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No Vacation for the Courts: Davis and Johnson Decisions Abound – Update for September 5, 2019

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THE DAVIS REPORT – AND A JOHNSON ‘CAREER OFFENDER’ DECISION


vacation190905Last week, typically the final slow week of summer, as vacationers return for a new school year and dreary office, was uncharacteristically busy for application of last June’s Supreme Court United States v. Davis decision.

In United States v. Barrett, the 2nd Circuit reluctantly held that a Hobbs Act conspiracy was not a crime of violence in light of Davis, despite the “murderous” nature of the particular conspiracy. For that reason, one of the defendant’s four § 924(c) convictions (for using a gun in a crime of violence) – the one related to the Hobbs Act conspiracy – was vacated. The Court sighed, “If there is anything Davis makes clear, it is the Supreme Court’s conviction that the substantially similar residual clause definitions for a violent crime in the Armed Career Criminal Act, in § 16(b), and in § 924(c)(3)(B) are unconstitutionally vague, and its aversion to new arguments that attempt to avoid that conclusion.”

In the 6th Circuit’s Knight v. United States decision, one of the defendant’s § 924(c) conviction was vacated because it was based on use of a gun during a kidnapping, but another based on assault and robbery of a postal employee under 18 USC § 2114 was held to require the use or threat of physical force. Thus, it is a crime of violence that supported the § 924(c) conviction.

Robber160229In United States v. Pervis, the 5th Circuit held that garden-variety bank robbery under 18 USC 2113(a) is a crime of violence under the § 924(c) “elements” test, and therefore supported the defendants’ multiple § 924(c) convictions.

The 5th Circuit also handed down a disappointing holding that an inmate found to be a career offender under the old mandatory Guidelines could not file a second-or-successive § 2255 motion to challenge the “career offender” status because of the Supreme Court’s 2015 Johnson v. United States holding. Bobbie London was convicted in 1996 of drug offenses and sentenced to 327 months as a Guidelines career offender. One of the prior convictions making him a career offender clearly no longer counts after Johnson.

vagueness160110Under Beckles v. United States, Bobbie would clearly not be entitled to relief if his sentence had been imposed under the advisory Guidelines. But he was sentenced nine years before United States v. Booker invalidated the mandatory Guidelines, so the judge had no choice but to hang the 327 months on him. Bobbie argued that a sentence determined by the vague language of the pre-Booker career offender residual clause violates due process.

The Circuit disagreed:

This asserted right, we think, is not dictated by Johnson; London’s assertion is more properly described as a “new right” to the extent that it is a right that has not yet been recognized by the Supreme Court. The Supreme Court has yet to decide whether a vagueness challenge can be raised under the pre-Booker Sentencing Guidelines. Instead, the Court’s decisions up until this point evince a distinction between statutes that fix sentences and Guidelines that attempt to constrain the discretion of sentencing judges…

In short, it is debatable whether the right recognized in Johnson applies to the pre-Booker Sentencing Guidelines—an administrative regime that governs a judge’s discretion to a range within the statutory minimum and maximum sentences. Consequently, London does not assert a right dictated by Johnson but instead asserts a right that would extend, as opposed to apply, Johnson to the pre-Booker Guidelines. His claim is therefore not entitled to the benefit of a new statute of limitations.”

United States v. Barrett, Case No. 14-2641-cr (2nd Cir. Aug. 30, 2019)

Knight v. United States, Case No. 17-6370 (6th Cir. Aug. 27, 2019)

United States v. Pervis, Case No. 17-20689 (5th Cir. Aug. 30, 2019)

London v. United States, Case No. 17-30675 (5th Cir. Aug. 29, 2019)

– Thomas L. Root

Are Inmates Soon to be Sexy? – Update for August 9, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WILL 2020 BE “THE YEAR OF THE PRISONER?”

thumbsup190809Surprisingly enough, 2020 is looking to be the year of the prisoner. Democratic candidates for president are falling all over themselves making proposals for federal sentencing reform, President Trump is claiming that he is the criminal justice reform leader, and – perhaps more important – the news media are questioning prison and sentencing reform like never before.

