FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON LEE,

Defendant-Appellant.

No. 13-10517

D.C. No.

3:09-cr-00193-CRB-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, Senior District Judge, Presiding

Argued and Submitted

September 11, 2014

Submission Vacated January 16, 2015

Resubmitted April 28, 2016

San Francisco, California

Filed May 6, 2016

Before: Carlos T. Bea, Sandra S. Ikuta,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz;

Dissent by Judge Ikuta
2 UNITED STATES V. LEE

SUMMARY*

Criminal Law

Vacating a sentence and remanding for resentencing, the

panel held that neither the defendant’s conviction under

Calif. Penal Code § 243.1 nor his conviction under Calif.

Penal Code § 69 was for a “crime of violence” as defined by

the residual clause of the career offender guideline, U.S.S.G.

§ 4B1.2(a)(2). 

The panel wrote that because neither of the convictions

qualifies under the case law that predated Johnson v. United

States, 135 S. Ct. 2551 (2015), it did not need to address

whether, in light of Johnson, the residual clause in

§ 4B1.2(a)(2) is unconstitutionally vague.

Judge Ikuta dissented because the majority applies cases

that the Supreme Court in Johnson has expressly overruled to

decide the defendant’s claim that his prior offenses do not

qualify as crimes of violence under § 4B1.2.

COUNSEL

Ethan A. Balogh (argued), Coleman & Balogh LLP, San

Francisco, California, for Defendant-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. LEE 3

Melinda Haag, United States Attorney, Barbara J. Valliere,

Chief, Appellate Division, Laurie Kloster Gray (argued),

Assistant United States Attorney, San Francisco, California,

for Plaintiff-Appellee.

OPINION

HURWITZ, Circuit Judge:

Jason Lee was convicted of distributing crack cocaine. 

He appeals only the resulting sentence. Because we find that

the district court erred by imposing a career offender

enhancement under § 4B1.1(a)(3) of the United States

SentencingGuidelines(“Guidelines”), we vacate the sentence

and remand for resentencing.

I.

Lee had two prior California drug convictions. In light of

those convictions, after the jury found Lee guilty of

distributing crack cocaine in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(B), the district court applied the

career offender enhancement of Guidelines § 4B1.1 in

calculating the Guidelines range. Under the Fair Sentencing

Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372, 2372

(amending 21 U.S.C. § 841), the court calculated the

Guidelines range as 262 to 237 months, but sentenced Lee to

180 months in custody and ten years of supervised release.

On appeal, we held that only one of Lee’s drug

convictions qualified as a predicate “controlled substance

offense” under the career offender enhancement. United

States v. Lee (Lee I), 704 F.3d 785, 790–92 (9th Cir. 2012). 
4 UNITED STATES V. LEE

We vacated Lee’s sentence, but because the drug convictions

were not Lee’s only prior convictions, we remanded for the

district court to “consider whether Lee’s convictions under

California Penal Code §§ 69 and 243.1” were for “crimes of

violence” under § 4B1.1(a)(3) of the Guidelines, and thus

were “predicate offenses that, in conjunction with” the drug

conviction, “would qualify Lee as a career offender.” Id. at

792.

On remand, the district court found that each conviction

was for a “crime of violence.” Applying the career offender

enhancement, the court calculated the Guidelines range as

360 months to life, but sentenced Lee to ten years in prison

and ten years of supervised release. Lee timely appealed.

II.

“All sentencing proceedings are to begin by determining

the applicable Guidelines range.” United States v. Carty, 520

F.3d 984, 991 (9th Cir. 2008) (en banc). In calculating a

sentence, the district court is required by § 1B1.1 of the

Guidelines first to determine the base offense level, and then

make appropriate upward or downward adjustments. At issue

in this case is Part B of Chapter Four of the Guidelines, which

requires enhancement of the offense level of a “career

offender.” Section 4B1.1(a) defines a “career offender” as a

defendant who “has at least two prior felony convictions of

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

Section 4B1.2(a) in turn defines a “crime of violence” as:

any offense under federal or state law,

punishable by imprisonment for a term

exceeding one year, that—(1) has as an

element the use, attempted use, or threatened
UNITED STATES V. LEE 5

use of physical force against the person of

another, or (2) is burglary of a dwelling,

arson, or extortion,involves use of explosives,

or otherwise involves conduct that presents a

serious potential risk of physical injury to

another.

The final clause in § 4B1.2(a), beginning with the words “or

otherwise,” is commonly referred to as the “residual clause.” 

See, e.g., United States v. Crews, 621 F.3d 849, 852 (9th Cir.

2010).

“We review de novo a district court’s ‘interpretation of

the Sentencing Guidelines and its determination that a

defendant qualifies as a career offender’ under U.S.S.G.

§ 4B1.1.” United States v. Mitchell, 624 F.3d 1023, 1026

(9th Cir. 2010) (quoting United States v. Crawford, 520 F.3d

1072, 1077 (9th Cir. 2008)). “A mistake in calculating the

recommended Guidelines sentencing range is a significant

procedural error that requires us to remand for resentencing.” 

