                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   September 4, 2015
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 13-1466
                                              (D.C. No. 1:12-CR-00100-MSK-1)
 RANDY GOODWIN,                                           (D. Colo.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.


      Randy Goodwin was convicted of being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1) and of distributing methamphetamine in

violation of 21 U.S.C. § 841(a)(1). On appeal, Mr. Goodwin contends that his

sentencing range, calculated pursuant to the United States Sentencing Guidelines

(“U.S.S.G.” or “the Guidelines”), was incorrectly adjusted upward because his

prior conviction for first-degree criminal trespass under Colo. Rev. Stat. § 18-4-

502 was not a “crime of violence” within the meaning of U.S.S.G.



      *
             This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
§ 2K2.1(a)(4)(A). Exercising our jurisdiction under 18 U.S.C. § 3742 and 28

U.S.C. § 1291, we reverse the district court’s sentencing order and remand the

case with instructions to re-sentence Mr. Goodwin without the crime-of-violence

enhancement.

                                          I

      The sole question before us is whether Mr. Goodwin’s prior Colorado

criminal-trespass offense constitutes a crime of violence under the so-called

residual clause of U.S.S.G. § 4B1.2(a)(2), see, e.g., United States v. Duran, 696

F.3d 1089, 1091 (10th Cir. 2012) (resolving dispute involving the “residual

clause”); this Guidelines provision supplies the controlling crime-of-violence

definition for U.S.S.G. § 2K2.1(a)(4)(A)—the specific Guidelines section

applicable to Mr. Goodwin and under which the district court enhanced his

sentence. Under this residual clause, a prior offense may qualify as a crime of

violence if it “otherwise involves conduct that presents a serious potential risk of

physical injury to another.” U.S.S.G. § 4B1.2(a)(2). 1

      1
             In fuller form, U.S.S.G. § 4B1.2(a) provides:

             The term “crime of violence” means 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
                                                                         (continued...)

                                          2
      In its answer brief, the government—the party that bears the burden of

proof regarding the enhancement, see, e.g., United States v. Thomas, 749 F.3d

1302, 1317 (10th Cir. 2014); United States v. Gambino-Zavala, 539 F.3d 1221,

1228 (10th Cir. 2008)—vigorously argued that Mr. Goodwin’s offense qualified

as a crime of violence under § 4B1.2(a)(2)’s residual clause. However, in light of

the Supreme Court’s recent decision in Johnson v. United States, --- U.S.

----, 135 S. Ct. 2551, 2563 (2015)—which was issued after all briefing had

initially concluded in this case—the government has abandoned this position.

      In Johnson, the Court held that “imposing an increased sentence under the

residual clause of the Armed Career Criminal Act[, or “ACCA,”] violates the

Constitution’s guarantee of due process.” Johnson, 135 S. Ct. at 2563. More

specifically, the Court explained that a “combin[ation of] indeterminacy about

how to measure the risk posed by a crime with indeterminacy about how much

risk it takes for the crime to qualify as a violent felony” rendered the ACCA’s

residual clause unconstitutionally void for vagueness. Id. at 2558; see also

United States v. Snyder, 793 F.3d 1241, 1246 (10th Cir. 2015) (stating, in an




      1
          (...continued)
                      use of explosives, or otherwise involves conduct that
                      presents a serious potential risk of physical injury to
                      another.

Id. § 4B1.2(a) (emphasis added).

                                          3
ACCA case, “Johnson is binding on us[;] . . . . the Court’s opinion is clear that

applying the residual clause violates due process in all instances”).

      The language of the ACCA’s now-void residual clause is essentially

identical to the language of U.S.S.G. § 4B1.2(a)(2)’s residual clause—the

language upon which Mr. Goodwin’s sentencing enhancement is effectively

predicated. To be sure, Johnson does not directly address § 4B1.2(a)(2). And we

have never resolved in the context of § 4B1.2(a)(2)’s residual clause a vagueness

challenge like the one adjudicated in Johnson. However, we repeatedly “have

applied the Supreme Court’s ACCA . . . analysis in cases interpreting § 4B1.2’s

definition of ‘crime of violence.’” United States v. Wray, 776 F.3d 1182, 1185

(10th Cir. 2015); accord United States v. Maldonado, 696 F.3d 1095, 1099 n.3

(10th Cir. 2012); United States v. McConnell, 605 F.3d 822, 828 (10th Cir. 2010).