Criminal justice is expected to be a showcase in Trump’s presidential platform, passage of the First Step Act, hailed by the administration as a legislative victory that, in part, rolls back harsh drug war sentencing from the 1980s and 1990s.

Among the herd of Democrats running for president, Sen. Cory Booker (D-New Jersey) stands out, promising to increase the use of clemency and to seek a law requiring judges to consider early release for aging inmates who’ve served at least a decade in the federal prison system.

Last week, CBS News devoted a long interview to New York University law professor and former U.S. Sentencing Commission member Rachel Barkow, who just wrote a book called Prisoners of Politics: Breaking the Cycle of Mass Incarceration. Covering everything from sentencing reform to her concerns about enough programming to take advantage of the First Step Act, the interview set the tone for the debate.

maxed190809For example, Barkow compared long sentences to “your credit card bill. If you’re in financial difficulty, and you can’t pay your bills, you put them all on your credit card… The next month your credit card bill comes and there’s interest. It gets worse and worse and the longer you don’t pay, the worse things get. Long sentences are like that. While you’re incarcerating people, not only are you not making them better, you’re often putting them in environments where they are likely to become worse.”

The website “Governing,” intended for government officials, ran a piece on prison healthcare last week, noting that “prisoners make up 1 percent of the population, yet they account for 35 percent of the nation’s total cases of hepatitis C. ‘They are the most expensive segment of the population,” says Marc Stern, a public health professor at the University of Washington, ‘and they are the sickest.’ For all the care that inmates need, they’re unlikely to receive adequate medical attention.”

Fortune, Criminal Justice Reform Advocates See Prime Opportunity in 2020 Election (Aug. 2, 2019)

NJ.com, Booker’s right: Paying $60,000 a year to jail one geriatric inmate deserves ‘a second look’ (July 28, 2019)

CBS News, What’s wrong with America’s criminal justice system? 6 questions for an expert (Aug. 2, 2019)

Governing.com, America Has a Health-Care Crisis — in Prisons (Aug. 1, 2019)

– Thomas L. Root

11th Circuit Travels Farther From Earth – Update for May 8, 2019

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11TH CIRCUIT BAR FIGHT

Last week, the 11th Circuit denied en banc review of a case in which a pre-Booker Guidelines career offender sought collateral review of his sentence, based on the void-for-vagueness doctrine of Johnson v. United States. No surprise there. But a number of judges on that court, including the former acting chairman of the Sentencing Commission, Judge William Pryor, wrote 27 weird pages explaining the soundness of their denial.

earth190508Essentially, the majority said that the Guidelines were always advisory, even when they were mandatory, because the mandatory guidelines were never lawful. Therefore, a judge could have given the defendant the same high sentence even if he was not wrongly considered to be a career offender, despite the obvious fact that any judge who had done that would have been summarily reversed. If the sentence conceivably could not have changed, the majority wrote, then the ruling (in this case, Beckles) is obviously procedural, and the defendant cannot rely on it to change his sentence, because it is not retroactive.

Judge Rosenbaum and two other judges threw 36 pages back at the majority:

According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory. That is certainly interesting on a metaphysical level.

But it ignores reality. Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum. Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as 3553(b) required, to scores of criminal defendants — including many who still sit in prison because of them.

The inmate, Stoney Lester, was lucky enough to get released on a 2241 motion by the 4th Circuit – in which circuit he was imprisoned at the time – making the 11th Circuit denial academic. But the otherworldly logic of the majority, especially from a circuit fast becoming notorious for accepting any tissue-thin reason to deny a defendant constitutional or statutory justice (see here and here, for instance), is mind-numbing.

Lester v. United States, 2019 U.S. App. LEXIS 12859 (11th Cir. Apr. 29, 2019)

– Thomas L. Root

FSA Resentencings Reflect District Court Confusion – Update for March 11, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FAIR SENTENCING ACT RESENTENCINGS ALL OVER THE MAP

As prisoners who were sentenced for crack offenses before the August 2010 effectiveness of the Fair Sentencing Act (FSA) are discovering, district courts are all over the map in interpreting the First Step Act provisions that make the FSA retroactive.

crackpowder160606Here’s one problem: A number of prisoners seeking retroactive FSA application were sentenced under the mandatory pre-United States v. Booker guidelines. Are their guidelines still mandatory on resentencing?

