petition for panel rehearing and rehearing … · petition for panel rehearing and rehearing en...

No. 13-1731

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. DARRYL ROLLINS, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Wisconsin

Case No. 10-CR-186 The Honorable Judge Rudolph T. Randa

PETITION FOR PANEL REHEARING AND REHEARING EN BANC FEDERAL PUBLIC DEFENDER THOMAS W. PATTON CENTRAL DISTRICT OF ILLINOIS Federal Public Defender 300 West Main Street Urbana, Illinois 61801 PETER W. HENDERSON Telephone: (217) 373-0666 Assistant Federal Public Defender Fax: (217) 373-0667 Email: [email protected] Attorneys for Defendant-Appellant, DARRYL ROLLINS

Case: 13-1731 Document: 48 Filed: 09/15/2015 Pages: 23

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CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Appellate Court No: 13-1731 Short Caption: United States v. Rollins To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement stating the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1 The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used.

☐PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED.

(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you

must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):

Darryl W. Rollins (2) The names of all law firms whose partners or associates have appeared for the party in the case

(including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Peter W. Henderson, Thomas W. Patton, Jonathan E. Hawley, and Johanna M. Christiansen of the Federal Public Defender for the Central District of Illinois; Douglas M. Bihler, Bihler & Kuehl SC, Greenfield, WI; and Mark S. Rosen, Rosen & Holzman Ltd., Waukesha, WI

(3) If the party or amicus is a corporation: N/A

i) Identify all its parent corporations, if any; and N/A

ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock:

N/A =========================================================================== Attorney's Signature: s/ Peter W. Henderson Date: 09/15/15 Attorney's Printed Name: Peter W. Henderson Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes ☒ No ☐ Address: 300 W. Main Street

Urbana, Illinois 61801

Phone Number: (217) 373-0666 Fax Number: (217) 373-0668 E-Mail Address: [email protected]


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TABLE OF CONTENTS

PAGE CIRCUIT RULE 26.1 DISCLOSURE STATEMENT ................................................. ii

TABLE OF AUTHORITIES .......................................................................................... iv

Cases ................................................................................................................. iv

Statutes ............................................................................................................... v

Other Authorities ............................................................................................. v

FEDERAL RULE OF APPELLATE PROCEDURE 35(b)(1) STATEMENT REGARDING REASONS FOR REHEARING EN BANC ........................... 1

INTRODUCTION ........................................................................................................... 1

REASONS FOR GRANTING PANEL REHEARING .............................................. 4

I. Due to the government’s misleading statement of position, the panel misapprehended the parties’ agreement that the residual clause to U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague. ...................................................................................................... 5

II. The panel overlooked relevant Supreme Court authority. ............ 9

III. The panel erred in limiting the remand for resentencing. ............ 10

REASON FOR GRANTING REHEARING EN BANC ......................................... 11

The decision in United States v. Raupp, the primary authority relied upon by the panel, conflicts with numerous other decisions of this Court, and the full court should resolve the conflict. ............................... 11

CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULES 32, 35, AND 40 AND FED. RS. APP. P. 32, 35, AND 40 ........................................................... 16


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TABLE OF AUTHORITIES

PAGE

Cases Camreta v. Greene, 131 S. Ct. 2020 (2011) ........................................................................ 7

Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ................................................... 9

Demaree v. United States, 459 F.3d 791 (7th Cir. 2006) ................................................ 13

Easley v. Reuss, 532 F.3d 592 (7th Cir. 2008)................................................................... 5

Johnson v. United States, 134 S. Ct. 1871 (Apr. 21, 2014) ............................................... 2

Johnson v. United States, 135 S. Ct. 939 (Jan. 9, 2015) .................................................... 3

Johnson v. United States, 135 S. Ct. 2551 (2015) ....................................................passim

Mistretta v. United States, 488 U.S. 361 (1989) .............................................................. 13

Peugh v. United States, 133 S. Ct. 2072 (2013) ................................................... 1, 7, 8, 13

Ramirez v. United States, —F.3d—(7th Cir. Aug. 25, 2015) ........................................ 11

Stinson v. United States, 508 U.S. 36 (1993) ........................................................... 2, 9, 14

United States v. Brazeau, 237 F.3d 842 (7th Cir. 2001) ............................................. 1, 15

