                                           PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                       No. 14-3969
                      _____________

             UNITED STATES OF AMERICA

                             v.

                MICHAEL CALABRETTA,
                 a/k/a Michael Callabretta

                          Michael Calabretta,
                                   Appellant
                      _____________

      On Appeal from the United States District Court
              for the District of New Jersey
                 (No. 2-12-cr-00131-001)
         District Judge: Hon. Stanley R. Chesler

               Argued: September 15, 2015
                     ____________

   Before: FISHER, CHAGARES, and JORDAN, Circuit
                      Judges

                   (Filed July 26, 2016)




John C. Meringolo [ARGUED]
Meringolo & Associates
375 Greenwich Street, 7th Floor
New York, NY 10013
      Attorney for Appellant
Steven G. Sanders [ARGUED]
Mark E. Coyne
Office of United States Attorney
970 Broad Street
Newark, NJ 07102
       Attorneys for Appellee

                        ____________

                          OPINION
                        ____________

CHAGARES, Circuit Judge.

       At issue in this appeal is whether Michael Calabretta’s
prior state conviction for eluding in the second degree
qualifies as a “crime of violence” under the advisory United
States Sentencing Guidelines (the “Guidelines,” or
“U.S.S.G.”). In light of Johnson v. United States, 135 S. Ct.
2551 (2015), we hold that the District Court plainly erred in
considering the state conviction to be a “crime of violence”
under the Guidelines. We will vacate Calabretta’s sentence
and remand for resentencing.

                               I.

       On March 15, 2013, Calabretta pleaded guilty to a
two-count superseding information, charging him with
conspiracy to distribute and possess with the intent to
distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B) and 846, and with conspiracy to launder the
proceeds of drug trafficking activity, in violation of 18 U.S.C.
§§ 1956(a)(1)(A)(i) and 1956(h). Calabretta was subject to a
five-year mandatory minimum sentence pursuant to the
stipulated charges in the plea agreement.

       In advance of sentencing, the parties and the District
Court received a copy of the Presentence Report (the “PSR”),
which included Calabretta’s Criminal History Category and
Total Offense Level. The PSR considered multiple prior state
convictions in calculating Calabretta’s Criminal History
Category, including a 1990 conviction for “Death by Auto”

                               2
and a 1994 conviction for “Eluding in the Second Degree.”
The PSR also considered those two convictions to constitute
“crimes of violence” pursuant to U.S.S.G. § 4B1.2, and
accordingly designated Calabretta as a “career offender”
under the Guidelines.1 Application of the career offender
Guideline increased Calabretta’s Criminal History Category
from III to VI, and increased his Total Offense Level from 29
to 31. With the career offender Guideline, Calabretta’s
recommended Guidelines sentencing range was 188 to 235
months of imprisonment. Had the career offender Guideline
not applied, his recommended Guidelines sentencing range
would have been 108 to 135 months.

       At sentencing, the District Court adopted the PSR’s
calculation of Criminal History Category VI and Total
Offense Level of 31, which included the application of the
career offender Guideline. After considering the sentencing
factors set forth in 18 U.S.C. § 3553(a) (“section 3553(a)”),
the District Court imposed a sentence of 120 months on each
count to be served concurrently. Calabretta’s sentence thus
reflected a 68-month downward variance from the advisory
Guidelines sentencing range.

        In imposing Calabretta’s sentence, the District Court
extensively discussed Calabretta’s earlier criminal
convictions. The District Court noted that Calabretta became
“involved in this particular scheme approximately five years
after he was released from jail on his prior convictions and . .
. [he] should have learned [his] lesson.” Appendix (“App.”)
141. The District Court also indicated that “a very substantial
sentence is required,” in part, to “get through to [Calabretta]

1
  Under U.S.S.G. § 4B1.1(a), a defendant is a career offender
if “(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” The District Court adopted the PSR’s
finding that all three prongs of the career offender Guideline
were met.

                               3
that if [he] thought [he] had reformed, reforming by
becoming a drug dealer is not reforming.” App. 142.
Additionally, the District Court denied Calabretta’s request
for a two-level reduction in his offense level, in anticipation
of an amendment to the Guidelines. The District Court noted
that Calabretta would be ineligible for a sentencing reduction
under the amendment “given [his] prior criminal record.”
App. 132.

       On September 11, 2014, the District Court entered the
final judgment of conviction and sentence, which reflected
the 120-month term of imprisonment imposed. Calabretta
timely appealed.

                              II.2

       At his sentencing, Calabretta did not challenge
whether his state conviction for eluding in the second degree
is a “crime of violence,” so we will review the District
Court’s determination of that issue for plain error. To
establish plain error, Calabretta must show that (1) the
District Court erred; (2) the error was clear or obvious, rather
than subject to reasonable dispute; and (3) the error affected
the appellant’s substantial rights, which in the ordinary course
means that there is a reasonable probability that the error
affected the outcome of the proceedings. United States v.
Marcus, 560 U.S. 258, 262 (2010); United States v. Tai, 750
F.3d 309, 313-14 (3d Cir. 2014). If all three elements are
established, then the Court may exercise its discretion to
award relief. See United States v. Olano, 507 U.S. 725, 736
(1993). That discretion should be exercised only in cases
where the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (quotation
marks omitted); see also United States v. Stinson, 734 F.3d
180, 184 (3d Cir. 2013).

                              III.


2
 The District Court had jurisdiction pursuant to 18 U.S.C. §
3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).

                               4
        Calabretta argues that the District Court plainly erred
in treating his conviction for eluding as a “crime of violence”
under the Sentencing Guidelines, and that his case should be
remanded for resentencing.3 The Guidelines define a “crime
of violence” as:

       any offense under federal or state law,
       punishable by imprisonment for a term
       exceeding one year, that —

              1. has as an element the use,
                 attempted use, or threatened
                 use of physical force against
                 the person of another, or
              2. is burglary of a dwelling,
                 arson, or extortion, involves
                 use of explosives, or otherwise
                 involves conduct that presents
                 a serious potential risk of
                 physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). The Government has
conceded that Calabretta’s eluding conviction qualifies as a
“crime of violence” only under what is known as the
“residual clause” of the Guideline — as “otherwise
involv[ing] conduct that presents a serious potential risk of
physical injury to another.”4 See Gov’t Letter Pursuant to
Fed. R. App. P. 28(j) (Aug. 12, 2015).

3
  Calabretta raised a number of other issues on appeal. We
will not consider those here, as our determination that the
District Court committed plain error when it considered
Calabretta’s eluding conviction as a “crime of violence” is
dispositive of his appeal.
4
  In New Jersey, eluding in the second degree is defined as
follows: “Any person, while operating a motor vehicle on
any street or highway in this State or any vessel . . . who
knowingly flees or attempts to elude any police or law
enforcement officer after having received any signal from
such officer to bring the vehicle or vessel to a full stop
commits a crime of the third degree; except that, a person is
guilty of a crime of the second degree if the flight or attempt
                              5
                               A.

        While Calabretta’s appeal was pending, the United
States Supreme Court decided Johnson v. United States, 135
S. Ct. 2551 (2015), which held that an identically worded
residual clause in the Armed Career Criminal Act (“ACCA”)
was unconstitutional. Under ACCA, defendants are subject
to a more severe punishment if they have three or more
previous convictions for a “violent felony” — which
included, under the statute’s residual clause, “conduct that
presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). Supreme Court precedent prior
to Johnson had required courts to use a “categorical”
approach to determine whether a crime fell within ACCA’s
residual clause. See Sykes v. United States, 564 U.S. 1
(2011); James v. United States, 550 U.S. 192 (2007). The
categorical approach prescribed that courts “picture the kind
of conduct that the crime involves in ‘the ordinary case,’ and
to judge whether that abstraction presents a serious potential
risk of physical injury.” Johnson, 135 S. Ct. at 2557 (quoting
James v. United States, 550 U.S. 192, 208 (2007)).

