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United States v. Wurie

United States Court of Appeals, First Circuit

August 8, 2017

BRIMA WURIE, Defendant, Appellant.


         Judith H. Mizner, Assistant Federal Public Defender, was on brief, for appellant.

          Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

          Before Torruella, Lynch, and Kayatta, Circuit Judges.

          TORRUELLA, Circuit Judge.

          Defendant-Appellant, Brima Wurie ("Wurie"), who was sentenced as a career offender under section 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"), challenges the classification of his prior Massachusetts convictions -- which include convictions for assault and battery with a dangerous weapon ("ABDW"), resisting arrest, larceny from the person, and assault and battery on a police officer -- as "crime[s] of violence" under the residual clause of U.S.S.G. § 4B1.2(a)(2). After careful consideration, we affirm.

         I. Background

         Wurie was convicted of distribution of five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1).[1] At the time of the sentencing hearing on March 16, 2015, Wurie had a number of prior convictions under Massachusetts law, including: two convictions for ABDW, one conviction for larceny from the person, one conviction for resisting arrest, and one conviction for assault and battery on a police officer.

         The district court determined at sentencing that Wurie had at least two prior convictions for "crime[s] of violence, " as that term is defined in U.S.S.G. § 4B1.2(a)(2), which rendered him a career offender under U.S.S.G. § 4B1.1(a).[2] Wurie's total offense level of thirty-two and his classification as a career offender yielded a Guidelines sentencing range ("GSR") of 210 to 240 months of imprisonment.[3] After considering all the 18 U.S.C. § 3553(a) sentencing factors, the district court imposed a downwardly variant sentence of 168 months of imprisonment, to be followed by seven years of supervised release, because it considered that Wurie's recent conduct showed that he was "turn[ing] [his] life around."

         On appeal, Wurie concedes that the offenses for which he had been convicted previously have been "held to be crimes of violence under the [Guidelines'] residual clause." He initially argued, however, that the residual clause of section 4B1.2(a)(2), defining "crime of violence" as an offense that "involves conduct that presents a serious potential risk of physical injury to another, " is unconstitutionally vague following the Supreme Court's ruling in Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson II"), which held that the identically worded residual clause in the definition of "violent felony" under the Armed Career Criminal Act ("ACCA") was void for vagueness under the Fifth Amendment Due Process Clause. Id. at 2557. The government initially conceded that in light of Johnson II, the Guidelines' residual clause was unconstitutionally vague, but argued that

          Wurie was correctly sentenced as a career offender because his prior convictions could also be classified as crimes of violence under section 4B1.2(a)(1) of the Guidelines (commonly referred to as the Guidelines' "force clause"), inasmuch as the offenses of conviction have "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). Wurie disputes that his prior convictions were for crimes of violence under the Guidelines' force clause.

         While this appeal was pending, however, the Supreme Court handed down Beckles v. United States, which held that Johnson II does not apply to the career offender guideline because the Guidelines, unlike the ACCA, are advisory, not mandatory, and thus are not subject to a vagueness challenge on due process grounds. 137 S.Ct. 886, 892 (2017). Our decision in United States v. Thompson, then held that, in circumstances like these, we will not accept the government's concession on appeal that Johnson II invalidated the residual clause of the Guidelines. 851 F.3d 129, 130-31 (1st Cir. 2017). Beckles thus foreclosed Wurie's initial argument.

         Faced with this, Wurie modified his argument and claimed that although his constitutional challenge for vagueness was foreclosed by Beckles, the application of the Guidelines' residual clause to particular offenses must still be reconsidered in light of Johnson II. This, Wurie contends, is so because the language of the Guidelines' residual clause is identical to and suffers from the same deficiencies that led the Supreme Court to invalidate the ACCA's residual clause on due process grounds. In the alternative, Wurie requests that his case be remanded to the district court for resentencing in ...

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