IN THE UNITED STATES OF AMERICA, RAYMOND ESTRADA… · CERTIFICATE OF INTERESTED PERSONS United...

No. 15-40264

IN THEUNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

RAYMOND ESTRADA,Defendant-Appellant.

Appeal from the United States District CourtFor the Southern District of Texas

___________________

BRIEF FOR APPELLANT___________________

MARJORIE A. MEYERSFederal Public DefenderSouthern District of Texas

LAURA FLETCHER LEAVITTAssistant Federal Public DefenderEVAN G. HOWZEResearch & Writing SpecialistAttorneys for Appellant440 Louisiana Street, Suite 1350Houston, Texas 77002-1669Telephone: (713) 718-4600

Case: 15-40264 Document: 00513143191 Page: 1 Date Filed: 08/05/2015

CERTIFICATE OF INTERESTED PERSONSUnited States v. Raymond Estrada,

No. 15-40264

The undersigned counsel of record certifies that the following listed persons and

entities as described in the fourth sentence of Rule 28.2.1 have an interest in the

outcome of this case.

1. The Honorable Nelva Gonzales Ramos, United StatesDistrict Judge.

2. The Honorable Janis Graham Jack, Senior United StatesDistrict Judge.

3. Mr. Raymond Estrada, Defendant-Appellant.

4. United States of America, Plaintiff-Appellee.

5. Counsel for Plaintiff-Appellee: United States Attorney Kenneth Magidson; and AssistantUnited States Attorneys Jeffrey S. Miller, Lance A. Watt(in district court), and Renata A. Gowie (on appeal).

6. Counsel for Defendant-Appellant:Federal Public Defender Marjorie A. Meyers; AssistantFederal Public Defender Christina Marie Woehr (in districtcourt); and Assistant Federal Public Defender LauraFletcher Leavitt and Research & Writing Specialist Evan G.Howze (on appeal).

These representations are made in order that the judges of this Court may

evaluate possible disqualification or recusal.

s/ Laura Fletcher Leavitt LAURA FLETCHER LEAVITT

i


REQUEST FOR ORAL ARGUMENT

Mr. Estrada requests oral argument. The first question on appeal addresses

whether the Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct.

2551 (2015), which held that the residual clause of the “violent felony” definition of

the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)) is void for vagueness,

renders the identically worded residual clause of the “crime of violence” definition in

USSG § 4B1.2(a)(2) void. The second issue on appeal raises the issue of whether the

district court committed reversible plain error by imposing a nighttime restriction as

a condition of supervised release. Oral argument would be of benefit to the Court.

ii


TABLE OF CONTENTSPage

CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The charge and guilty plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

B. The sentencing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. The presentence investigation report. . . . . . . . . . . . . . . . . . . . . 3

2. Mr. Estrada’s objection to the PSR.. . . . . . . . . . . . . . . . . . . . . . 5

3. The sentencing hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. The appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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TABLE OF CONTENTS - (Cont’d)

Page

ISSUE ONE RESTATED: The district court committed reversible errorwhen it sentenced Mr. Estrada as a “career offender” under USSG §§4B1.1 and 4B1.2 because the residual clause of the “crime of violence”definition in § 4B1.2(a)(2) – the Guideline provision that formed thebasis for that classification – is unconstitutionally vague in light ofJohnson v. United States, 135 S. Ct. 2551 (2015).. . . . . . . . . . . . . . . . . . . . 11

A. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. The district court reversibly erred by classifying Mr. Estrada as a“career offender” because the “crime of violence” definition in theresidual clause of USSG § 4B1.2(a)(2) – the Guideline provisionthat formed the basis for that classification – is unconstitutionallyvague. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. The residual clause of USSG § 4B1.2(a)(2) is void forvagueness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

2. The government cannot show that the district court’s errorwas harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

D. Even if this Court finds that the residual clause is not void forvagueness, the Court still should vacate Mr. Estrada’s sentence,because the Supreme Court invalidated each of the analytical testsupon which this Court relies for its residual clause analysis.. . . . . . . 26

ISSUE TWO RESTATED: The district court abused its discretion andcommitted reversible plain error by imposing a “nighttime restriction”as a special condition of Mr. Estrada’s supervised release... . . . . . . . . . . . . 30

A. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

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TABLE OF CONTENTS - (Cont’d)

Page

B. The district court’s imposition of a “nighttime restriction” as aspecial condition of Mr. Estrada’s supervised-release termconstitutes plain error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

C. The district court’s plain error affected Mr. Estrada’s substantialrights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

D. This Court should exercise its discretion to correct the districtcourt’s error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

v


TABLE OF CITATIONSPage

CASES

Beckles v. United States, 135 S. Ct. 2928 (June 30, 2014). . . . . . . . . . . . . . . . . . . 26

Begay v. United States, 553 U.S. 137 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . 26-27

Calder v. Bull, 3 Dall. 386 (1798). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Chambers v. United States, 555 U.S. 122 (2009). . . . . . . . . . . . . . . . . . . . . . . 26-27

City of Chicago v. Morales, 527 U.S. 41 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Connally v. General Constr. Co., 269 U.S. 385 (1926). . . . . . . . . . . . . . . . . . . . . . 24

Denson v. United States, 135 S. Ct. 2931 (June 30, 2015). . . . . . . . . . . . . . . . . . . 26

Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

James v. United States, 550 U.S. 192 (2007).. . . . . . . . . . . . . . . . . 15-16, 20, 26-27

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . 22

Johnson v. United States, 135 S. Ct. 939 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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

Kolender v. Lawson, 461 U.S. 352 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

Peugh v. United States, 133 S. Ct. 2072 (2013). . . . . . . . . . . . . . . . . . . . . . . . 23-24

Puckett v. United States, 556 U.S. 129 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

In re Sealed Case, 548 F.3d 1085 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

vi


TABLE OF CITATIONS - (Cont’d)

Page

CASES - (Cont’d)

Smith v. United States, 135 S. Ct. 2930 (June 30, 2015).. . . . . . . . . . . . . . . . . . . . 26

Stinson v. United States, 508 U.S. 36 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . 22-23

Sykes v. United States, 131 S. Ct. 2267 (2011). . . . . . . . . . . . . . . . . . . . . . 15, 26-27

Talmore v. United States, 135 S. Ct. 2937 (June 30, 2015).. . . . . . . . . . . . . . . . . . 26

Taylor v. United States, 495 U.S. 575 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20

Thomas v. State, 303 S.W.3d 331 (Tex. App. – El Paso 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Anderson, 559 F.3d 348 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Batchelder, 442 U.S. 114 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Booker, 543 U.S. 220 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Bustillos-Peña, 612 F.3d 863 (5th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Clark, 582 F.3d 607 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

vii



Page

CASES - (Cont’d)

United States v. Darden, 605 Fed. Appx. 545 (6th Cir. 2015) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 21, 23, 25-26

United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Fernandez, 776 F.3d 344 (5th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31

United States v. Gibbs, 626 F.3d 344 (6th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Granderson, 511 U.S. 39 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Gray, 535 F.3d 128 (2d Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Harbin, Nos. 14-3956 & 14-3964, 2015 WL 4393889 (6th Cir. July 20, 2015) (unpublished).. . . . . . . . . . . . . . . . . . . . . 12, 21, 23, 25-26

United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27

United States v. Herrick, 545 F.3d 53 (1st Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Howard, 766 F.3d 414 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. John, 597 F.3d 263 (5th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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Page

CASES - (Cont’d)

United States v. Lanier, 520 U.S. 259 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . 28-29

United States v. Mackey, 313 Fed. Appx. 699 (5th Cir. 2009) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Mahanera, ___ Fed. Appx. ___, 2015 WL 3452894 (5th Cir. June 10, 2015) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-35