       But in Johnson, the Supreme Court overruled its earlier
cases — Sykes and James — that required courts to use the
categorical approach to determine whether a crime was
included in ACCA’s residual clause. Rather, the Supreme
Court invalidated, as unconstitutionally vague, ACCA’s
residual clause. The Supreme Court held that defendants
were denied due process of law when their sentences were
increased after application of ACCA’s residual clause
because the “indeterminacy of the wide-ranging inquiry
required by the residual clause both denies fair notice to
defendants and invites arbitrary enforcement by judges.”
Johnson, 135 S. Ct. at 2557. The Court ruled that the
indeterminacy inherent in both inquiries under the categorical
approach — (1) imagining the conduct in “the ordinary case”
of a crime, and (2) imagining the “serious potential risk” of
that “ordinary case” — was, at least in combination,

to elude creates a risk of death or injury to any person.” N.J.
Stat. Ann. § 2C:29-2(b) (emphasis added).

                               6
unconstitutionally vague.5 Id. at 2557-58. The Court also
noted the practical results of prior jurisprudence interpreting
the residual clause: numerous splits among the federal courts
regarding the type of inquiry for determining what a crime is
in “the ordinary case,” and ultimately, which crimes fall
within the residual clause. Id. at 2560. Therefore, the
Supreme Court held that “[i]nvoking so shapeless a provision
to condemn someone to prison . . . does not comport with the
Constitution’s guarantee of due process.” Id.

                               B.

        Under the plain error standard, we must first consider
whether the District Court committed an error when it
considered the eluding conviction as a “crime of violence” in
determining Calabretta to be a career offender under the
Guidelines. Both the Government and Calabretta argue that,
under Johnson, the identically worded “residual clause” of §
4B1.2 of the Guidelines is likewise invalid. This question,
however, is one for the courts — not the parties — to decide.
“Confessions of error . . . do not relieve this Court of the
performance of the judicial function. . . . [O]ur judgments are
precedents, and the proper administration of the criminal law
cannot be left merely to the stipulation of parties.” Sibron v.
New York, 392 U.S. 40, 58 (1968) (quotation marks and
citations omitted).


5
  Justice Antonin Scalia, writing for the Johnson majority,
indicated the various methods a court could use (and, indeed,
had employed) under the categorical approach: “How does
one go about deciding what kind of conduct the ‘ordinary
case’ of a crime involves? ‘A statistical analysis of the state
reporter? A survey? Expert evidence? Google? Gut
instinct?’” Id. at 2557. “The residual clause offers no
reliable way to choose between . . . competing accounts of
what [the] ‘ordinary’ [crime] involves.” Id. at 2558. Further,
“the residual clause leaves uncertainty about how much risk it
takes for a crime to qualify as a violent felony. It is one thing
to apply an imprecise ‘serious potential risk’ standard to real-
world facts; it is quite another to apply it to a judge-imagined
abstraction.” Id.

                               7
      We hold that the “residual clause” in § 4B1.2 of the
Guidelines is unconstitutionally vague.6 This holding flows


6
  The courts of appeals are split on this question. Compare
United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir.
2015) (holding that the residual clause in § 4B1.2(a)(2) is
unconstitutionally vague), with United States v. Matchett, 802
F.3d 1185, 1193-96 (11th Cir. 2015) (declining to apply
vagueness principles to the advisory Guidelines, and holding
§ 4B1.2(a)(2) to be constitutional). See also United States v.
Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) (holding that the
residual clause of § 4B1.2(a) is unconstitutionally vague);
United States v. Welch, __ F. App’x __, 2016 WL 536656, at
*4 (2d Cir. 2016) (summary order) (same). The Court of
Appeals for the Seventh Circuit has also indicated in dictum
that § 4B1.2(a)(2) may be unconstitutionally vague. Ramirez
v. United States, 799 F.3d 845, 856 (7th Cir. 2015) (“In
Johnson v. United States, the Supreme Court held that the
identically worded residual clause of the Armed Career
Criminal Act is unconstitutionally vague.            We have
interpreted both residual clauses identically, and so we
proceed on the assumption that the Supreme Court’s
reasoning applies to section 4B1.2 as well. This is a point,
however, that neither side has briefed, and it may warrant
attention on remand.” (citations omitted)). Finally, it is worth
noting that the Court of Appeals for the Eighth Circuit has
issued two divided panel opinions on this issue. In United
States v. Taylor, 803 F.3d 931 (8th Cir. 2015), the court
vacated the defendant’s sentence and remanded for
resentencing. The court acknowledged that although there
was circuit precedent holding that the Guidelines were not
susceptible to a vagueness attack, that holding was called into
question by Johnson. The court left the question to be
decided in the first instance by the district court. Id. at 933.
However, a later panel of that court found that any such
sentencing error was not “obvious” or “plain” in light of the
circuit precedent holding that advisory Guidelines could not
be void for vagueness. See United States v. Ellis, 815 F.3d
419, 421 (8th Cir. 2016). The United States Supreme Court
has recently granted a petition for writ of certiorari on this
question that has divided the courts of appeals. See United
States v. Beckles, 616 F. App’x 415 (11th Cir. 2015), cert.
                               8
from our prior case law wherein we have interpreted the
“crime of violence” definition in the Guidelines identically to
the “violent felony” definition in ACCA.7 For example, in
United States v. Hopkins, 577 F.3d 507 (3d Cir. 2009), we
considered whether a second degree misdemeanor escape
offense under Pennsylvania law qualified as a crime of
violence under the residual clause of section 4B1.2. The case
was remanded to us by the Supreme Court to be considered
further in light of Chambers v. United States, 555 U.S. 122
(2009), an ACCA decision dealing with whether the offense
of failing to report for incarceration was a violent felony. See
Hopkins v. United States, 555 U.S. 1132 (2009). We applied
Chambers and held that while the Supreme Court in that
decision “was not called upon to construe the career offender
provision of the Sentencing Guidelines, the definition of a
violent felony under the ACCA is sufficiently similar to the
definition of a crime of violence under the Sentencing
Guidelines that authority interpreting one is generally applied
to the other.” 577 F.3d at 511 (footnote omitted). In
addition, we observed that the validity of our holding was
“demonstrated by the Supreme Court’s remand order in this
case.” Id.

      More recently, in United States v. Marrero, 743 F.3d
389 (3d Cir. 2014), we considered whether a simple assault


granted, 2016 WL 1029080 (U.S. June 27, 2016) (No. 15-
8544).
7
   The Sentencing Commission has also recognized the
connection of the Guidelines residual clause to that of ACCA.
The Sentencing Commission has indicated that the “crime of
violence” definition in § 4B1.2 is “derived from 18 U.S.C. §
924(e).” See U.S.S.G. app. C, amend. 268 (eff. Nov. 1,
1989). And as of January 2016, the Sentencing Commission
has proposed an amendment that would eliminate the residual
clause of § 4B1.2. The amendment will go into effect on
August 1, 2016, unless Congress acts to the contrary. See
U.S. Sentencing Commission, Amendment to the Sentencing
Guidelines,       at       2      (Jan.       21,        2016),
http://www.ussc.gov/sites/default/files/pdf/amendment-
process/reader-friendly-amendments/20160121_RF.pdf.

