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1st Circuit Gives Pre-Booker Career Offenders Some Relief– Update for October 5, 2020

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NO DEFENDANT LEFT BEHIND

vagueness160110The 2015 Supreme Court decision Johnson v. United States was a landmark, holding that the residual clause in the Armed Career Criminal Act’s definition of “crime of violence” was unconstitutionally vague. Johnson’s reasoning led to Sessions v. Dimaya (extending Johnson to the criminal code’s general definition of “crime of violence” at 18 USC § 16(b)) and 2019’s United States v. Davis holding extending Johnson to 18 USC § 924(c), the “use or carry a firearm” statute.

But thousands of inmates who were held to be Guidelines “career offenders” because of prior crimes of violence got no relief. A Guidelines “career offender” is very different from an ACCA armed career criminal. A Guidelines career offender is someone with two prior crimes of violence or serious drug convictions (federal or state). If a defendant qualifies as a Guidelines career offender, he or she will be deemed to have the highest possible criminal history score and a Guidelines offense level that ensures a whopping sentencing range.

After Johnson, a number of Guidelines career offenders, whose status had been fixed by including some dubious prior convictions as “violent,” sought the same kind of relief that Johnson afforded armed career criminals. But in 2017 the Supremes said that Johnson did not apply to the Guidelines. Beckles v. United States held that the Guidelines were not subject to the same kind of “vagueness” challenge that worked in Johnson, because the Guidelines did not “fix the permissible range of sentences, but merely guided the exercise of discretion in choosing a sentence within the statutory range.”

This may have been so for people sentenced under the advisory Guidelines. However, back before the 2005 Supreme Court decision in United States v. Booker, those “advisory” Guidelines were mandatory. They did not guide a judge’s discretion. Instead, the law required a judge to sentence within the applicable Guidelines sentencing range except in very narrow circumstances, and then only if the sentencing court jumped through the many hoops the Guidelines erected.

Robber160229So, how about guys like Tony Shea, who was sentenced after a bank robbery spree as a career offender back in 1998? Tony’s prior crimes of violence were pretty shaky bases for a career offender enhancement (not that Tony didn’t have plenty of problems for his string of armed robberies, but that’s another story). Tony was looking at minimum 430 months under normal Guidelines, nothing to sneeze at, but with the career offender label, Tony’s minimum sentence shot that up to 567 months (that’s 47-plus years, or 330 dog years).

Tony filed a § 2255 motion arguing that because his Guidelines career offender sentence was mandatory, not “advisory,” the Johnson holding should apply to wipe out his career offender status.

Last Monday, the 1st Circuit agreed. The appeals court noted that while Beckles was right that advisory Guidelines guide a judge’s discretion rather than “fix the permissible range of sentences,” the pre-Booker Guidelines did much more than this. The Circuit said “when the pre-Booker Guidelines ‘bound the judge to impose a sentence within’ a prescribed range, as they ordinarily did, they necessarily “fixed the permissible range of sentences” she could impose.”

Judicial despotism... probably not a good thing.
         Judicial despotism… probably not a good thing.

“It’s easy,” the 1st said “to see why vague laws that fix sentences… violate the Due Process Clause. The… rule applied in Booker serves two main functions. First, fair notice: requiring the indictment to allege ‘every fact which is legally essential to the punishment to be inflicted… enables the defendant to determine the species of offence with which he is charged in order that he may prepare his defense accordingly…” Second, “the rule also guards against the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions,’ by requiring the jury to find each fact the law makes essential to his punishment.”

Only the 11th Circuit has explicitly held that Beckles does not apply to mandatory Guidelines career offender enhancements. The 5th, 8th and 10th Circuits are on the fence. This 1st Circuit decision is the first to emphatically apply Johnson to give relief to people like Tony, who is already well into his third decade of imprisonment.