United States v. Evans, 576 F.3d 766 (7th Cir. 2009) .................................................... 12

United States v. Falor, –- F.3d –- (7th Cir. Sep. 1, 2015) ............................................... 10

United States v. Kappes, 782 F.3d 828 (7th Cir. 2015) ................................................... 10

United States v. Leshen, 453 F. App’x 408 (4th Cir. 2011) .............................................. 8

United States v. McMillian, 777 F.3d 444 (7th Cir. 2015) ......................................... 7, 13

United States v. Merced, 603 F.3d 203 (3d Cir. 2010) ................................................... 15

United States v. Miller, 721 F.3d 435 (7th Cir. 2013) ............................................passim

United States v. Moore, 788 F.3d 693 (7th Cir. 2015) .................................................... 10

United States v. Poke, 793 F.3d 759 (7th Cir. 2015). ...................................................... 10

United States v. Raupp, 677 F.3d 756 (7th Cir. 2012) ............................................passim

United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) ............................................. 10

United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012) ........................................passim


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United States v. Upton, 512 F.3d 394 (7th Cir. 2008) ...................................................... 1

United States v. Woods, 576 F.3d 400 (7th Cir. 2009) ......................................... 1, 11, 12

Statutes

18 U.S.C. § 16(b) .............................................................................................................. 12

18 U.S.C. § 924(e) .....................................................................................................passim

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

21 U.S.C. § 841(a)(1) .......................................................................................................... 1

21 U.S.C. § 841(b)(1)(C) .................................................................................................... 1

26 U.S.C. § 5845(a) ............................................................................................................ 2

28 U.S.C. § 994(p) ...................................................................................................... 13, 14

Sentencing Reform Act .................................................................................................. 13

Other Authorities

68 Fed. Reg. 75,340 (Dec. 30, 2003) ............................................................................... 15

Circuit Rule 40(e) ............................................................................................................ 12

Fed. R. App. P. 40(a)(2) .................................................................................................... 4

Gov’t Br., United States v. Gillespie, No. 15-1686 (7th Cir. Sep. 14, 2015) ............... 5, 8

Gov’t Supp. Br., United States v. Grayer, 2015 WL 4999426, at *4–8 (6th Cir. Aug.

20, 2015) .......................................................................................................................... 6

Letter Br. of the United States, United States v. Zhang, No. 13-3410 (2d Cir. Aug.

13, 2015) .......................................................................................................................... 5

Supp. Br. for the United States, United States v. Pagan-Soto, No. 13-2243 (1st Cir.

Aug. 11, 2015) ................................................................................................................ 5

Supp. Br. for the United States, United States v. Talmore, No. 13-10650 (9th Cir.

Aug. 17, 2015) ................................................................................................................ 6

Supp. Br. of United States, United States v. Goodwin, No. 13-1466 (10th Cir. Aug.

21, 2015) .......................................................................................................................... 6


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Supp. Letter Br. for the United States, United States v. Matchett, No. 14-10396 (11th

Cir. Aug. 27, 2015)......................................................................................................... 6

Supp. Letter Br. for the United States, United States v. Townsend, No. 14-3652 (3d

Cir. Aug. 28, 2015)......................................................................................................... 5

U.S.S.G. § 4B1.1 ............................................................................................................... 12

U.S.S.G. § 4B1.2 .......................................................................................................passim

U.S.S.G. § 4B1.2(a) ....................................................................................................... 8, 11

U.S.S.G. § 4B1.2(a)(2) ..............................................................................................passim

U.S.S.G. App. C, amend. 674 ......................................................................................... 15


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FEDERAL RULE OF APPELLATE PROCEDURE 35(b)(1) STATEMENT REGARDING REASONS FOR REHEARING EN BANC

The Court should grant rehearing en banc because the Court’s decision in United

States v. Raupp, 677 F.3d 756 (7th Cir. 2012), which proved dispositive to the outcome of

this appeal, conflicts with other decisions of this Court, including United States v. Woods,

576 F.3d 400 (7th Cir. 2009), and represents a line of reasoning that has been disavowed

by the Supreme Court in Peugh v. United States, 133 S. Ct. 2072 (2013). The full court

should reaffirm its holdings in the Woods line of cases and overturn or limit Raupp.