                               9
was a crime of violence under the Guidelines residual clause
of section 4B1.2. Notably, the case was back before a panel
of our Court after being remanded by the Supreme Court in
light of its decision in Descamps v. United States, 133 S. Ct.
2276 (2013) — a decision, like Chambers, involving
application of the identical “violent felony” provision of
ACCA. See Marrero v. United States, 133 S. Ct. 2732
(2013). Our analysis relied upon numerous cases decided
under ACCA. 743 F.3d at 394-401. We held that although
those cases “involved sentencing enhancements under
[ACCA] rather than the career offender Guideline, they
nevertheless bind our analysis.” Id. at 394 n.2 (emphasis
added). We explained that “‘[p]recedent . . . requires the
application of case law interpreting “violent felony” in ACCA
to “crime of violence” in U.S.S.G. 4B1.2[] because of the
substantial similarity of the two sections.’” Id. (quoting
United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008)).

       This approach of similarly interpreting the two residual
clauses remains appropriate for the case before us now. Prior
to Johnson, courts in this circuit were instructed to use the
same categorical approach under both residual clauses for
determining whether a conviction qualifies as a crime of
violence — that is, “whether the elements of the offense are
of the type that would justify its inclusion within the residual
provision, without inquiring into the specific conduct of this
particular offender.” Marrero, 743 F.3d at 395 (quotation
marks and emphasis omitted). But in Johnson, the Supreme
Court held that the indeterminacy inherent in the categorical
approach, under ACCA, denied defendants due process by
“den[ying] fair notice to defendants” and “invit[ing] arbitrary
enforcement by judges.” 135 S. Ct. at 2557.

       It is apparent that if ACCA’s residual clause “invites
arbitrary enforcement,” id., so does the residual clause in §
4B1.2. The process by which a sentencing court determines
whether a prior conviction is a “crime of violence” is the
same process that the Supreme Court held to be fraught with
indeterminacy under ACCA.          And the result of this
indeterminate process — whether or not a defendant is
designated a career offender under § 4B1.2 — will shift the
“benchmark” or “framework” of the district court’s
sentencing determination by changing the recommended

                              10
sentencing range. See Peugh v. United, 133 S. Ct. 2072, 2083
(2013) (indicating that the advisory Guidelines serve as a
“framework” for “anchor[ing]” sentencing decisions with the
purpose of achieving “uniformity” in sentencing); Gall v.
United States, 552 U.S. 38, 49 (2007) (indicating that the
Guidelines, although advisory, “should be the starting point
and the initial benchmark” in order to “secure nationwide
consistency” in sentences imposed). See also Pawlak, 822
F.3d at 906 (“Peugh reflects the Court’s judgment that the
Guidelines are subject to constitutional challenges because
the Guidelines are the mandatory starting point for sentencing
determinations and district courts can be reversed for failing
to correctly apply them despite the judges’ discretion to
deviate from the recommended range. The Supreme Court's
reasoning in Peugh rests on the very same principles of fair
notice and avoiding arbitrary enforcement underlying the
doctrine of due process.”) (citations omitted). See generally
28 U.S.C. § 994(f) (“The Commission, in promulgating
guidelines . . . shall promote the purposes set forth . . . with
particular attention to the requirements . . . for providing
certainty and fairness in sentencing and reducing unwarranted
sentence disparities.”). This takes us back to first principles
in sentencing, under which we require that courts calculate a
defendant’s Guidelines range as the first step in any
sentencing, prior to application of the sentencing factors set
out at 18 U.S.C. § 3553(a). United States v. Gunter, 462 F.3d
237, 247 (3d Cir. 2006). “[W]hen the starting point for the §
3553(a) analysis is incorrect, the end point, i.e., the resulting
sentence can rarely be shown to be unaffected.” United
States v. Langford, 516 F.3d 205, 217 (3d Cir. 2008). Thus, a
defendant’s recommended sentence (and ultimate sentence
imposed) will likely be affected by how the sentencing court
determines whether a prior conviction, viewed only in the
abstract and not with reference to real-world facts, is a “crime
of violence” under the § 4B1.2 residual clause.

       Our holding also flows from our prior case law that
considered constitutional vagueness challenges to the
Guidelines. For example, in United States v. Maurer, 639
F.3d 72, 78 n.4 (3d Cir. 2011), we held that U.S.S.G. §
2G2.2(b)(4) was not unconstitutionally vague because it gave
“a person of ordinary intelligence fair notice of the conduct to
which it applies” and did not “authorize or encourage

                               11
arbitrary and discriminatory enforcement.” See also United
States v. Jones, 979 F.2d 317, 319-20 (3d Cir. 1992) (holding
that U.S.S.G § 2D1.1(c)(6) is not void for vagueness),
superseded by Guideline on other grounds, U.S.S.G. app. C,
amend. 487 (eff. Nov. 1, 1993), as recognized in United
States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999). Our
case law is supported by the Supreme Court’s recognition that
the Guidelines are sufficiently law-like to be subject to certain
limits imposed by the Constitution. See, e.g., Peugh, 133 S.
Ct. at 2082 (holding that erroneously applying amended
Guidelines that are advisory but still increase a defendant’s
recommended sentence violates the Ex Post Facto Clause, as
the “change in law presents a sufficient risk of increasing the
measure of punishment attached to the covered crimes”
(quotation marks omitted)). See also United States v. Savani,
733 F.3d 56, 66 (3d Cir. 2013) (holding that the rule of lenity
applies to the Guidelines).

        We note, however, that the Court of Appeals for the
Eleventh Circuit has declined to apply the vagueness doctrine
to the advisory Guidelines. See United States v. Matchett,
802 F.3d 1185, 1194-95 (11th Cir. 2015) (holding that the §
4B1.2 residual clause was not invalid after Johnson). But the
court in Matchett focused only on whether the advisory
Guidelines could deny fair notice to a criminal defendant, and
not whether a criminal defendant is protected against arbitrary
enforcement in an advisory Guidelines sentencing system.
See id. at 1194. We conclude, for the reasons previously
discussed, that regardless of whether defendants are entitled
to “fair notice” under an advisory Guidelines system,8 the due

8
  The Matchett court premised its holding that the “vagueness
doctrine, which rests on a lack of notice, does not apply to
advisory guidelines” on Irizarry v. United States, 553 U.S.
708 (2008). Matchett, 802 F.3d at 1194 (quotation marks,
alterations, and citation omitted). But the conclusion in
Matchett that criminal defendants are never entitled to fair
notice under an advisory Guidelines system does not
necessarily flow from Irizarry. Under Irizarry, defendants do
not have a due process right over any expectation to be
sentenced within the advisory Guidelines range, when a
district court, after considering the sentencing factors outlined
in 18 U.S.C. § 3553(a), applies a discretionary variance and
                               12
process concerns over arbitrary enforcement are implicated
here. See United States v. Madrid, 805 F.3d 1204, 1210-11
(10th Cir. 2015) (“If one iteration of the clause is
unconstitutionally vague, so too is the other. . . . Because the
Guidelines are the beginning of all sentencing determinations,
and in light of the unavoidable uncertainty and arbitrariness
of adjudication under the residual clause, we hold that the
residual clause of § 4B1.2(a)(2) is void for vagueness.”
(quotation marks and citation omitted)).

