                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1261
                         ___________________________

                              United States of America,

                         lllllllllllllllllllll Plaintiff - Appellee,

                                             v.

                                    Leonard S. Ellis,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: November 16, 2015
                               Filed: March 7, 2016
                                  ____________

Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
                        ____________

COLLOTON, Circuit Judge.

       Leonard Ellis pleaded guilty to unlawful possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district
court1 sentenced him to sixty-one months’ imprisonment. Ellis reiterates on appeal

      1
      The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
a claim of procedural error at sentencing that was rejected by the district court. He
also advances two new challenges to the sentence that are raised for the first time in
this court. We conclude that the district court ruled correctly on the first argument,
and that neither of the forfeited arguments establishes a plain error warranting relief.
We therefore affirm the judgment.

       At sentencing, the district court calculated an advisory sentencing range for
Ellis. Under USSG § 2K2.1, the base offense level for an offender convicted as a
felon in possession of a firearm depends in part on his criminal history. If Ellis
sustained a prior felony conviction for a crime of violence, then his base offense level
is 20. Without a prior conviction for a crime of violence, his base offense level would
be 14. The district court found that Ellis’s prior felony conviction for resisting arrest
by fleeing, in violation of Mo. Rev. Stat. § 575.150, was a “crime of violence” within
the meaning of USSG § 4B1.2(a) and applied the higher offense level. Given a base
offense level of 20, a three-level reduction for acceptance of responsibility, and a
criminal history category of VI, the court determined an advisory sentencing range
of 51 to 63 months’ imprisonment. After considering the factors set forth in 18
U.S.C. § 3553(a), the court sentenced Ellis to 61 months.

       Ellis objected to the district court’s finding on the ground that his prior offense
of conviction for resisting arrest by fleeing in Missouri is not categorically a crime
of violence. The district court relied on the residual clause of § 4B1.2(a)(2), which
defines “crime of violence” to include any offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to another.” Ellis contends that
a person can violate § 575.150 by “fleeing from [an] officer,” and that some
violations—such as merely fleeing on foot—would not present a sufficient risk of
injury to be crimes of violence.

       In United States v. Hudson, 577 F.3d 883 (8th Cir. 2009), however, this court
held that a felony violation of § 575.150 is categorically a crime of violence. Because

                                           -2-
one element of a felony violation requires proof that the defendant’s flight created a
“substantial risk of serious physical injury,” we concluded that the offense necessarily
“presents a serious potential risk of physical injury to another” within the meaning
of § 4B1.2(a)(2). Id. at 885-86; accord United States v. Hollis, 447 F.3d 1053, 1054-
55 (8th Cir. 2006) (per curiam). Any flight that does not present a substantial risk of
serious injury constitutes only a misdemeanor under the statute. Mo. Rev. Stat.
§ 575.150(5). Therefore, the district court correctly overruled Ellis’s objection.

       Ellis, relying on Johnson v. United States, 135 S. Ct. 2551 (2015), argues for
the first time on appeal that the residual clause of § 4B1.2(a)(2) is unconstitutionally
vague, and that the court’s finding of a prior crime of violence under the residual
clause is therefore erroneous. Johnson held that a similarly worded residual clause
in 18 U.S.C. § 924(e), which affected the statutory minimum and maximum penalties
for a defendant, is unconstitutionally vague. Id. at 2557. The government responds
that Ellis’s claim was forfeited and thus should be reviewed under the plain-error
standard. Gov’t Supp. Br. 5; see Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 732 (1993). The government agrees with Ellis that the residual clause is
unconstitutionally vague, but argues that Ellis cannot show a reasonable probability
that he would have received a lighter sentence even if the court had applied a lower
base offense level under the advisory guidelines.

       We conclude that if there was error in applying the residual clause to Ellis’s
prior conviction, then the error is not “obvious” or “plain,” and relief is not warranted
under the plain-error standard of review. Although the government agrees with
Ellis’s argument that the holding of Johnson applies to the residual clause of
§ 4B1.2(a)(2), the government’s concession is not conclusive. United States v. Dawn,
685 F.3d 790, 795 (8th Cir. 2012). Whether a vague advisory sentencing guideline
could violate the Due Process Clause is an open question in this circuit, and the
answer is not obvious.