United States v. Marrero, 743 F.3d 389 (3d Cir. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. McDonald, 431 Fed. Appx. 282 (5th Cir. 2011) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27

United States v. McDonald, 592 F.3d 808 (7th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Mohr, 554 F.3d 604 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 27

United States v. Montgomery, 402 F.3d 483 (5th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Moore, 635 F.3d 774 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 27

United States v. Park, 649 F.3d 1175 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Rodriguez, 558 F.3d 408 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

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Page

CASES - (Cont’d)

United States v. Salazar, 743 F.3d 445 (5th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32-35

United States v. Shell, 789 F.3d 335 (4th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

United States v. Skilling, 554 F.3d 529 (5th Cir. 2009), vacated in part on other grounds by Skilling v. United States, 561 U.S. 358 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Stevens, 37 Fed. Appx. 90 (5th Cir. 2002) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Vincent, 575 F.3d 820 (8th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Weatherton, 567 F.3d 149 (5th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-32

United States v. Williams, 559 F.3d 1143 (10th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

CONSTITUTIONAL PROVISION

U.S. Const. amend. V.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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Page

STATUTES AND RULES

18 U.S.C. § 16(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 U.S.C. § 16(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

18 U.S.C. § 922(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

18 U.S.C. § 924(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

18 U.S.C. § 924(e)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

18 U.S.C. § 924(e)(2)(B)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

18 U.S.C. § 924(e)(2)(B)(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii, 5, 9, 11, 15

18 U.S.C. § 3553(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. § 3553(a)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. § 3553(a)(2)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. § 3553(a)(2)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-32

18 U.S.C. § 3553(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

18 U.S.C. § 3583(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. § 3583(d)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 31-33

18 U.S.C. § 3583(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

18 U.S.C. § 3583(d)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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STATUTES AND RULES - (Cont’d)

18 U.S.C. § 3742(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

21 U.S.C. § 841(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

21 U.S.C. § 841(b)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

21 U.S.C. § 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fed. R. App. P. 4(b)(1)(A)(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tex. Penal Code § 22.01(a)(1) (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

Tex. Penal Code § 22.01(b) (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13

5th Cir. R. 28.2.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

SENTENCING GUIDELINES

USSG § 2D1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

USSG § 2D1.1(c)(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

USSG § 2L1.2(b)(1)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

USSG § 3E1.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 25

USSG § 3E1.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 25

xii



Page

SENTENCING GUIDELINES - (Cont’d)

USSG § 4B1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 11

USSG § 4B1.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

USSG § 4B1.1(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

USSG § 4B1.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

USSG § 4B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

USSG § 4B1.2(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17, 23

USSG § 4B1.2(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

USSG § 4B1.2(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

USSG § 4B1.2, comment. (n.1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

USSG § 4B1.2(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

USSG Ch.5, Pt.A, Sentencing Table. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

USSG App. C., amend. 268. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

MISCELLANEOUS

H. Packer, The Limits of the Criminal Sanction (1968). . . . . . . . . . . . . . . . . . . . . 29

xiii


STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1291, as this

is an appeal from a final judgment of conviction and sentence entered by the United

States District Court for the Southern District of Texas, Corpus Christi Division.

Jurisdiction also lies under 18 U.S.C. § 3742(a)(2), which provides for review of

sentences imposed as the result of an incorrect application of the United States

Sentencing Guidelines.

The judgment appealed from was entered on the docket on February 19, 2015.

Mr. Estrada filed his notice of appeal four days later on February 23, 2015. This

appeal is timely. See Fed. R. App. P. 4(b)(1)(A)(i).

1


STATEMENT OF THE ISSUES

ISSUE ONE: Whether the district court committed reversible errorwhen it sentenced Mr. Estrada as a “career offender” under USSG §§4B1.1 and 4B1.2 because the residual clause of the “crime of violence”definition in § 4B1.2(a)(2) – the Guideline provision that formed thebasis for that classification – is unconstitutionally vague in light ofJohnson v. United States, 135 S. Ct. 2551 (2015).

ISSUE TWO: Whether the district court abused its discretion andcommitted reversible plain error by imposing a “nighttime restriction”as a special condition of Mr. Estrada’s supervised release.

2


STATEMENT OF THE CASE

A. The charge and guilty plea

On September 24, 2014, a federal grand jury in the Corpus Christi Division of

the Southern District of Texas returned a one-count indictment charging Defendant-

Appellant Raymond Estrada with possession with intent to distribute approximately

56.1 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B).

ROA.7. On November 3, 2014, without a plea agreement, ROA.51-52, Mr. Estrada

entered a plea of guilty to the indictment. ROA.53-55.

B. The sentencing

1. The presentence investigation report

Prior to sentencing, the probation office prepared a presentence investigation

report (“PSR”), using the 2014 edition of the United States Sentencing Guidelines

(“USSG”). ROA.81 (PSR ¶ 10). Although the PSR first calculated Mr. Estrada’s

Guidelines using the Guideline for the offense of conviction (USSG § 2D1.1), see

ROA.81-82 (PSR ¶¶ 11-18), it then found that Mr. Estrada was “a career offender

within the meaning of U.S.S.G. § 4B1.1.” ROA.82 (PSR ¶ 19).

The PSR did not identify any prior convictions that it believed justified the

career-offender enhancement. See ROA.82 (PSR ¶ 19). As a sealed attachment to the

3


PSR, the probation office provided copies of the conviction documents for three of

Mr. Estrada’s prior convictions: (1) federal felony conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g), see ROA.102-109; (2)

federal conspiracy to possess with intent to distribute more than 5 grams of cocaine

base, in violation of 21 U.S.C. §§ 846 and 841(a)(1) & (b)(1)(B), see ROA.102-109;

and (3) a Texas felony conviction for assault of a peace officer, in violation of Tex.

Penal Code § 22.01(a)(1) & (b) (1997). See ROA.110-115. The PSR also reflects1

that Mr. Estrada had prior Texas convictions for (1) felony possession of cocaine, see

ROA.83 (PSR ¶ 23); ROA.84-85 (PSR ¶ 25); ROA.86 (PSR ¶ 28); (2) felony evading

arrest with a vehicle, see ROA.88 (PSR ¶ 33); ROA.89 (PSR ¶ 35); (3) felony

retaliation, see ROA.89 (PSR ¶ 35); and (4) various misdemeanor convictions. See

ROA.85-86 (PSR ¶¶ 26-27) (driving while license suspended); ROA.87 (PSR ¶¶ 30-

31) (same); ROA.86 (PSR ¶ 29) (resisting arrest/search); ROA.87-88 (PSR ¶¶ 32, 34)

(possession of marijuana).

Because application of the career-offender Guideline resulted in an offense

level (34) that was greater than that calculated under USSG § 2D1.1 (21), the PSR

The judgment for the Texas assault conviction reflects that Mr. Estrada “waived reading1

of the indictment and entered a plea of guilty to the offense of ASSAULT ON PEACE OFFICER”and that the state court sentenced him to five years of imprisonment, suspended for five years ofprobation. ROA.111-112. On August 18, 2000, Mr. Estrada’s probation was revoked and he wassentenced to two years of imprisonment. ROA.113-114. The record does not contain a factual basisfor the plea and it does not indicate that Mr. Estrada pleaded guilty as charged in the indictment oradmitted any factual allegations in the indictment.

4


applied the higher offense level of 34. ROA.82 (PSR ¶ 19). With a three-level

reduction for acceptance of responsibility under USSG § 3E1.1(a) & (b), the total

offense level was 31. ROA.82 (PSR ¶¶ 20-21).