        The Supreme Court’s decision in Johnson supports our
conclusion. In its discussion of arbitrary enforcement, the
Supreme Court cited to cases involving the § 4B1.2 residual
clause to demonstrate that ACCA’s residual clause is “nearly
impossible to apply consistently.” See Johnson, 135 S. Ct. at
2560 (citing United States v. Carthorne, 726 F.3d 503 (4th
Cir. 2013); United States v. Whitson, 597 F.3d 1218 (11th
Cir. 2010) (per curiam); United States v. McDonald, 592 F.3d
808 (7th Cir. 2010); United States v. Williams, 559 F.3d 1143
(10th Cir. 2009)). In addition, the Supreme Court vacated the
sentences of some offenders who were sentenced under the
residual clause of the Sentencing Guidelines, and remanded to
the courts of appeals for further consideration in light of
Johnson. See United States v. Maldonado, 581 F. App’x 19
(2d Cir. 2014), vacated, 135 S. Ct. 2929 (2015); Beckles v.
United States, 579 F. App’x 833 (11th Cir. 2014), vacated,
135 S. Ct. 2928 (2015). As noted earlier, this type of
Supreme Court action is significant. See Hopkins, 577 F.3d
at 511.



imposes a sentence outside of the recommended range. 553
U.S. at 713. At issue in the case before us is not a district
court’s discretionary variance. We are instead concerned
with the imposition of a sentence where a criminal defendant
has been incorrectly designated a career offender as a matter
of law — a question over which we exercise de novo review.
See United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007)
(en banc). However, as we hold that the due process concerns
over arbitrary enforcement are implicated here, we need not
decide whether the residual clause of section 4B1.2 also
denied Calabretta fair notice.

                              13
      We hold that the residual clause of the career offender
Guideline, like ACCA’s residual clause, is infected with
“hopeless indeterminacy,” Johnson, 135 S. Ct. at 2558, and is
unconstitutionally vague in light of Johnson.9 Therefore, we
conclude that the District Court erred in determining that
Calabretta was a career offender.10

                              C.



9
  In reaching this holding, we do not address the continued
viability of other, similar residual clauses present in other
statutes. In particular, we emphasize that the residual clause
of ACCA and the career offender Guideline are not only
identical in their wording but are also linked to a list of four
enumerated offenses (preceding the residual clauses) that
qualify as crimes of violence: burglary, arson, extortion, and
crimes involving the use of explosives. See 18 U.S.C. §
924(e)(2)(B); U.S.S.G. § 4B1.2(a) (limiting enumerated
“burglary” offense to “burglary of a dwelling”). In Johnson,
the Supreme Court indicated that ACCA’s “confusing list of
examples” may have contributed to that residual clause’s
arbitrariness and unpredictability. 135 S. Ct. at 2561. The
language at issue here is the same in that regard. Thus, we
need not consider — and so leave for another day — whether
a similar residual clause without an exemplary list of offenses
would be subject to the same degree of due process concern
that the Supreme Court identified in Johnson.
10
   While the Supreme Court recently held in Welch v. United
States that Johnson announced a substantive rule that applies
retroactively to cases on collateral review, 136 S. Ct. 1257
(2016), we need not consider whether the residual clause of
the career offender enhancement likewise involves a
substantive rule of law requiring its retroactive application on
collateral review. Calabretta’s direct appeal was already
pending at the time of the Johnson decision. See Griffith v.
Kentucky, 479 U.S. 314, 328 (1987) (“[A] new rule for the
conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not
yet final . . . .”).

                              14
       Second, the error here is plain. An error that is plain is
“clear or obvious, rather than subject to reasonable dispute,”
Puckett v. United States, 556 U.S. 129, 135 (2009) (citing
Olano, 507 U.S. at 734), at the time of appellate
consideration, see Henderson v. United States, 133 S. Ct.
1121, 1130-31 (2013). Although our Court has not ruled on
the precise question as to whether the residual clause of
section 4B1.2 is void for vagueness,11 we have previously
entertained similar challenges, see Maurer, 639 F.3d at 78
n.4, and we have held that Supreme Court cases construing
ACCA “bind our analysis” of the career offender Guideline,
Marrero, 743 F.3d at 394 n.2. Therefore, as Johnson was
decided while Calabretta’s appeal was pending, and as our
Court has consistently construed the career offender
Guideline similarly to ACCA, the error here is plain.12

                               D.

       Third, the error affected Calabretta’s substantial rights.
“[T]o have affected a defendant’s substantial rights, a plain
error must have caused the defendant prejudice, in that it
‘affected the outcome of the district court proceedings.’”
United States v. Tann, 577 F.3d 533, 538 (3d Cir. 2009)
(quoting Olano, 507 U.S. at 734). The Supreme Court
recently held that “[w]hen a defendant is sentenced under an
incorrect Guidelines range — whether or not the defendant’s
ultimate sentence falls within the correct range — the error

11
   Our Court need not have previously ruled on a precise issue
for an error to be plain. See, e.g., United States v. Tann, 577
F.3d 533, 537 (3d Cir. 2009) (holding error to be “plain” in a
matter of first impression where prior cases “deal[t] with
analogous statutes”). Nor does it change our analysis that the
Eleventh Circuit Court of Appeals has held differently. Our
circuit precedent is sufficiently clear such that the error is
plain.
12
   We also note that, unlike other courts of appeals that have
found no plain error in cases arising out of similar facts, see
Ellis, 815 F.3d at 421-22, our Court has never held that the
advisory Guidelines were not susceptible to a vagueness
attack.

                               15
can, and most often will, be sufficient to show a reasonable
probability of a different outcome absent the error.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1345 (2016). The
Government, however, “remains free to point to parts of the
record — including relevant statements by the judge — to
counter any ostensible showing of prejudice the defendant
may make.” Id. at 1347 (quotation marks and alterations
omitted). Accordingly, “in the ordinary case a defendant will
satisfy his burden to show prejudice by pointing to the
application of an incorrect, higher Guidelines range and the
sentence he received thereunder.             Absent unusual
circumstances, he will not be required to show more.” Id.

        Despite conceding that Calabretta is no longer a career
offender, the Government maintains that the error did not
affect Calabretta’s substantial rights. The Government points
to the District Court’s downward variance and the District
Court’s explanation that “‘a sentence of 120 months . . . is the
minimum sentence sufficient to secure the purposes of
sentencing that are set forth in [section] 3553’” as indications
that the District Court would have imposed the same sentence
irrespective of the Guidelines range. See Gov’t Letter
Pursuant to Fed. R. App. P. 28(j) (July 28, 2015) (quoting
App. 143). We disagree with the Government’s contentions.
The record in this case does not “show . . . that the district
court thought the sentence it chose was appropriate
irrespective of the Guidelines range.” Molina-Martinez, 136
S. Ct. at 1346.

