008). Indeed, the Seventh Circuit concluded that United States v. Booker,
543 U.S. 220 (2005), “bolstered” Wivell and cases that followed it: “Since the
Guidelines are merely advisory, defendants cannot rely on them to communicate the
sentence that the district court will impose. Defendants’ inability to look to the
Guidelines for notice underscores why . . . they cannot bring vagueness challenges
against the Guidelines.” United States v. Tichenor, 683 F.3d 358, 365 (7th Cir. 2012)
(footnote omitted).

       The majority here declines to follow Wivell and seeks refuge in the rule that a
prior panel decision is not controlling if an intervening Supreme Court decision is
inconsistent with the prior opinion. See McCullough v. AEGON USA Inc., 585 F.3d
1082, 1085 (8th Cir. 2009). The court asserts that Johnson is such an intervening
decision, because it explained that constitutional vagueness principles “apply not only
to statutes defining elements of crimes, but also to statutes fixing sentences.” 135 S.
Ct. at 2557. As Johnson itself recognized, however, this proposition was nothing
new: the point was settled well before this court decided Wivell in 1990, as illustrated
by Johnson’s citation of United States v. Batchelder, 442 U.S. 114, 123 (1979), as
establishing the proposition. Johnson, 135 S. Ct. at 2557; see Simpson v. Lockhart,

                                          -4-
942 F.2d 493, 497 (8th Cir. 1991) (citing Batchelder and rejecting vagueness
challenge to sentencing statutes); United States v. House, 939 F.2d 659, 664 (8th Cir.
1991) (rejecting vagueness challenge to statutory minimum sentence); United States
v. Bishop, 894 F.2d 981, 987 n.4 (8th Cir. 1990) (same).

       Wivell addressed a different question: whether a vagueness challenge lies
against sentencing guidelines that cabin a judge’s discretion when sentencing within
a range set by statute. Johnson says nothing whatever about that issue. See United
States v. Matchett, No. 14-10396, 2015 WL 5515439, at *6 (11th Cir. Sept. 21, 2015)
(“By its terms, the decision of the Supreme Court in Johnson is limited to criminal
statutes that define elements of a crime or fix punishments. . . . The Armed Career
Criminal Act defines a crime and fixes a sentence, but the advisory guidelines do
neither.”) (internal citation omitted). Wivell thus remains binding circuit precedent,
and Taylor’s due process claim should be rejected by this panel. Any argument that
Wivell was wrongly decided should be directed to the full court in a suggestion for
en banc review.

       Taylor also argues that his offense of possession of a prohibited object in
prison is not a crime of violence under the guidelines. Taylor’s statute of conviction,
18 U.S.C. § 1791(a), is “divisible” within the meaning of Descamps v. United States,
133 S. Ct. 2276, 2281 (2013), because “it lists in the disjunctive multiple, alternative
elements for committing the offense.” United States v. De La Cruz, 582 F. App’x
327, 329 (5th Cir. 2014), vacated on other grounds, 135 S. Ct. 2929 (2015). Taylor
was charged with possessing in prison “a weapon and an object that is designed and
intended to be used as a weapon,” in violation of 18 U.S.C. § 1791(a)(2) and
(d)(1)(B), so the court should consider under the modified categorical approach
whether that offense was a crime of violence.

     Taylor asserts that his offense does not qualify, because it does not involve
conduct that presents a serious potential risk of physical injury to another. This court

                                          -5-
has ruled, however, that possession of a weapon in a correctional facility meets that
standard under 18 U.S.C. § 924(e) and the definition of “violent felony” that
prevailed before Johnson. United States v. Boyce, 633 F.3d 708, 710-12 (8th Cir.
2011). Boyce reasoned that the offense “create[s] the possibility—even the
likelihood—of a future violent confrontation,” because “[w]hen a prisoner carries a
dangerous weapon, that behavior indicates that he is prepared to use violence if
necessary and is ready to enter into conflict, which in turn creates a danger for those
surrounding the armed prisoner.” Id. at 712 (internal quotation marks omitted). The
case for finding a “crime of violence” under the guidelines is even stronger, because
the binding commentary to USSG § 4B1.2 contemplates that mere possession of a
dangerous weapon—for example, a sawed-off shotgun—can qualify as a crime of
violence. See USSG § 4B1.2, comment. (n.1). Attenuation between possession and
use of a weapon in prison, therefore, does not preclude treating Taylor’s offense as
a crime of violence under the guidelines. Cf. Johnson, 135 S. Ct. at 2565-66
(Thomas, J., concurring in the judgment). The district court correctly ruled that
Taylor is a career offender under the sentencing guidelines.

      For these reasons, applying the circuit precedent of Wivell and Boyce, I would
affirm the judgment of the district court.
                      ______________________________




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