Mr. Estrada’s criminal history category was VI, which corresponded to the

criminal history category required under the career-offender Guideline. ROA.91 (PSR

¶ 39); see also USSG § 4B1.1(b) (“A career offender’s criminal history category in

every case under this subsection shall be Category VI.”). Based on a total offense

level of 31 and a criminal history category of VI, the PSR calculated Mr. Estrada’s

Guideline imprisonment range to be 188 to 235 months. ROA.98 (PSR ¶ 74); see also

USSG, Ch.5, Pt.A, Sentencing Table.

2. Mr. Estrada’s objection to the PSR

Mr. Estrada objected in writing to the PSR’s characterization of him as a career

offender. ROA.117-123. He argued that his 1997 Texas conviction for assault of a

peace officer did not qualify as one for a “crime of violence” under the residual clause

of USSG § 4B1.2(a)(2) for purposes of the career-offender enhancement. ROA.117-

123. And, he argued that (1) the “crime of violence” definition in the residual clause

of § 4B1.2(a)(2), which is identical to the “violent felony” definition in the residual

clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),

was void for vagueness. ROA.117-118, 122-123. He noted that, at that time, the

5


Supreme Court was considering the question of whether ACCA’s residual clause was

void for vagueness in Johnson v. United States, 135 S. Ct. 939 (2015), and that, if the

Supreme Court held that ACCA’s residual clause was void, § 4B1.2’s residual clause

would also be void. ROA.122-123.

Mr. Estrada also argued that, even if § 4B1.2’s residual clause was not

unconstitutionally vague, his prior Texas felony conviction for assault on a peace

officer did not otherwise meet the “crime of violence” definition. ROA.119-122.

Neither the government nor the probation office responded in writing to this

objection.

3. The sentencing hearing

At the sentencing hearing, on February 18, 2015, Mr. Estrada reurged the

objection to the characterization of him as a career offender and again noted that the

Supreme Court was considering the constitutionality of the residual clause in the

“violent felony” definition of ACCA, which is identical to the residual clause in the

“crime of violence” definition in USSG § 4B1.2(a)(2). See ROA.60-61. Counsel

explained that the Fifth Circuit interprets these identical residual clauses the same, and

that, if the Supreme Court found the ACCA’s residual clause void for vagueness, the

Fifth Circuit would likely find § 4B1.2’s residual clause void. See ROA.61. Mr.

Estrada also reurged the arguments that, even if § 4B1.2’s residual clause was upheld

6


as constitutional, Mr. Estrada’s prior Texas assault conviction still did not qualify as

one for a “crime of violence.” See ROA.62-67. Without explanation, the district

court overruled the objection. ROA.67.

The district court found that the Guideline imprisonment range was 188 to 235

based on a total offense level of 31 and a criminal history category of VI. ROA.67.

The court then listened to defense counsel’s arguments for a variance below the

Guideline imprisonment range to a sentence of 120 months, which were based on (1)

Mr. Estrada’s youth at the time of commission of the assault on a peace officer; (2)

the fact that the assault offense did not involve a weapon and Mr. Estrada had received

probation for it; and (3) Mr. Estrada’s physical and mental health, specifically his

diabetes (which caused his mother’s death), hypertension, and struggles with mental

illness (a struggle that had led to his brother’s death). ROA.72-74.

The district court sentenced Mr. Estrada to 188 months of imprisonment in the

custody of the Federal Bureau of Prisons, to be followed by five years of supervised

release. ROA.75. As a special condition of supervised release, the court ordered “a2

nighttime restriction of 12:00 midnight to 6:00 a.m.” ROA.75-76; see also ROA.28.

During this same proceeding, the district court revoked Mr. Estrada’s supervised release2

in a different case and sentenced him to 24 months of imprisonment on each of two counts ofconviction, to run concurrently. The court then ordered the 24-month concurrent revocationsentences to run consecutively to the 188-month prison sentence imposed in the instant case. Therevocation cases are not part of the instant appeal.

7


C. The appeal

On February 23, 2015, Mr. Estrada filed a timely notice of appeal. ROA.31-32.

At issue in this appeal is the constitutionality of the residual clause of the “crime of

violence” definition in USSG § 4B1.2(a)(2) and the district court’s consequent

characterization of Mr. Estrada as a “career offender” based on that clause. Also at

issue is whether the district court abused its discretion and committed reversible plain

error in imposing a “nighttime restriction” as a special condition of supervised release.

8


SUMMARY OF THE ARGUMENT

ISSUE ONE: The district court reversibly erred by classifying Mr. Estrada as

a “career offender” because the residual clause of the “crime of violence” definition

in USSG § 4B1.2(a)(2) – the Guideline provision that formed the basis for the career-

offender classification – is unconstitutionally vague in violation of the Due Process

Clause of the Fifth Amendment. In Johnson v. United States, 135 S. Ct. 2551 (2015),

the Supreme Court of the United States held that the residual clause of the Armed

Career Criminal Act’s definition of “violent felony,” 18 U.S.C. § 924(e)(2)(B)(ii), was

unconstitutionally vague, and that, therefore, enhancing a defendant’s sentence under

that provision violated due process. The residual clause of the “crime of violence”

definition under § 4B1.2 is identical to the clause that Johnson invalidated. Indeed,

every federal circuit, including the Fifth Circuit, has determined that application of the

career-offender residual clause requires the exact same inquiry into the riskiness of the

imagined “ordinary case” of the defendant’s predicate crime that the Johnson Court

held violated due process. In light of Johnson, the residual clause of the “crime of

violence” definition in § 4B1.2 is unconstitutionally vague. Therefore, enhancing

Mr. Estrada’s sentence under that clause violated due process.

The government cannot prove that the district court’s error was harmless.

Without application of the career-offender enhancement, Mr. Estrada’s advisory

9


Guideline range would have been 77 to 96 months – anywhere from 92 to 111 months

less than the 188-month prison sentence imposed by the district court. Accordingly,

this Court should vacate Mr. Estrada’s sentence and remanding for resentencing.

ISSUE TWO: The district court committed reversible plain error by imposing

a special condition on Mr. Estrada’s supervised release that prohibits Mr. Estrada from

leaving his residence between the hours of midnight and 6 a.m. for the duration of his

five-year supervised-release term. The district court did not explain how the nighttime

condition was reasonably related to the statutory goals of supervised release outlined

in 18 U.S.C. § 3583(d)(1). This failure constitutes plain error. Because there is no

evidence of a reasonable relationship between the nighttime restriction’s arbitrary

curfew and (1) the present offense, (2) Mr. Estrada’s history and characteristics, (3)

deterrence, (4) public protection, or (5) furthering Mr. Estrada’s rehabilitative needs,

the district court’s plain error affected Mr. Estrada’s substantial rights. The degree of

the district court’s error and the burdensome nature of the nighttime restriction

warrants this Court’s exercise of its discretion to correct the prejudicial plain error in

this case. Accordingly, this Court should exercise its discretion to correct the error,

vacate the nighttime restriction, and remand this case to the district court for

reconsideration of the nighttime restriction.

10


ARGUMENT

ISSUE ONE RESTATED: The district court committed reversible errorwhen it sentenced Mr. Estrada as a “career offender” under USSG §§4B1.1 and 4B1.2 because the residual clause of the “crime of violence”definition in § 4B1.2(a)(2) – the Guideline provision that formed thebasis for that classification – is unconstitutionally vague in light ofJohnson v. United States, 135 S. Ct. 2551 (2015).

A. Standard of review

This Court reviews challenges to the constitutionality of a criminal statute de

novo. United States v. Howard, 766 F.3d 414, 419 (5th Cir. 2014) (citing United

States v. Clark, 582 F.3d 607, 612 (5th Cir. 2009)).

B. Introduction

The Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), held

that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

924(e)(2)(B)(ii), is “unconstitutionally vague.” Johnson, 135 S. Ct. at 2557-58.