United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th

Cir. 2011); see also Molina-Martinez v. United States, 136 S.

Ct. 1338, 1345–46 (2016).1

1 After determining the applicable offense level, including any

enhancements, and the defendant’s criminal history category, the district

court calculates the corresponding Guidelines sentencing range. U.S.

Sentencing Guidelines Manual § 1B1.1(a)(7) (U.S. Sentencing Comm’n

2015). The court then considers the statutory factors in 18 U.S.C.

§ 3553(a), and exercises its discretion to determine an appropriate

sentence, whether inside or outside the Guidelines range. Carty, 520 F.3d

at 991–92.
6 UNITED STATES V. LEE

III.

Lee contends that he is not a “career offender” because he

does not have “at least two prior felony convictions of either

a crime of violence or a controlled substance offense.” 

U.S.S.G. § 4B1.1(a). Because we have already held that

Lee’s 1998 Alameda County Superior Court conviction for

violating California Health & Safety Code § 11352(a)

“qualifies as a predicate controlled substance offense,” Lee I,

704 F.3d at 792, the issue for decision is whether either of

Lee’s convictions under California Penal Code § 243.1 or

§ 69(a) are “crimes of violence” under Guidelines § 4B1.1(a). 

The government does not contend that either § 243.1 or § 69

is a controlled substance offense, “has 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), or corresponds to

an enumerated crime in § 4B1.2(a)(2). The only question,

then, is whether, under the residual clause, either crime

“otherwise involves conduct that presents a serious potential

risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

A.

In interpreting the residual clause, our jurisprudence has

been informed by cases interpreting an identical clause in the

Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e)(2)(B). See United States v. Spencer, 724 F.3d 1133,

1138 (9th Cir. 2013). We vacated submission in this case

pending the Supreme Court’s decision in Johnson v. United

States, which found the ACCA residual clause

unconstitutionally vague. 135 S. Ct. 2551 (2015). In light of

a division among our sister circuits as to whether the residual

clause in Guidelines § 4B1.2(a)(2) is also void for vagueness,

we then requested supplemental briefing. Compare Ramirez
UNITED STATES V. LEE 7

v. United States, 799 F.3d 845, 856 (7th Cir. 2015) (acting

“on the assumption that the Supreme Court’s reasoning

applies to section 4B1.2 as well”); United States v.

Maldonado, — F. App’x —, 2016 WL 229833, *3 & n.1 (2d

Cir. Jan. 20, 2016) (holding the Guidelines clause void for

vagueness and collecting cases) with United States v.

Matchett, 802 F.3d 1185, 1193–95 (11th Cir. 2015) (rejecting

a vagueness challenge to § 4B1.2(a)(2) of the Guidelines). 

Because we find that neither of Lee’s convictions would

qualify as a “crime of violence” under our pre-Johnson

caselaw, we need not address this constitutional question.2

2 Although the dissent argues that we should decide this constitutional

issue and ultimately adopt a new test to determine whether Lee’s

convictions are “crimes of violence” in a post-Johnson world, it declines

to adopt such a test, ultimately concluding that the offenses either may or

may not be “crimes of violence,” depending on which of two alternative

approaches is taken. But the task before us is not theory, but decision. 

We must decide whether the residual clause enhancements were properly

applied to Lee’s sentence, not whether they could constitutionally apply

to some future hypothetical defendant. We also note that the Sentencing

Commission intends to remove the residual clause from § 4B1.2(a)(2),

effective August 1, 2016. See Amendment to the Sentencing Guidelines

(Preliminary), United States Sentencing Comm’n (Jan. 8, 2016),

http://www.ussc.gov/sites/default/files/pdf/amendment-process/readerfriendly-amendments/20160108_RF.pdf. Because the government has

routinely conceded error in pending appeals involving the residual clause,

there therefore is little reason to speculate about a test for application of

the clause in future cases.

And, unlike our dissenting colleague, we fail to see how Johnson

could have disadvantaged Lee. Johnson did not invalidate the use of the

categorical approach. See 135 S. Ct. at 2562 (“declin[ing] the dissent’s

invitation” to “jettison for the residual clause . . . the categorical approach

adopted in Taylor”) (citing Taylor v. United States, 495 U.S. 575,

599–602 (1990). If Lee’s convictions did not categorically constitute

crimes of violence before Johnson, it is impossible to understand how that

decision—which found a statute similar to the residual clause
8 UNITED STATES V. LEE

California Penal Code § 243.1 provides:

When a battery is committed against the

person of a custodial officer as defined in

Section 831 of the Penal Code, and the person

committing the offense knows or reasonably

should know that the victim is a custodial

officer engaged in the performance of his or

her duties, and the custodial officer is engaged

in the performance of his or her duties, the

offense shall be punished by imprisonment

. . . .

Because § 243.1 is indivisible, we apply the pure

categorical approach in analyzing whether it qualifies as a

“crime of violence.” See United States v. Descamps, 133 S.

Ct. 2276, 2281 (2013). In determining whether an offense

unconstitutionally vague—somehow transformed those crimes into ones

that justify application of the Guidelines enhancement.