And another: Virtually all of the eligible defendants have indictments that specified “5 grams or more” or “50 grams or more” of crack – the standard for mandatory minimums before FSA – but had judges finding at sentencing that the amount of crack in their cases was much higher, such as “400 grams or more.” Before the Supreme Court’s 2013 Alleyne v, United States decision, a Presentence Report finding of 400 grams would subject the defendant to a 10-to-life sentence no matter what the indictment said. Alleyne said that the facts supporting a mandatory minimum sentence had to be found by a jury beyond a reasonable doubt or admitted by the defendant. So what amount of crack should drive their new sentence, 50 or 400?

The issue district courts are grappling with is whether an FSA resentencing has to pretend that Booker and Alleyne were never decided, or whether a new FSA sentence has to be constitutional under all of those decisions handed down since the defendant was first sentenced.

Three district court decisions in the last week or so make it clear that those questions are still up in the air. In United States v. Glore, the government argued that because a defendant who was charged with 5 grams or more had been found in his PSR to have had 46 grams, he was not eligible for a sentence reduction under the retroactive FSA, because the 46 grams still required a 5-year minimum sentence under the FSA’s 28-gram threshold. The government said Alleyne should not apply, because it was decided well after the original sentence was imposed.

badjudge160502Citing United States v. Fleurival, the district court rejected the government argument, holding that “the government has the prerogative to argue that even if a defendant is eligible for a First Step reduction, the court should decline to exercise the broad discretion given it by the First Step Act, and refuse to reduce a defendant’s sentence. But its argument that a defendant is not eligible because the sentencing court might have elected to calculate his statutory penalties in a way that now is unlawful, and back then would have been illogical, is unpersuasive.”

Meanwhile, in United States v. Newton, a Virginia district court ruled that although the defendant was originally sentenced under pre-Booker mandatory guidelines, his new sentence under the retroactive FSA should be decided under advisory guidelines and the sentencing factors in 18 USC 3553(a). The government, comparing the FSA resentencing to an 18 USC 3582(c)(2) sentence reduction, argued that Dillon v. United States made it a limited resentencing, and the court had to pretend that the law on the day of the original sentencing remained the law at resentencing.

The district court rejected this argument, noting that the Sentencing Commission said in January that while courts would have to settle whether the FSA resentencing was subject to Dillon, district judges should nevertheless “consider the guidelines and policy statements, along with other 3553(a) factors, during the resentencing.”

In a New York case last week, United States v. Davis, the government argued the defendant was not eligible for relief under the First Step Act because his actual offense conduct involved over 1.5 kilos of crack, which even under the FSA would trigger a 10-life sentence under 21 USC 841(b)(1)(A). The government hypothesized that if the current FSA had been in place when Mr. Davis committed his crime, his indictment would have alleged “280 grams or more of cocaine base” instead of “50 grams or more,” and thus still would have triggered the higher  841(b)(1)(A) penalties.

release160523The court rejected the government’s argument out of hand, holding that “it is the statute of conviction, not actual conduct, that controls eligibility under the First Step Act.” The defendant won his release.

But the foregoing views are not universally shared. Last week, a Florida district court held in United States v. Potts that a defendant who had been charged only with a “detectable amount” of crack, which carried no mandatory minimum, was nevertheless subject to a 10-year minimum sentence because his presentence report found he was responsible for 125 grams. The district court concluded that First Step’s provision making the FSA retroactive does not “expressly provide for a full or plenary resentencing or for a reconsideration of original sentencing determinations.” Instead, “although Defendant is eligible for a reduced sentence under Fair Sentencing Act, he is not entitled to a full resentencing, and all other determinations made at the time of his sentencing must remain unchanged.” The court cited United States v. Delaney and United States v. Kamber, but neither of those decisions hold that an FSA resentencing is limited like a 3582(c)(2) resentencing.

There is going to be a lot of litigation before the parameters of the FSA resentencing are firmly and finally set.

