                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 18a0102n.06

                                             No. 17-5789

                                                                                    FILED
                            UNITED STATES COURT OF APPEALS                         March 1, 2018
                                 FOR THE SIXTH CIRCUIT                    DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )   ON APPEAL FROM THE UNITED
                                                      )   STATES DISTRICT COURT FOR THE
RUSSELL L. SUBLETT,                                   )   WESTERN DISTRICT OF KENTUCKY
                                                      )
        Defendant-Appellee.                           )
                                                      )



BEFORE:         DAUGHTREY, GIBBONS, WHITE, Circuit Judges.

        MARTHA CRAIG DAUGHTREY, Circuit Judge.                   Defendant Russell Sublett was

convicted of numerous violent felonies and firearms offenses and was sentenced to serve 1,680

months (140 years) in prison. He now appeals, arguing that his sentence is improper because the

United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), by

analogy, rendered unconstitutional the residual clause of the career-offender provisions of the

United States Sentencing Guidelines under which his sentence was calculated. We find no merit

to Sublett’s contention and affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

        In Sublett’s prior appeal to this court, we summarized the relevant facts and procedural

history to that point in the litigation as follows:

        Sublett engaged in a multi-day stand-off at the house of his former employer,
        during which Sublett shot numerous times at state and federal law enforcement
No. 17-5789, United States v. Sublett


       officers. As a result of his actions, Sublett was charged with seven counts of
       attempted murder of federal officers engaged in their official duties or persons
       assisting those federal officers in violation of 18 U.S.C. § 1114; one count of
       carjacking in violation of 18 U.S.C. § 2119; eight counts of using, carrying,
       brandishing, and discharging firearms during, and in relation to, the attempted
       murders and carjacking in violation of 18 U.S.C. § 924(c)(1)(A)(iii); one count of
       possessing a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871;
       one count of being a felon in possession of firearms in violation of 18 U.S.C.
       §§ 922(g)(1) and 924(e)(1); and one count of possessing firearms while subject to
       a domestic violence order in violation of 18 U.S.C. §§ 922(g)(8) and 924(e)(1).
       Sublett pleaded guilty to being a felon in possession of firearms and possessing
       firearms while subject to a domestic violence order. He proceeded to trial on the
       remaining charges. Sublett was acquitted of two of the attempted murder counts,
       three of the § 924(c) counts, and the sawed-off shotgun count. He was convicted
       of five of the attempted murder counts, five of the § 924(c) counts, and the
       carjacking count. Sublett was sentenced to a total of 140 years of imprisonment
       and three years of supervised release.

United States v. Sublett, No. 07-5668, at 1–2 (6th Cir. Jul. 22, 2008) (order). When sentencing

Sublett in 2007, the district court referenced both the provisions of the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e)(1), and the career-offender provisions of § 4B1.1 of the

Guidelines. In doing so, however, the district court applied the career-offender provisions of the

2003 Guidelines because use of the 2007 Guidelines “in effect on the date the defendant [was]

sentenced would [have] violate[d] the ‘ex post facto clause’ of the U.S. Constitution.” On

appeal, we affirmed the judgment of the district court.

       In the aftermath of the Supreme Court decisions in Johnson (holding unconstitutionally

vague the provisions of the “residual clause” of the ACCA) and Welch v. United States, 136 S.

Ct. 1257, 1268 (2016) (holding Johnson retroactively applicable to cases on collateral review),

Sublett filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct that portion of

his sentence that was enhanced by reference to prior convictions that no longer can be considered

“violent felonies.” A magistrate judge recommended granting that motion, and the district court




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No. 17-5789, United States v. Sublett


adopted the recommendation, vacated the sentences imposed for two of Sublett’s convictions,

and set the matter for resentencing.

       In June 2017, the district court conducted a second sentencing hearing and again relied

upon the 2003 version of the Sentencing Guidelines when determining the appropriate

punishment to be imposed upon Sublett. Although the district court agreed with Sublett that he

no longer qualified as an armed career criminal—and thus was entitled to a reduction in his

sentence for the illegal-gun-possession crimes from 180 months to 120 months—the court

concluded that Sublett still was a career offender under § 4B1.1(a) of the Guidelines. The

district court thus once again concluded that, even with the reduction in sentence for the illegal-

gun-possession crimes, an effective prison sentence of 1,680 months was “sufficient, but not

greater than necessary, to comply with the purposes of sentencing.”              From that 2017

determination, Sublett now appeals.