       There are indications in the record that the application
of the career offender enhancement did affect Calabretta’s
sentence. The District Court placed significant emphasis on
Calabretta’s criminal history and his lack of “reform.” App.
141-43. The sentencing court noted that Calabretta was “not
a stranger to the criminal justice system,” that he “should
have learned [his] lesson” from his prior convictions, and that
his eluding conviction, in particular, “compounded” his lack
of reform. App. 141. After focusing on Calabretta’s prior
convictions, the District Court indicated its belief that “a very
substantial sentence is required,” in part, “to get through to
[Calabretta] that if [he] thought [he] had reformed, reforming
by becoming a drug dealer is not reforming.” App. 142. We
do not think any of those observations inapt, but we cannot

                               16
divine whether the District Court would have placed such
emphasis on Calabretta’s criminal history and his eluding
conviction, had he not been designated a career offender
convicted of multiple, prior “crimes of violence.”
       Additionally, the District Court denied Calabretta’s
request for a two-level reduction in his offense level based on
anticipated amendments to the Guidelines that lowered the
offense level for certain narcotics offenses.13 In denying
Calabretta’s request, the District Court noted that Calabretta,
as a career offender, would be ineligible for a sentence
reduction under the amended Guidelines. App. 131-32. We
cannot intuit whether the District Court would have granted
the request if Calabretta were not a career offender, but we
note that the District Court did grant such a request for two of
Calabretta’s co-defendants who were not designated career
offenders with no objection from the Government.14 See
Gov’t Br. at 9 n.6. And had the District Court granted the
reduction, Calabretta’s recommended Guidelines range would
have been 87 to 108 months. Calabretta’s 120-month



13
   Effective November 1, 2014, the United States Sentencing
Commission adopted Amendment 782, which modified
section 2D1.1 of the Guidelines to lower the sentencing range
for certain categories of drug-related offenses. As Calabretta
was sentenced in September 2014, the amendment, which
would have lowered his Total Offense Level by two points,
did not apply to him. The Sentencing Commission, however,
also adopted Amendment 788, effective November 1, 2014,
which authorized retroactive application of Amendment 782
to certain defendants sentenced before its effective date.
However, if the sentence were “based on” the defendant’s
career offender status, rather than “based on” section 2D1.1,
the defendant would be ineligible for a sentencing reduction
under the Amendments. See 18 U.S.C. § 3582(c)(2);
U.S.S.G. § 1B1.10; United States v. Flemming, 723 F.3d 407,
411-13 (3d Cir. 2013).
14
   Not only was there no objection from the Government in
these instances, it also appears that it was Department of
Justice policy not to object to such requests for early
application of the Guidelines Amendment. See App. 82 n.1.

                              17
sentence, then, would constitute a 12-month upward variance
from that Guidelines range.15
       Moreover, we emphasize the sheer magnitude of the
disparity between Calabretta’s correct Guidelines range and
his erroneously-enhanced Guidelines range. Designated a
career offender, Calabretta had a Guidelines range of 188 to
235 months of imprisonment. Absent that enhancement, his
range was calculated as 108 to 135 months of imprisonment
— or perhaps 87 to 108 months of imprisonment with a
Guidelines range reduction in anticipation of Amendment
782. The difference amounts to years of additional time in
prison. By contrast, the Supreme Court held in Molina-
Martinez that an erroneous Guidelines calculation that
affected the defendant’s range by seven months constituted
plain error. 136 S. Ct. at 1344. The size of the miscalculation
here thus weighs strongly in favor of the conclusion that the
error affected Calabretta’s substantial rights.

       We hold that the Guidelines miscalculation here is
sufficient to show a reasonable probability that his sentence
would have been different absent the error. We cannot
assume here that the sentencing court would have imposed

15
   Our dissenting colleague suggests that the applicability of
Amendment 782 should not weigh in favor of exercising our
discretion to remand for resentencing as retroactive relief is
available to Calabretta now that he is no longer considered a
career offender. However, a district court is limited in its
ability to resentence a criminal defendant who is eligible for
relief under Amendments 782 and 788. Unless a defendant
received a sentencing departure pursuant to a Government
motion regarding substantial assistance, a district court cannot
grant a sentence reduction that is less than the minimum of
the amended Sentencing Guidelines range. See 18 U.S.C. §
3582(c)(2); U.S.S.G. § 1B1.10. Thus, if Calabretta could
only seek relief through a sentencing reduction motion made
pursuant to Amendments 782 and 788, the minimum sentence
he could receive is 87 months of imprisonment. If, however,
we remand for resentencing, the District Court could decide
to impose a sentence as low as 60 months — the mandatory
minimum sentence. This difference also weighs in favor of
us exercising our discretion to afford relief.

                              18
the same sentence regardless of the career offender
designation. To assume so — particularly when the record
suggests that Calabretta’s criminal history played a role in the
ultimate sentence imposed — would “place us in the zone of
speculation and conjecture.” United States v. Zabielski, 711
F.3d 381, 387 (3d Cir. 2013) (quotation marks and alteration
marks omitted) (applying harmless error review). Therefore,
Calabretta has demonstrated that the District Court’s error
affected his substantial rights.

                              E.

       The Supreme Court has recently reminded us that
“[u]nder the Olano framework, appellate courts retain broad
discretion in determining whether a remand for resentencing
is necessary.”16 Molina-Martinez, 136 S. Ct. at 1348. But
that broad discretion should not be exercised reflexively when
the other elements of the plain error standard are met. Olano,
507 U.S. at 737 (“[A] plain error affecting substantial rights
does not, without more, satisfy the [plain error standard], for
otherwise the discretion afforded by the [standard] would be
illusory.”); see United States v. John, 597 F.3d 263, 288-89
(5th Cir. 2010) (“The discretion inherent in the plain-error
standard is not tantamount to caprice, nor is it to be exercised
because of sympathy or lack thereof for a particular
individual or the public’s or a judge’s opinion as to the
seriousness or heinous nature of a particular crime.”). Our
discretion is properly exercised in case-specific circumstances
where an error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Olano, 507 U.S. at
736 (quotation marks omitted). That considerable standard
has been met in this case.


16
   We note that, in Molina-Martinez, the Supreme Court
described the Government’s “concern over the judicial
resources needed for the resentencing proceedings”
as“unfounded.” 136 S. Ct. at 1348-49. “[E]ven when a Court
of Appeals does decide that resentencing is appropriate, a
remand for resentencing, while not costless, does not invoke
the same difficulties as a remand for retrial does.” Id.
(quotation marks omitted).

                              19
       Calabretta’s advisory Guidelines sentencing range
would have been substantially lower if he had not been
labelled a career offender. If the District Court had applied a
two-level reduction in offense level in anticipation of
Amendment 782 — like it did with two of Calabretta’s co-
defendants — then Calabretta’s sentence represents a 12-
month upward variance from the applicable Guidelines range.
Nor is this a situation where the District Court made clear that
Calabretta’s career offender status did not have an effect on
his sentencing range. At his sentencing hearing, the District
Court repeatedly emphasized Calabretta’s criminal history
and lack of reform following his prior convictions.17

17
   Our dissenting colleague contends that the District Court
“did not apply the career offender Guidelines range,” and
emphasizes repeatedly that the District Court indicated that
Calabretta’s sentence was the “minimum sentence sufficient.”
But the District Court did apply the career offender
Guideline, even though it ultimately sentenced Calabretta to a
below-Guidelines sentence.        By indicating that it was
imposing the “minimum sentence sufficient,” the District
Court was simply following the statutory text of section
3553(a), which requires district courts to “impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes [of criminal sentencing].” 18 U.S.C. § 3553(a).
This “parsimony” principle is so inherent in the sentencing
process that district judges need not even announce their
adherence to it when sentencing a criminal defendant. See
United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006)
(“[W]e hold that district judges are not required by the
parsimony provision to routinely state that the sentence
imposed is the minimum sentence necessary to achieve the
purposes set forth in § 3553(a)(2).”). Merely quoting this
language should not insulate a sentence from harmless error
or plain error review. The District Court never indicated that
it would have imposed the same sentence regardless of
Calabretta’s career offender status. Rather, the District Court
imposed what it determined was the “minimum sentence
sufficient” in considering the section 3553(a) factors —
which includes “the applicable category of offense committed
by the applicable category of defendant as set forth in the
guidelines.” 18 U.S.C. § 3553(a)(4)(A). Thus, if the District
Court were applying the section 3553(a) factors as is
                              20
Therefore, we cannot presume that the District Court would
have likely imposed the same sentence had Calabretta not
been designated a career offender. It is possible — perhaps
even likely, given the below-Guidelines sentences of
Calabretta and those of his co-defendants — that the District
Court still would have imposed a below-Guidelines sentence
under the correct Guidelines range.18

