                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 13-10517
           Plaintiff-Appellee,
                                         D.C. No.
              v.                   3:09-cr-00193-CRB-1

JASON LEE,
         Defendant-Appellant.            OPINION


     Appeal from the United States District Court
         for the Northern District of California
   Charles R. Breyer, Senior District Judge, Presiding

               Argued and Submitted
                 September 11, 2014
         Submission Vacated January 16, 2015
             Resubmitted April 28, 2016
              San Francisco, California

                    Filed May 6, 2016

         Before: Carlos T. Bea, Sandra S. Ikuta,
        and Andrew D. Hurwitz, Circuit Judges.

              Opinion by Judge Hurwitz;
               Dissent by Judge Ikuta
2                     UNITED STATES V. LEE

                           SUMMARY*


                          Criminal Law

    Vacating a sentence and remanding for resentencing, the
panel held that neither the defendant’s conviction under
Calif. Penal Code § 243.1 nor his conviction under Calif.
Penal Code § 69 was for a “crime of violence” as defined by
the residual clause of the career offender guideline, U.S.S.G.
§ 4B1.2(a)(2).

    The panel wrote that because neither of the convictions
qualifies under the case law that predated Johnson v. United
States, 135 S. Ct. 2551 (2015), it did not need to address
whether, in light of Johnson, the residual clause in
§ 4B1.2(a)(2) is unconstitutionally vague.

    Judge Ikuta dissented because the majority applies cases
that the Supreme Court in Johnson has expressly overruled to
decide the defendant’s claim that his prior offenses do not
qualify as crimes of violence under § 4B1.2.


                            COUNSEL

Ethan A. Balogh (argued), Coleman & Balogh LLP, San
Francisco, California, for Defendant-Appellant.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   UNITED STATES V. LEE                     3

Melinda Haag, United States Attorney, Barbara J. Valliere,
Chief, Appellate Division, Laurie Kloster Gray (argued),
Assistant United States Attorney, San Francisco, California,
for Plaintiff-Appellee.


                         OPINION

HURWITZ, Circuit Judge:

   Jason Lee was convicted of distributing crack cocaine.
He appeals only the resulting sentence. Because we find that
the district court erred by imposing a career offender
enhancement under § 4B1.1(a)(3) of the United States
Sentencing Guidelines (“Guidelines”), we vacate the sentence
and remand for resentencing.

                              I.

    Lee had two prior California drug convictions. In light of
those convictions, after the jury found Lee guilty of
distributing crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), the district court applied the
career offender enhancement of Guidelines § 4B1.1 in
calculating the Guidelines range. Under the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372
(amending 21 U.S.C. § 841), the court calculated the
Guidelines range as 262 to 237 months, but sentenced Lee to
180 months in custody and ten years of supervised release.

    On appeal, we held that only one of Lee’s drug
convictions qualified as a predicate “controlled substance
offense” under the career offender enhancement. United
States v. Lee (Lee I), 704 F.3d 785, 790–92 (9th Cir. 2012).
4                  UNITED STATES V. LEE

We vacated Lee’s sentence, but because the drug convictions
were not Lee’s only prior convictions, we remanded for the
district court to “consider whether Lee’s convictions under
California Penal Code §§ 69 and 243.1” were for “crimes of
violence” under § 4B1.1(a)(3) of the Guidelines, and thus
were “predicate offenses that, in conjunction with” the drug
conviction, “would qualify Lee as a career offender.” Id. at
792.

   On remand, the district court found that each conviction
was for a “crime of violence.” Applying the career offender
enhancement, the court calculated the Guidelines range as
360 months to life, but sentenced Lee to ten years in prison
and ten years of supervised release. Lee timely appealed.

                              II.

     “All sentencing proceedings are to begin by determining
the applicable Guidelines range.” United States v. Carty, 520
F.3d 984, 991 (9th Cir. 2008) (en banc). In calculating a
sentence, the district court is required by § 1B1.1 of the
Guidelines first to determine the base offense level, and then
make appropriate upward or downward adjustments. At issue
in this case is Part B of Chapter Four of the Guidelines, which
requires enhancement of the offense level of a “career
offender.” Section 4B1.1(a) defines a “career offender” as a
defendant who “has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.”
Section 4B1.2(a) in turn defines 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
                      UNITED STATES V. LEE                             5

         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.

The final clause in § 4B1.2(a), beginning with the words “or
otherwise,” is commonly referred to as the “residual clause.”
See, e.g., United States v. Crews, 621 F.3d 849, 852 (9th Cir.
2010).

