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7TH CIRCUIT EXTENDS JOHNSON TO PRE-BOOKER CAREER OFFENDERS
When Johnson v. United States declared the residual clause of the Armed Career Criminal Act’s definition of “crime of violence” to be unconstitutionally vague, prisoners who had ACCA convictions, 18 USC 924(c) convictions and Guidelines “career offender” sentences based on crimes of violence started a land rush to district courts to get resentenced.
But their enthusiasm cooled off when the Supreme Court, in Beckles v. United States, ruled that the ruling did not apply to the several places in the Guidelines that used a “crime of violence” residual clause that read like the one in the ACCA. Beckles held that the vagueness concerns that made the ACCA residual clause unconstitutional were not present where the Sentencing Guidelines were concerned, because the Guidelines were merely advisory: that is, a judge did not have to follow them.
However, some inmates were still serving sentences handed down before the Supreme Court in 2005 declared the Guidelines to be merely advisory in United States v. Booker. Beckles simply did not address their situation.
Last week, the 7th Circuit did so, holding that “under Johnson, the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants.”
In Beckles, the Circuit said, the Supreme Court “took care… to specify that it was addressing only the post-Booker, advisory version of the guidelines.” In fact, the 7th said, “Beckles’ logic for declining to apply the vagueness doctrine rests entirely on the advisory quality of the current guidelines… Beckles reaffirmed that the void-for-vagueness doctrine applies to ‘laws that fix the permissible sentences for criminal offenses.’ As Booker described, the mandatory guidelines did just that. They fixed sentencing ranges from a constitutional perspective… The residual clause of the mandatory guidelines did not merely guide judges’ discretion; rather, it mandated a specific sentencing range and permitted deviation only on narrow, statutorily fixed bases.”
The 7th Circuit concluded that the career offender provisions of “the mandatory guidelines are thus subject to attack on vagueness grounds.”
Cross v. United States, Case No. 17-2282 (7th Cir., June 7, 2018)
– Thomas L. Root