                                         DISCUSSION

       On appeal, Sublett argues that the district court erred in referencing the career-offender

provisions of § 4B1.1 of the Guidelines when resentencing him because the definition of a

“crime of violence” contained in the former version of § 4B1.2(a)(2) of the Guidelines included a

residual clause identical to the residual clause of the ACCA that was found to be void for

vagueness in Johnson. In making that argument, Sublett acknowledges, as he must, that the

Supreme Court’s subsequent decision in Beckles v. United States, 137 S. Ct. 886 (2017), held

that, because “the advisory Guidelines do not fix the permissible range of sentences,” id. at 892

(emphasis added), and because “they merely guide the exercise of a court’s discretion in

choosing an appropriate sentence within the statutory range,” id., “the advisory Sentencing

Guidelines are not subject to a vagueness challenge under the Due Process Clause and that



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No. 17-5789, United States v. Sublett


§ 4B1.2(a)’s residual clause is not void for vagueness.” Id. at 895 (emphasis added). Sublett

contends, however, that he was sentenced—both in 2007 and in 2017—under what were

considered mandatory Guidelines and that Beckles did not address potential due process

problems posed by versions of the Guidelines that were considered mandatory.

       It is true that the majority opinion in Beckles scrupulously limited its discussion to the

advisory Guidelines mandated by the Court’s decision in United States v. Booker, 543 U.S. 220

(2005). Furthermore, in her concurring opinion in Beckles, Justice Sotomayor specifically stated,

“The Court’s adherence to the formalistic distinction between mandatory and advisory rules at

least leaves open the question whether defendants sentenced to terms of imprisonment before our

decision in [Booker] may mount vagueness attacks on their sentences.” Beckles, 137 S. Ct. 903

n.4 (Sotomayor, J., concurring). Citing that concurrence, we also have recognized that “whether

[Johnson] applies to the mandatory guidelines . . . is an open question.” Raybon v. United

States, 867 F.3d 625, 629 (6th Cir. 2017) (emphasis added).

       Into that breach ventures Sublett, arguing that, because the district court in this case

sentenced him using the pre-Booker, mandatory 2003 Guidelines, he should be able to take

advantage of the relief offered by Johnson. As already noted, the district court indeed did

reference the 2003 Guidelines when sentencing, and then resentencing, Sublett; however, the

district court opted for use of those Guidelines only because of the ex post facto problem posed

by application of the 2007 version of the Guidelines. Moreover, even though the district court

relied upon the substantive provisions of the pre-Booker Guidelines, it made clear during both

the 2007 and 2017 sentencing proceedings that it was treating those Guidelines as advisory only.

During the 2007 hearing, for example, not only did Sublett’s own attorney refer to a

“[G]uideline[s] sentence, which is only advisory,” but the district court, on seven separate



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No. 17-5789, United States v. Sublett


occasions, referred to the “advisory” Guidelines and twice stated that it based its sentencing

decision on consideration of the “advisory [G]uidelines.” (Emphasis added.) During the 2017

resentencing hearing, the district court referred to the Guidelines as being advisory six more

times, including beginning its explanation of its sentencing decision with the phrase, “The Court,

having considered the advisory [S]entencing [G]uidelines . . . .”

       Both Sublett’s 2007 sentencing and his 2017 resentencing occurred after the Supreme

Court’s Booker decision that directed district courts to treat the Sentencing Guidelines as

advisory only. Even though ex post facto considerations forced the district court to apply pre-

Booker Guidelines, the district court clearly and unambiguously indicated that it viewed those

Guidelines provisions as advisory, not mandatory. As a result, the rulings in Beckles and Raybon

dictate that the protections afforded by Johnson to defendants sentenced under the ACCA’s

residual clause cannot be extended to Sublett, who was sentenced as a career offender under an

advisory Guidelines scheme.

                                         CONCLUSION

       We thus AFFIRM the judgment of the district court.




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