Shea v. United States, 2020 U.S. App. LEXIS 30776 (1st Cir., September 28, 2020)

– Thomas L. Root

Supreme Court, Weary of ACCA, Ducks Trio of Cases – Update for October 22, 2018

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SUPREME COURT REFUSES CHANCE TO APPLY JOHNSON TO MANDATORY GUIDELINES

Three years ago, the Supreme Court held in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act definition of a crime of violence, which included within its sweep any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally vague. Because the ACCA’s definition was identical to the Guidelines’ “career offender” definition, a lot of people thought that it was only a matter of time before “career offender” sentences would be cut as well.

thilo181022But two years after Johnson, the Supreme Court ruled in Beckles v. United States that because the Guidelines are merely advisory, a constitutional vagueness challenge to the career offender guidelines would not work. But the Guidelines have only been advisory since 2005, when United States v. Booker held that mandatory sentencing guidelines were unconstitutional. What the Beckles court did not answer was the question of whether someone whose “career offender” sentence was imposed under the pre-2005 mandatory Guidelines could successfully make a Johnson challenge. Nevertheless, Beckles seemed to presage a holding that would invalidate mandatory Guideline “career offender” sentences under Johnson as soon as the proper case presented itself to the Supremes.

Thilo Brown, as well as two other mandatory Guidelines “career offenders,” had such cases, and their petitions for writs of certiorari arrived at the high court last summer while the Justices were gone fishin’. The three cases would provide the Court a chance to answer the Johnson mandatory “career offender” question everyone thought the Justices had all but begged to have presented.

Apparently not. Last week, the Court denied certiorari to all three.

The decision not to review Thilo’s case drew a dissent from Justice Sonia Sotomayor, rare for a cert denial. She said, “This important question, which has generated divergence among the lower courts, calls out for an answer… Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case we ought to hear.”

Brown v. United States, Case 17-9276 (Supreme Court, Oct. 15, 2018)

– Thomas L. Root

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Between the Devil and the Deep Blue Sea – Update for September 17, 2018

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TWO MORE CIRCUITS CALL MANDATORY GUIDELINE JOHNSON CHALLENGES UNTIMELY

Last week, the 6th and 9th Circuits joined the 8th Circuit in ruling that post-conviction motions filed pursuant to 28 USC 2255 by people sentenced as Guidelines career offenders under the pre-Booker mandatory guidelines are not timely.

devil180918In the 2015 Johnson v. United States decision, the Supreme Court ruled that a part of the statutory definition of “crime of violence,” the so-called residual clause that included as a violent crime any offense that carried a significant risk someone might get hurt, was unconstitutionally vague, because no one could tell for sure what kind of crime might qualify. That definition was in the Armed Career Criminal Act, 18 USC 924(e)(2), but similar language appeared in the “crime of violence” definition used in Chapter 4B of the Sentencing Guidelines, which defined a “career criminal” and applied dramatically higher sentencing ranges.

Immediately, prisoners with “career offender” sentences filed motions claiming that the Johnson logic meant their Guidelines sentences were flawed. However, the Supreme Court ruled in Beckles v. United States that because the Guidelines are advisory, the constitutional concerns in Johnson did not apply to the residual clause of 4B1.2(a)(2).

The rub is that until the 2005 Supreme Court decision in United States v. Booker, the Guidelines were mandatory, not advisory. The Beckles decision specifically noted that the issue of whether Johnson might apply to someone labeled a “career offender” under the mandatory pre-Booker Guidelines was not being decided by Beckles.

Under 28 USC 2255(f)(3), a person seeking to take advantage of a change in the law to modify his or her sentence must file within a year of the decision. Within a year of Johnson, the prisoners in both the 6th and 9th Circuit cases filed 2255 motions claiming their district courts relied on the residual clause of USSG 4B1.2(a)(2) to conclude that each was a Guidelines career offender. They argued that the residual clause in 4B1.2(a)(2) was unconstitutionally vague because it was almost identical to the clause struck down in Johnson, and that Beckles did not apply to the residual clause of 4B1.2(a)(2) in the pre-Booker mandatory guidelines.

Last week, both the 6th and there 9th held that to apply Johnson to the career offender provisions of the mandatory, pre-Booker Guidelines “would be an extension, not an application, of the rule announced in Johnson.” Because the Supreme Court had not yet decided the issue it left open in Beckles, the appellate courts ruled, the 2255s were untimely and must be dismissed.

This puts people still serving long sentences under mandatory “career offender” Guidelines between the devil and the deep blue sea. The Supreme Court has sent a clear signal in Beckles that it would look at a mandatory “career offender” Johnson case differently, if only the issue were before it.  But one has to get to it in order to be decided. The cases that would qualify are so old (every one pre-2005) that the only way one can be put before a court is through a 2255 motion, and such a motion would not be timely if Johnson did not trigger the one-year clock.

escher180918

No doubt one or more of the cases already decided by the various Circuits may make it to the Supreme Court. To a layman, however, dragging prisoners through an additional four years of incarceration that virtually all commentators – including the Beckles court justices – acknowledge is unconstitutional seems to be a strange and unfair way to run a process.