Johnson compels the conclusion that the residual clause of USSG § 4B1.2(a)(2),

which is at issue in this case, is unconstitutionally vague. Because Mr. Estrada’s prior

Texas convictions for Texas assault of a peace officer and evading arrest with a motor

vehicle could be “crimes of violence” only under the residual clause, he is entitled to

the same relief as offenders sentenced under the residual clause of ACCA. The Sixth

Circuit already has held that Johnson compels this conclusion, and vacated sentences

11


and remanded for resentencing. See United States v. Harbin, Nos. 14-3956 & 14-

3964, 2015 WL 4393889 (6th Cir. July 20, 2015) (unpublished) (holding that

appellant, who was sentenced as a career offender under the residual clause of §

4B1.2(a)(2), “is entitled to the same relief as offenders sentenced under the residual

clause of the ACCA”); United States v. Darden, 605 Fed. Appx. 545, 546 (6th Cir.

2015) (unpublished) (same). This Court should do the same.

C. The district court reversibly erred by classifying Mr. Estrada as a “careeroffender” because the “crime of violence” definition in the residual clause ofUSSG § 4B1.2(a)(2) – the Guideline provision that formed the basis for thatclassification – is unconstitutionally vague.

A defendant is a career offender if (1) the defendant was at least eighteenyears old at the time the defendant committed the instant offense ofconviction; (2) the instant offense of conviction is a felony that is eithera crime of violence or a controlled substance offense; and (3) thedefendant has at least two prior felony convictions of either a crime ofviolence or a controlled substance offense.

USSG § 4B1.1(a). There is no dispute that Mr. Estrada was over 18 at the time of the

instant offense; nor is there any dispute that the instant offense is a “controlled

substance offense” for purposes of this Guideline. Rather, at issue in this case is the

third prong of this definition, namely, whether Mr. Estrada had, at the time of the

commission of the instant offense, see USSG § 4B1.2(c), “at least two prior felony

convictions of either a crime of violence or a controlled substance offense.” USSG

§ 4B1.1(a)(3).

12


Mr. Estrada has one prior felony for a controlled substance offense. See

ROA.89 (PSR ¶ 36) (listing, as part of criminal history, federal conspiracy to possess

with intent to distribute more than five grams of cocaine base); ROA.102-109

(conviction documents). Thus, the answer to this question depends on whether Mr.

Estrada’s prior Texas felony conviction for assault on a peace officer or one of his two

Texas felony convictions for evading arrest with a vehicle are convictions for a “crime

of violence” within the meaning of the residual clause of the “crime of violence”

definition in USSG § 4B1.2(a)(2). 3

In the district court, Mr. Estrada specifically objected to the characterization of

his 1997 Texas felony conviction for assault on a peace officer, in violation of Tex.

Penal Code § 22.01(a)(1) & (b) (1997), as one for a “crime of violence” under §4

Mr. Estrada also has a prior Texas felony conviction for retaliation. See ROA.89 (PSR ¶3

35). However, the record does not contain any of the underlying state-court documents, and thisCourt has held that Texas’s retaliation statute does not categorically qualify as either a “violentfelony” under ACCA or a “crime of violence” under USSG § 4B1.2. See United States v.Montgomery, 402 F.3d 483, 486, 488-89 (5th Cir. 2005) (not categorically a “violent felony” underACCA); United States v. Stevens, 37 Fed. Appx. 90 (5th Cir. 2002) (unpublished) (not categoricallya “crime of violence” under USSG § 4B1.2).

At the time of the commission of the offense, the Texas Penal Code defined assault, in4

relevant part as follows: “A person commits an offense if the person [ ] intentionally, knowingly,or recklessly causes bodily injury to another, including the person’s spouse; . . .” Tex. Penal Code§ 22.01(a)(1) (1997). “An offense under Subsection (a)(1) is a Class A misdemeanor, except thatthe offense is a felony of the third degree if the offense is committed against a person the actorknows is a public servant while the public servant is lawfully discharging an official duty . . . .” Tex. Penal Code § 22.01(b) (1997).

13


4B1.2. See ROA.117-123 (written objection); see also ROA.60-67 (objections at5

sentencing). Although Mr. Estrada did not object specifically to his Texas felony

convictions for evading arrest with a vehicle, he did clearly challenge the6

constitutionality of § 4B1.2(a)(2)’s residual clause on the ground that it was void for

vagueness. See ROA.117-118, 122-123; ROA.60-61.

As discussed below, the district court reversibly erred by applying the “career

offender” enhancement based on § 4B1.2(a)(2)’s residual clause “crime of violence”

definition because § 4B1.2(a)(2) is unconstitutionally vague on its face. And, because

§ 4B1.2(a)(2)’s residual clause is constitutionally vague on its face, Mr. Estrada’s

prior convictions for assault on a peace officer and evading arrest with a vehicle –

which rise or fall on this residual clause – cannot sustain the career-offender

enhancement.

1. The residual clause of USSG § 4B1.2(a)(2) is void for vagueness.

As Mr. Estrada indicated below, and the district court acknowledged, ROA.60-

In the district court, the government noted that this Court had held that Texas assault of a5

peace officer was a “crime of violence” under § 4B1.2(a)(2)’s residual clause. See ROA.65-66(citing United States v. Mackey, 313 Fed. Appx. 699, 701 (5th Cir. 2009) (unpublished) (which, inturn relies on United States v. Anderson, 559 F.3d 348 (5th Cir. 2009) (holding this)).

The probation office did not identify the Texas convictions for assault of a peace officer6

or evading arrest with a vehicle as qualifying for enhancement under the career-offender Guideline(although it did attach the conviction documents for the assault to the PSR). The government andthe district court discussed the conviction for assault but did not discuss or mention the convictionsfor evading arrest with a vehicle.

14


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

addressing whether the definition of “violent felony” in the residual clause of ACCA,

18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, would have a significant

impact on Mr. Estrada’s vagueness challenge to USSG § 4B1.2(a)(2).

On June 26, 2015, the Supreme Court held that the residual clause in ACCA

was unconstitutionally vague. See Johnson, 135 S. Ct. at 2556-60. Accordingly, the

Court held that “imposing an increased sentence under the residual clause of the

Armed Career Criminal Act violates the Constitution’s guarantee of due process,” and

expressly overruled its contrary holdings in James v. United States, 550 U.S. 192

(2007), and Sykes v. United States, 131 S. Ct. 2267 (2011). Id. at 2563. In doing so,

the Court made clear that the due process principles at the heart of the vagueness

doctrine – that criminal statutes must provide notice of their reach and minimal

standards to avoid arbitrary enforcement – “apply not only to statutes defining

elements of crimes, but also to statutes fixing sentences.” Johnson, 135 S. Ct. at 2557

(citing United States v. Batchelder, 442 U.S. 114, 123 (1979)). Johnson further

confirms that the arbitrariness prong applies to judges making sentencing

determinations in addition to law enforcement officers. Id. at 2557-58.

The features that the Supreme Court identified in Johnson that rendered the

residual clause constitutionally deficient are also present in USSG § 4B1.2(a)(2),

15


which is employed, like the residual clause in ACCA, as a sentencing enhancement

provision. Indeed, because ACCA’s residual clause is identical to the residual clause

in § 4B1.2(a)(2), the due process principles espoused in Johnson compel the7

conclusion that the residual clause of § 4B1.2(a)(2) violates the Constitution’s

prohibition against vague criminal laws.