United States v. Davis, 2019 U.S. Dist. LEXIS 36348 (W.D.N.Y. Mar 6, 2019)
 

United States v. Delaney, 2019 U.S. Dist. LEXIS 28792 (W.D.Va. Feb. 22, 2019)

United States v. Fleurival, 2019 U.S. Dist. LEXIS 20057 (W.D.Va. Feb. 6, 2019)

United States v. Glore, 2019 U.S. Dist. LEXIS 35838 (E.D.Wis. Mar. 6, 2019)

United States v. Kamber, 2019 U.S. Dist. LEXIS 15691 (S.D.Ill. Jan. 31, 2019)

United States v. Newton, 2019 U.S. Dist. LEXIS 33356 (W.D.Va. Mar. 1, 2019)

United States v. Potts, 2019 U.S. Dist. LEXIS 35386 (S.D.Fla. Mar. 6, 2019)

– Thomas L. Root

Cotton’s Price is Too High – Update for November 20, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COTTON SAID TO HAVE NAMED HIS PRICE FOR SUPPORTING FIRST STEP

cotton181120If the modified FIRST STEP Act makes it to the floor of the Senate, a likelihood that is dimming day by day, Sen. Tom Cotton (R-Arkansas) has already staked out his price for abandoning his vitriolic opposition to the bill. Cotton and former Attorney General Jefferson Beauregard Sessions III, recently departed from DOJ, have been the most ardent foes of FIRST STEP and the Sentencing Reform and Corrections Act of 2017. Now, Sen. Cotton is the last man standing.

Cotton has maintained his opposition to FIRST STEP — a sweeping package of criminal-justice reforms designed to reduce incarceration rates and recidivism — despite broad bipartisan support, even provoking a Twitter war yesterday with Sen. Mike Lee (R-Utah), a former federal prosecutor who strongly supports FIRST STEP and co-sponsored the doomed SRCA (which donated several provisions to the modified FIRST STEP).

In defending his opposition on Twitter yesterday, Cotton accused FIRST STEP’s proponents of trying to push the measure through Congress without allowing time for an adequate review of its contents, and warned that it would grant early release to fentanyl dealers, violent criminals and “criminal immigrants” (as though non-citizens convicted of felonies are not promptly deported after their sentences are completed). Lee accused Cotton’s criticisms of being “fake news.”

pricesIt turns out that Cotton had a price, albeit it a high one, for remaining neutral on FIRST STEP. Ohio State University law professor Doug Berman wrote at his Sentencing Law and Policy Blog Sunday that Cotton previously offered to remain neutral or even support FIRST STEP if the bill were modified to (1) exclude heroin and fentanyl traffickers from early release for programming credits; (2) make the change from 47 to 54 days of good time non-retroactive; (3) adjust the weight of fentanyl under the drug trafficking statute (21 USC 841(b)) to reflect its potency; and (4) fix the Armed Career Criminal Act to undo the Johnson holding.

Berman wrote that the proposals (except for a part of the first one) were rejected by FIRST STEP sponsors.

Meanwhile, the Democrats’ recapture of the House in the midterm elections complicates FIRST STEP’s chances. Many progressive Democrats and advocacy groups opposed the FIRST STEP Act in the House and insisted that it include stronger sentencing reforms. Many of those same lawmakers would like to see the sentencing reforms in the Senate version be made retroactive, something that would almost surely reignite conservative opposition to the bill.

flipflop170920Sens. Cory Booker, D-New Jersey, and Kamala Harris, D-California, who are both running for president, have opposed criminal justice. Harris claims now to support reform, but she opposed it as California’s attorney general. Booker, who claims to support reform in principle, seems to be calculating whether its passage will help or harm his presidential campaign.

The Washington Examiner, however, predicted last week that “if Trump applies pressure, he will find that the numbers are there in Congress to defeat both Cotton’s faction and the Democrats in opposition – specifically, the ones blocking reform because it would hurt their own presidential bids if it passes during Trump’s presidency.”

Reason.com, Trump Endorses Criminal Justice Bill, Giving Momentum to Long-Delayed Reforms (Nov. 14, 2018)

Washington Examiner, Trump is right to embrace criminal justice reform (Nov. 15, 2018)

National Review, Mike Lee Accuses Tom Cotton of Spreading ‘Fake News’ on Criminal-Justice-Reform Bill (Nov. 19, 2018)

– Thomas L. Root

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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.

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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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