    “We review de novo a district court’s ‘interpretation of
the Sentencing Guidelines and its determination that a
defendant qualifies as a career offender’ under U.S.S.G.
§ 4B1.1.” United States v. Mitchell, 624 F.3d 1023, 1026
(9th Cir. 2010) (quoting United States v. Crawford, 520 F.3d
1072, 1077 (9th Cir. 2008)). “A mistake in calculating the
recommended Guidelines sentencing range is a significant
procedural error that requires us to remand for resentencing.”
United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th
Cir. 2011); see also Molina-Martinez v. United States, 136 S.
Ct. 1338, 1345–46 (2016).1




    1
      After determining the applicable offense level, including any
enhancements, and the defendant’s criminal history category, the district
court calculates the corresponding Guidelines sentencing range. U.S.
Sentencing Guidelines Manual § 1B1.1(a)(7) (U.S. Sentencing Comm’n
2015). The court then considers the statutory factors in 18 U.S.C.
§ 3553(a), and exercises its discretion to determine an appropriate
sentence, whether inside or outside the Guidelines range. Carty, 520 F.3d
at 991–92.
6                  UNITED STATES V. LEE

                             III.

     Lee contends that he is not a “career offender” because he
does not have “at least two prior felony convictions of either
a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). Because we have already held that
Lee’s 1998 Alameda County Superior Court conviction for
violating California Health & Safety Code § 11352(a)
“qualifies as a predicate controlled substance offense,” Lee I,
704 F.3d at 792, the issue for decision is whether either of
Lee’s convictions under California Penal Code § 243.1 or
§ 69(a) are “crimes of violence” under Guidelines § 4B1.1(a).
The government does not contend that either § 243.1 or § 69
is a controlled substance offense, “has as an element the use,
attempted use, or threatened use of physical force against the
person of another,” U.S.S.G. § 4B1.2(a)(1), or corresponds to
an enumerated crime in § 4B1.2(a)(2). The only question,
then, is whether, under the residual clause, either crime
“otherwise involves conduct that presents a serious potential
risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

                              A.

    In interpreting the residual clause, our jurisprudence has
been informed by cases interpreting an identical clause in the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B). See United States v. Spencer, 724 F.3d 1133,
1138 (9th Cir. 2013). We vacated submission in this case
pending the Supreme Court’s decision in Johnson v. United
States, which found the ACCA residual clause
unconstitutionally vague. 135 S. Ct. 2551 (2015). In light of
a division among our sister circuits as to whether the residual
clause in Guidelines § 4B1.2(a)(2) is also void for vagueness,
we then requested supplemental briefing. Compare Ramirez
                        UNITED STATES V. LEE                                 7

v. United States, 799 F.3d 845, 856 (7th Cir. 2015) (acting
“on the assumption that the Supreme Court’s reasoning
applies to section 4B1.2 as well”); United States v.
Maldonado, — F. App’x —, 2016 WL 229833, *3 & n.1 (2d
Cir. Jan. 20, 2016) (holding the Guidelines clause void for
vagueness and collecting cases) with United States v.
Matchett, 802 F.3d 1185, 1193–95 (11th Cir. 2015) (rejecting
a vagueness challenge to § 4B1.2(a)(2) of the Guidelines).
Because we find that neither of Lee’s convictions would
qualify as a “crime of violence” under our pre-Johnson
caselaw, we need not address this constitutional question.2

  2
    Although the dissent argues that we should decide this constitutional
issue and ultimately adopt a new test to determine whether Lee’s
convictions are “crimes of violence” in a post-Johnson world, it declines
to adopt such a test, ultimately concluding that the offenses either may or
may not be “crimes of violence,” depending on which of two alternative
approaches is taken. But the task before us is not theory, but decision.
We must decide whether the residual clause enhancements were properly
applied to Lee’s sentence, not whether they could constitutionally apply
to some future hypothetical defendant. We also note that the Sentencing
Commission intends to remove the residual clause from § 4B1.2(a)(2),
effective August 1, 2016. See Amendment to the Sentencing Guidelines
(Preliminary), United States Sentencing Comm’n (Jan. 8, 2016),
http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-
friendly-amendments/20160108_RF.pdf. Because the government has
routinely conceded error in pending appeals involving the residual clause,
there therefore is little reason to speculate about a test for application of
the clause in future cases.

     And, unlike our dissenting colleague, we fail to see how Johnson
could have disadvantaged Lee. Johnson did not invalidate the use of the
categorical approach. See 135 S. Ct. at 2562 (“declin[ing] the dissent’s
invitation” to “jettison for the residual clause . . . the categorical approach
adopted in Taylor”) (citing Taylor v. United States, 495 U.S. 575,
599–602 (1990). If Lee’s convictions did not categorically constitute
crimes of violence before Johnson, it is impossible to understand how that
decision—which found a statute similar to the residual clause
8                       UNITED STATES V. LEE

    California Penal Code § 243.1 provides:

         When a battery is committed against the
         person of a custodial officer as defined in
         Section 831 of the Penal Code, and the person
         committing the offense knows or reasonably
         should know that the victim is a custodial
         officer engaged in the performance of his or
         her duties, and the custodial officer is engaged
         in the performance of his or her duties, the
         offense shall be punished by imprisonment
         ....

    Because § 243.1 is indivisible, we apply the pure
categorical approach in analyzing whether it qualifies as a
“crime of violence.” See United States v. Descamps, 133 S.
Ct. 2276, 2281 (2013). In determining whether an offense


unconstitutionally vague—somehow transformed those crimes into ones
that justify application of the Guidelines enhancement.