      We are convinced that if we were to affirm
Calabretta’s sentence, which was imposed against the
backdrop of a legally incorrect career offender designation

statutorily required, then its calculation of the “minimum
sentence sufficient” necessarily included consideration of the
recommended Guidelines range, including Calabretta’s career
offender status.
18
    Our dissenting colleague suggests that we are trying to
“have it both ways” by “attempting to undertake such a
prediction [of what the District Court will do on remand]
while, at the same time, arguing that [the dissent is]
undergoing a speculative analysis” of its own. Dissent Slip
Op. at 9. We are not speculating about the District Court’s
actions. The dissent, however, reads such certainty into this
scant record that it would lead to affirmance of a 120-month
sentence despite a significant Guideline miscalculation. Our
position is that any prediction of what the District Court
would have done about sentencing if it had calculated the
Guidelines correctly necessarily calls for speculation and that
is the very reason there must be a remand. As noted earlier,
the Supreme Court recently instructed that such uncertainty
weighs in favor of resentencing, not affirmance. See Molina-
Martinez, 136 S. Ct. at 1347 (“Where . . . the record is silent
as to what the district court might have done had it considered
the correct Guidelines range, the court’s reliance on an
incorrect range in most instances will suffice to show an
effect on the defendant’s substantial rights. Indeed, in the
ordinary case a defendant will satisfy his burden to show
prejudice by pointing to the application of an incorrect, higher
Guidelines range and the sentence he received thereunder.
Absent unusual circumstances, he will not be required to
show more.”). The uncertainty here should be resolved by
the District Court.
                              21
and a significantly higher Guidelines range, it would indeed
seriously affect the fairness, integrity or public reputation of
judicial proceedings. See Madrid, 805 F.3d at 1212 (“[W]hen
the correct application of the sentencing laws would likely
significantly reduce the length of the sentence, circuit courts
have almost uniformly held the error to implicate
fundamental fairness issues.” (quotation marks omitted)); cf.
Tai, 750 F.3d at 320 (“[W]e exercise our discretion to correct
the error because it increased the sentence without the
necessary fact finding and thereby affected the integrity of the
proceedings.”). Accordingly, we will exercise our discretion
to award Calabretta relief.

                              IV.

       In sum, Calabretta has demonstrated the requisite
elements to establish plain error, and we will exercise our
discretion to award appropriate relief. We will thus vacate
Calabretta’s sentence and remand for resentencing.




                              22
FISHER, Circuit Judge, dissenting.

       The majority holds that Johnson v. United States, 135
S. Ct. 2551 (2015), invalidates the residual clause of United
States Sentencing Guideline § 4B1.2, removing Michael
Calabretta’s status as a career offender. I agree with this
portion of the majority’s opinion.1

        But, that is where my agreement with the majority
ends, as based on the sentencing record, the majority also
finds that the District Court plainly erred when it considered
Calabretta’s now-removed career offender status in imposing
its sentence. Though I agree that Johnson should apply in this
case and that Calabretta no longer meets the career offender
criteria, I disagree that the District Court’s careful and
thoughtful analysis at sentencing, which concluded in a
sentence of 120 months’ imprisonment, was plainly
erroneous. I dissent specifically to address the erosion of the
doctrine of plain error review in our Circuit.


      1
          As the majority notes, Johnson’s application to §
4B1.2 was considered by the Eleventh Circuit in United
States v. Matchett, 802 F.3d 1185 (11th Cir. 2015). The
Matchett court was concerned that other sections of the
Guidelines may be invalidated if the void-for-vagueness
doctrine is applied to § 4B1.2 via Johnson and rejected the
petitioner’s argument that Johnson invalidates § 4B1.2’s
residual clause. I recognize Judge Pryor’s well-written
opinion and the possible future consequences the adoption of
Johnson may have. See also United States v. Ellis, 815 F.3d
419, 422 (8th Cir. 2016) (finding that it is not “obvious that
the guidelines are susceptible to a constitutional vagueness
challenge”).
       On the other hand, several circuits and this Court—as
outlined by the majority—have applied ACCA holdings to
identically-worded sections of the Guidelines, including those
courts that have already considered Johnson and applied it to
§ 4B1.2. Accordingly, based on our precedent, I join the
majority in applying Johnson.
                              1
       Michael Calabretta is no smalltime marijuana dealer,
just selling some of his stash to a few friends to support a
habit or to make ends meet. Rather, for more than two-and-a-
half years, he participated in an extensive cross-country
conspiracy that distributed over 100 kilograms of marijuana
and he personally laundered more than ten million dollars in
drug sale proceeds.

       In spite of this formidable backdrop, Calabretta asks us
to find that the District Court plainly erred when it imposed a
120 months’ sentence, a sentence that was well below the
career offender Guidelines range and can only be viewed as
an act of leniency—the maximum leniency the District Court
felt was deserved. We should not grant his request because, as
the District Court clearly found, Calabretta’s sentence was the
“minimum sentence sufficient.” J.A. 143.

        If a defendant fails to timely object at the time a
sentence is pronounced, as Calabretta failed to, the
unpreserved issue is reviewed for plain error. United States v.
Flores-Mejia, 759 F.3d 253, 259 (3d Cir. 2014). In order to
satisfy the first three prongs of plain error, an appellant must
establish that an error occurred, that the error was clear or
obvious, and the error affected his substantial rights. If those
requirements are met, we move to the fourth prong and
determine if the “error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Marcus, 560 U.S. 258, 262 (2010) (internal
quotation marks omitted). If after a fact-intensive analysis we
determine that the fourth prong has been established, we have
the discretion to remedy the error. Puckett v. United States,
556 U.S. 129, 135 (2009).

        Here, the fourth prong has not been met. The District
Court based its sentence on Calabretta’s serious and extensive
underlying and prior criminal conduct, not on his career
offender status—and it specifically found that 120 months’
incarceration was the minimum sentence it would impose.
This is not an unfair sentence. Nor is it one that will affect the
integrity or public reputation of the judiciary. Further, the
                                2
majority’s holding is troubling because the plain error test,
specifically its fourth prong, requires stringent application.
This holding will not only affect Calabretta but may affect
future proceedings: a broadened plain error analysis will now
apply in these cases. I therefore respectfully dissent from the
majority’s decision to remand for resentencing.

                              I.

       Calabretta has a significant criminal history, and he
committed a serious crime. The District Court carefully
considered these concerns and the other factors under 18
U.S.C. § 3553(a) and determined that, despite the career
offender Guidelines range (that it erroneously found applied),
a 120 months’ sentence was sufficient but was the minimum
sentence sufficient. Where the District Court provides this
type of specificity, remand is not required.