INTRODUCTION1

Darryl Rollins was convicted on two counts of distributing crack cocaine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Slip op. at 4–5. On March 29, 2013, he

was sentenced to concurrent terms of 84 months’ imprisonment due in part to his status

as a career offender under U.S.S.G. § 4B1.1. Id. at 5–6. The career offender designation

was based in part on Mr. Rollins’ prior Wisconsin conviction for possessing a short-

barreled shotgun. Id. at 4. Due to existing circuit precedent, see United States v. Upton,

512 F.3d 394, 404 (7th Cir. 2008); United States v. Brazeau, 237 F.3d 842, 844 (7th Cir.

2001), Mr. Rollins had no cause in the district court to object to the classification of that

prior offense as a “crime of violence” under the residual clause to U.S.S.G. § 4B1.2(a)(2),

and so it is unsurprising that he did not raise such a challenge. See slip op. at 4, 7.

Three months after Mr. Rollins was sentenced, however, the Court reversed

course and held unequivocally that possession of a sawed-off shotgun does not present

1 In this petition, the record below is referenced as “R.”; documents filed on appeal, “Ct. App. R.”; and the panel’s opinion, “Slip op.”


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a serious potential risk of physical injury to another, as contemplated by the language of

18 U.S.C. § 924(e)(2)(B), which is identical to that in the residual clause of U.S.S.G.

§ 4B1.2(a)(2):

We simply don’t think that the latent risks inherent in the offense of possessing a short-barreled shotgun are sufficient to qualify for the residual clause when the crimes from which we are instructed to guide our determination–-burglary, arson, extortion, and crimes involving the use of explosives–-all are inherently risky without that extra step required for the risk to manifest.

United States v. Miller, 721 F.3d 435, 443 (7th Cir. 2013).

In his opening brief, filed October 30, 2013, Mr. Rollins relied on Miller to argue

that he had been incorrectly characterized as a career offender, because his conviction

for possessing a short-barreled shotgun no longer presented a serious potential risk of

physical injury to another and therefore did not qualify as a “crime of violence” under

U.S.S.G. § 4B1.2(a)(2). Opening Br. at 25–27. The government’s principal response

invoked Application Note 1 to § 4B1.2, which states that “[u]nlawfully possessing a

firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun . . .) is a “crime of

violence.” Gov’t Br. at 12–15. Mr. Rollins responded that, pursuant to Stinson v. United

States, 508 U.S. 36, 44-45 (1993), an application note cannot trump the text of a guideline

itself. Reply Br. at 2–3.

Three months after the oral argument in this case, the Supreme Court granted a

writ of certiorari in Johnson v. United States, 134 S. Ct. 1871 (Apr. 21, 2014), as to the

question presented in Miller of whether possession of a short-barreled shotgun

constitutes a violent felony under § 924(e). Johnson was initially argued in November


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2014 in the Supreme Court, but the Court ordered reargument and new briefing as to

whether the residual clause in § 924(e) was unconstitutionally vague. Johnson v. United

States, 135 S. Ct. 939 (Jan. 9, 2015). Following reargument, the Court held 6-3 that the

residual clause–-“or otherwise involves conduct that presents a serious potential risk of

physical injury to another”–-was indeed unconstitutionally vague. Johnson v. United

States, 135 S. Ct. 2551, 2557 (2015).

Following Johnson, this Court requested position statements from both parties as

to the effect of Johnson on Mr. Rollins’ case. Mr. Rollins asserted that “[l]ogically, this

Court should find that the residual clause to the career offender definition of ‘crime of

violence’ is as vague as the identical clause in § 924(e), and therefore Mr. Rollins’ prior

conviction should not have been used to enhance his sentence.” Ct. App. R.42 at 4.

Nevertheless, acknowledging circuit precedent holding that the guidelines are not

susceptible to vagueness challenges, see United States v. Tichenor, 683 F.3d 358, 364 (7th

Cir. 2012), Mr. Rollins urged the Court to resolve the matter in his favor without

unnecessarily reaching broader constitutional questions. Id. at 4–5.

The government, after seeking and receiving an extension of time to file a

position statement in order to seek “guidance on issues arising from Johnson” from the

United States Department of Justice, Ct. App. R.40 at 3–4, argued that Johnson in effect

overruled the analytical framework behind Miller. Ct. App. R.43 at 4–6. Importantly, the

government voiced its support for the holding in Tichenor that the guidelines were not

susceptible to a vagueness challenge. Id. at 6–7 (extensively quoting Tichenor).