A Johnson endnote: Meanwhile, the respected Supreme Court website SCOTUSBlog last week blasted the Attorney General’s claim that the recidivism rate for people released under Johnson was “staggering” blasted. Parsing various reports issued within the past year, the author finds Sessions’ claims are without foundation. Recidivism rates are no different for Johnson releasees from other inmates.

Robinson v. United States, Case No. 16-3595 (6th Cir. Sept. 7, 2018)

United States v. Blackstone, Case No. 17-55023 (9th Cir. Sept. 12, 2018)

SCOTUSBlog: Johnson v. United States: Three years out (Sept. 5, 2018)

– Tom Root

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Mandatory Guidelines ‘Johnson’ Challenge Neither Fish nor Foul – Update for September 13, 2018

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8TH CIRCUIT SLAMS PROCEDURAL DOOR ON A MANDATORY GUIDELINES JOHNSON CHALLENGE

In 2004, Jeff Russo was convicted of some drug and firearm offenses. The court sentenced him as a Guidelines career offender to 235 months for reasons. After Jeff was sentenced, the Supreme Court declared the Guidelines to be advisory in United States v. Booker, but that didn’t help Jeff, whose Guidelines were considered mandatory when they were imposed.

BettyWhiteACCA180503In 2015, the Supreme Court declared the residual clause of the Armed Career Criminal Act (ACCA) unconstitutionally vague in Johnson v. United States. Within a year of Johnson, Jeff filed a 28 USC 2255 motion, claiming district court relied on the residual clause of USSG 4B1.2(a)(2) to conclude that he was a Guidelines career offender. He argued that the residual clause in 4B1.2(a)(2) was unconstitutionally vague because it was almost identical to the clause held unconstitutional in Johnson. Jeff argued the court should vacate his sentence because it was calculated based on an unconstitutionally vague provision in the mandatory guidelines.

After he filed his motion, the Supreme Court held in Beckles v. United States, that the residual clause of 4B1.2(a)(2) in the post-Booker advisory guidelines is not subject to a vagueness challenge. Jeff argued that Beckles did not apply to the old mandatory Guidelines, because they “fix” a defendant’s sentence like the statute in Johnson, and are not flexible like the advisory guidelines ruled on in Beckles.

The district court dismissed Jeff’s motion as untimely, ruling that his motion was timely only if he filed it within a year of the date on which the right asserted was initially recognized by the Supreme Court. The district court said Jeff’s claimed right to be sentenced without the residual clause required “an extension, not an application, of the rule announced in Johnson.” Because the Supreme Court had not yet recognized the right that Jeff asserted, the district court ruled, his 2255 was untimely and should be thrown out.

vaguenes160516Last week, the 8th Circuit agreed with the district court. The Circuit admitted that it is “reasonably debatable whether Johnson’s holding regarding the ACCA extends to the former mandatory guidelines. However, it ruled, “the better view is that Beckles leaves open the question whether the mandatory guidelines are susceptible to vagueness challenges. Because the question remains open, and the answer is reasonably debatable, Johnson did not recognize the right Jeff was asserting, and he thus cannot benefit from the limitations period in Sec. 2255(f)(3).

Russo v. United States, Case No. 17-2424 (8th Cir. Sept. 6, 2018)

– Thomas L. Root

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Mandatory Guideline Career Offenders Get an ACCA Break – Update for June 12, 2018

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7TH CIRCUIT EXTENDS JOHNSON TO PRE-BOOKER CAREER OFFENDERS

BettyWhiteACCA180503When 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.”

advisoryguidelines180613In 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

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SCOTUS Hems and Haws, Then Passes on Change to Refine Beckles – Update for June 1, 2018

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SUPREME COURT NIXES CHANCE TO ANSWER QUESTION LEFT HANGING BY BECKLES

A few weeks ago, we reported that the Supreme Court had relisted three related cases an unusual number of times. (A relist is when the Supreme Court schedules a certiorari petition for a decision at the weekly Friday justices’ conference, but then defers any decision until the next conference, essentially “relisting” it on the next week’s conference list).

missedopp180531Last week, the Court denied review without comment on those cases, Allen v. United States, Gates v. United States, and James v. United States. All of these cases asked whether under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States – all of which depended heavily upon the distinction between advisory and mandatory sentencing schemes – the residual clause of the mandatory sentencing guidelines is unconstitutionally vague. Now that question will go unanswered for now.