                                          -3-
       This court held in United States v. Wivell, 893 F.2d 156 (8th Cir. 1990), that
the guidelines “are simply not susceptible to a vagueness attack.” Id. at 159; see also
United States v. Tichenor, 683 F.3d 358, 363-65 (7th Cir. 2012); United States v.
Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221,
223 (5th Cir. 1990). Recently, this court concluded that the “reasoning in Wivell that
the guidelines cannot be unconstitutionally vague because they do not proscribe
conduct is doubtful after Johnson.” United States v. Taylor, 803 F.3d 931, 933 (8th
Cir. 2015). But Taylor did not decide whether the guideline is unconstitutionally
vague and did not address other reasoning in Wivell, to wit: “Because there is no
constitutional right to sentencing guidelines—or, more generally, to a less
discretionary application of sentences than that permitted prior to the Guidelines—the
limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s
right to due process by reason of being vague.” Wivell, 893 F.2d at 160. Nor did
Taylor consider the reasoning of United States v. Matchett, 802 F.3d 1185, 1193-96
(11th Cir. 2015), where the Eleventh Circuit held after Johnson that the residual
clause of § 4B1.2(a)(2) is not unconstitutionally vague. Instead, Taylor “le[ft] for the
district court on remand the question of whether the residual clause of the career
offender guideline is unconstitutional.” 803 F.3d at 933.

       If it were obvious that the guidelines are susceptible to a constitutional
vagueness challenge and that the residual clause of § 4B1.2(a)(2) is unconstitutional,
then it seems unlikely that this court in Taylor would have left the question open for
consideration by the district court in that case. See also United States v. Benedict,
No. 14-3412, slip op. at 12 (8th Cir. Mar. 2, 2016) (assuming without deciding that
Johnson applies to the residual clause in the sentencing guidelines). Whatever the
dissent believes that Taylor “necessarily” concluded, post, at 9, the opinion by its
terms did not apply plain-error review and did not identify an error, much less an
obvious error, in applying the residual clause of § 4B1.2(a)(2). See Webster v. Fall,
266 U.S. 507, 522 (1925) (“Questions which merely lurk in the record, neither
brought to the attention of the court nor ruled upon, are not to be considered as

                                          -4-
having been decided as to constitute precedents.”); Prince v. Kids Ark Learning Ctr.,
622 F.3d 992, 995 n.4 (8th Cir. 2010) (per curiam) (“[U]nstated assumptions on non-
litigated issues are not precedential holdings binding future decisions.”) (internal
quotation omitted). Without rehearsing all of the arguments for and against applying
the vagueness doctrine to the advisory guidelines, it is sufficient to say that the
answer is not obvious or plain. Ellis is therefore not entitled to relief based on
Johnson.2

        Ellis also argues for the first time on appeal that the district court erred by
considering his prior conviction for resisting arrest by fleeing because it was not a
conviction for which he received criminal history points under USSG § 4A1.1(a), (b),
or (c). When determining a defendant’s base offense level for unlawful possession
of a firearm, the sentencing court should consider only prior sentences for which the
defendant received criminal history points. USSG § 2K2.1, comment. (n.10). Ellis
reasons that when a defendant receives concurrent sentences for two prior offenses,
only the “longest sentence of imprisonment” counts as a prior sentence for which
points are assessed. See USSG § 4A1.2(a)(2). And he contends that because his
conviction for resisting arrest by fleeing was sentenced concurrently with a
conviction for tampering with a motor vehicle and the term for both offenses was the
same, the sentence for resisting arrest by fleeing was not the “longest sentence of
imprisonment.”