One month later, the panel issued a final opinion holding that possession of a


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sawed-off shotgun still qualifies as a crime of violence, because the application note

controls. Slip op. at 12. The panel relied principally on United States v. Raupp, 677 F.3d

756, 760–61 (7th Cir. 2012), for the proposition that the application notes are

authoritative and receive broad deference. Slip op. at 3, 9–11. According to the panel,

Mr. Rollins’ argument–-sensible “as a matter of language and logic”–-was foreclosed by

the expansive language of Raupp, because the Court there noted that the Sentencing

Commission “is free to go its own way; it can classify as ‘crimes of violence’ offenses

that are not ‘violent felonies’ under § 924(e),” though it is not free to do so by

application notes that contradict the text of the Guideline. Slip op. at 10, quoting Raupp,

677 F.3d at 760. The panel, bowing to the “wide deference” afforded the Sentencing

Commission’s application notes, found that the contradiction between Miller and

Application Note 1 established that the district court did not plainly err in treating the

conviction as a crime of violence. Slip op. at 12.

Nevertheless, the panel vacated the sentence and remanded because the district

court made an error in calculating the guidelines term of supervised release. Slip op. at

13–14. However, the opinion specified that the remand was limited only to the issue of

supervised release. Id. at 14.

REASONS FOR GRANTING PANEL REHEARING

Panel rehearing is appropriate if this Court overlooked or misapprehended a

point of law or fact. Fed. R. App. P. 40(a)(2). A petition for panel rehearing “should alert

the panel to specific factual or legal matters that the party raised, but that the panel may

have failed to address or may have misunderstood.” Easley v. Reuss, 532 F.3d 592, 593


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(7th Cir. 2008).

I. Due to the government’s misleading statement of position, the panel misapprehended the parties’ agreement that the residual clause to U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague.

The Court appears to have misapprehended the positions of the parties with

regard to the continued vitality of United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012).

The misapprehension stems primarily from a misrepresentation of the

Department of Justice’s position with regard to Tichenor. In its statement of position, the

United States enthusiastically quotes the Court’s holding that “the Guidelines are not

susceptible to attack under the vagueness doctrine.” Ct. App. R.43 at 7.

[T]he residual clause is an unconstitutionally vague statute. But it does not moot the issue in this case. Unlike the residual clause of the ACCA, the residual clause of U.S.S.G. § 4B1.2 is not susceptible to a vagueness challenge. See United States v. Tichenor, 683 F.3d 358 (2012). Simply, the advisory Guidelines serve a different purpose, and interpretation of the Guidelines is guided by different principles.

Id. at 6–7. The Court reasonably understood this to mean that the government found no

fault in Tichenor’s logic following Johnson. See slip op. at 12.

The Department of Justice, however, has filed documents in many federal courts

of appeals (including this Court) disavowing the holding of Tichenor. See Gov’t Br.,

United States v. Gillespie, No. 15-1686 (7th Cir. Sep. 14, 2015); see also Supp. Br. for the

United States, United States v. Pagan-Soto, No. 13-2243 (1st Cir. Aug. 11, 2015); Letter Br.

of the United States, United States v. Zhang, No. 13-3410 (2d Cir. Aug. 13, 2015); Supp.

Letter Br. for the United States, United States v. Townsend, No. 14-3652 (3d Cir. Aug. 28,

2015); Gov’t Supp. Br., United States v. Grayer, 2015 WL 4999426, at *4–8 (6th Cir. Aug.


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20, 2015); Supp. Br. for the United States, United States v. Talmore, No. 13-10650 (9th Cir.

Aug. 17, 2015); Supp. Br. of United States, United States v. Goodwin, No. 13-1466 (10th

Cir. Aug. 21, 2015); Supp. Letter Br. for the United States, United States v. Matchett, No.

14-10396 (11th Cir. Aug. 27, 2015).

In Gillespie, the United States has conceded:

Johnson v. United States . . . applies to the identically-worded residual clause definition of crime of violence in U.S.S.G. § 4B1.2(a)(2). The government agrees with the defendant that under Johnson, the guidelines’ residual-clause definition of crime of violence is unconstitutionally vague, and also agrees that the Court should overrule United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012).