SCOTUSBlog noted last week, “It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence.”

Supreme Court, Order (May 21, 2018)

– Thomas L. Root

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Supreme Court Taking Another Look at ACCA Predicates – Update for May 3, 2018

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IT’S DEJA VU ALL OVER AGAIN

deja171017It will seem like old times – James, Begay, Chambers, Sykes, Johnson, Mathis, and Beckles – as the Supreme Court has granted review to yet another pair of Armed Career Criminal Act cases last week. These companion cases focus on the question of whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the ACCA. The cases will be decided together during the Supreme Court term beginning in October 2018.

At the same time, we’re watching a trio of cases that are awaiting a decision by SCOTUS on certiorari. The petitions for certiorari have been “relisted” eight times, an astounding number of deferrals by the Court. (A relist is when the Supreme Court schedules a case for a decision on certiorari at the weekly Friday justices’ conference, but then defers decision until the next conference, essentially “relisting” it on the next week’s conference list).

The three cases, Allen v. United States, Gates v. United States, and James v. United States, all ask whether under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States – all of which depended heavily upon the distinction between advisory and mandatory sentencing schemes – the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

BettyWhiteACCA180503Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog last week, noted that the Stitt and Sims cases are being heard “because the government was seeking cert on these cases after losing in big Circuit rulings and because there is a split in the circuits.” Still, he admitted to “growing somewhat annoyed that issues related to the application of the Armed Career Criminal Act continued to be the focal point of so much SCOTUS activity… Many other issues that are so very consequential to so many more cases – e.g., the functioning of reasonableness review or the proper application of Graham and Miller — have been unable to get the Justices’ attention while nearly a dozen ACCA cases have been taken up by SCOTUS in the last decade.”

United States v. Stitt, Case No. 17-765 (cert. granted Apr. 23, 2018)

United States v. Sims, Case No. 17-766 (cert. granted Apr. 23, 2018)

Allen v. United States, Case No. 17-5864 (certiorari decision pending)

Gates v. United States, Case No. 17-6262 (certiorari decision pending)

James v. United States, Case No. 17-6769 (certiorari decision pending)

Sentencing Law and Policy, SCOTUS grants cert on yet another set of ACCA cases, this time to explore when burglary qualifies as “burglary” (Apr. 23, 2018)

SCOTUSBlog.com, Relist Watch (Apr. 27, 2018)

– Thomas L. Root

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Draco Would Be Proud of the 2nd Circuit – Update for October 10, 2017

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BITE ME

bite171010Not much shocks us anymore, an unfortunate by-product of the equally unfortunate aging process, but a 2nd Circuit decision the other day made us feel like kids again… amazed, disgusted, shocked kids.

Corey Jones, a 39-year old with an IQ of 69, was in his last 5 months of an 8-year felon-in-possession conviction. While a resident of a halfway house, Corey “allegedly grumbled and was insolent to a staff member,” as two concurring judges described it. The halfway house called the U.S. Marshals to haul Corey back to prison to complete his final few months. Corey “resisted arrest,” which – again according to the dissent – did not consist of kicking or punching, or even stepping towards the marshals in a threatening manner. But when the marshals “were trying to lower his head to the ground,” which is a euphemistic way to describe throwing Corey to the floor, “the hand of the marshal who was apprehending Jones slipped down Jones’ face, and Jones bit him, causing the finger to bleed.”

The injured marshal was a tough guy, or maybe just had more common sense that the United States Attorney. He figured it was no big deal. He suffered no loss because of the injury, and – despite the notoriously generous government policies giving paid time off and God knows what else to employees injured on the job, he did not request any compensation.

Even the Assistant United States Attorney admitted that the bite was “not the most serious wound you’ll ever see.” But such a niggling technicality did not inconvenience the U.S. Attorney’s Office, which asked for and got a single-count indictment against Corey for assaulting a federal officer.

Corey was convicted after a trial. His sentencing Guidelines calculation ended up at a whopping 17½ to 20 years. The judge mercifully sentenced him to 15 years.