        In considering Calabretta’s sentence under the fourth
prong, we must remember that remand is a discretionary
action that we may take only after a full review of the
underlying facts. There is no basis for exercising our
discretion where evidence otherwise overwhelmingly
supports the trial court’s finding or is conclusive. United
States v. Vazquez, 271 F.3d 93, 106 (3d Cir. 2001). Although
a scant record cannot uphold a sentence based on an
erroneous Guidelines range, “[t]he record in a case may show
. . . that the district court thought the sentence it chose was
appropriate irrespective of the Guidelines range. Judges may
find that some cases merit a detailed explanation of the
reasons the selected sentence is appropriate.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1346 (2016). This
rule of analysis, penned by the Supreme Court in its recent
decision in Molina-Martinez, is based on evidence that
indicates the Guidelines are heavily relied upon by district
courts in arriving at a sentence—in most cases.
        The Supreme Court observed that in a majority of
cases, absent a Government motion, district courts imposed


                              3
sentences within the adopted Guidelines range.2 This case is
an outlier. And, the record provides a clear picture of what the
District Court intended. Calabretta was subject to, based on
the incorrectly calculated Guidelines range, 188 to 235
months’ imprisonment. If § 4B1.2 had not applied,
Calabretta’s Guidelines range would have been 108 to 135
months’ imprisonment. Ultimately, Calabretta was sentenced
within the applicable Guidelines range that would have
applied without the career offender enhancement, receiving a
sentence of 120 months’ imprisonment. This sentence was
outside of the career offender Guidelines range by almost six
years and was not the product of a Government motion.
Calabretta’s sentence is thus in the minority of cases cited in
Molina-Martinez and upholding it would not garner ridicule
of this Court.

       This is unlike a case our sister court grappled with
after Molina-Martinez. In United States v. Hudson, -- F.3d --,
2016 WL 2621093 (1st Cir. May 9, 2016), the First Circuit
found plain error where the defendant received a sentence that
was within an erroneously calculated Guidelines range,
despite the district court’s consideration of the defendant’s
“quite serious” conduct and extensive criminal history. Id. at
*6–7. The Hudson court made this finding, however, because
the career offender Guidelines range was the “anchoring
point” for the imposed sentence. Id. at *7. Here, the District
Court was aware of the career offender Guidelines range;
carefully reviewed Calabretta’s substantial underlying
conduct, criminal history, and the other statutory sentencing
factors; and found that 120 months’ incarceration—a sentence
substantially lower than the career offender Guidelines
range—was the “minimum sentence sufficient” to suit the 18

       2
          “In less than 20% of cases since 2007 . . . district
courts imposed above- or below-Guidelines sentences absent
a Government motion . . . [a] realit[y] that has led the Court
to observe that there is considerable empirical evidence
indicating that the Sentencing Guidelines have the intended
effect of influencing the sentences imposed by judges.” Id.
(internal quotation marks omitted).
                              4
U.S.C. § 3553(a) factors. J.A. 143. The career offender
Guidelines range was not the anchoring point here, the
District Court specifically chose to not apply it to the final
sentence.

       The majority focuses on the District Court’s failure to
specifically state how Calabretta’s career offender
designation affected the final sentence, but the record reveals
that the District Court provided detailed reasons for how it
arrived at the final sentence and why it did not apply the
career offender Guidelines range.

       Calabretta pleaded guilty to both a distribution offense
and a money laundering offense, a plea that allowed him to
escape a weightier sentence if the full import of his conduct in
the distribution scheme had been considered. At sentencing,
the District Court reviewed the underlying investigation
which resulted in the recovery of over $1 million from
Calabretta’s residence, which was a small part of the earnings
from the distribution scheme, and a log book that indicated
that Calabretta was involved in laundering drug money
through casinos. The District Court found it questionable that
Calabretta’s claimed income, which Calabretta said was
gambling income, was not a part of the drug distribution
scheme. Moreover, the District Court considered the need for
deterrence given the purely monetary motivation that drove
Calabretta’s conduct, noting that Calabretta and his co-
conspirators believed “that moving large amounts of
marijuana was a good way to make lots of money and the
record reflects that he did that.” J.A. 140.

        As for Calabretta’s prior criminal conduct, the District
Court found especially alarming the fact that Calabretta had
“two dead people whose deaths are directly attributable to
[his], frankly, incredible conduct” of drag racing and road
rage. J.A. 141. The District Court also considered
Calabretta’s eluding offense, where he drove up an exit ramp
the wrong way, as well as other car thefts and burglaries that
Calabretta had committed, which were not predicate offenses
under § 4B1.2. Calabretta’s serious criminal history was
                               5
bolstered by the fact that he committed the drug distribution
offense only five years after he was released from jail on his
prior convictions.

       The District Court did not focus on Calabretta’s career
offender status. To the contrary, it specifically determined not
to sentence him within the career offender range: “[T]he top
of [the Guidelines range] was 235 months. . . . If I sentence
you to the top of that [G]uidelines range, you’d be getting out
when you were an old man.” J.A. 143. The District Court
instead focused on the specific case at hand—Calabretta’s
significant criminal history and culpability in the underlying
offense. It found that it was “satisfied that a very substantial
sentence is required here in order to, first of all, deter others
who might be inclined to make millions of dollars quickly
and easily from doing it; secondly, to get through to
[Calabretta] that if [he] thought [he] had reformed, reforming
by becoming a drug dealer is not reforming.” J.A. 142. This
led the District Court to find that a sentence of 120 months’
imprisonment was the “minimum sentence sufficient”—a
sentence that was well below the career offender Guidelines
range.

       The majority faults this dissent for its focus on the
District Court’s “minimum sentence sufficient” language. The
District Court’s “minimum sentence sufficient” statement,
however, followed the District Court’s admonition that it
would not sentence Calabretta within a Guidelines range that
would lead to his release when he was an old man. The
Guidelines range that the District Court chose not to apply, to
meet that goal, was the career offender Guidelines range. It is
therefore more than reasonable to focus on the “minimum
sentence sufficient” language because it followed the District
Court’s finding that it was not going to sentence Calabretta
within the career offender Guidelines range.

        Based on the record before us, there is no plain error.
Affirming Calabretta’s sentence would not undermine the
integrity of this Court. The District Court provided a detailed
explanation of the imposed sentence, a sentence unconnected
                               6
from the Guidelines. The District Court weighed Calabretta’s
potential for recidivism, and we should not ignore that
consideration when conducting plain error review, especially
where the sentence is far removed from the career offender
Guidelines range. United States v. Davis, 602 F.3d 643, 652
(5th Cir. 2010) (considering the defendant’s continued
violations of the law in upholding his sentence even though
the district court had conducted an erroneous Guidelines
calculation at sentencing).3

       The sentence imposed by the District Court fell within
the now-applicable Guidelines range. The majority argues
that the potential applicability of Amendment 782,4 which
would make Calabretta’s 120 months’ sentence fall outside of
the Guidelines range, should change the analysis in this case.
But it does not. Calabretta’s Guidelines range would be 87 to
108 months after applying Amendment 782. Calabretta would
be eligible to receive a sentence of 87 months’ imprisonment
if the District Court, through its discretion, found that
sentence to be appropriate. The majority asserts that because
of this amended Guidelines range, the District Court could
also decide to impose a sentence as low as 60 months, the
mandatory minimum sentence for Calabretta’s charged
conduct. We cannot predict what the District Court will do.
The majority is attempting to undertake such a prediction
while, at the same time, arguing that I am undergoing a
speculative analysis by relying on the District Court’s actual
words during sentencing. The majority cannot have it both
ways.
       The large disparity between the prior applicable
Guidelines range and the sentence imposed, a variance
sentence without a Government motion, supports a finding

      3
          The Fifth Circuit upheld Davis’s consideration of
recidivism as a factor in denying a plain error claim after
Molina-Martinez in United States v. Martinez-Rodriguez, --
F.3d --, 2016 WL 2772272 *4–5 (5th Cir. May 12, 2016).
       4
          Calabretta’s non-career offender status will allow
him to seek a sentence that comports with Amendment 782
pursuant to 18 U.S.C. § 3582(c)(2).
                              7
under Molina-Martinez that the District Court gave a fair
sentence that was unaffected by the career offender
designation. Instead, the sentence was motivated by
Calabretta’s own conduct and was the “minimum sentence
sufficient” to deter such conduct in the future. Still, the
majority cites two of our opinions and a Tenth Circuit opinion
in support of its position that such a finding would be
“speculative.” These cases—United States v. Zabielski, 711
F.3d 381 (3d Cir. 2013), United States v. Tai, 750 F.3d 309
(3d Cir. 2014), and United States v. Madrid, 805 F.3d 1204
(2015)—actually support affirmance.