Gov’t Br. at 7 (emphasis added). In cases across the country, the United States has

repeated the mantra that the residual clause to § 4B1.2 is as unconstitutionally vague as

the identical clause in § 924(e). That squarely contradicts Tichenor’s holding that, as a

categorical matter, the Guidelines are not susceptible to vagueness challenges. See slip

op. at 12.

The panel could not have known that from the government’s position statement

filed in this case. Here, the United States affirmatively relied on the continued vitality of

Tichenor in urging the Court to affirm the term of imprisonment. Ct. App. R.43 at 6–7.

The United States made that representation despite its receipt of an extension of time

“to ensure that the United States presents a consistent position on similar issues across

the country.” Ct. App. R.40 at 4. Due to its misstatement of the Department’s official

position and its misrepresentation that Tichenor remains good law in the eyes of the

Department, the United States created a misapprehension as to its true position on

appeal. For that reason alone, the Court should grant the petition for rehearing.


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Mr. Rollins, for his part, noted that Tichenor was likely no longer good law, based

upon Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013). Ct. App. R.42 at 4–5.

Invoking the canon of constitutional avoidance, however, Mr. Rollins encouraged the

Court to leave Tichenor for another day, because possession of a sawed-off shotgun

plainly does not “otherwise involve[] conduct that presents a serious potential risk of

physical injury to another.” Id. at 5–6; United States v. Miller, 721 F.3d 435, 443–44 (7th

Cir. 2013); see Camreta v. Greene, 131 S. Ct. 2020, 2044 (2011) (Kennedy, J., dissenting)

(referencing “that older, wiser judicial counsel not to pass on questions of

constitutionality . . . unless such adjudication is unavoidable.”). Mr. Rollins did not

concede that Tichenor remained good law; rather, he relied upon the well-established

rule that “[w]hen an application note clashes with the guideline, the guideline prevails.”

Ct. App. R.42 at 5–6; United States v. McMillian, 777 F.3d 444, 450 (7th Cir. 2015).

Both parties, therefore, no longer believe that Tichenor is valid in light of Johnson

and / or Peugh, contrary to what the panel may have assumed. And Tichenor is vital to

the holding in the panel’s opinion. As the panel correctly noted, possession of a sawed-

off shotgun only possibly qualifies as a crime of violence under the residual clause of

§ 4B1.2(a)(2). Slip op. at 8. If the residual clause is void for vagueness, as both parties

agree it is, there is no other provision in § 4B1.2 designating possession of a sawed-off

shotgun as a crime of violence. Therefore, contrary to the panel’s conclusion, the

application note does contradict the guideline, because no constitutionally-valid provision

possibly designates possession of a sawed-off shotgun as a crime of violence.

Mr. Rollins understands that the government still maintains that Application


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Note 1 supplements § 4B1.2 and has independent force to define possession of a sawed-

off shotgun as a “crime of violence,” regardless of whether the residual clause survives

or not. See Ct. App. R.43 at 7–8. But that is incorrect; commentary to the guidelines

“does not have freestanding definitional power,” and can only interpret or explain the

text of the guideline itself. United States v. Leshen, 453 F. App’x 408, 413–15 (4th Cir.

2011) (unpublished). As Raupp itself makes clear, the Sentencing Commission cannot

define as “crimes of violence” offenses that do not qualify under the text of the

guideline itself. Slip op. at 10; Raupp, 677 F.3d at 760. At the very least, the United States’

assumption should be tested by granting this petition and ordering the preparation of

supplemental briefs.

Neither party believes that the residual clause to § 4B1.2 is still constitutional.

Both parties agree that Tichenor no longer represents good law. Mr. Rollins should not

have to serve an extended term of imprisonment because his was the only case in the

country in which the United States Attorney did not confess error. Therefore, the panel

should grant the petition for rehearing and order the parties to brief two questions: (1)

Whether, in light of Johnson and Peugh, the residual clause to U.S.S.G. § 4B1.2(a)(2) is

unconstitutionally vague?2 and (2) Whether, assuming the residual clause to U.S.S.G.

§ 4B1.2(a)(2) is unconstitutionally vague, the Sentencing Commission can classify an

offense as a “crime of violence” through an application note, when the offense would

not otherwise qualify under the valid portions of § 4B1.2(a)?