It is clear from a comparison of the “crime of violence” definition in USSG §

4B1.2(a) and the “violent felony” definition in ACCA (18 U.S.C. § 924(e)(2)(B)) that

the two provisions’ residual clauses are identical. For purposes of the “career8

offender” Guideline, USSG § 4B1.2(a) defines “crime of violence” as follows:

The term “crime of violence” means any offense under federal or state

Indeed, the language of § 4B1.2(a)(2)’s residual clause “is derived from 18 U.S.C. §7

924(e).” USSG App. C., amend. 268. See also James, 550 U.S. at 206, overruled on other groundsby Johnson, 135 S. Ct. at 2563 (noting that § 4B1.2’s “crime of violence” definition “closely tracksACCA’s definition of ‘violent felony’”).

Texas assault, as defined, does not meet the “has as an element” test in USSG §8

4B1.2(a)(1), see United States v. Villegas-Hernandez, 468 F.3d 874, 878-83 (5th Cir. 2006) (soholding for the identical “has as an element” test in 18 U.S.C. § 16(a)), and it is not enumerated in§ 4B1.2(a)(2). The government did not contend otherwise in the district court. Consequently, Mr.Estrada’s conviction for assault on a peace officer qualifies for enhancement only if it meets the“crime of violence” definition in the residual clause of § 4B1.2(a)(2). The same is true for Mr.Estrada’s prior Texas convictions for evading arrest with a vehicle. See United States v. McDonald,431 Fed. Appx. 282, 282 (5th Cir. 2011) (unpublished) (relying on United States v. Harrimon, 568F.3d 531, 534-37 (5th Cir. 2009), interpreting the identical residual clause in ACCA, to find that theTexas offense of evading arrest with a vehicle was a “crime of violence” under § 4B1.2(a)(2)’sresidual clause); Harrimon, 568 F.3d at 534 (noting that government did not contend that Texasevading arrest with a vehicle had the requisite force element or was an enumerated offense). It alsois clear that none of these prior convictions (including the one for retaliation) were offenses that areenumerated in § 4B1.2(a)(2). Consequently, whether these prior convictions qualify forenhancement under the career-offender Guideline turns on the applicability of § 4B1.2(a)(2)’sresidual clause post-Johnson.

16


law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use ofphysical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use ofexplosives, or otherwise involves conduct that presents a seriouspotential risk of physical injury to another.

USSG § 4B1.2(a) (emphasis added).9

Likewise, the “violent felony” definition in ACCA, 18 U.S.C. § 924(e)(2)(B),

is defined, in relevant part, the same, as follows:

[T]he term “violent felony” means any crime punishable byimprisonment for a term exceeding one year . . . that—

(i) has as an element the use, attempted use, or threatened use ofphysical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, orotherwise involves conduct that presents a serious potential risk ofphysical injury to another; . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added; formatting slightly altered).

The commentary to USSG § 4B1.2 provides as follows:9

“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault,forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, andburglary of a dwelling. Other offenses are included as “crimes of violence” if (A)that offense has as an element the use, attempted use, or threatened use of physicalforce against the person of another, or (B) the conduct set forth (i.e., expresslycharged) in the count of which the defendant was convicted involved use ofexplosives (including any explosive material or destructive device) or, by its nature,presented a serious potential risk of physical injury to another.

USSG § 4B1.2, comment. (n.1).

17


This Court has consistently applied its holdings and analysis under the residual

clause of ACCA to interpret and classify predicate crimes under the definition of

“crime of violence” in USSG § 4B1.2. See United States v. Mohr, 554 F.3d 604, 609

n.4 (5th Cir. 2009) (citing cases). The due-process problem identified in Johnson10

was the indeterminacy of the wide-ranging inquiry under ACCA that the categorical

approach necessitates in order to assess whether an offense involves a “serious

potential risk of physical injury to another.” See Johnson, 135 S. Ct. at 2557. That11

indeterminancy is equally present in the inquiry required under § 4B1.2(a)(2).

A criminal statute violates due process if it is either “so vague that it fails to

give ordinary people fair notice of the conduct it punishes, or so standardless that it

invites arbitrary enforcement.” Johnson, 135 S. Ct. at 2557 (citing Kolender v.

The other federal circuits also recognize that the residual clause of ACCA and the residual10

clause in § 4B1.2(a)(2) are construed the same way, and rely on precedents applying those clausesinterchangeably. See, e.g., United States v. Herrick, 545 F.3d 53, 58 (1st Cir. 2008); United Statesv. Gray, 535 F.3d 128, 130 (2d Cir. 2008); United States v. Marrero, 743 F.3d 389, 394 n.2 (3d Cir.2014); United States v. Carthorne, 726 F.3d 503, 511 n.6 (4th Cir. 2013); United States v. Gibbs,626 F.3d 344, 352 n.6 (6th Cir. 2010); United States v. McDonald, 592 F.3d 808, 810 (7th Cir.2010); United States v. Vincent, 575 F.3d 820, 826 (8th Cir. 2009); United States v. Park, 649 F.3d1175, 1177 (9th Cir. 2011); United States v. Williams, 559 F.3d 1143, 1148 n.7 (10th Cir. 2009);Gilbert v. United States, 640 F.3d 1293, 1309 n.16 (11th Cir. 2011); In re Sealed Case, 548 F.3d1085, 1089 (D.C. Cir. 2008).

The Supreme Court has long held that ACCA requires the courts to use the categorical11

approach in determining whether a prior conviction constitutes a “violent felony.” See Taylor v.United States, 495 U.S. 575, 600 (1990); accord Johnson, 135 S. Ct. at 2557. This Court also hasheld that the categorical approach applies to the determination whether an offense is a “crime ofviolence” under USSG § 4B1.2. See United States v. Moore, 635 F.3d 774, 777 (5th Cir. 2011) (sostating); see also Mohr, 554 F.3d at 607 (same).

18


Lawson, 461 U.S. 352, 357-58 (1983)). The notice and arbitrary enforcement prongs

are independent, and a law that transgresses against either requirement is

unconstitutionally vague on its face. See City of Chicago v. Morales, 527 U.S. 41,

55-56 (1999).

In Johnson, the Supreme Court held that the residual clause offended both

vagueness prongs. Importantly, the Court did not reach this conclusion because it

found the residual clause’s language to be incomprehensible. Rather, the residual

clause was unconstitutionally vague because the inquiry that it required in

determining whether any given predicate crime fell within its ambit was necessarily

arbitrary: “We are convinced that the indeterminacy of the wide-ranging inquiry

required by the residual clause both denies fair notice to defendants and invites

arbitrary enforcement by judges.” Johnson, 135 S. Ct. at 2557 (emphasis added).

The Court singled out two features that caused the residual clause to violate due

process. First, in order to estimate the level of risk attending a predicate crime – and

hence determine whether that crime was subject to enhancement – the residual clause

required sentencing courts to imagine the kind of conduct involved in the “ordinary

case” of the crime. Id. at 2557-58. The ordinary case inquiry was unavoidable, the

Court explained, because ACCA’s violent felony definition applies only to previous

“convictions,” and thus obliges courts to perform the categorical approach announced

19


in Taylor. Id. at 2557, 2561-62. In addition, unlike the part of the “violent felony”

definition that asks whether a predicate crime “has as an element the use . . . of

physical force,” 18 U.S.C. § 924(e)(2)(B)(i), the residual clause asks whether the

crime “involves conduct” that is sufficiently risky. Id. at 2557. The residual clause

thus required sentencing courts to ignore how the individual defendant committed his

prior crime, and also to go “beyond deciding whether creation of risk is an element of

[that] crime.” Id.

The upshot was that by “t[ying] the judicial assessment of risk to a judicially

imagined ‘ordinary case’ of a crime, [and] not to real-world facts or statutory

elements,” the residual clause created “grave uncertainty about how to estimate the

risk posed by a crime.” Id. at 2557. Indeed, the Court found it “critical” that

assessing “serious potential risk” forced judges to look beyond the individual

defendant’s behavior and “imagine how the idealized ordinary case of the crime

subsequently play[ed] out.” Id. at 2557-58. But the residual clause itself offered

courts no guidance, and thus no “reliable way to choose” what conduct constituted the

“ordinary case” from among the many conceivable variations of a given crime. Id. at

2558.12

As a result, picturing the “ordinary case” necessarily required courts to engage in unguided12

speculation. See id. (citing the attempted burglary offense at issue in James as an example of thisspeculation).