That’s right. Nip a marshal’s finger, get 15 years in federal prison. Draco would have been proud.

draco171010You couldn’t make this stuff up.

Corey’s sentencing range was so high because 23 years ago, juvenile Corey was convicted of 1st degree robbery in New York, and 20 years ago, he shot a guy in the leg, which netted him an assault conviction. Those two convictions – both of which occurred half a life ago for slow-witted Corey, made him a “career offender” under the Guidelines. (Without the “career offender” label, Corey was looking at 3-4 years.)

On appeal, Corey argued that New York 1st degree robbery was not a “crime of violence” under the Guidelines and that his sentence was unreasonable. Last week, the 2nd Circuit affirmed that Corey will remain in prison until he’s at least 50 years old. All for a bitten finger.

Corey argued that under New York law, 1st degree robbery could be committed using minimal force, not enough to meet the “crime of violence” standard of “physical force.” In a previous opinion, the 2nd Circuit had agreed with Corey, and further concluded that after Johnson v. United States invalidated the “residual clause,” 1st degree robbery could not be counted as a predicate for a “career offender” sentence.

The residual clause in USSG 4B1.2(a)(2) provides that a crime of violence includes any offense that ” involves conduct that presents a serious potential risk of physical injury to another.” The same language used to appear in the Armed Career Criminal Act, but Johnson held it was so vague in its meaning that application of it violated due process.

But after Corey’s sentenced was vacated, the 2nd Circuit vacated the vacation, withdrawing the opinion until the Supreme Court settled whether Johnson’s holding applied equally to the Sentencing Guidelines. After the high court decided in Beckles v. United States that it did not, the 2nd Circuit took up Corey’s case again.

Robber160229“Robbery” is one of the crimes specifically listed in the “career offender” Guideline as categorically being a crime of violence. But, Corey argued that New York’s robbery statute was broader than the generic definition. He contended the generic definition of robbery requires the use or threat of force in the process of taking the property, while the New York statute would be violated by a robber who uses or threatens force after assuming dominion of the property.

The appellate court rejected the argument. It said the generic definition of robbery, however, is broader than that. Although the common law definition confines robbery to the use or threat of force before, or simultaneous to, the assertion of dominion over property, “a majority of states have departed from the common law definition of robbery, broadening it, either statutorily or by judicial fiat, to also prohibit the peaceful assertion of dominion followed by the use or threat of force.” This broader definition, the court said, “has supplanted the common law meaning as the generic definition of robbery.”

What’s more, the appellate court said, “We have little difficulty concluding that the ‘least of the acts’ of first-degree robbery satisfies the definition of the Guidelines’ residual clause. The least of the acts, both sides agree, is “forcibly stealing property” while “armed with a deadly weapon.” Plainly, a robber who forcibly steals property from a person or from his immediate vicinity, while armed with a deadly weapon, engages in “conduct that presents a serious potential risk of physical injury to another.”

draconian170725Because the sentence fell below the advisory Guideline range, the 2nd held that it was substantively reasonable. The concurring judges agreed that because the court was bound to consider Corey a “career offender” – even though the current version of the Guidelines has dropped the “residual clause” – the sentence was not substantively unreasonable. However, they termed the “result to be close to absurd.” If Corey’s appeal had been a little bit earlier, the reversal would not have been withdrawn. “This means that, as a result of timing quirks (his appeal to us was slightly too late, leading to our decision to pull our earlier opinion), Jones receives a very, very high sentence in contrast with almost every similarly situated defendant.”

United States v. Jones, Case No. 15-1518-cr (2nd Cir., October 5, 2017)

– Thomas L. Root

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4th Circuit Hands Down a ‘Catch-22’ in Brown Case – Update for August 23, 2017

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CATCH-22

catch22cvr170823Those of us approaching social security age lament that the younger among us (and that’s getting to be just about everyone) no longer recalls Joseph Heller’s classic satirical novel about allied bomber pilots in World War II named Catch-22.

The expression “Catch-22” has since entered the lexicon, referring to a type of unsolvable logic puzzle sometimes called a double bind. According to the novel, people who were crazy were not obligated to fly missions, but anyone who applied to stop flying was showing a rational concern for his safety and was, therefore, sane and had to fly.