       Zabielski was determined under a harmless error
analysis and is distinguishable from our analysis here, which
is more stringent. Even if generally applicable, we held that
“an error is more likely to be harmless when it is clear from
the record that the district court decided to vary from the
advisory Guidelines range.” Zabielski, 711 F.3d at 388. It is
clear from the sentencing record, for the reasons above, that
the District Court was not considering the career offender
Guidelines range. The majority’s assertion that affirming
would be based on “speculation” is unsubstantiated.

       Tai is unhelpful to the majority for the same reasons.
We held in Tai that where the record fails to provide guidance
as to why a particular enhancement was provided, and the
proper fact finding regarding that enhancement is not
undertaken, this Court may find that the integrity of the
proceedings are affected. Tai, 750 F.3d at 319–20. Under
such circumstances, this Court cannot speculate as to what
facts were considered by the district court. Id. at 320. Again,
the record here provides guidance. The District Court
reviewed the underlying circumstances, disregarded the
career offender Guidelines range, and sentenced Calabretta
well below the erroneous range.

       Finally, in Madrid, the Tenth Circuit applied Johnson
to Madrid, a defendant that had erroneously been found to be
a career offender. The court focused on Madrid’s sentence of
188 months, a sentence at the lowest end of the erroneous
                              8
career offender Guidelines range. The court found that the
fourth prong had been met because the “correct application of
the sentencing laws would likely significantly reduce the
length of the sentence” because the now-applicable
Guidelines range was 92-115 months. Madrid, 805 F.3d at
1212 (internal quotation marks omitted). The facts are
distinguishable here. Calabretta was subject to a sentence
within the lower, applicable Guidelines range and the District
Court chose to forego a career offender sentence, opting to
instead sentence Calabretta to 120 months, the “minimum
sentence sufficient.”

       This Court should not fall into a trap of finding that
every sentence that applied § 4B1.2’s residual clause requires
a remand. I am not suggesting that the fourth prong will never
be met if Johnson is applied to others who were incorrectly
found to be career offenders. But the sentence that Calabretta
received is neither unfair nor will it undermine confidence in
the judiciary. Consequently, I cannot assent to the majority
finding otherwise.

                              II.

       Given the record before us, I believe the majority fails
to adhere to this Court’s duty to narrowly apply the plain
error rule, especially once it reaches the fourth prong. We
must be forward thinking and look not only at the underlying
proceeding but also to how future judicial proceedings will be
affected by our plain error analysis in each case. United States
v. Escalante-Reyes, 689 F.3d 415, 457 n.22 (5th Cir. 2012)
(Smith, J., dissenting). The majority’s conclusion that the
fourth prong has been met in this case will affect future




                               9
judicial proceedings by broadening the application of plain
error review. Review which has already been eroding.5

       This prong must be applied vigorously even where an
error is found because of an intervening Supreme Court
decision. United States v. Gonzalez-Huerta, 403 F.3d 727,
737 (10th Cir. 2005) (discussing the applicability of Johnson
v. United States, 520 U.S. 461, 470 (1997)). Consequently, it
is important to carefully consider the fourth prong because
“[r]eversal for error, regardless of its effect on the judgment,
encourages litigants to abuse the judicial process and bestirs
the public to ridicule it.” Johnson, 520 U.S. at 470 (citation
omitted).


       5
         Several of this Court’s cases have resulted in remand
based on a finding of plain error. A sampling of these cases is
set forth below. In these cases, we either (1) did not include a
fourth prong analysis, or (2) included only a sentence or less
of analysis under the fourth prong. This is why it is important
that this dissent focus on the fourth prong and that a finding
of plain error should be a rarity. Those cases are cited here:
        United States v. Angell, 588 F. App’x 161 (3d Cir.
2014); United States v. Stinson, 734 F.3d 180 (3d Cir. 2013);
United States v. Butler, 531 F. App’x 241 (3d Cir. 2013);
United States v. Hill, 468 F. App’x 133 (3d Cir. 2012); United
States v. Rose, 365 F. App’x 384 (3d Cir. 2010); United
States v. Guinto, 345 F. App’x 831 (3d Cir. 2009); United
States v. Polk, 577 F.3d 515 (3d Cir. 2009); United States v.
Berry, 553 F.3d 273, 286 (3d Cir. 2009); United States v.
Langford, 516 F.3d 205 (3d Cir. 2008); United States v.
Voelker, 489 F.3d 139 (3d Cir. 2007); United States v. Wood,
486 F.3d 781 (3d Cir. 2007); United States v. Grier, 475 F.3d
556 (3d Cir. 2007); United States v. Dickerson, 381 F.3d 251
(3d Cir. 2004); United States v. Broskoski, 66 F. App’x 317
(3d Cir. 2003); United States v. Syme, 276 F.3d 131 (3d Cir.
2002); United States v. Latimer, 54 F. App’x 105 (3d Cir.
2002); United States v. Knight, 266 F.3d 203 (3d Cir. 2001);
United States v. Pollen, 978 F.2d 78 (3d Cir. 1992); United
States v. Evans, 155 F.3d 245 (3d Cir. 1998).
                                10
        This public ridicule and encouragement of abuse of
process is precisely what we must be aware of in ordering
remand in this case. Even if Calabretta’s substantial rights
were affected, this “cannot, ‘without more,’ satisfy the fourth
prong of the plain-error analysis, . . . and the Supreme Court
has instructed that we are authorized ‘to correct only
particularly egregious errors’ on plain-error review.” United
States v. Corso, 549 F.3d 921, 931 (3d Cir. 2008) (quoting
United States v. Young, 470 U.S. 1, 15 (1985) (internal
citation omitted)).

       In sentencing matters, this means that we must
consider the effect that a too low or too high sentence may
have. For instance, a sentence that is too-low will deny the
public of its entitlement to a sufficient sentence, but one that
is too-high will deny a defendant a certain amount of
freedom. United States v. Williams, 399 F.3d 450, 456 (2d
Cir. 2005). Here, the District Court specifically stated that
imprisonment of 120 months was the “minimum sentence
sufficient” based on Calabretta’s criminal history and his
underlying conduct while discounting the career offender
Guidelines range. Calabretta received leniency at the
sentencing phase, a leniency that he likely did not deserve,
but the District Court made clear this was the only break that
Calabretta was entitled to.

        It is hard to determine what record, if not the one here,
would not meet the majority’s standard for plain error. A
district court will now be required to specifically say, no
matter what happens in the future, the sentence imposed is the
only sentence it would give within its discretion. I do not
believe that we should implement this rule. We must be
especially cognizant of this consideration and ensure that
plain error is found only in “exceptional circumstances [for]
particularly egregious errors,” is “used sparingly,” and is not
collapsed into a harmless error analysis. Escalante-Reyes, 689
F.3d at 433, 435. When applying the specific facts in this
case, I believe that the majority has lost sight of the stringent
test we must apply.

                               11
                             III.

       I dissent in order to caution this Court to review how
the facts in this case will impermissibly broaden the doctrine
of plain error review. The District Court’s reasoned analysis
at sentencing, and careful consideration of the correct
sentence for a weighty drug dealer, requires Calabretta’s
sentence of 120 months’ imprisonment to stand, and remand,
accordingly, should not be granted.




                             12