20


Second, the residual clause provided no guidance as to how to determine if the

risk posed by the “ordinary case” of a predicate crime was “serious.” Id. at 2557-58.

Again, the Court pointed out the distinction between judging risk created by actual

conduct and estimating the risk attending the “ordinary case,” and emphasized that the

difference mattered for due process: “It is one thing to apply an imprecise ‘serious

potential risk’ standard to real-world facts; it is quite another to apply it to a judge-

imagined abstraction.” Id. at 2558. Moreover, the Court explained that reference to

the enumerated offenses did not cure the problem – the degree of risk presented in the

ordinary case of those crimes was no clearer than any non-enumerated predicate

crime. Id. The Court thus concluded that the residual clause combined indeterminacy

about how to measure the risk posed by a crime with indeterminacy about how much

risk it takes to qualify for enhancement, and therefore produced “more

unpredictability and arbitrariness than the Due Process Clause tolerates.” Id.

Because ACCA’s residual clause is identical to the residual clause in USSG §

4B1.2(a)(2), and because this Court interprets the two clauses identically, this Court

should, as did the Supreme Court in Johnson, find the residual clause in § 4B1.2(a)(2)

void for vagueness. See Darden, 605 Fed. Appx. at 546 (noting that the court

previously interpreted the residual clauses of ACCA and § 4B1.2(a)(2) identically and

vacating sentence in light of Johnson); see also Harbin, 2015 WL 4393889, at *1

21


(same).

The text of the commentary, which states, in relevant part, that “[o]ther offenses

are included as ‘crimes of violence’ if . . . the conduct set forth (i.e., expressly

charged) in the count of which the defendant was convicted . . . by its nature,

presented a serious potential risk of physical injury to another,” does not change the

analysis. First, it suffers from the same vagueness problems as the text of the

controlling Guideline, § 4B1.2(a)(2), because it still requires the Court to imagine the

kind of conduct involved in the “ordinary case” of the particular crime, and it gives13

no guidance as to how to determine if the risk posed by the “ordinary case” of that

crime was “serious.” See supra text, at 19-21.

Moreover, any inconsistency between the text of § 4B1.2(a)(2) and the

commentary must be resolved in favor of the text of the Guideline. See Stinson v.

This is so, even if the Court looks to the conduct charged in the indictment for assault of13

a peace officer: “by striking him with his hand.” ROA.110. The Court still must first decide whatthe ordinary assault case is, and then decide whether the conduct charged fits within that ordinarycase. Because the court cannot get past the “ordinary case” problem, it cannot even tackle theconduct-charged question. Moreover, in this case, there is no evidence that Mr. Estrada actuallypleaded guilty to the indictment as charged. And, in Texas, the prosecution is not required to provethe manner and means alleged – here “by striking him with his hand” – in order to secure aconviction. See Thomas v. State, 303 S.W.3d 331, 333 (Tex. App.–El Paso 2009) (explaining that,for the assault charged in that case, the prosecution needed only to prove whether appellantintentionally, knowingly, or recklessly caused bodily injury to another and that “[t]he manner andmeans of the bodily injury alleged is not an essential element of the offense and therefore is notincluded within the hypothetically correct jury charge” against which the sufficiency of the evidenceis measured in Texas) (and cases cited therein); see also Johnson v. State, 364 S.W.3d 292 (Tex.Crim. App. 2012) (explaining that an immaterial variance between the pleading and proof, such aswhen the manner and means proved is different than that charged, does not affect the sufficiencyanalysis). There are no charging documents for the convictions for evading arrest with a vehicle.

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United States, 508 U.S. 36, 43 (1993) (where commentary is inconsistent with the text

of the Guideline, the text controls); see also United States v. Shell, 789 F.3d 335, 340,

345 (4th Cir. 2015) (noting inconsistency between text of § 4B1.2(a) “crime of

violence” definition and the commentary and resolving inconsistency in favor of text).

And, as Johnson clearly compels, the text of the residual clause of the Guideline is

void for vagueness. Indeed, the Sixth Circuit has twice vacated sentences enhanced

pursuant to § 4B1.2’s residual clause based on the text of the Guideline itself, without

any reference to its commentary. See Harbin, 2015 WL 4393889, at *1; Darden, 605

Fed. Appx. at 546.

Additionally, the discretionary nature of the Guidelines does not provide a

sufficient basis for distinguishing the § 4B1.2(a)(2) residual clause from ACCA’s

residual clause for purposes of a vagueness analysis. In Peugh v. United States, 133

S. Ct. 2072 (2013), the Court found that using a later, higher Guideline range violates

the Ex Post Facto Clause because the Sentencing Guidelines, though advisory, are

nevertheless laws “that ‘change[ ] the punishment, and inflic[t] a greater punishment,

than the law annexed to the crime, when committed.’” Id. at 2081 (quoting Calder v.

Bull, 3 Dall. 386, 390 (1798)). In so finding, the Court explicitly rejected the

argument that the Guidelines, given their advisory nature, are not “a ‘law’ within the

meaning of the Ex Post Facto Clause.” Id. at 2085-87. The Court explained that (1)

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after United States v. Booker, 543 U.S. 220 (2005), district courts “must” begin all

sentencing by correctly calculating the Guidelines range, (2) that the Guidelines range

is “the starting point,” “benchmark,” and “lodestar” of sentencing, and normally

“serves as the basis” for the sentence imposed, and (3) that district courts are in fact

tethered to the Guidelines. Id. at 2083-84 (emphasis added). “A retrospective

increase” in the correct Guideline range, even though that range is advisory, “creates

a sufficient risk of a higher sentence to constitute an ex post facto violation.” Id. at

2084.

The prohibition against Ex Post Facto laws and the due process prohibition

against vague criminal statutes are both concerned with fair warning and the

applicable rules of law. See Johnson, 135 S. Ct. at 2556-2557 (“The prohibition of

vagueness . . . ‘is a well-recognized requirement, consonant alike with ordinary

notions of fair play and the settled rules of law[.]’”) (quoting Connally v. General

Constr. Co., 269 U.S. 385, 391 (1926)); Peugh, 133 S. Ct. at 2085 (“The [Ex Post

Facto] Clause ensures that individuals have fair warning of applicable laws . . . .”).

Just as the Constitution prohibits imposing a harsher sentence based on a guideline

that has changed after the crime, Peugh, 133 S. Ct. at 2088, it also prohibits imposing

a harsher sentence based on a guideline that is so vague that its application is both

unpredictable and arbitrary. Cf. Johnson, 135 S. Ct. at 2557.

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Because the residual clause in § 4B1.2(a)(2) is void for vagueness, it was error

for the district court to base the career-offender enhancement on Mr. Estrada’s Texas

convictions for assault on a peace officer, evading arrest with a motor vehicle, or

retaliation. This Court should therefore vacate his sentence and remand for

resentencing. See Harbin, 2015 WL 4393889, at *1; Darden, 605 Fed. Appx. at 546.

2. The government cannot show that the district court’s error was harmless.

The district court’s error here in relying on § 4B1.2(a)(2)’s residual clause to

classify Mr. Estrada’s Texas convictions for assault on a peace officer, evading arrest,

and retaliation as ones for “crime of violence” justifying the career-offender

enhancement was not harmless. Had the district court not applied the career-offender

enhancement, Mr. Estrada’s total offense level would have been 21 (base offense level

of 24 under USSG § 2D1.1(c)(8), reduced by three levels under USSG § 3E1.1(a) &

(b) for acceptance of responsibility). Coupled with Mr. Estrada’s criminal history

category of VI, the resulting Guideline imprisonment range would have been 77 to 96

months – anywhere from 92 to 111 months less than the 188-month prison sentence

that was actually imposed. Accordingly, this Court should correct the district court’s

error by vacating Mr. Estrada’s sentence and remanding for resentencing.