     We decline to decide whether Johnson’s reasoning extends to the
Sentencing Guidelines, because even if it does not, we are left with the
same result in this case: We must vacate and remand for resentencing
because Lee’s crimes are not categorical crimes of violence. Bearing in
mind the “cardinal principle of judicial restraint” that “if it is not necessary
to decide more, it is necessary not to decide more,” PDK Labs., Inc. v.
DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part
and concurring in the judgment), we decline the dissent’s invitation to
answer a constitutional question unnecessary to the disposition of this
case. Instead, we follow the guidance of the Supreme Court to avoid
deciding questions on constitutional grounds if the case is otherwise
determinable. See, e.g., Pearson v. Callahan, 555 U.S. 223, 241 (2009)
(citing Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (“The Court will not pass upon a constitutional question
although properly presented by the record, if there is also present some
other ground upon which the case may be disposed of.”)).
                   UNITED STATES V. LEE                       9

categorically qualifies as a crime of violence under the
residual clause, “we generally examine two criteria.” United
States v. Park, 649 F.3d 1175, 1177 (9th Cir. 2011). “First,
the conduct encompassed by the elements of the offense, in
the ordinary case, must present a serious potential risk of
physical injury to another.” Id. at 1177–78 (alteration and
internal quotation omitted). “Second, the state offense must
be ‘roughly similar, in kind as well as in degree of risk posed’
to those offenses enumerated at the beginning of the residual
clause—burglary of a dwelling, arson, extortion, and crimes
involving explosives.” Id. at 1178 (quoting Begay v. United
States, 553 U.S. 137, 143 (2011)). Both criteria must be
satisfied for a conviction to qualify as a crime of violence.
See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.
2013).

    Under California Penal Code § 242, simple battery “need
not involve any real violence,” and “the least touching may
constitute battery.” People v. Mesce, 60 Cal. Rptr. 2d 745,
756 (Ct. App. 1997) (alteration and quotation marks omitted).
The parties agree that a violation of California Penal Code
§ 243.1 requires no more force than a simple battery. But, the
government argues that because § 243.1 involves a battery
against a “custodial officer . . . in the performance of his or
her duties,” the “serious potential risk” requirement of
Guidelines § 4B1.2(a)(2) is met.

    The Fourth Circuit has persuasively rejected an identical
argument, holding that a conviction for violating a Virginia
statute prohibiting assault and battery on a police officer,
which “may be accomplished by the slightest touching or
without causing physical injury to another,” did not qualify as
a crime of violence under the Guidelines. United States v.
10                    UNITED STATES V. LEE

Carthorne, 726 F.3d 503, 514 (4th Cir. 2013).3 The Fourth
Circuit reasoned that “because this physical contact element
. . . may be satisfied in a relatively inconsequential manner,
that statute cannot, by reason of its elements, be viewed as
presenting a serious potential risk of physical injury.” Id.

    We agree. In doing so, we depart from the reasoning of
the First Circuit in United States v. Dancy, which upheld the
application of the Armed Career Criminal Act’s residual
clause based upon a Massachusetts conviction for battery on
a police officer. 640 F.3d 455, 470 (1st Cir. 2011). The First
Circuit relied on its earlier decision in United States v.
Williams, which held that “battery of an armed on-duty police
officer is a powder keg . . . which always has the serious
potential” to “explode into violence and result in physical
injury to someone.” 559 F.3d 1143, 1149 (1st Cir. 2009)
(citations and quotation marks omitted). Like the Fourth
Circuit, we reject the “powder keg” theory as a “disservice to
law enforcement officers,” who “can rely on their training
and experience to determine the best method of responding”
to a non-violent touching. Carthorne, 726 F.3d at 514.
Under the categorical approach, a crime which can be
accomplished by “minimal physical contact . . . does not
constitute an offense ‘that ordinarily induces an escalated
response from the officer that puts the officer and others at a
similar serious risk of injury’” when compared to arson or a
crime involving explosives. Id. at 515 & n.12 (quoting
United States v. Hampton, 675 F.3d 720, 731 (7th Cir. 2012)).
A conviction under § 243.1 is not for a categorical crime of
violence under the career offender enhancement.



 3
   The Virginia statute also covered battery against corrections officers.
Carthorne, 726 F.3d at 512 n.8.
                   UNITED STATES V. LEE                      11

                              B.

   California Penal Code § 69(a) punishes:

       Every person who attempts, by means of any
       threat or violence, to deter or prevent an
       executive officer from performing any duty
       imposed upon the officer by law, or who
       knowingly resists, by the use of force or
       violence, the officer, in the performance of his
       or her duty.

The alternative methods of violating § 69(a) “have been
called the ‘attempting to deter’ prong and the ‘actually
resisting an officer’ prong.” Flores-Lopez v. Holder,
685 F.3d 857, 862 (9th Cir. 2012) (quoting People v. Lopez,
29 Cal Rptr. 3d 586, 603 (Ct. App. 2005)). Because the
statute is divisible, we apply the modified categorical
approach to determine which prong of § 69(a) Lee violated.
See Descamps, 133 S. Ct. at 2283–85.