We decline to decide whether Johnson’s reasoning extends to the

Sentencing Guidelines, because even if it does not, we are left with the

same result in this case: We must vacate and remand for resentencing

because Lee’s crimes are not categorical crimes of violence. Bearing in

mind the “cardinal principle ofjudicial restraint” that “ifit is not necessary

to decide more, it is necessary not to decide more,” PDK Labs., Inc. v.

DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part

and concurring in the judgment), we decline the dissent’s invitation to

answer a constitutional question unnecessary to the disposition of this

case. Instead, we follow the guidance of the Supreme Court to avoid

deciding questions on constitutional grounds if the case is otherwise

determinable. See, e.g., Pearson v. Callahan, 555 U.S. 223, 241 (2009)

(citing Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring) (“The Court will not pass upon a constitutional question

although properly presented by the record, if there is also present some

other ground upon which the case may be disposed of.”)).
UNITED STATES V. LEE 9

categorically qualifies as a crime of violence under the

residual clause, “we generally examine two criteria.” United

States v. Park, 649 F.3d 1175, 1177 (9th Cir. 2011). “First,

the conduct encompassed by the elements of the offense, in

the ordinary case, must present a serious potential risk of

physical injury to another.” Id. at 1177–78 (alteration and

internal quotation omitted). “Second, the state offense must

be ‘roughly similar, in kind as well as in degree of risk posed’

to those offenses enumerated at the beginning of the residual

clause—burglary of a dwelling, arson, extortion, and crimes

involving explosives.” Id. at 1178 (quoting Begay v. United

States, 553 U.S. 137, 143 (2011)). Both criteria must be

satisfied for a conviction to qualify as a crime of violence. 

See United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.

2013).

Under California Penal Code § 242, simple battery “need

not involve any real violence,” and “the least touching may

constitute battery.” People v. Mesce, 60 Cal. Rptr. 2d 745,

756 (Ct. App. 1997) (alteration and quotation marks omitted). 

The parties agree that a violation of California Penal Code

§ 243.1 requires no more force than a simple battery. But, the

government argues that because § 243.1 involves a battery

against a “custodial officer . . . in the performance of his or

her duties,” the “serious potential risk” requirement of

Guidelines § 4B1.2(a)(2) is met.

The Fourth Circuit has persuasively rejected an identical

argument, holding that a conviction for violating a Virginia

statute prohibiting assault and battery on a police officer,

which “may be accomplished by the slightest touching or

without causing physical injury to another,” did not qualify as

a crime of violence under the Guidelines. United States v.
10 UNITED STATES V. LEE

Carthorne, 726 F.3d 503, 514 (4th Cir. 2013).3 The Fourth

Circuit reasoned that “because this physical contact element

. . . may be satisfied in a relatively inconsequential manner,

that statute cannot, by reason of its elements, be viewed as

presenting a serious potential risk of physical injury.” Id.

We agree. In doing so, we depart from the reasoning of

the First Circuit in United States v. Dancy, which upheld the

application of the Armed Career Criminal Act’s residual

clause based upon a Massachusetts conviction for battery on

a police officer. 640 F.3d 455, 470 (1st Cir. 2011). The First

Circuit relied on its earlier decision in United States v.

Williams, which held that “battery of an armed on-duty police

officer is a powder keg . . . which always has the serious

potential” to “explode into violence and result in physical

injury to someone.” 559 F.3d 1143, 1149 (1st Cir. 2009)

(citations and quotation marks omitted). Like the Fourth

Circuit, we reject the “powder keg” theory as a “disservice to

law enforcement officers,” who “can rely on their training

and experience to determine the best method of responding”

to a non-violent touching. Carthorne, 726 F.3d at 514. 

Under the categorical approach, a crime which can be

accomplished by “minimal physical contact . . . does not

constitute an offense ‘that ordinarily induces an escalated

response from the officer that puts the officer and others at a

similar serious risk of injury’” when compared to arson or a

crime involving explosives. Id. at 515 & n.12 (quoting

United States v. Hampton, 675 F.3d 720, 731 (7th Cir. 2012)). 

A conviction under § 243.1 is not for a categorical crime of

violence under the career offender enhancement.

 

3

 The Virginia statute also covered battery against corrections officers. 

Carthorne, 726 F.3d at 512 n.8.
UNITED STATES V. LEE 11

B.

California Penal Code § 69(a) punishes:

Every person who attempts, by means of any

threat or violence, to deter or prevent an

executive officer from performing any duty

imposed upon the officer by law, or who

knowingly resists, by the use of force or

violence, the officer, in the performance of his

or her duty.

The alternative methods of violating § 69(a) “have been

called the ‘attempting to deter’ prong and the ‘actually

resisting an officer’ prong.” Flores-Lopez v. Holder,

685 F.3d 857, 862 (9th Cir. 2012) (quoting People v. Lopez,

29 Cal Rptr. 3d 586, 603 (Ct. App. 2005)). Because the

statute is divisible, we apply the modified categorical

approach to determine which prong of § 69(a) Lee violated. 