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D. Even if this Court finds that the residual clause is not void for vagueness, the Court still should vacate Mr. Estrada’s sentence because the Supreme Courtinvalidated each of the analytical tests upon which this Court relies for itsresidual clause analysis.

Even if this Court concludes that Johnson does not compel the conclusion that

§ 4B1.2’s residual clause is unconstitutionally vague, Johnson invalidated each of the

tests upon which this Court has based its residual clause analysis. A strong14

indication that Johnson has fatally undermined cases upholding enhancements under

§ 4B1.2’s residual clause is the fact that, in light of Johnson, the Supreme Court

granted certiorari, vacated, and remanded cases from other circuits that involved §

4B1.2’s residual clause. See, e.g., Beckles v. United States, 135 S. Ct. 2928 (June 30,

2014) (Eleventh Circuit); Smith v. United States, 135 S. Ct. 2930 (June 30, 2015)

(Sixth Circuit); Denson v. United States, 135 S. Ct. 2931 (June 30, 2015) (Eleventh

Circuit); Talmore v. United States, 135 S. Ct. 2937 (June 30, 2015) (Ninth Circuit).

And, as noted above, the Sixth Circuit has, in turn, found § 4B1.2(a)(2)’s residual

clause unconstitutionally vague and remanded for resentencing. See Harbin, 2015 WL

4393889, at *1; Darden, 605 Fed. Appx. at 546.

In fact, in the past, this Court has vacated sentences based on a Guideline

enhancement in light of a Supreme Court decision concerning ACCA’s residual

See Johnson, 135 S. Ct. at 2558-59 (detailing the failure of the standards for applying the14

residual clause in James, supra; Chambers v. United States, 555 U.S. 122 (2009); Begay v UnitedStates, 553 U.S. 137 (2008); and Sykes, supra, to create a test that does not violate due process).

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clause. See, e.g., United States v. Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009)

(vacating sentence on remand from Supreme Court in light of Chambers v. United

States, 555 U.S. 122 (2009), after concluding that Texas unauthorized use of a motor

vehicle was not a “crime of violence” under 18 U.S.C. § 16(b) and thus not an

“aggravated felony” under USSG § 2L1.2(b)(1)(C)).

Moreover, as noted earlier, this Court has based its § 4B1.2 residual clause

analysis on its ACCA residual clause analysis. See Moore, 635 F.3d at 777 (so

stating); Mohr, 554 F.3d at 607 (same). Because ACCA’s residual clause analysis is

no long valid, this Court’s § 4B1.2(a)(2) residual clause analysis likewise is no longer

valid. And, because the Supreme Court invalidated each of the analytical tests for

applying the residual clause – such as the tests in Sykes, supra; James, supra; Begay

v. United States, 553 U.S. 137 (2008); and Chambers, supra – upon which this Court

based its decisions that Texas assault and evading arrest were “crimes of violence”

under § 4B1.2(a)(2)’s residual clause, see United States v. Espinoza, 733 F.3d 568,

572-74 (5th Cir. 2013) (relying on Begay and Sykes); McDonald, 431 Fed. Appx. at

282 (relying on this Court’s decision in Harrimon, 568 F.3d at 534-37, which, in turn,

relied on Begay and Chambers), those decisions are no longer good law.

Finally, at the very least, the Supreme Court’s decision in Johnson demonstrates

that § 4B1.2(a)(2)’s residual clause is ambiguous – impossible even for the Supreme

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Court to interpret and apply in a consistent and predictable manner. See Johnson, 135

S. Ct. at 2557-60 (discussing the Court’s failure to derive meaning from the residual

clause and that its uncertainties allow, at best, only guesswork). Therefore, the rule

of lenity requires that this ambiguity be resolved in Mr. Estrada’s favor. See United

States v. Granderson, 511 U.S. 39, 54 (1994) (“In these circumstances – where text,

structure, and history fail to establish that the Government’s position is

unambiguously correct – [courts] apply the rule of lenity and resolve the ambiguity

in [the defendant’s] favor.”). This Court has long recognized that guidelines and their

accompanying commentary are subject to the ordinary rules of statutory construction,

United States v. Vargas-Duran, 356 F.3d 598, 602 (5th Cir. 2004) (en banc), including

application of the rule of lenity. United States v. Bustillos-Peña, 612 F.3d 863, 868-

69 (5th Cir. 2010) (applying rule of lenity to resolve ambiguity in criminal history

guideline in defendant’s favor); United States v. Skilling, 554 F.3d 529, 595 (5th Cir.

2009), vacated in part on other grounds by Skilling v. United States, 561 U.S. 358

(2010) (same).

Application of the rule of lenity is even more appropriate here because the

vagueness doctrine and the rule of lenity are related manifestations of the due-process

principle of fair notice. Indeed, the Supreme Court has referred to the rule of lenity

as “a sort of ‘junior version of the vagueness doctrine,’” United States v. Lanier, 520

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U.S. 259, 266 (1997) (quoting H. Packer, The Limits of the Criminal Sanction 95

(1968)), explaining that “the canon of strict construction of criminal statutes, or rule

of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to

apply it only to conduct clearly covered.” Id. (citations omitted). As the Court

detailed in Johnson, the residual clause fails to provide fair notice (and encourages

arbitrary enforcement) because its application to a given predicate crime depends not

upon the riskiness of any clearly identifiable conduct, but rather the risk attending the

abstract “ordinary case” of the crime as imagined by the particular sentencing judge.

See, e.g., Johnson, 135 S. Ct. at 2558 (“The residual clause offers no reliable way to

choose between . . . competing accounts of what ‘ordinary’ attempted burglary

involves.”).

This Court therefore should vacate Mr. Estrada’s sentence and remand for

resentencing without the career-offender enhancement.

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ISSUE TWO RESTATED: The district court abused its discretion andcommitted reversible plain error by imposing a “nighttime restriction”as a special condition of Mr. Estrada’s supervised release.

A. Standard of review

This Court reviews the district court’s imposition of special conditions of

supervised release for an abuse of discretion. United States v. Fernandez, 776 F.3d

344, 345 (5th Cir. 2015). Because Mr. Estrada failed to object in the district court,

however, this Court’s review is for plain error. United States v. Weatherton, 567 F.3d

149, 152 (5th Cir. 2009). To establish reversible plain error, Mr. Estrada must

demonstrate that the district court committed a “‘clear or obvious’” error that

“‘affected [his] substantial rights’” and “‘the fairness, integrity, or public reputation

of judicial proceedings.’” Id. (quoting Puckett v. United States, 556 U.S. 129, 135

(2009)).

B. The district court’s imposition of a “nighttime restriction” as a special conditionof Mr. Estrada’s supervised-release term constitutes plain error.

The district court imposed a five-year term of supervised release, ROA.75, and

included four special conditions, one of which required that, “[t]hroughout the period

of supervised release, [Mr. Estrada] shall be restricted to his home each night from 12

midnight to 6 a.m., unless other specific arrangements are made with the probation

officer.” ROA.28 (“nighttime restriction”); see also ROA.76. As discussed below,

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in imposing the nighttime restriction, however, the district court did not fulfill its

obligation to explain how the condition was reasonably related to the goals of

supervised release, and therefore the court plainly erred in imposing the nighttime

restriction.