    Lee pleaded guilty to a criminal complaint alleging
violation of both prongs of § 69(a). But that plea did not
establish that he violated both prongs. “[U]nder the modified
categorical approach, when a conjunctively phrased charging
document alleges several theories of the crime, a guilty plea
establishes conviction under at least one of those theories, but
not necessarily all of them.” Young v. Holder, 697 F.3d 976,
986 (9th Cir. 2012) (“[W]hen either ‘A’ or ‘B’ could support
a conviction, a defendant who pleads guilty to a charging
document alleging ‘A and B’ admits only ‘A’ or ‘B.’”),
abrogated on other grounds by Moncrieffe v. Holder, 133 S.
Ct. 1678 (2013). Nor do the Shepard documents aid us in
determining which prong of this divisible statute Lee
12                    UNITED STATES V. LEE

violated. See Shepard v. United States, 544 U.S. 13, 16
(2005) (holding that courts may “generally” consider “the
statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented”). Thus, if violation of either prong of § 69(a) does
not constitute a categorical crime of violence, Lee’s
conviction under that statute cannot justify application of the
career offender enhancement.

    We have not directly addressed in a published opinion
whether a violation of the “actually resisting prong” of
§ 69(a) constitutes a “crime of violence” under the
§ 4B1.2(a)(2) residual clause. However, in Flores-Lopez, we
held that because the “actually resisting prong” of § 69(a)
may be satisfied by “de minimis force” and “does not by its
nature create a substantial risk that force will be used,” a
conviction under that prong is not a crime of violence under
18 U.S.C. § 16(b). 685 F.3d at 865. Section 16(b) defines a
“crime of violence” as a felony “that, by its nature, involves
a substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense.”4 The language of the § 4B1.2(a)(2) residual
clause is remarkably similar; it defines a crime of violence as
“conduct that presents a serious potential risk of physical
injury to another.” See United States v. Gomez-Leon,
545 F.3d 777, 788–89 (9th Cir. 2008) (noting that the


     4
       In Dimaya v. Lynch, this court concluded that § 16(b) is
unconstitutionally vague. 803 F.3d 1110, 1120 (9th Cir. 2015); see also
United States v. Hernandez-Lara, — F.3d —, 2016 WL 1239199, *1 (9th
Cir. Mar. 29, 2016) (per curiam) (applying Dimaya to U.S.S.G.
§ 2L1.2(b)(1)(C), which incorporated the § 16(b) definition of “crime of
violence”).
                      UNITED STATES V. LEE                            13

§ 4B1.2(a)(2) “serious risk of injury test resembles” the
§ 16(b) “substantial risk/use of force test,” and that “it is
unclear whether there is any meaningful difference between
the two risk-based approaches”). Consistent with our
reasoning in Flores-Lopez, we conclude that a conviction
under the “actually resisting prong” of § 69(a) does not
constitute a crime of violence under the residual clause. We
therefore need not consider whether a conviction under the
“attempting to deter prong” involves a residual-clause crime
of violence.

                                  IV.

    Neither Lee’s § 243.1 nor his § 69 conviction was for a
“crime of violence” as defined by the residual clause of
Guidelines § 4B1.2(a)(2). And, because Lee has only one
qualifying conviction, see Lee I, 704 F.3d at 792, the career
offender enhancement is not warranted. We therefore
VACATE Lee’s sentence and REMAND for resentencing.5




   5
      Although we differ in our approaches, we are gratified that our
colleague has also concluded that the appropriate disposition is to remand
for resentencing.
14                 UNITED STATES V. LEE

IKUTA, Circuit Judge, dissenting:

    The Ninth Circuit has a knack for disregarding the
Supreme Court. Sometimes it simply ignores the Supreme
Court. See Harrington v. Richter, 562 U.S. 86, 92 (2011)
(“[J]udicial disregard [for the Supreme Court’s habeas
jurisprudence] is inherent in the opinion of the Court of
Appeals for the Ninth Circuit here under review.”). Other
times it reads the decisions of the Supreme Court in such a
peculiar manner that no “fair-minded jurist” could agree. See
Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (“No fair-
minded jurist could think that [the Supreme Court case at
issue] clearly establishes that the enforcement of the Nevada
rule in this case is inconsistent with the Constitution.”).
Occasionally it even thinks it is the Supreme Court. See
Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (scolding the Ninth
Circuit for granting habeas relief based on its own precedent,
where AEDPA requires that a state court decision violate
clearly established federal law as established by the Supreme
Court, “not by the courts of appeals”). But this is the first
time I’ve seen the Ninth Circuit decide a criminal defendant’s
direct appeal based on law that the Supreme Court has just
overruled without even considering whether the new rule
applies.