See Descamps, 133 S. Ct. at 2283–85.

Lee pleaded guilty to a criminal complaint alleging

violation of both prongs of § 69(a). But that plea did not

establish that he violated both prongs. “[U]nder the modified

categorical approach, when a conjunctively phrased charging

document alleges several theories of the crime, a guilty plea

establishes conviction under at least one of those theories, but

not necessarily all of them.” Young v. Holder, 697 F.3d 976,

986 (9th Cir. 2012) (“[W]hen either ‘A’ or ‘B’ could support

a conviction, a defendant who pleads guilty to a charging

document alleging ‘A and B’ admits only ‘A’ or ‘B.’”),

abrogated on other grounds by Moncrieffe v. Holder, 133 S.

Ct. 1678 (2013). Nor do the Shepard documents aid us in

determining which prong of this divisible statute Lee
12 UNITED STATES V. LEE

violated. See Shepard v. United States, 544 U.S. 13, 16

(2005) (holding that courts may “generally” consider “the

statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant

assented”). Thus, if violation of either prong of § 69(a) does

not constitute a categorical crime of violence, Lee’s

conviction under that statute cannot justify application of the

career offender enhancement.

We have not directly addressed in a published opinion

whether a violation of the “actually resisting prong” of

§ 69(a) constitutes a “crime of violence” under the

§ 4B1.2(a)(2) residual clause. However, in Flores-Lopez, we

held that because the “actually resisting prong” of § 69(a)

may be satisfied by “de minimis force” and “does not by its

nature create a substantial risk that force will be used,” a

conviction under that prong is not a crime of violence under

18 U.S.C. § 16(b). 685 F.3d at 865. Section 16(b) defines a

“crime of violence” as a felony “that, by its nature, involves

a substantial risk that physical force against the person or

property of another may be used in the course of committing

the offense.”4 The language of the § 4B1.2(a)(2) residual

clause is remarkably similar; it defines a crime of violence as

“conduct that presents a serious potential risk of physical

injury to another.” See United States v. Gomez-Leon,

545 F.3d 777, 788–89 (9th Cir. 2008) (noting that the

4

In Dimaya v. Lynch, this court concluded that § 16(b) is

unconstitutionally vague. 803 F.3d 1110, 1120 (9th Cir. 2015); see also

United States v. Hernandez-Lara, — F.3d —, 2016 WL 1239199, *1 (9th

Cir. Mar. 29, 2016) (per curiam) (applying Dimaya to U.S.S.G.

§ 2L1.2(b)(1)(C), which incorporated the § 16(b) definition of “crime of

violence”).
UNITED STATES V. LEE 13

§ 4B1.2(a)(2) “serious risk of injury test resembles” the

§ 16(b) “substantial risk/use of force test,” and that “it is

unclear whether there is any meaningful difference between

the two risk-based approaches”). Consistent with our

reasoning in Flores-Lopez, we conclude that a conviction

under the “actually resisting prong” of § 69(a) does not

constitute a crime of violence under the residual clause. We

therefore need not consider whether a conviction under the

“attempting to deter prong” involves a residual-clause crime

of violence.

IV.

Neither Lee’s § 243.1 nor his § 69 conviction was for a

“crime of violence” as defined by the residual clause of

Guidelines § 4B1.2(a)(2). And, because Lee has only one

qualifying conviction, see Lee I, 704 F.3d at 792, the career

offender enhancement is not warranted. We therefore

VACATE Lee’s sentence and REMAND for resentencing.

5

5 Although we differ in our approaches, we are gratified that our

colleague has also concluded that the appropriate disposition is to remand

for resentencing.
14 UNITED STATES V. LEE

IKUTA, Circuit Judge, dissenting:

The Ninth Circuit has a knack for disregarding the

Supreme Court. Sometimes it simply ignores the Supreme

Court. See Harrington v. Richter, 562 U.S. 86, 92 (2011)

(“[J]udicial disregard [for the Supreme Court’s habeas

jurisprudence] is inherent in the opinion of the Court of

Appeals for the Ninth Circuit here under review.”). Other

times it reads the decisions of the Supreme Court in such a

peculiar manner that no “fair-minded jurist” could agree. See

Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (“No fairminded jurist could think that [the Supreme Court case at

issue] clearly establishes that the enforcement of the Nevada

rule in this case is inconsistent with the Constitution.”). 

Occasionally it even thinks it is the Supreme Court. See

Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (scolding the Ninth

Circuit for granting habeas relief based on its own precedent,

where AEDPA requires that a state court decision violate

clearly established federal law as established by the Supreme

Court, “not by the courts of appeals”). But this is the first

time I’ve seen the Ninth Circuit decide a criminal defendant’s

direct appeal based on law that the Supreme Court has just

overruled without even considering whether the new rule

applies.

In Johnson v. United States, the Supreme Court held that

the residual clause in the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), was void for vagueness. 135 S.