A district court has broad discretion in imposing special conditions of

supervised release, Fernandez, 776 F.3d at 346, but that discretion is limited by three

statutory requirements set forth in 18 U.S.C. § 3583(d). United States v. Rodriguez,

558 F.3d 408, 412-13 (5th Cir. 2009). First, a special condition must be “reasonably

related” to one of the following four sentencing factors identified in 18 U.S.C. §

3583(d)(1): “(1) the nature and characteristics of the offense and the history and

characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the

protection of the public from further crimes of the defendant, and (4) the provision of

needed educational or vocational training, medical care, or other correctional

treatment to the defendant.” Weatherton, 567 F.3d at 153; see also 18 U.S.C. §

3553(a)(1), (a)(2)(B), (a)(2)(C) & (a)(2)(D). Second, under § 3583(d)(2), even if the

first requirement is satisfied, the special condition “cannot impose any ‘greater

deprivation of liberty than is reasonably necessary’ to advance deterrence, protect the

public from the defendant, and advance the defendant’s correctional needs.”

Weatherton, 567 F.3d at 153; see also 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C) &

31


(a)(2)(D). Third, § 3583(d)(3) requires that the special condition “must be consistent

with the policy statements issued by the Sentencing Commission.” Weatherton, 567

F.3d at 153.

The district court’s obligation “to state ‘the reasons for its imposition of the

particular sentence’” extends to special conditions of supervised release. United

States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (quoting 18 U.S.C. § 3553(c)).

In Salazar, this Court held that a district court abuses its discretion “by not explaining

how [a special condition] is reasonably related to the statutory sentencing factors”

outlined in 18 U.S.C. § 3583(d)(1). Id. And, in United States v. Mahanera, ___ Fed.

Appx. ___, 2015 WL 3452894 (5th Cir. June 10, 2015) (unpublished), this Court held,

under plain-error review, that the failure to explain how a special condition relates to

the statutory factors is “error [that is] clear and obvious, given [the Salazar court’s]

. . . explicit holding on this point.” Mahanera, 2015 WL 3452894, at *2 (citing

Salazar, 743 F.3d at 451).

At Mr. Estrada’s sentencing hearing, the district court made only the following

statement regarding the conditions of his supervise release: “Standard terms and

conditions of supervision, along with drug and alcohol treatment, mental health, gang

prohibition, and a nighttime restriction of 12:00 midnight to 6:00 a.m.” ROA.75-76.

The district court failed to provide any justification for the nighttime restriction, and

32


thus abused its discretion by imposing the condition “without demonstrating that it

was reasonably related to the statutory factors as applied to [Mr. Estrada].” Salazar,

743 F.3d at 453. Because the need to adequately explain the nighttime restriction was

clear and obvious under Salazar, the court’s error was plain. Mahanera, 2015 WL

3452894, at *2.

C. The district court’s plain error affected Mr. Estrada’s substantial rights.

If “no evidence in the record supports the imposition of the challenged special

condition[],” Mahanera, 2015 WL 3452894, at *2, it cannot be reasonably related to

any of the § 3583(d)(1) factors. See id. (reaching this conclusion). Imposing such a

condition affects the defendant’s substantial rights “by affecting the outcome of the

district court proceedings by allowing the judgment to contain [an] unwarranted

special condition[].” Id. at *3 (citation omitted).

In this case, just as in Mahanera and Salazar, there is insufficient evidence of

a reasonable relationship between the nighttime restriction and the relevant statutory

factors. Cf. Salazar, 743 F.3d at 452-53; cf. also Mahanera, 2015 WL 3452894, at

*2-*3. No evidence in the record indicates that Mr. Estrada’s present offense was

committed between the hours of midnight and 6 a.m., or that any of his prior charged

or uncharged criminal activity occurred during those hours. See ROA.83-95 (PSR

¶¶ 23-54). Accordingly, there is no particularized basis in the record for the district

33


court to infer that if Mr. Estrada was going to engage in future criminal activity, he

would be more likely to do so in the early morning hours. There is thus no evidence

that could possibly demonstrate that imposing an arbitrary curfew was reasonably

necessary to either deter Mr. Estrada from criminal activity, protect the public from

that activity, or provide needed correctional treatment to Mr. Estrada. Cf. Mahanera,

2015 WL 3452894, at *2 (concluding that special conditions requiring drug and

alcohol testing and/or treatment and forbidding possession or use of synthetic

narcotics affected defendant’s substantial rights because “there is no indication that

his crime [of trafficking in and attempting to traffic in counterfeit goods] was driven

by the use of addictive substances, that he is likely to commit crimes due to the use

of addictive substances in the future, or that he needs help to avoid drugs or alcohol”).

Allowing the judgment to contain the unwarranted nighttime restriction therefore

affects Mr. Estrada’s substantial rights. See id. at *3.

D. This Court should exercise its discretion to correct the district court’s error.

“‘[W]hether a sentencing error seriously affects the fairness, integrity, or public

reputation of judicial proceedings is dependent upon the degree of the error and the

particular facts of the case.’” Mahanera, 2015 WL 3452894, at *3 (quoting United

States v. John, 597 F.3d 263, 288 (5th Cir. 2010)). Here, the degree of the error

warrants this Court’s intervention. “Salazar makes quite clear that a district court

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must explain how a special condition is related to the statutory factors, and the district

court here made no attempt to justify its imposition of [the nighttime restriction] under

the statutory factors.” Id. Although Mr. Estrada has an extensive criminal history, no

facts in the instant case or the record as a whole indicate that he has a proclivity to

commit crimes during the early morning hours. Without any such evidence, the

imposition of a five-year term of home confinement between midnight and 6 a.m. is

especially over-burdensome to Mr. Estrada, particularly in light of the fact that the

restriction is not co-extensive with Mr. Estrada’s completion of other, warranted

treatment programs, and thus has no potential of being removed before his full

completion of the five-year supervised-release term.

For the forgoing reasons, this Court should exercise its discretion to correct the

district court’s prejudicial plain error in imposing the nighttime restriction as a special

condition on Mr. Estrada’s term of supervised release. As this Court stated in Salazar,

the appropriate remedy for such an error is remand to the district court for

reconsideration of the special condition and an adequate explanation tied to the

statutory factors if the district court chooses to impose the condition again. See

Salazar, 743 F.3d at 453; see also Mahanera, 2015 WL 3452894, at *3.

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CONCLUSION

For the foregoing reasons, this Court should vacate the sentence and remand for

resentencing. In the alternative, this Court should vacate the “nighttime restriction”

special condition of supervised release in this case and remand for further proceedings

with respect thereto.

Respectfully submitted,

MARJORIE A. MEYERSFederal Public Defender

s/ Laura Fletcher Leavitt LAURA FLETCHER LEAVITTAssistant Federal Public DefenderSouthern District of TexasEVAN G. HOWZEResearch & Writing SpecialistAttorneys for Appellant440 Louisiana Street, Suite 1350Houston, Texas 77002-1669Telephone: (713) 718-4600

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CERTIFICATE OF SERVICE

I certify that today, August 5, 2015, the foregoing brief for appellant was served

upon Assistant United States Attorney Renata A. Gowie, counsel for appellee, by

notice of electronic filing with the Fifth Circuit CM/ECF system. A courtesy hard

copy of this document will be hand-delivered to Ms. Gowie, at the United States

Attorney’s Office, 1000 Louisiana, Suite 2300, Houston, Texas 77002. The appellate

record is available on CD-ROM.


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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 8,699 words, excluding the parts of the brief exempted

by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been

prepared in a proportionally spaced typeface using Corel WordPerfect X5 software

in Times New Roman 14-point font in text and Times New Roman 12-point font in

footnotes.

3. This brief and the record excerpts were filed electronically, in native Portable

Document File (PDF) format, via the Fifth Circuit’s CM/ECF system.


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