Given this linguistic and jurisprudential symmetry between the two residual

clauses, we recognized here that Johnson presented at the very least a question

regarding whether U.S.S.G. § 4B1.2(a)(2)’s residual clause should also be deemed

unconstitutionally vague, like the ACCA’s residual clause in Johnson.

Accordingly, we sought the parties’ views through supplemental briefing

regarding the impact (if any) of Johnson’s ACCA residual-clause holding on our

resolution of this case.

      In its supplemental brief, the government “concedes, in light of Johnson,

that Mr. Goodwin’s criminal trespass conviction may no longer be deemed a

                                          4
crime of violence.” Aplee. Supp. Br. at 5. Not surprisingly, in his corresponding

supplemental brief, Mr. Goodwin agrees. See Aplt. Supp. Br. at 1 (noting that

“Johnson compels the conclusion that the residual clause of the Guidelines at

issue in this case is unconstitutionally vague”). The government does note,

however, that Mr. Goodwin failed to object before the district court to his crime-

of-violence enhancement on the vagueness ground undergirding Johnson’s

holding. See Aplee. Supp. Br. at 4. Accordingly, the government contends that

any vagueness challenge by Mr. Goodwin to § 4B1.2(a)(2)’s residual clause is

forfeited and subject only to plain-error review on appeal. See id. Mr. Goodwin

had an opportunity to contest the government’s plain-error assertion in an

optional reply brief, but he did not file one and thus has failed to do so. Morever,

the government’s reading of the district court record is consistent with our

own—viz., we discern no indication in the record that Mr. Goodwin ever alleged

that U.S.S.G. § 4B1.2(a)(2)’s residual clause is unconstitutionally vague.

       Accordingly, Mr. Goodwin’s current vagueness attack based on Johnson is

indeed forfeited for failure to initially raise it before the district court, see, e.g.,

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011), and it must

be reviewed under our ordinarily “rigorous plain-error standard of review.”

United States v. McGehee, 672 F.3d 860, 876 (10th Cir. 2012). “Under the plain

error standard, Mr. [Goodwin] must demonstrate: ‘(1) an error, (2) that is plain,

which means clear or obvious under current law, and (3) that affects substantial

                                             5
rights. If he satisfies these criteria, this Court may exercise discretion to correct

the error if [4] it seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.

2011) (quoting United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007)).

      In light of the government’s further concessions, the stringency of the

plain-error standard is ultimately of little moment. Specifically, the government

concedes that “there is error and that the error is plain” and, furthermore, that

“this error affected Mr. Goodwin’s substantial rights and that failure to correct

the error would seriously affect the fairness of these proceedings.” Aplee. Supp.

Br. at 5. Although we are not bound by the government’s concessions, see, e.g.,

United States v. Hoyle, 697 F.3d 1158, 1167 (10th Cir. 2012), there is no obvious

reason for us to question them under the circumstances of this case, see, e.g.,

United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014).

      The parties’ briefing does not provide a useful platform for an extensive

analysis of the plain-error issue stemming from Johnson; therefore, prudence

counsels that we do no more than adumbrate our rationale for the specific purpose

of resolving this case. In this regard, as noted, the language of § 4B1.2(a)(2)’s

residual clause is essentially identical to the language of the ACCA’s residual

clause, which the Supreme Court declared void for vagueness in Johnson.

Therefore, the district court’s reliance on § 4B1.2(a)(2)’s residual clause in

enhancing Mr. Goodwin’s sentence was error and also seemingly clearly or

                                            6
obviously so. 1 Furthermore, it is undisputed that Mr. Goodwin’s advisory

Guidelines range—absent the crime-of-violence enhancement—would very likely

provide for not only a lesser advisory Guidelines imprisonment range, but also a

significantly lesser one. Consequently, there is a cogent argument that Mr.

Goodwin has been prejudiced by the district court’s apparent sentencing error and

that this error—if permitted to stand—would seriously affect the fairness of his

proceedings. See, e.g., United States v. Mendoza, 698 F.3d 1303, 1310 (10th Cir.

2012); United States v. Mullins, 613 F.3d 1273, 1294 (10th Cir. 2010).