2 This issue is also pending before the Court in at least two other cases apart from Gillespie: United States v. McGuire, No. 15-2071 (opening brief filed Aug. 28, 2015); and United States v. Hurlburt, No. 14-3611 (opening brief filed Aug. 24, 2015).


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II. The panel overlooked relevant Supreme Court authority.

The rule of Stinson is clear: if an application note is inconsistent with the text of

the guideline, it is not authoritative and does not receive deference. 508 U.S. at 38. In

this case, the Sentencing Commission’s determination that possession of a sawed-off

shotgun is a crime of violence is inconsistent with the text, because such possession

does not “present a serious potential risk of physical injury to another.” Miller, 721 F.3d

at 443–44. Therefore, no deference is due to the application note, contrary to the panel’s

conclusion. Slip op. at 12.

The panel overlooked Supreme Court authority in finding that “judicial

interpretations of the ACCA do not tie” the hands of the Sentencing Commission. Slip

op. at 11. As Mr. Rollins noted, Opening Br. at 17–18, 23, in Circuit City Stores, Inc. v.

Adams, the Court concluded that its interpretation of a similar residual clause was

directed by the text of the statute. 532 U.S. 105, 119 (2001). After Circuit City, it would be

legally incorrect for any agency to say that the residual clause there meant something

other than what the Supreme Court had determined the text signified. So too here. In

Miller, the Court looked to the text of § 924(e)—identical to the text of § 4B1.2—to reach

the conclusion that the text did not include possession of a sawed-off shotgun. 721 F.3d

at 442 (mere possession of sawed-off shotgun doesn’t “present a degree or type of risk

of violence comparable to burglary, arson, extortion, or crimes involving the use of

explosives”). The panel overlooked that the result in Miller resulted from the text of the

residual clause; it was not an arbitrary “judicial interpretation” subject to alternative

views. The panel should grant rehearing due to the oversight.


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III. The panel erred in limiting the remand for resentencing.

The panel vacated the sentence and remanded to the district court for further

proceedings limited only to the issue of the term of supervised release. Slip op. at 14.

But in the twenty months that this matter has been pending, the Court has repeatedly

indicated that an error in determining the term and conditions of supervised release

requires a full remand “because reconsideration . . . may conceivably induce [a judge] to

alter the prison sentence that he imposed.” United States v. Thompson, 777 F.3d 368, 382

(7th Cir. 2015). The Court has thus ordered full remands because otherwise “the balance

struck by the sentencing judge might be disrupted to a degree where the judge would

wish to alter the prison term and/or other conditions to ensure that the [statutory

sentencing factors] are appropriately furthered by the overall sentence.” United States v.

Kappes, 782 F.3d 828, 867 (7th Cir. 2015). See also United States v. Falor, –- F.3d –-, 2015 WL

5117102, at *3 (7th Cir. Sep. 1, 2015); United States v. Moore, 788 F.3d 693, 696 (7th Cir.

2015); United States v. Poke, 793 F.3d 759, 760 (7th Cir. 2015).

Because of the delay between briefing and disposition in this case, the panel (and

the parties) overlooked intervening authority holding that “there might properly be an

interplay between prison time and the term and conditions of supervised release.”

Kappes, 782 F.3d at 867. Mr. Rollins was subject to the “standard” conditions that have

since been disapproved of, and the district court on remand will have to address the

term of supervised release. R.54 at 3–4. In order to ensure conformity with this Court’s

precedent, the panel should amend its opinion and order a remand for a full

resentencing hearing.


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REASON FOR GRANTING REHEARING EN BANC

The decision in United States v. Raupp, the primary authority relied upon by the panel, conflicts with numerous other decisions of this Court, and the full court should resolve the conflict.

In the original briefing, Mr. Rollins explained the history of inconsistent

decisions in this circuit addressing the interplay of the identical residual clauses of

§ 924(e) and § 4B1.2. Opening Br. at 15, 19–21; Reply Br. at 4–5. In a majority of cases,

the Court has treated the residual clauses of § 924(e) and § 4B1.2(a)(2) identically. United

States v. Woods, 576 F.3d 400, 403–04 (7th Cir. 2009); see Ramirez v. United States, —F.3d—

, 2015 WL 5011965, at *9 (7th Cir. Aug. 25, 2015) (citing cases). The Court diverged from

that line of cases, however, in United States v. Raupp, 677 F.3d 756, 760 (7th Cir. 2012), in

which it specifically rejected a requirement that the Court’s interpretation of § 924(e)

mirror that of § 4B1.2(a)(2).