    In Johnson v. United States, the Supreme Court held that
the residual clause in the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), was void for vagueness. 135 S.
Ct. 2551, 2557 (2015). In doing so, the Court overruled a
long line of cases interpreting both the ACCA residual clause
and identical language in the United States Sentencing
Guidelines, U.S.S.G. § 4B1.2. Johnson, 135 S. Ct. at
2558–60. Indeed, we vacated submission of this case until
the Supreme Court ruled because it was clear that the
                        UNITED STATES V. LEE                           15

Supreme Court’s decision in Johnson would control our
interpretation of the Guidelines residual clause. But now that
the Supreme Court has spoken, the majority simply covers its
ears and says “never mind.” Without reasoning or
explanation, the majority applies cases that the Supreme
Court has expressly overruled to decide Jason Lee’s claim
that his prior offenses do not qualify as “crime(s) of violence”
under § 4B1.2. Because we may not ignore a Supreme Court
decision that overrules almost a decade of case law, I dissent.

                                        I

    Before Johnson v. United States, we expressly relied on
the Supreme Court’s interpretation of the ACCA residual
clause to interpret the substantially identical residual clause
in § 4B1.2. See United States v. Spencer, 724 F.3d 1133,
1138 (9th Cir. 2013). ACCA requires courts to impose a
sentence of not less than 15 years on specified defendants
who have three previous convictions for a violent felony or a
serious drug offense or both. 18 U.S.C. § 924(e)(1). Section
924(e)(2)(B) defines “violent felony” to include a specified
crime that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.”1 The Supreme




 1
     18 U.S.C. § 924(e)(2)(B) states:

          [T]he term “violent felony” means any crime
          punishable by imprisonment for a term exceeding one
          year, or any act of juvenile delinquency involving the
          use or carrying of a firearm, knife, or destructive device
          that would be punishable by imprisonment for such
          term if committed by an adult, that—
16                   UNITED STATES V. LEE

Court interpreted this definition in four key cases: Sykes v.
United States, 564 U.S. 1 (2011); Chambers v. United States,
555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137
(2008); and James v. United States, 550 U.S. 192 (2007).

    Section 4B1.1 of the Guidelines likewise enhances the
sentences of career offenders who have two prior felony
convictions for a crime of violence. Using identical language
to ACCA, the Guidelines define “crime of violence” to
include an offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a)(2). Because the Guidelines and ACCA
use identical language, each of our cases interpreting § 4B1.2
relied on one or more of the four key Supreme Court cases
interpreting ACCA’s residual clause. See, e.g., Spencer, 724
F.3d at 1137–39; United States v. Park, 649 F.3d 1175,
1177–78 (9th Cir. 2011); United States v. Crews, 621 F.3d
849, 852–55 (9th Cir. 2010).

    In Johnson, the Supreme Court overruled its four cases
interpreting the ACCA residual clause because it concluded
that the clause was unconstitutionally vague. 135 S. Ct. at
2557–60. Johnson explained that the void-for-vagueness
doctrine is based on the Due Process Clause of the Fifth
Amendment. Id. at 2556–57. According to Johnson, “[t]he
Fifth Amendment provides that ‘[n]o person shall . . . be


        (i) has as an element the use, attempted use, or
        threatened use of physical force against the person of
        another; or

        (ii) is burglary, arson, or extortion, involves use of
        explosives, or otherwise involves conduct that presents
        a serious potential risk of physical injury to another
        ....
                    UNITED STATES V. LEE                      17

deprived of life, liberty, or property, without due process of
law,’” and “the Government violates this guarantee by taking
away someone’s life, liberty, or property under a criminal law
so vague that it fails to give ordinary people fair notice of the
conduct it punishes, or so standardless that it invites arbitrary
enforcement.” Id. at 2556 (citing Kolender v. Lawson,
461 U.S. 352, 357–58 (1983)). Although the Court initially
framed the void for vagueness doctrine as applying only to
substantive criminal laws, it later held the doctrine also
applied to mandatory sentencing statutes, because “vague
sentencing provisions may pose constitutional questions if
they do not state with sufficient clarity the consequences of
violating a given criminal statute.” United States v.
Batchelder, 442 U.S. 114, 123 (1979).

     Applying this doctrine, Johnson determined that the
ACCA residual clause was void for vagueness. First,
Johnson explained that “trying to derive meaning from the
residual clause” was a “failed enterprise,” and interpretations
of the clause amounted to little more than guesswork.
135 S. Ct. at 2560. Referencing the four Supreme Court
precedents interpreting the residual clause, Johnson described
them as “repeated attempts and repeated failures to craft a
principled and objective standard out of the residual clause
that confirm its hopeless indeterminacy.” Id. at 2558.
According to Johnson, courts have no reliable way to
estimate the risks posed by the defendant’s predicate offense,
id. at 2557–58, or to determine “how much risk it takes for a
crime to qualify as a violent felony,” id. at 2558. This
indeterminacy caused the two evils that trigger the void for
vagueness doctrine: (1) it “denie[d] fair notice to defendants”
and (2) it “invite[d] arbitrary enforcement by judges.” Id. at
2557. Accordingly, Johnson concluded that “imposing an
increased sentence under the residual clause of the Armed
18                 UNITED STATES V. LEE

Career Criminal Act violates the Constitution’s guarantee of
due process.” Id. at 2563. In light of this conclusion,
Johnson expressly overruled the Court’s prior interpretations
of the residual clause in Sykes, 564 U.S. 1, and James,
550 U.S. 192, 135 S. Ct. at 2563, and implicitly overruled
Chambers, 555 U.S. 122, and Begay, 553 U.S. 137, 135 S. Ct.
2558–60.