      2
        Taylor does not explain directly why the case was returned to the district
court, but the panel might have acted on the government’s agreement that the case
should be remanded. See 803 F.3d at 932. Here, the government urges affirmance
on the ground that Ellis cannot show a plain error that affected his substantial rights.
Insofar as the Taylor panel thought the government could “waive” plain-error review,
see United States v. Encarnacion-Ruiz, 787 F.3d 581, 586-87 (11th Cir. 2015), the
decision would be contrary to United States v. Bain, 586 F.3d 634, 639 n.4 (8th Cir.
2009) (per curiam), and we would follow the earlier precedent even if there were a
purported waiver here. United States v. Mader, 654 F.3d 794, 800 (8th Cir. 2011) (en
banc); Avon State Bank v. BancInsure, Inc., 787 F.3d 952, 959 n.3 (8th Cir. 2015).

                                          -5-
        A panel of this court accepted a comparable argument in King v. United States,
595 F.3d 844, 850 (8th Cir. 2010), reasoning that when a defendant receives two
concurrent sentences of equal length, “[e]ither both of them are ‘the longest sentence
of imprisonment’ or neither is.” Id. (internal citation omitted). King said it was
“plausible” to conclude that neither sentence is the “longest,” and held that the rule
of lenity required the court to forego counting a crime of violence when the defendant
also received a concurrent sentence of equal or greater length for a nonviolent crime.
Id. at 850-52.

       King quickly proved to be an outlier. Before King, the Eleventh Circuit had
rejected a similar contention, concluding that “[i]t would be illogical . . . to ignore a
conviction for a violent felony just because it happened to be coupled with a
nonviolent felony conviction having a longer sentence.” United States v. Cornog,
945 F.2d 1504, 1506 n.3 (11th Cir. 1991). Shortly after King, the Sixth Circuit
rejected the decision as a “nonsensical” interpretation of the guidelines that would
lead to a “ridiculous result.” United States v. Williams, 753 F.3d 626, 639 (6th Cir.
2014). Williams reasoned that a defendant should not earn lenient treatment by
committing more crimes than the qualifying offense. The Sixth Circuit ruled that
each of two convictions resulting in equal concurrent sentences independently
supports the assessment of criminal history points. Therefore, either sentence may
serve as a predicate under the career offender guideline or USSG § 2K2.1, if the
offense underlying the sentence was a crime of violence. Id.

      Another panel of this court later agreed with the Sixth Circuit that King was
wrongly decided. Donnell v. United States, 765 F.3d 817, 819-20 (8th Cir. 2014).
The Sentencing Commission promptly amended the guidelines to follow the Sixth
Circuit’s approach in Williams. USSG § 4A1.2, comment. (n.3(A)); Sentencing
Guidelines for United States Courts, 80 Fed. Reg. 25,782-01, at 25,794 (May 5,
2015).



                                          -6-
       The government appears to acknowledge that the district court’s calculation
would be plainly erroneous under the reasoning of King, but contends that there is no
reasonable probability that Ellis would have received a lighter sentence in any event.
Without a prior crime of violence, the advisory guideline range for Ellis would have
been 30 to 37 months’ imprisonment. The government contends, however, that Ellis
has not shown a reasonable probability that the district court would have sentenced
him to a term of fewer than 61 months after considering the factors under 18 U.S.C.
§ 3553(a). The government cites the district court’s comment that even with an
advisory range of 51 to 63 months, there were reasons to consider varying upward
from that range: Ellis possessed drugs and ammunition when committing the instant
firearms offense; he had sustained seven prior felony convictions; and he performed
poorly while on supervision after the prior convictions. S. Tr. 10-12.

       Whether or not it could be said that Ellis has shown a reasonable probability
of a more favorable outcome under a different guideline calculation, this is not an
appropriate case for relief under the plain-error standard. The plain-error rule is
permissive, not mandatory, and a court of appeals has authority to order correction
of an error, but is not required to do so. See Olano, 507 U.S. at 735. Affirming the
sentence imposed in this case works no miscarriage of justice. Ellis’s forfeited
argument based on King relies on a temporary quirk of jurisprudence that was
promptly rejected by a sister circuit, another panel of this court, and the Sentencing
Commission. The sentence imposed is well within the statutory range authorized for
the offense of conviction, and it is consistent with the better view of the Sentencing
Commission’s advice, both past and present. In our view, it will not seriously affect
the fairness, integrity, or public reputation of judicial proceedings to leave the
judgment in place. See id. at 735-36.