It’s not a perfect analogy, but the 4th Circuit came pretty close to defining a “Catch-22” on Monday. Thilo Brown had been sentenced as a career offender back in the bad old days, when the Guidelines were mandatory. He had been enhanced as a “career offender” for prior crimes of violence, among those being a prior state conviction for resisting arrest. After the Supreme Court held in Johnson v. United States that the residual clause of the Armed Career Criminal Act’s definition of a “crime of violence” was unconstitutionally vague, people who had been sentenced under the ACCA because of priors like Thilo’s won substantial sentence relief.

Thilo’s problem was that he wasn’t sentenced under the ACCA, despite the fact that the “career offender” Guidelines used the identical, word-for-word language defining a “crime of violence” that the Johnson court threw out of the ACCA. But he dutifully filed a post-conviction motion under 28 USC 2255 asking that his “career offender” status be vacated because of Johnson.

The government argued vociferously against Thilo, maintaining that the Guidelines are different that the ACCA, and that the same language that is unconstitutional in one is hunky dory in the other. The Supreme Court took up the question last spring in Beckles v. United States, and agreed that because the Guidelines merely recommended to the judge how to sentence offenders, if they were a little too vague, there’s no harm done.

But the Beckles Court was careful to explain that it was only deciding the case in front of it, in which the prisoner had been sentenced after the Guidelines became advisory in 2005. The Supreme Court said it was not considering whether the vague “crime of violence” language might violate a prisoner’s due process rights if used to sentence someone under the mandatory Guidelines.

catch22vis170823So Thilo pursued his 2255 motion, arguing that Johnson is a new right recognized by the Supreme Court which does extend to mandatory Guidelines people like himself. This is an important argument, because Thilo’s 2255 motion fell within the time deadline set out in 28 USC 2255(f)(3) only if it was filed within a year of the right he was asserting being recognized by the Supreme Court, and being made retroactively applicable to cases on collateral review.

Everyone had high hopes for Brown. Countless other lower court cases were stayed awaiting the decision. In fact, a 6th Circuit decision last week cited the pending Brown decision as being the one to resolve the question that went unanswered in Beckles: is the “career offender” residual clause unconstitutional when applied to mandatory Guidelines offenders?

The 4th Circuit has now ruled, and it has dodged the issue slickly. The Circuit, in a 2-1 decision, held that Brown’s 2255 petition was untimely.

The panel said the right under which an inmate proceeds has to be a right recognized by the Supreme Court. This means, the Circuit said, that only the Supreme Court can recognize the right. There is no derivative authority. That is, a lower court cannot recognize a right it may believe is implicit in analogous holdings by the Supreme Court.

vaguenes160516The Supreme Court recognized in Johnson that the residual clause of the Armed Career Criminal Act was unconstitutionally vague (a due process violation, because everyone has a 5th Amendment right to understand what conduct is or is not unlawful). However, this recognition does not mean that the right was recognized for “career offenders” sentenced under Guidelines using the same language.

The 4th noted that the Supreme Court said in Beckles that it was not deciding Johnson’s applicability to mandatory Guidelines career offender cases. This merely proved, according to the Brown court, that the Supremes had definitely not yet recognized the right being asserted by Thilo.

Here’s the Catch-22 with the 4th Circuit’s approach. First, accept that no one who has a career offender sentence under the mandatory Guidelines could have possibly been sentenced after 2004, because it would not have been final when United States v. Booker was issued in January 2005, and would have gotten the benefit of a resentencing.

If a “career offender” Guidelines sentence was final on December 31, 2004, a timely 28 USC 2255 motion had to be filed by December 31, 2005. But as of that time, the right to not be sentenced for vague residual-clause offenses was still more than nine years in the future. No 2255 raising the unconstitutionality of the residual clause had any realistic chance of success until the end of June 2015, when Johnson was handed down.

But if the Brown decision is right, in order for such a 2255 to be successful, it had to be timely under 2255(f)(3), because no other subsection would have made such a filing timely.

Except that it could not possibly be timely under (f)(3). The identical “residual clause” language found to be unconstitutional in Johnson could be tested under the advisory Guidelines, because at the time Johnson was decided, people were still being sentenced as career offenders under the Guidelines. Someone could test the language in a 2255 motion filed within a year of finality. But no one could test whether the language remained constitutional if applied to a mandatory Guidelines sentence, because no timely 2255 could be filed challenging its application to a sentence that necessarily had to have been imposed more than nine years before.