    In overturning these cases, Johnson necessarily overruled
the Ninth Circuit cases that relied on them. As we recognized
in Nunez-Reyes v. Holder, a decision to overrule long-
standing precedent also necessarily overrules “the same
holding in those cases that, bound by stare decisis, followed
the [previous] rule.” 646 F.3d 684, 690 (9th Cir. 2011) (en
banc); see also Smith v. Sumner, 994 F.2d 1401, 1405 (9th
Cir. 1993) (“[T]he [district] court relied on a case that was
subsequently overruled by the Supreme Court. Therefore, the
principle announced [by the overruled case] was no longer
good law at the time of Appellant’s lawsuit.”) (internal
citations omitted). And to the extent Johnson did not directly
overrule our cases, it “effectively overruled” them by
“undercut[ting] the[ir] theory or reasoning . . . in such a way
that the cases are clearly irreconcilable.” See Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

    The cases that the majority uses to interpret § 4B1.2 have
therefore been overruled, because each of them relied on the
Supreme Court cases that Johnson overturned. See Spencer,
724 F.3d at 1137–39; Park, 649 F.3d at 1177–78; United
States v. Carthorne, 726 F.3d 503, 513–14 (4th Cir. 2013).
“Where a legal doctrine is overruled by the Supreme Court,
[a court’s] error in applying that doctrine . . . is ‘plain.’”
United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004).
                   UNITED STATES V. LEE                      19

The majority commits exactly this plain error in relying on
precedent overruled by Johnson.

    The majority cannot explain away its reliance on
overruled case law by claiming to engage in constitutional
avoidance, Maj. op. at 7–8 n.2. In order to avoid a
constitutional question, a court must have “some other ground
upon which the case may be disposed of.” Pearson v.
Callahan, 555 U.S. 223, 241 (2009) (quoting Ashwander v.
TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).
The majority claims it can dispose of this case by applying
“pre-Johnson case law.” Maj. op. at 7. But since Johnson
has eliminated that prior case law, this “other ground” no
longer exists. The majority’s approach is not constitutional
avoidance, it is Supreme Court avoidance.

                               II

    By declaring the ACCA residual clause unconstitutional,
Johnson created “a new rule for the conduct of criminal
prosecutions” applicable to sentencing proceedings. See
United States v. Jordan, 256 F.3d 922, 928–29 (9th Cir. 2001)
(quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)).
Such rules must “be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no
exception.” Griffith, 479 U.S. at 328. Because Lee’s case
was pending on direct review at the time that Johnson was
decided, we are bound to consider whether Lee is entitled to
the benefit of Johnson’s new rule. See Dimaya v. Lynch,
803 F.3d 1110, 1112 (9th Cir. 2015) (considering how
Johnson applies to 8 U.S.C. § 16); cf. Welch v. United States,
136 S. Ct. 1257, 1265 (2016) (holding that Johnson applies
retroactively to ACCA cases on collateral review).
20                  UNITED STATES V. LEE

     It is not immediately obvious that Lee’s sentence should
be vacated because the Supreme Court’s void for vagueness
doctrine—which holds that a statute is void for vagueness if
it fails to give fair notice of the conduct it punishes or invites
arbitrary enforcement—is not directly applicable in the
Sentencing Guidelines context. A criminal statute violates
the “fair notice” requirement if it “fails to give a person of
ordinary intelligence fair notice that his contemplated conduct
is forbidden by the statute.” Colautti v. Franklin, 439 U.S.
379, 390 (1979) (internal quotation marks omitted). A statute
violates the “arbitrary enforcement” requirement if it is “so
indefinite that it encourages arbitrary and erratic arrests and
convictions.” Id. (quoting Papachristou v. Jacksonville,
405 U.S. 156, 162 (1972)) (internal quotation marks omitted).
In other words, “ordinary notions of fair play and settled rules
of law,” Johnson, 135 S. Ct. at 2557, are violated if police
officers, prosecutors, and judges are essentially “defining
crimes and fixing penalties” by filling in gaps in statutes.
United States v. Evans, 333 U.S. 483, 486 (1948). However,
the Due Process Clause is not violated when officials make
decisions that have been appropriately entrusted to their
discretion. For instance, in making charging decisions,
prosecutors may choose to charge a defendant with the
offense that carries the most onerous penalty, rather than a
substantially similar offense with lesser penalties, without
giving rise to due process concerns. Batchelder, 442 U.S. at
123–24.