The inconsistent holdings continue. Just recently, in Ramirez, the Court noted that

the Court has “interpreted both residual clauses identically, and so we proceed on the

assumption that the Supreme Court’s reasoning [in Johnson] applies to section 4B1.2 as

well.” 2015 WL 5011965, at *9 (internal citations omitted). Here, in contrast, the panel

treated the residual clauses as distinct and determined that the offense at issue did

present a serious potential risk of physical injury to another under § 4B1.2(a)(2), while

acknowledging that the offense did not present such a risk under the identical text of

§ 924(e). Slip op. at 8–11. Because of Raupp, the panel’s decision conflicts with a decision

of the Court issued only one week earlier. The Court should resolve these divergent

lines of precedent.


12

Both Woods and Raupp were controversial decisions. In Woods, now-Chief Judge

Wood, writing for the Court and taking note of “the identity of language between the

ACCA and §§ 4B1.1 and 4B1.2,” applied Supreme Court precedent relating to the

interpretation of § 924(e) to the identical language in § 4B1.2(a)(2). 576 F.3d at 403–04.

Under Circuit Rule 40(e), then-Chief Judge Easterbrook authored a dissent, joined by

Judges Posner and Tinder. Id. at 413. Among other concerns, the dissent noted one

deficiency it perceived in the Court’s opinion: the identical treatment of § 924(e) (along

with 18 U.S.C. § 16(b)) and § 4B1.2. Id. at 417. The dissent suggested that the Court

should abandon its treatment of the residual clauses as identical: “[W]hen the prior

conviction just affects an exercise of discretion, the approach should be more flexible:

when selection of the sentence is not governed by rule, why employ elaborate rules . . .

that the district judge may elect to bypass in the end?” Id. at 418.

The majority of the Court, under Circuit Rule 40(e), agreed with Chief Judge

Wood’s opinion in Woods, and so the Woods analysis should control. 576 F.3d at 413; see

United States v. Evans, 576 F.3d 766, 771 (7th Cir. 2009) (Posner, J., concurring) (“[S]ince a

majority of the court has voted not to rehear Woods, I bow to its precedential force.”).

But Raupp undermined that precedent. Then-Chief Judge Easterbrook, joined by Judge

Posner, held that the Court had no obligation to interpret the two identical clauses

identically. 677 F.3d at 760. Chief Judge Wood dissented, noting that the holding was

“inconsistent with a long line of cases holding that the text of § 4B1.2 and the nearly

identical text in the ACCA have the same meaning.” 677 F.3d at 761. Unfortunately,

neither party petitioned for a rehearing en banc in Raupp, so the conflicting decisions


13

have existed side-by-side since.

That conflict proved dispositive in the instant case by foreclosing Mr. Rollins’

argument, supported by “logic and language”(and this Court’s own precedent), that

possession of a sawed-off shotgun does not present a serious potential risk of physical

injury to another. Slip op. at 8–9. Raupp also perpetuates a line of reasoning in this

Court—the Guidelines are not statutes, and so should not be treated as such—that has

been squarely rejected by the Supreme Court. See Demaree v. United States, 459 F.3d 791,

795 (7th Cir. 2006) (“We conclude that the ex post facto clause should apply only to laws

and regulations that bind rather than advise.”), abrogated by Peugh v. United States, 133 S.

Ct. 2072, 2084 (2013) (holding Guidelines subject to ex post facto clause because “[t]he

federal system adopts procedural measures intended to make the Guidelines the

lodestone of sentencing”); see also United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012),

and related discussion, above, pp. 5–8.

Raupp was wrongly decided, insofar as it grants the Sentencing Commission free

reign to use the commentary to supersede the text of the guideline itself. See McMillian,

777 F.3d at 450. Commentary is treated differently from guideline text in part because of

the different procedures each are subject to. The Sentencing Reform Act requires the

Sentencing Commission to “submit to Congress amendments to the guidelines” at least

six months before their effective date, and provides that Congress may modify or

disapprove such amendments before their effective date. 28 U.S.C. § 994(p). This

requirement makes the Commission “fully accountable to Congress.” Mistretta v. United

States, 488 U.S. 361, 393-94 (1989).