      The judgment of the district court is affirmed.




                                         -7-
SHEPHERD, Circuit Judge, dissenting in part.

       I concur with the conclusion that Ellis’s felony conviction under Mo. Rev. Stat.
§ 575.150 is categorically a crime of violence as found by our previous cases. I also
concur with the conclusion that Ellis is not entitled to plain error relief on his
argument that the district court erred in considering his prior conviction for resisting
arrest by fleeing because it was not a conviction for which he received criminal
history points. However, I respectfully dissent from the majority’s determination that
Ellis has not established plain error in his argument that the residual clause of
§ 4B1.2(a)(2) is unconstitutionally vague after the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). The majority’s rejection of this
claim is in direct contradiction to this court’s action in United States v. Taylor, 803
F.3d 931 (8th Cir. 2015).

      In Johnson, the Supreme Court held that the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. The
Supreme Court struck the ACCA’s language: “or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 135 S. Ct. at 2563.
This language is identical to the residual clause in the career offender Guideline §
4B1.2(a)(2). We have long treated “crime of violence” under § 4B1.2(a) of the
Guidelines the same as “violent felony” under the ACCA. See United States v.
Johnson, 417 F.3d 990, 997 (8th Cir. 2005) (“The statutory definition of ‘violent
felony’ is viewed as interchangeable with the guidelines definition of ‘crime of
violence.’”), overruled on other grounds by United States v. Williams, 537 F.3d 969,
973 (8th Cir. 2008).

      Although the government concedes § 4B1.2(a)(2) is unconstitutionally vague
and thus it was error for the court to apply the higher base offense level, the majority
concludes the error was not “plain” or “obvious” under the case law of this circuit.
The majority has determined our prior decision in Taylor is not binding on the

                                          -8-
handling of this case because the court did not “decide whether the guideline is
unconstitutionally vague” or address other arguments that support applying the
vagueness doctrine to the advisory Guidelines. I dissent because this panel should
follow our Taylor precedent and vacate Ellis’s sentence and remand to the district
court for resentencing.

       As the majority points out, we did not determine in Taylor whether Johnson’s
holding applies to § 4B1.2(a)(2), although the government concedes that it does.
Instead, we vacated the sentence and “le[ft] for the district court on remand the
question of whether the residual clause of the career offender guideline is
unconstitutional.” Taylor, 803 F.3d at 933. In Taylor, the defendant argued before
the district court and on appeal that his possession of a shank while an inmate in a
penal institution did not qualify as a crime of violence under the Guidelines. No
constitutional argument was mentioned either before the district court or on appeal.
While the case was pending before our court, the Supreme Court decided Johnson.
After the Johnson decision, we ordered and received supplemental memoranda from
the parties as to the application of Johnson. At that time, the government conceded
that Johnson applied to Guidelines and thus to the Taylor case.

       In Taylor, we vacated the sentence and remanded to the district court. Taylor,
803 F.3d at 933. We did not address the appropriate standard of review. But what
is clear is that before the district court and before this court in his initial briefing,
Taylor did not raise the issue of whether the crime of violence definition was
unconstitutionally vague. He focused instead on whether his crime met the
Guidelines definition of a “crime of violence.” Necessarily then, the court applied the
plain error standard in Taylor for the same reasons that standard applies here—the
issue of whether the Guidelines’s language was unconstitutionally vague was never
raised to the district court.




                                          -9-
       There is nothing to distinguish the presentation of issues in this case from
Taylor. Ellis objected to the proposed base offense level of 20, arguing that his prior
conviction for resisting arrest cannot be classified as a crime of violence under
§ 2K2.1(a)(4)(A).3 Ellis did just as much as Taylor, and to not send this case back to
the district court as we did in the Taylor case is inequitable and directly contrary to
our Taylor precedent.

      I dissent.
                       ______________________________




      3
      Section 2K2.1(a)(4)(A) applies the same meaning to “crime of violence” as
§ 4B1.2. See U.S.S.G. § 2K2.1, comment. (n.1).

                                         -10-