    Unlike the mandatory sentencing schemes in Batchelder
and Johnson, the Sentencing Guidelines are merely advisory
and do not fix the penalty for any offense. See United States
v. Booker, 543 U.S. 220, 245 (2005). While courts must
“begin all sentencing proceedings by correctly calculating the
applicable Guidelines range,” Gall v. United States, 552 U.S.
                   UNITED STATES V. LEE                     21

38, 49 (2007) (citing Rita v. United States, 551 U.S. 338,
347–48 (2007)), and while the Guidelines provide a
framework and anchor for the court’s exercise of discretion,
see Molina-Martinez v. United States, 136 S. Ct. 1338,
1345–46 (2016), a district court has broad discretion to
impose a sentence inside or outside the recommended
Guidelines range and there is no presumption that a sentence
outside the range is unreasonable, Gall, 552 U.S. at 49.
“Overall, this system requires a court to give respectful
consideration to the Guidelines, but it permits the court to
tailor the sentence in light of other statutory concerns as
well.” Peugh v. United States, 133 S. Ct. 2072, 2080 (2013)
(internal quotation marks omitted).

    Because a district court is not strictly bound by the
Guidelines, but may exercise its discretion to impose a non-
Guidelines sentence within the statutory framework, neither
the fair notice concern nor the arbitrary enforcement concern
giving rise to the void for vagueness doctrine is applicable in
the Sentencing Guidelines context.

    First, the Supreme Court has made clear that the Due
Process Clause does not require a district court to give notice
to a defendant before imposing a sentence outside the
recommended Guideline range. See Irizarry v. United States,
553 U.S. 708, 713–14 (2008). As the Supreme Court
acknowledged, Irizarry marked a departure from the Court’s
pre-Booker analysis. Id. at 713. In Burns v. United States,
the Court had interpreted Rule 32 of the Federal Rules of
Civil Procedure as requiring a district court to notify a
defendant before sua sponte departing upward from an
applicable Guidelines sentencing range. 501 U.S. 129, 138
(1991). According to the Court, reading Rule 32 “to dispense
with notice” would require the Court “to confront the serious
22                    UNITED STATES V. LEE

question whether notice in this setting is mandated by the Due
Process Clause.” Id. But in Irizarry, the Court concluded
that interpreting Rule 32 as allowing the imposition of an
above-Guidelines sentence without notice would no longer
raise any Due Process Clause concern. See Irizarry, 553 U.S.
at 713. Rather, “[a]ny expectation subject to due process
protection at the time we decided Burns that a criminal
defendant would receive a sentence within the presumptively
applicable Guidelines range did not survive our decision in
[Booker].” Id. Once the Guidelines became merely advisory,
the Court reasoned, “neither the Government nor the
defendant may place the same degree of reliance on the type
of ‘expectancy’ that gave rise to a special need for notice in
Burns.” Id. at 713–14; see also United States v. Tichenor,
683 F.3d 358, 365 (7th Cir. 2012) (“Since the Guidelines are
merely advisory, defendants cannot rely on them to
communicate the sentence that the district court will
impose.”). Accordingly, the Court concluded that a district
court’s imposition of an above-Guidelines sentence without
giving notice to the defendant did not raise constitutional
concerns. Irizarry, 553 U.S. at 714.2

    This reasoning is equally applicable here. Because the
defendant no longer has a protected expectation of being
sentenced within the range recommended by the Guidelines,


  2
    Because Irizarry did not expressly overrule Burns, we remain bound
by its interpretation of Rule 32 as requiring a district court to give a
defendant notice of its decision of a departure from the Guidelines, where
“‘departure’ is a term of art under the Guidelines and refers only to non-
Guidelines sentences imposed under the framework set out in the
Guidelines.” United States v. Evans-Martinez, 530 F.3d 1164, 1169 (9th
Cir. 2008). We nevertheless recognized that “[i]n light of Irizarry, it is
arguable that the due process concerns that led to the promulgation of
Rule 32(h) are now equally inapplicable to sentencing departures.” Id.
                      UNITED STATES V. LEE                           23

and the Due Process Clause does not require notice to the
defendant that the district court intends to impose an above-
Guidelines sentence, any vagueness in the Guidelines that
could result in a higher recommended range does not give rise
to fair notice concerns under the Due Process Clause.3

    Nor is the arbitrary enforcement concern giving rise to the
constitutional void for vagueness doctrine applicable in the
Sentencing Guidelines context. Because Booker eliminated
the statutory provision making the Guidelines mandatory, a
district court is bound only by the sentencing range set by
Congress. While the Guidelines provide advice regarding the
types of sentences normally imposed by district courts “based
on extensive empirical evidence derived from the review of
thousands of individual sentencing decisions,” Gall, 552 U.S.
at 46, a district court must ultimately exercise its discretion in
imposing the sentence; there is no “unreasonableness
presumption for sentences outside the Guidelines range,” id.
at 38. Indeed, we do not even review whether a district court
correctly applied the Guidelines’ direction for when a
departure from a recommended range is appropriate, see
U.S.S.G. § 5K2.0, because the court “would be free on