14

Congress does not review amendments to the commentary under 28 U.S.C.

§ 994(p), however, and did not expressly authorize the issuance of commentary at all.

Stinson v. United States, 508 U.S. 36, 40-41 (1993). Because the guidelines are

promulgated pursuant to an express delegation of rulemaking authority by Congress,

the commentary is “the equivalent of legislative rules adopted by [other] federal

agencies.” Id. at 44-45. Thus, as with other agencies’ interpretations of their own

regulations, “commentary in the Guidelines Manual that interprets or explains a

guideline is authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.” Id. at 38.

Because Congress did not expressly authorize the issuance of commentary and

does not review it, commentary is valid and authoritative only if it in fact interprets or

explains a guideline and is not inconsistent with that guideline. Otherwise, the

Commission could issue commentary carrying the same force as a guideline with no

accountability to Congress. Thus, when commentary does not interpret the text of a

guideline, or is inconsistent with or a plainly erroneous reading of the text of the

guideline, the commentary is invalid and must be disregarded in favor of the

guideline’s text.

Besides, the commentary is often simply a reflection of case law and does not

merit the expansive deference Raupp gives it. There is an irony to the panel’s broad

deference to the Sentencing Commission here; in 2004, the Commission added the

provision at issue because “[a] number of courts have held that possession of . . . a

sawed-off shotgun ‘is a crime of violence’ due to the serious potential risk of physical


15

injury to another person.” U.S.S.G. App. C, amend. 674. The Commission was referring

to this Court’s decision in United States v. Brazeau, 237 F.3d 842, 845 (7th Cir. 2001), in

which the court held that possession of a sawed-off shotgun constituted a crime of

violence under the residual clause to § 4B1.2(a)(2), because it presents a serious

potential risk of physical injury to another. See 68 Fed. Reg. 75,340, 75,371–72 (Dec. 30,

2003). Of course, Brazeau has since been repudiated by this Court. Miller, 721 F.3d at

442–43. The panel opinion thus defers to the Sentencing Commission’s deference to a

case that has been overruled.

That type of absurd result, reached by the panel in this case, is the result of

Raupp’s extension of Stinson-deference to a level of judicial self-abnegation. Cf. United

States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010). The Court should take this opportunity

to reexamine Raupp in order to bring it into conformity with the commonsense

precedent of this Court that the texts of the residual clauses of § 924(e) and § 4B1.2 are

identical and should be treated as such.

Respectfully submitted, THOMAS W. PATTON Federal Public Defender s/ Peter W. Henderson PETER W. HENDERSON Assistant Federal Public Defender Attorneys for Defendant-Appellant, DARRYL ROLLINS


16

CERTIFICATE OF COMPLIANCE WITH CIRCUIT RULES 32, 35, AND 40 AND FED. RS. APP. P. 32, 35, AND 40

The undersigned certifies that this brief complies with the volume limitations of

Circuit Rules 32, 35, and 40(b), and Fed. Rs. App. P. 32, 35(b)(2), and 40(b), in that it

contains 15 pages in a proportionally-spaced type.

s/ Peter W. Henderson PETER W. HENDERSON

Dated: September 15, 2015


No. 13-1731

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. DARRYL ROLLINS, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Wisconsin

Case No. 10-CR-186

Hon. Rudolph T. Randa, United States District Judge, Presiding.

NOTICE OF FILING AND PROOF OF SERVICE TO: Mr. Gino Agnello, Clerk, United States Court of Appeals, 219 South Dearborn

Street, Chicago, Illinois 60604

Mr. Darryl Rollins, Reg. No. 10589-089, USP Marion, P.O. Box 1000, Marion, Illinois 62959

Mr. Benjamin W. Proctor, Office of the United States Attorney, 517 East Wisconsin Avenue, Room 530, Milwaukee, Wisconsin 53202

PLEASE TAKE NOTICE that on September 15, 2015, I electronically filed the foregoing with the Clerk of Court for the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not CM/ECF users. I have mailed the foregoing documents by First Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier within three calendar days, to the non-CM/ECF participants. s/ Peter W. Henderson PETER W. HENDERSON Assistant Federal Public Defender 300 W. Main Street Urbana, Illinois 61801 Phone: (217) 373-0666


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