Thus, if the 4th Circuit is right in Brown, to assert a constitutional right just recently defined by the Supreme Court, a mandatory Guidelines prisoner would have to have filed the petition challenging it a decade ago, when the right did not exist and he or she would be laughed out of court.

It’s not quite a Catch-22, but it certainly carries the same level of arbitrariness and frustration.

The dissenting judge argued persuasively that the right recognized by the Supreme Court does not have to be the precise application being sought by the petitioner. Instead, alleging a rational and supportable extension of the newly-recognized to a similar fact situation is enough. Certainly, it is more efficient, and is reasonably calculated to do justice.

And should that not count for something?

United States v. Brown, Case No. 16-7056 (4th Cir., August 21, 2017)

– Thomas L. Root

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6th Circuit Holds Mandatory Guidelines Johnson Issue Not Timely – Update for August 17, 2017

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SPLITTING HAIRS

split170818Back in medieval times (before 2005), when Guidelines sentencing ranges were mandatory, Jerome Raybon was convicted in federal court of drug distribution. His prior state convictions qualified him under the Guidelines as a “career offender,” thus mandating a much more severe sentence.

One of those prior convictions was the Michigan offense of assault with intent to do great bodily harm. On its face, such an offense sounds like a crime of violence, which is what it had to be to help qualify Jerome as a career offender. But after the Supreme Court handed down Johnson v. United States in 2015, Jerome filed a petition under 28 USC 2255, arguing that the assault conviction was no longer a crime of violence, and his “career offender” status was incorrect.

Johnson151213Of course, Johnson – which held that the part of the “crime of violence” definition that included any offense that carried a significance of injury was unconstitutionally vague – applied to the Armed Career Criminal Act. Two other means by which a prior conviction could be considered a crime of violence were not affected by the decision. Also, the definition of “crime of violence” in Chapter 4B of the Sentencing Guidelines, although identical, was never considered by the Johnson court.

Unsurprisingly, a subsequent case – United States v. Beckles – found its way to the Supreme Court in short order, asking whether Johnson should apply to Guidelines career offender sentences. Last spring, the Supreme Court said it did not, at least not to “career offenders” sentenced under the advisory Guidelines. The Court pointedly said that its decision did not extend to any old sentences under the mandatory Guidelines that might be knocking around.

For their first 16 years of operation, as everyone knows, the Sentencing Guidelines were mandatory, and a judge had to sentence within the specified range except in the rarest of circumstances, when the court could justify a “departure” up or down from the range. Even then, the departure was strictly regulated by the Guidelines.

However, in 2005, the Supreme Court held in United States v. Booker that mandatory sentencing guidelines were unconstitutional. The Court struck the requirement that the Guidelines be followed from the statute, and the Guidelines have been advisory ever since.

So we have split a hair in Johnson, and split that split hair in Beckles. It was inevitable that a case like Jerome’s would arise.

splitB170818The district court said that Jerome’s 2255 motion was untimely, because his argument against the Michigan assault conviction was not that Johnson made it inapplicable, but rather that another case addressing one of the other means of defining a crime as violent – which had been handed down in 2010 – was what disqualified the assault.

Jerome appealed. Earlier this week, the 6th Circuit agreed with the district court, but for a very different reason.

Jerome’s problem, the Court said, was that for his 2255 motion to be timely, it had to be filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 USC 2255(f)(3). But due to the Supreme Court’s repeated hair-splitting, the precise issue – whether Johnson applied to an old mandatory Guidelines sentence – has not been decided. In fact, the Supreme Court explicitly said in Beckles that it was not deciding the question of whether Johnson applied to Jerome’s situation.

violent160620Because of that, Jerome’s petition was untimely, and it had to be dismissed. While you would think that settled the matter, the 6th Circuit decided to address his argument anyway, and quickly concluded that, of course, Michigan’s “assault with intent to do great bodily harm” statute remained a crime of violence under the definition even if Johnson did apply. No surprise there.

Whether Johnson will offer relief to any of the 7% or so of federal inmates serving the old mandatory Guidelines sentences is being litigated in several Circuits. The closest case to decision is probably the 4th Circuit case, United States v. Brown, Case No. 16-7056, argued May 11, 2017.

United States v. Raybon, Case No. 16-2522 (6th Cir., Aug. 14, 2017)

– Thomas L. Root

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