      Thus, under the circumstances of this case, where the government has

unequivocally conceded reversible error under the plain-error standard, and this

conclusion is not patently incorrect, we summarily reverse and remand for re-

sentencing. In this regard, we underscore that we are in the business of resolving

disputes, not creating them. 2 See, e.g., Greenlaw v. United States, 554 U.S. 237,

      1
              We note that, where the question is one of statutory or regulatory
interpretation, an error may be clear or obvious (that is, plain) even if, as here,
there are no Supreme Court or Tenth Circuit cases that have directly opined on
the question. See, e.g., United States v. Poe, 556 F.3d 1113, 1129 (10th Cir.
2009); United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003). Indeed,
even if there is a split among our sister circuits on the interpretive question, that
would not necessarily prevent us from concluding that the district court’s
resolution of the question was clear or obvious error. Cf. United States v.
Ahidley, 486 F.3d 1184, 1193 n.7 (10th Cir. 2007) (“[W]e do not believe the
presence of contrary circuit authority should control our determination of whether
the district court’s error was plain.”).
      2
             We recognize that there is a split among the circuits on an important
question that is logically antecedent to the specific question of whether Johnson’s
                                                                       (continued...)

                                          7
243 (2008) (noting adherence to the “principle of party presentation[,] . . . .

rely[ing] on the parties to frame the issues for decision”); Utah Poultry Producers

Co-op. v. Union Pac. R. Co., 147 F.2d 975, 977 (10th Cir. 1945) (“[I]t is not

necessary for us to decide this [issue], because this is not the issue as framed by

the parties.” (emphasis added)).



      2
        (...continued)
ACCA holding ineluctably leads to the conclusion that the essentially identical
residual clause of U.S.S.G. § 4B1.2(a)(2) is unconstitutional. Specifically, that
question is whether the void-for-vagueness doctrine, which Johnson employed,
applies to the Guidelines at all. We have expressly recognized that “there is a
conflict among the circuits as to whether the sentencing guidelines may be
challenged on vagueness grounds.” United States v. Bennett, 329 F.3d 769, 777
n.6 (10th Cir. 2003); see, e.g., United States v. Tichenor, 683 F.3d 358, 365 n.3
(7th Cir. 2012) (rejecting application of the vagueness doctrine and collecting
cases); United States v. Negri, 173 F.3d 865, 1999 WL 157423, at *5 (10th Cir.
1999) (unpublished table case) (collecting cases). Our court has not yet
definitively opined on whether the Guidelines can ever be subject to a void-for-
vagueness challenge. See Bennett, 329 F.3d at 777 n.6 (noting that “[o]ur circuit
has not yet decided the question” of whether the void-for-vagueness doctrine is
applicable to the Guidelines). However, we arguably have assumed that the
vagueness doctrine applies, not only to statutory provisions, but also to
Guidelines provisions. See, e.g., United States v. Kelly, 1 F.3d 1137, 1142–43
(10th Cir. 1993) (rejecting a defendant’s contention that a Guidelines provision is
“unconstitutionally vague on its face”); United States v. Easter, 981 F.2d 1549,
1558 (10th Cir. 1992) (assuming that the Guidelines provisions, along with the
appropriate statutes, can “give notice as to what conduct is prohibited”); see also
United States v. Thurmond, 7 F.3d 947, 951 (10th Cir. 1993) (“[I]n Easter, we
held that 21 U.S.C. § 841(b)(1) and U.S.S.G. § 2D1.1 are not void for
vagueness.” (emphasis added) (citation omitted)); United States v. Turner, 928
F.2d 956, 960 (10th Cir. 1991) (same assumption). The government offers no
more than a skeletal argument on this matter, see Aplee. Supp. Br. at 8–9, and
Mr. Goodwin does not address it at all. Under the circumstances of this case,
including the meager briefing by the parties, we decline to pursue this antecedent
matter.

                                           8
                                        II

      For the reasons stated, we REVERSE the district court’s sentencing order

and REMAND the case to the district court. We instruct the district court to re-

sentence Mr. Goodwin without the crime-of-violence enhancement and to conduct

other necessary proceedings consistent with this order and judgment.




                                             Entered for the Court


                                             JEROME A. HOLMES
                                             Circuit Judge




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