   3
     For this reason, Booker and Irizarry supercede our pre-Booker
decisions in United States v. Gallagher, 99 F.3d 329, 334 (9th Cir. 1996)
and United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997). In
Gallagher and Johnson, we relied on Batchelder’s determination that
vague sentencing provisions that do not give defendants notice of the
consequences of violating a criminal statute may violate the Due Process
Clause, and held that a defendant could challenge a provision of the
Guidelines on the ground that it was unconstitutionally vague. Gallagher,
99 F.3d at 334; Johnson, 130 F.3d at 1354. Such concerns are no longer
applicable after Booker, as explained in Irizarry. Booker therefore
“undercut the theory or reasoning underlying” our decisions in Gallagher
and Johnson “in such a way that the cases are clearly irreconcilable.”
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
24                 UNITED STATES V. LEE

remand to impose exactly the same sentence by exercising his
discretion under the now-advisory guidelines,” United States
v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006). Given that
a district court’s interpretation of a Guidelines provision is
not “fixing penalties” in a manner that trenches on the
authority given to Congress, Evans, 333 U.S. at 486, and
instead constitutes an exercise of the court’s proper
discretion, any vagueness in the Guidelines provisions does
not increase the due process risk of arbitrary enforcement, see
Batchelder, 442 U.S. at 123; Cf. Mistretta v. United States,
488 U.S. 361, 395 (1989) (“Indeed, because the Guidelines
have the effect of promoting sentencing within a narrower
range than was previously applied, the power of the Judicial
Branch is, if anything, somewhat diminished by the Act.”).

    In light of the fact that the discretionary Sentencing
Guidelines do not raise the same constitutional concerns as
mandatory sentencing provisions, I would conclude that any
vagueness in the § 4B1.2 residual clause does not violate the
Due Process Clause. Therefore, the reasoning in Johnson is
not directly applicable to the Guidelines and the Guidelines
residual clause is not void for vagueness, even though
Johnson overrules our cases that previously interpreted
§ 4B1.2. This conclusion is consistent with the holdings of
five sister circuits that the Guidelines are not susceptible to
due process vagueness challenges. See United States v. Ellis,
— F.3d —, 2016 WL 859936, at *2–3 (8th Cir. 2016) (citing
United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990));
United States v. Matchett, 802 F.3d 1185, 1193–95 (11th Cir.
2015); Tichenor, 683 F.3d at 365; United States v. Smith,
                      UNITED STATES V. LEE                            25

73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson,
910 F.2d 221, 223 (5th Cir. 1990).4

                                   III

    Because the Guidelines residual clause is not void for
vagueness, we must still address whether Lee’s convictions
under sections 69 and 243.1 of the California Penal Code
constitute crimes of violence under the Guidelines residual
clause. Contrary to the majority, see Maj. op. at 7–8 n.2, we
need not decide this question in the first instance. As the
Supreme Court did in Welch, we may appropriately remand
to the district court to consider whether “other grounds” exist
to impose the Guidelines career offender enhancement that do
not rely on the Supreme Court’s prior residual clause cases.
136 S. Ct. at 1268. If we reached the issue, however, I would
hold that given the residual clause’s inscrutability in the
ACCA context, application of the residual clause would
violate the Supreme Court’s instruction that the district court
“begin all sentencing proceedings by correctly calculating the


 4
   The reasoning of circuits that have invalidated the Guidelines residual
clause under Johnson is unpersuasive because those circuits failed to
consider the purpose of the due process void for vagueness doctrine. See
United States v. Madrid, 805 F.3d 1204, 1210–11 (10th Cir. 2015); see
also United States v. Maldonado, 2016 WL 229833, at *3 & n.1 (2d Cir.
Jan. 20, 2016); United States v. Goodwin, 2015 WL 5167789, at *3 (10th
Cir. Sept.4, 2015). These cases applied Johnson’s void for vagueness
analysis to the Guidelines without adequately examining whether such due
process concerns apply in this different context, and without grappling
with Irizarry’s ruling that a defendant does not have an “expectation
subject to due process protection that he will be sentenced within the
Guidelines range.” Peugh, 133 S. Ct. at 2085 (Sotomayor, J., plurality
opinion). The opinions in United States v. Maurer, 639 F.3d 72, 77 (3d
Cir. 2011) and United States v. Savin, 349 F.3d 27, 38–39 (2d Cir. 2003),
which were decided before Irizarry, fail for the same reason.
26                  UNITED STATES V. LEE

applicable Guidelines range,” Gall, 552 U.S. at 49 (citing
Rita, 551 U.S. at 347–48). If Johnson so undermines the
residual clause that it cannot be accurately interpreted, a
district court would commit a procedural error and abuse its
discretion if it used the Guidelines residual clause to calculate
the Guidelines range. See Molina-Martinez, 136 S. Ct. at
1349; see also United States v. Munoz-Camarena, 631 F.3d
1028, 1030 (9th Cir. 2011).

     The one thing that we cannot do, however, is rely on
precedent that has been overruled and effectively rendered
non-existent by the Supreme Court. Indeed, the Supreme
Court has made clear that pre-Johnson case law cannot be
applied even in cases pending on habeas review. Welch,
136 S. Ct. at 1265. By relying on overruled precedent and
failing to consider whether Lee is entitled to the benefit of
Johnson’s new rule, the majority fails to rise to the challenge
of deciding this case in a post-Johnson world. I dissent.