Ct. 2551, 2557 (2015). In doing so, the Court overruled a

long line of cases interpreting both the ACCA residual clause

and identical language in the United States Sentencing

Guidelines, U.S.S.G. § 4B1.2. Johnson, 135 S. Ct. at

2558–60. Indeed, we vacated submission of this case until

the Supreme Court ruled because it was clear that the
UNITED STATES V. LEE 15

Supreme Court’s decision in Johnson would control our

interpretation of the Guidelines residual clause. But now that

the Supreme Court has spoken, the majority simply covers its

ears and says “never mind.” Without reasoning or

explanation, the majority applies cases that the Supreme

Court has expressly overruled to decide Jason Lee’s claim

that his prior offenses do not qualify as “crime(s) of violence”

under § 4B1.2. Because we may not ignore a Supreme Court

decision that overrules almost a decade of case law, I dissent.

I

Before Johnson v. United States, we expressly relied on

the Supreme Court’s interpretation of the ACCA residual

clause to interpret the substantially identical residual clause

in § 4B1.2. See United States v. Spencer, 724 F.3d 1133,

1138 (9th Cir. 2013). ACCA requires courts to impose a

sentence of not less than 15 years on specified defendants

who have three previous convictions for a violent felony or a

serious drug offense or both. 18 U.S.C. § 924(e)(1). Section

924(e)(2)(B) defines “violent felony” to include a specified

crime that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.”1 The Supreme

 

1

 18 U.S.C. § 924(e)(2)(B) states:

[T]he term “violent felony” means any crime

punishable by imprisonment for a term exceeding one

year, or any act of juvenile delinquency involving the

use or carrying of a firearm, knife, or destructive device

that would be punishable by imprisonment for such

term if committed by an adult, that—
16 UNITED STATES V. LEE

Court interpreted this definition in four key cases: Sykes v.

United States, 564 U.S. 1 (2011); Chambers v. United States,

555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137

(2008); and James v. United States, 550 U.S. 192 (2007).

Section 4B1.1 of the Guidelines likewise enhances the

sentences of career offenders who have two prior felony

convictions for a crime of violence. Using identical language

to ACCA, the Guidelines define “crime of violence” to

include an offense that “otherwise involves conduct that

presents a serious potential risk of physical injury to another.” 

U.S.S.G. § 4B1.2(a)(2). Because the Guidelines and ACCA

use identical language, each of our cases interpreting § 4B1.2

relied on one or more of the four key Supreme Court cases

interpreting ACCA’s residual clause. See, e.g., Spencer, 724

F.3d at 1137–39; United States v. Park, 649 F.3d 1175,

1177–78 (9th Cir. 2011); United States v. Crews, 621 F.3d

849, 852–55 (9th Cir. 2010).

In Johnson, the Supreme Court overruled its four cases

interpreting the ACCA residual clause because it concluded

that the clause was unconstitutionally vague. 135 S. Ct. at

2557–60. Johnson explained that the void-for-vagueness

doctrine is based on the Due Process Clause of the Fifth

Amendment. Id. at 2556–57. According to Johnson, “[t]he

Fifth Amendment provides that ‘[n]o person shall . . . be

(i) has as an element the use, attempted use, or

threatened use of physical force against the person of

another; or

(ii) is burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another

. . . .
UNITED STATES V. LEE 17

deprived of life, liberty, or property, without due process of

law,’” and “the Government violates this guarantee by taking

away someone’s life, liberty, or property under a criminal law

so vague that it fails to give ordinary people fair notice of the

conduct it punishes, or so standardless that it invites arbitrary

enforcement.” Id. at 2556 (citing Kolender v. Lawson,

461 U.S. 352, 357–58 (1983)). Although the Court initially

framed the void for vagueness doctrine as applying only to

substantive criminal laws, it later held the doctrine also

applied to mandatory sentencing statutes, because “vague

sentencing provisions may pose constitutional questions if

they do not state with sufficient clarity the consequences of

violating a given criminal statute.” United States v.

Batchelder, 442 U.S. 114, 123 (1979).

Applying this doctrine, Johnson determined that the

ACCA residual clause was void for vagueness. First,

Johnson explained that “trying to derive meaning from the

residual clause” was a “failed enterprise,” and interpretations

of the clause amounted to little more than guesswork. 

135 S. Ct. at 2560. Referencing the four Supreme Court

precedents interpreting the residual clause, Johnson described

them as “repeated attempts and repeated failures to craft a

principled and objective standard out of the residual clause

that confirm its hopeless indeterminacy.” Id. at 2558. 

According to Johnson, courts have no reliable way to

estimate the risks posed by the defendant’s predicate offense,

id. at 2557–58, or to determine “how much risk it takes for a

crime to qualify as a violent felony,” id. at 2558. This

indeterminacy caused the two evils that trigger the void for

vagueness doctrine: (1) it “denie[d] fair notice to defendants”

and (2) it “invite[d] arbitrary enforcement by judges.” Id. at

2557. Accordingly, Johnson concluded that “imposing an

increased sentence under the residual clause of the Armed
18 UNITED STATES V. LEE

Career Criminal Act violates the Constitution’s guarantee of

due process.” Id. at 2563. In light of this conclusion,

Johnson expressly overruled the Court’s prior interpretations

of the residual clause in Sykes, 564 U.S. 1, and James,

550 U.S. 192, 135 S. Ct. at 2563, and implicitly overruled

Chambers, 555 U.S. 122, and Begay, 553 U.S. 137, 135 S. Ct.

