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United States v. Taylor

United States Court of Appeals, Tenth Circuit

December 12, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TOMMY LOUIS TAYLOR, a/k/a Tommy Lewis Taylor, a/k/a Tommy Taylor, Jr., Defendant-Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 6:14-CR-00042-RAW-1)

          Barry L. Derryberry, Research & Writing Specialist (Julia L. O'Connell, Federal Public Defender, and Scott A Graham, Assistant Federal Public Defender, with him on the brief), Office of the Federal Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.

          Linda A. Epperly, Assistant United States Attorney (Mark F. Green, United States Attorney, and Edward Snow, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

          Before BRISCOE, EBEL and MURPHY, Circuit Judges.

          BRISCOE, Circuit Judge.

         Defendant Tommy Taylor was convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2), and was sentenced to 110 months' imprisonment. On direct appeal, this court remanded for resentencing because Taylor's sentence was based in part on the application of the residual clause of U.S.S.G. § 4B1.2(a)(2), which has been held to be unconstitutionally vague. On remand, the district court sentenced Taylor to a term of imprisonment of 87 months. Taylor again appeals, arguing that the district court incorrectly calculated his base and total offense levels by improperly treating a prior state conviction as a "crime of violence" pursuant to U.S.S.G. §§ 4B1.2(a)(1) and 2K2.1(a)(4)(A). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject Taylor's arguments and affirm his sentence.

         I

         In August 2014, Taylor was convicted by a jury of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (2). The district court sentenced Taylor to a term of imprisonment of 110 months, to be followed by a three-year term of supervised release. In doing so, the district court concluded that Taylor "ha[d] two prior [Oklahoma state] felony convictions, " one for assault and battery with a dangerous weapon and the other for failure to stop at a roadblock, that qualified as "crimes of violence" under U.S.S.G. § 4B1.2(a) and that warranted an enhanced base offense level under U.S.S.G. § 2K2.1(a)(2). ROA, Vol. 3 at 5.

         Taylor filed a direct appeal challenging the district court's treatment of his prior conviction for failure to stop at a roadblock as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2)'s residual clause. While Taylor's direct appeal was pending, we held § 4B1.2(a)(2)'s residual clause to be unconstitutionally vague in light of the Supreme Court's decision in Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015) (holding that the definition of "violent felony" contained in the Armed Career Criminal Act's residual clause was unconstitutionally vague). United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015). When we considered Taylor's appeal, we applied that holding to his case, see Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding "that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on direct review or not yet final"), and remanded to the district court with directions to vacate Taylor's sentence and resentence him. United States v. Taylor, 630 F.App'x 879, 881 (10th Cir. 2015) (Taylor I).

         On remand, a revised presentence investigation report (PSR) was prepared and submitted to the district court and parties. The revised PSR set forth a base offense level of 20 pursuant to U.S.S.G. § 2K2.1, noting that Taylor "ha[d] one prior felony conviction for a crime of violence . . .: Assault and Battery with a Dangerous Weapon in Muskogee County District Court." ROA, Vol. 3 at 109 (revised PSR at 3). The revised PSR concluded that no other adjustments were necessary to the base offense level, and consequently arrived at a total offense level of 20. When combined with a criminal history score of 17 and a criminal history category of VI, Taylor's advisory Guidelines sentencing range was 70 to 87 months. Id. at 117 (revised PSR at 11).

         Neither party objected to the revised PSR, and the district court adopted the sentencing calculations contained therein. ROA, Vol. 4 at 12. The district court in turn resentenced Taylor to a term of imprisonment of 87 months, to be followed by a three-year term of supervised release. Id. at 14.

         Following the entry of final judgment, Taylor filed a timely notice of appeal.

         II

         On appeal, Taylor argues that the district court erred in treating his prior Oklahoma state conviction for assault and battery with a dangerous weapon as a "crime of violence" under U.S.S.G. §4B1.2(a)(1) and imposing "an elevated base offense level pursuant to [U.S.S.G.] § 2K2.1(a)(4)(A)." Aplt. Br. at 8.

         A

         Generally speaking, we review for abuse of discretion a defendant's challenges to the procedural reasonableness of his sentence. Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Worku, 800 F.3d 1195, 1201 (10th Cir. 2015). If, however, the issue is raised for the first time on appeal, we ...


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