For the Defense - Volume 1, Issue 3 - 2016 - 44

Third Circuit Voids 4B1.2 RESIDUAL CLAUSE Burton Rose T here is nothing more important in federal criminal practice than what happens at sentencing. Almost all federal prosecutions seem to end up in a sentencing hearing. Under the federal sentencing guidelines, if someone is determined to be a career offender, then the offender's sentence can be enormous.1 Therefore, it becomes crucial to find out if your client has a criminal history that will warrant him or her being considered as a career offender pursuant to the U.S. Sentencing Guidelines. In United States v. Michael Calabretta,2 a panel of the United States Court of Appeals for the Third Circuit ruled that the residual clause of United States Sentencing Guideline section 4B1.2, concerning career offender status, cannot survive the recent decision of Johnson v. United States.3 In Johnson, the Court ruled that the residual clause of the Armed Career Criminal Act4 was too vague as it did not define with specificity what constitutes a violent crime. In Calabretta, the appellant pleaded guilty to conspiracy to distribute and possess with the intent to distribute marijuana5 and conspiracy to launder the proceeds of drug trafficking activity.6 Prior to sentencing, the District Court received appellant's presentence report which listed multiple prior state convictions including a 1990 conviction for death by auto and a 1994 conviction for eluding the police. The district court held that his conviction for eluding was a crime of violence under the residual clause of this sentencing guideline.7 The district court extensively discussed Calabretta's earlier criminal conviction and determined him to be a career offender and sentenced him to 120 months on each count to be served concurrently.8 If the court had not applied the Career Offender Guideline, the sentencing range would have been 44 For The Defense | Vol. 1, Issue 3 much less. However, there was no objection at the time of sentencing to the crime of eluding being considered as part of his career offender history.9 The panel, in an opinion written by Judge Chagares and joined by Judge Jordan, ruled that under the Johnson decision, it was plain error for the district court to consider that conviction as a crime of violence and the error affected Calabretta' substantial rights. 10 The court held that the residual clause of Section 4B1.2 suffered from vagueness in the same way that the residual violent felony definition in the Armed Career Criminal Act was condemned by the Johnson Court.11 Judge Fisher dissented on the basis that this error was not plain since the District Court had carefully considered all of the appropriate sentencing factors in this case and the defendant's lawyer had not lodged any objection to the application of the residual clause.12 Judge Fisher was concerned that this ruling would improperly expand the scope of the doctrine of plain error which allows an appellate court to decide on the merits an issue that had not been correctly advanced and preserved in

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016