2558–60.

In overturning these cases, Johnson necessarily overruled

the Ninth Circuit cases that relied on them. As we recognized

in Nunez-Reyes v. Holder, a decision to overrule longstanding precedent also necessarily overrules “the same

holding in those cases that, bound by stare decisis, followed

the [previous] rule.” 646 F.3d 684, 690 (9th Cir. 2011) (en

banc); see also Smith v. Sumner, 994 F.2d 1401, 1405 (9th

Cir. 1993) (“[T]he [district] court relied on a case that was

subsequently overruled by the Supreme Court. Therefore, the

principle announced [by the overruled case] was no longer

good law at the time of Appellant’s lawsuit.”) (internal

citations omitted). And to the extent Johnson did not directly

overrule our cases, it “effectively overruled” them by

“undercut[ting] the[ir] theory or reasoning . . . in such a way

that the cases are clearly irreconcilable.” See Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

The cases that the majority uses to interpret § 4B1.2 have

therefore been overruled, because each of them relied on the

Supreme Court cases that Johnson overturned. See Spencer,

724 F.3d at 1137–39; Park, 649 F.3d at 1177–78; United

States v. Carthorne, 726 F.3d 503, 513–14 (4th Cir. 2013). 

“Where a legal doctrine is overruled by the Supreme Court,

[a court’s] error in applying that doctrine . . . is ‘plain.’” 

United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004). 
UNITED STATES V. LEE 19

The majority commits exactly this plain error in relying on

precedent overruled by Johnson.

The majority cannot explain away its reliance on

overruled case law by claiming to engage in constitutional

avoidance, Maj. op. at 7–8 n.2. In order to avoid a

constitutional question, a court must have “some other ground

upon which the case may be disposed of.” Pearson v.

Callahan, 555 U.S. 223, 241 (2009) (quoting Ashwander v.

TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)). 

The majority claims it can dispose of this case by applying

“pre-Johnson case law.” Maj. op. at 7. But since Johnson

has eliminated that prior case law, this “other ground” no

longer exists. The majority’s approach is not constitutional

avoidance, it is Supreme Court avoidance.

II

By declaring the ACCA residual clause unconstitutional,

Johnson created “a new rule for the conduct of criminal

prosecutions” applicable to sentencing proceedings. See

United States v. Jordan, 256 F.3d 922, 928–29 (9th Cir. 2001)

(quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987)). 

Such rules must “be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no

exception.” Griffith, 479 U.S. at 328. Because Lee’s case

was pending on direct review at the time that Johnson was

decided, we are bound to consider whether Lee is entitled to

the benefit of Johnson’s new rule. See Dimaya v. Lynch,

803 F.3d 1110, 1112 (9th Cir. 2015) (considering how

Johnson applies to 8 U.S.C. § 16); cf. Welch v. United States,

136 S. Ct. 1257, 1265 (2016) (holding that Johnson applies

retroactively to ACCA cases on collateral review).
20 UNITED STATES V. LEE

It is not immediately obvious that Lee’s sentence should

be vacated because the Supreme Court’s void for vagueness

doctrine—which holds that a statute is void for vagueness if

it fails to give fair notice of the conduct it punishes or invites

arbitrary enforcement—is not directly applicable in the

Sentencing Guidelines context. A criminal statute violates

the “fair notice” requirement if it “fails to give a person of

ordinaryintelligence fair notice that his contemplated conduct

is forbidden by the statute.” Colautti v. Franklin, 439 U.S.

379, 390 (1979) (internal quotation marks omitted). A statute

violates the “arbitrary enforcement” requirement if it is “so

indefinite that it encourages arbitrary and erratic arrests and

convictions.” Id. (quoting Papachristou v. Jacksonville,

405 U.S. 156, 162 (1972)) (internal quotation marks omitted). 

In other words, “ordinary notions of fair play and settled rules

of law,” Johnson, 135 S. Ct. at 2557, are violated if police

officers, prosecutors, and judges are essentially “defining

crimes and fixing penalties” by filling in gaps in statutes. 

United States v. Evans, 333 U.S. 483, 486 (1948). However,

the Due Process Clause is not violated when officials make

decisions that have been appropriately entrusted to their

discretion. For instance, in making charging decisions,

prosecutors may choose to charge a defendant with the

offense that carries the most onerous penalty, rather than a

substantially similar offense with lesser penalties, without

giving rise to due process concerns. Batchelder, 442 U.S. at

123–24.

Unlike the mandatory sentencing schemes in Batchelder

and Johnson, the Sentencing Guidelines are merely advisory

and do not fix the penalty for any offense. See United States

v. Booker, 543 U.S. 220, 245 (2005). While courts must

“begin all sentencing proceedings by correctly calculating the

applicable Guidelines range,” Gall v. United States, 552 U.S.
UNITED STATES V. LEE 21

38, 49 (2007) (citing Rita v. United States, 551 U.S. 338,

347–48 (2007)), and while the Guidelines provide a

framework and anchor for the court’s exercise of discretion,

see Molina-Martinez v. United States, 136 S. Ct. 1338,

1345–46 (2016), a district court has broad discretion to

impose a sentence inside or outside the recommended

Guidelines range and there is no presumption that a sentence

outside the range is unreasonable, Gall, 552 U.S. at 49. 

“Overall, this system requires a court to give respectful

consideration to the Guidelines, but it permits the court to

tailor the sentence in light of other statutory concerns as

well.” Peugh v. United States, 133 S. Ct. 2072, 2080 (2013)

(internal quotation marks omitted).

Because a district court is not strictly bound by the

Guidelines, but may exercise its discretion to impose a nonGuidelines sentence within the statutory framework, neither

the fair notice concern nor the arbitrary enforcement concern

giving rise to the void for vagueness doctrine is applicable in

the Sentencing Guidelines context.

First, the Supreme Court has made clear that the Due

Process Clause does not require a district court to give notice

to a defendant before imposing a sentence outside the

recommended Guideline range. See Irizarry v. United States,

553 U.S. 708, 713–14 (2008). As the Supreme Court

acknowledged, Irizarry marked a departure from the Court’s

pre-Booker analysis. Id. at 713. In Burns v. United States,

the Court had interpreted Rule 32 of the Federal Rules of

Civil Procedure as requiring a district court to notify a

defendant before sua sponte departing upward from an

applicable Guidelines sentencing range. 501 U.S. 129, 138

(1991). According to the Court, readingRule 32 “to dispense

with notice” would require the Court “to confront the serious
22 UNITED STATES V. LEE

question whether notice in this setting is mandated by the Due

Process Clause.” Id. But in Irizarry, the Court concluded

that interpreting Rule 32 as allowing the imposition of an

above-Guidelines sentence without notice would no longer

raise any Due Process Clause concern. See Irizarry, 553 U.S.

at 713. Rather, “[a]ny expectation subject to due process

protection at the time we decided Burns that a criminal

defendant would receive a sentence within the presumptively

applicable Guidelines range did not survive our decision in

[Booker].” Id. Once the Guidelines became merely advisory,

the Court reasoned, “neither the Government nor the

defendant may place the same degree of reliance on the type

of ‘expectancy’ that gave rise to a special need for notice in

Burns.” Id. at 713–14; see also United States v. Tichenor,

683 F.3d 358, 365 (7th Cir. 2012) (“Since the Guidelines are

merely advisory, defendants cannot rely on them to

communicate the sentence that the district court will

impose.”). Accordingly, the Court concluded that a district

court’s imposition of an above-Guidelines sentence without

giving notice to the defendant did not raise constitutional

concerns. Irizarry, 553 U.S. at 714.2

This reasoning is equally applicable here. Because the

defendant no longer has a protected expectation of being

sentenced within the range recommended by the Guidelines,

2 Because Irizarry did not expressly overrule Burns, we remain bound

by its interpretation of Rule 32 as requiring a district court to give a

defendant notice of its decision of a departure from the Guidelines, where

“‘departure’ is a term of art under the Guidelines and refers only to nonGuidelines sentences imposed under the framework set out in the

Guidelines.” United States v. Evans-Martinez, 530 F.3d 1164, 1169 (9th

Cir. 2008). We nevertheless recognized that “[i]n light of Irizarry, it is

arguable that the due process concerns that led to the promulgation of

Rule 32(h) are now equally inapplicable to sentencing departures.” Id.
UNITED STATES V. LEE 23

and the Due Process Clause does not require notice to the

defendant that the district court intends to impose an aboveGuidelines sentence, any vagueness in the Guidelines that

could result in a higher recommended range does not give rise

to fair notice concerns under the Due Process Clause.3

Nor is the arbitrary enforcement concern giving rise to the

constitutional void for vagueness doctrine applicable in the

Sentencing Guidelines context. Because Booker eliminated

the statutory provision making the Guidelines mandatory, a

district court is bound only by the sentencing range set by

Congress. While the Guidelines provide advice regarding the

types of sentences normally imposed by district courts “based

on extensive empirical evidence derived from the review of

thousands of individual sentencing decisions,” Gall, 552 U.S.

at 46, a district court must ultimately exercise its discretion in

imposing the sentence; there is no “unreasonableness

presumption for sentences outside the Guidelines range,” id.

at 38. Indeed, we do not even review whether a district court

correctly applied the Guidelines’ direction for when a

departure from a recommended range is appropriate, see

U.S.S.G. § 5K2.0, because the court “would be free on

3 For this reason, Booker and Irizarry supercede our pre-Booker

decisions in United States v. Gallagher, 99 F.3d 329, 334 (9th Cir. 1996)

and United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997). In

Gallagher and Johnson, we relied on Batchelder’s determination that

vague sentencing provisions that do not give defendants notice of the

consequences of violating a criminal statute may violate the Due Process

Clause, and held that a defendant could challenge a provision of the

Guidelines on the ground that it was unconstitutionally vague. Gallagher,

99 F.3d at 334; Johnson, 130 F.3d at 1354. Such concerns are no longer

applicable after Booker, as explained in Irizarry. Booker therefore

“undercut the theory or reasoning underlying” our decisions in Gallagher

and Johnson “in such a way that the cases are clearly irreconcilable.” 

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).
24 UNITED STATES V. LEE

remand to impose exactly the same sentence by exercising his

discretion under the now-advisory guidelines,” United States

v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006). Given that

a district court’s interpretation of a Guidelines provision is

not “fixing penalties” in a manner that trenches on the

authority given to Congress, Evans, 333 U.S. at 486, and

instead constitutes an exercise of the court’s proper

discretion, any vagueness in the Guidelines provisions does

not increase the due process risk of arbitrary enforcement,see

Batchelder, 442 U.S. at 123; Cf. Mistretta v. United States,

488 U.S. 361, 395 (1989) (“Indeed, because the Guidelines

have the effect of promoting sentencing within a narrower

range than was previously applied, the power of the Judicial

Branch is, if anything, somewhat diminished by the Act.”).

In light of the fact that the discretionary Sentencing

Guidelines do not raise the same constitutional concerns as

mandatory sentencing provisions, I would conclude that any

vagueness in the § 4B1.2 residual clause does not violate the

Due Process Clause. Therefore, the reasoning in Johnson is

not directly applicable to the Guidelines and the Guidelines

residual clause is not void for vagueness, even though

Johnson overrules our cases that previously interpreted

§ 4B1.2. This conclusion is consistent with the holdings of

five sister circuits that the Guidelines are not susceptible to

due process vagueness challenges. See United States v. Ellis,

— F.3d —, 2016 WL 859936, at *2–3 (8th Cir. 2016) (citing

United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990));

United States v. Matchett, 802 F.3d 1185, 1193–95 (11th Cir.

2015); Tichenor, 683 F.3d at 365; United States v. Smith,
UNITED STATES V. LEE 25

73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson,

910 F.2d 221, 223 (5th Cir. 1990).4

III

Because the Guidelines residual clause is not void for

vagueness, we must still address whether Lee’s convictions

under sections 69 and 243.1 of the California Penal Code

constitute crimes of violence under the Guidelines residual

clause. Contrary to the majority, see Maj. op. at 7–8 n.2, we

need not decide this question in the first instance. As the

Supreme Court did in Welch, we may appropriately remand

to the district court to consider whether “other grounds” exist

to impose the Guidelines career offender enhancement that do

not rely on the Supreme Court’s prior residual clause cases. 

136 S. Ct. at 1268. If we reached the issue, however, I would

hold that given the residual clause’s inscrutability in the

ACCA context, application of the residual clause would

violate the Supreme Court’s instruction that the district court

“begin all sentencing proceedings by correctly calculating the

4 The reasoning of circuits that have invalidated the Guidelines residual

clause under Johnson is unpersuasive because those circuits failed to

consider the purpose of the due process void for vagueness doctrine. See

United States v. Madrid, 805 F.3d 1204, 1210–11 (10th Cir. 2015); see

also United States v. Maldonado, 2016 WL 229833, at *3 & n.1 (2d Cir.

Jan. 20, 2016); United States v. Goodwin, 2015 WL 5167789, at *3 (10th

Cir. Sept.4, 2015). These cases applied Johnson’s void for vagueness

analysis to the Guidelines without adequately examining whether such due

process concerns apply in this different context, and without grappling

with Irizarry’s ruling that a defendant does not have an “expectation

subject to due process protection that he will be sentenced within the

Guidelines range.” Peugh, 133 S. Ct. at 2085 (Sotomayor, J., plurality

opinion). The opinions in United States v. Maurer, 639 F.3d 72, 77 (3d

Cir. 2011) and United States v. Savin, 349 F.3d 27, 38–39 (2d Cir. 2003),

which were decided before Irizarry, fail for the same reason.
26 UNITED STATES V. LEE

applicable Guidelines range,” Gall, 552 U.S. at 49 (citing

Rita, 551 U.S. at 347–48). If Johnson so undermines the

residual clause that it cannot be accurately interpreted, a

district court would commit a procedural error and abuse its

discretion if it used the Guidelines residual clause to calculate

the Guidelines range. See Molina-Martinez, 136 S. Ct. at

1349; see also United States v. Munoz-Camarena, 631 F.3d

1028, 1030 (9th Cir. 2011).

The one thing that we cannot do, however, is rely on

precedent that has been overruled and effectively rendered

non-existent by the Supreme Court. Indeed, the Supreme

Court has made clear that pre-Johnson case law cannot be

applied even in cases pending on habeas review. Welch,

136 S. Ct. at 1265. By relying on overruled precedent and

failing to consider whether Lee is entitled to the benefit of

Johnson’s new rule, the majority fails to rise to the challenge

of deciding this case in a post-Johnson world. I dissent.