Does the Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015), apply retroactively to the residual clause in section 4B1.2(a)(2) of the United States Sentencing Guidelines?
The Supreme Court will decide whether the holding in Johnson v. United States, 135 S. Ct. 2551 (2015), makes the residual clause in section 4B1.2(a)(2) of the United States Sentencing Guidelines void for vagueness and, if so, whether this new rule gives relief to Petitioner Travis Beckles by retroactively applying to collateral cases challenging federal sentences under § 4B1.2(a)(2)’s residual clause. Beckles argues that § 4B1.2(a)(2)’s residual clause is void for vagueness under Johnson because the residual clauses in both cases are identical, and the Court held that the clause in Johnson was void for vagueness. Beckles also asserts that this new rule applies retroactively under the Court’s test in Teague v. Lane, 489 U.S. 288 (1989). Respondent the United States argues, however, that Beckles’s new rule would not apply retroactively because it is a procedural rather than a substantive rule, and thus the Court should reject his request at this threshold. The United States further argues that if the Court does reach the merits, § 4B1.2(a)(2)’s residual clause is not void for vagueness with respect to those applications expressly specified in the commentary to § 4B1.2(a)(2) because this commentary clarifies the otherwise vague guideline. This case will address whether retroactive resentencing for “career offenders” will burden the federal system and will clarify the advisory nature of the Sentencing Guidelines in terms of due process concerns.
Questions as Framed for the Court by the Parties
Johnson v. United States, 135 S. Ct. 2551 (2015), deemed unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) (defining "violent felony"). The residual clause invalidated in Johnson is identical to the residual clause in the career-offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2) (defining "crime of violence").
The questions presented are:
- Whether Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2)?
- Whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a) (2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review?
- Whether mere possession of a sawed-off shotgun, an offense listed as a "crime of violence" only in the commentary to U.S.S.G. § 4B1.2, remains a "crime of violence" after Johnson?
In 2007, police arrested Travis Beckles after recovering a sawed-off shotgun in his residence. At trial, the jury found Beckles guilty under 18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted felon.
During sentencing, the district court used a presentence investigation report (“PSIR”) that categorized Beckles as a career offender, a status triggered under U.S.S.G. § 4B1.1 when “a defendant who is at least eighteen years of age, commits an offense that is a ‘crime of violence’ or a controlled substance offense, and has at least two prior felony convictions for a ‘crime of violence’ or a controlled substance offense.” At the time, commentary under § 4B1.2 designated a conviction for a sawed-off shotgun under § 922(g)(1) as a “crime of violence.” Given Beckles’s total offense level of 37 and criminal history category of VI, the district court adopted the Guidelines’ recommendation and sentenced Beckles to 360 months.
The Court of Appeals for the Eleventh Circuit affirmed, rejecting Beckles’s argument that his conviction was not a “crime of violence” as he was not in possession of a firearm as defined in 26 U.S.C. § 5485(a). Although the Supreme Court denied certiorari, the district court granted the United States’ Rule 35(b) motion for reduction of a sentence due to substantial assistance and reduced Beckles’s sentence to 216 months. Beckles responded with a 28 U.S.C. § 2255 motion to vacate, set aside, or correct a sentence, arguing that the district court erred in sentencing him as a “career offender” because he did not commit a “crime of violence” under § 4B1.2(a)(2)’s residual clause. The district court granted Beckles’s motion but reconsidered after the Eleventh Circuit’s decision in United States v. Hall, 714 F.3d 1270 (11th Cir. 2013). Applying the holding from Hall that the § 4B1.2 commentary was “authoritative,” the district court issued a certificate of appealability but denied Beckles’s § 2255 motion.
After the Eleventh Circuit affirmed on appeal, the Supreme Court granted certiorari, vacated the judgment, and remanded the case considering its decision in Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Supreme Court held that the residual clause defining “violent felony” in the Armed Career Criminal Act of 1984 (“ACCA”)—the residual clause in which the Guidelines modeled its definition of “crime of violence”—is unconstitutionally vague. Prior to Beckles’s reconsideration on remand, the Eleventh Circuit held in United States v. Matchett, 802 F.3d 1185, 119496 (11th Cir. 2015), that the “Guidelines were immune from vagueness challenges.” Although the Eleventh Circuit made no mention of Matchett, the court rejected Beckles’s appeal basing its decision on Hall and the § 4B1.2 commentary; the court also held that Johnson did not apply because it ruled as vague only the language of the ACCA’s residual clause, not that of the Guidelines or commentary controlling Beckles’s conviction. The Supreme Court granted certiorari on June 27, 2016.
IS § 4B1.2(a)(2)’S RESIDUAL CLAUSE VOID FOR VAGUENESS?
Beckles argues that the residual clause in U.S.S.G. § 4B1.2(a)(2) is void for vagueness because the text of the clause is identical to that of the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015), which the Supreme Court held to be void for vagueness. Beckles further argues that § 4B1.2(a)(2)’s residual clause can be interpreted interchangeably with the residual clause in Johnson, and thus the Court’s decision in Johnson that the residual clause was void for vagueness applies to the clause in this case. Beckles also asserts that though the Sentencing Guidelines are not a statute, the vagueness doctrine applies broadly to cover them. In addition, Beckles claims that though the Guidelines are advisory and a court may vary from them, they are still central to sentencing and courts must be cognizant of them; thus, they cannot be immune from the vagueness doctrine. Lastly, Beckles notes that eleven of the twelve courts of appeals have already either held or assumed that § 4B1.2(a)(2)’s residual clause is void for vagueness.
Though the United States agrees that the advisory Sentencing Guidelines are subject to the Due Process Clause’s prohibition on vague penal laws, it contends that § 4B1.2(a)(2)’s residual clause is not void for vagueness with respect to those applications expressly specified in the commentary. Johnson’s holding does not translate directly to the residual clause in this case, the United States argues, because the residual clause in this case contains binding commentary that serves as a guide to the text. The United States only allows that Johnson’s holding means that the residual clause in this case was void for vagueness with respect to offenses not specified in the commentary. However, for the expressly identified offenses in the commentary, the United States argues that the Guidelines’ definition of “crime of violence” was not vague, and defendants thus had notice that committing these offenses would constitute a crime of violence.
SHOULD THE APPLICATION OF THE JOHNSON RULE FUNCTION RETROACTIVELY?
Beckles argues that under the Court’s three-step analysis in Teague v. Lane, 489 U.S. 288 (1989), for determining if a new rule should apply retroactively to a final judgment in a criminal case, the application of the Johnson rule to the Sentencing Guidelines should apply retroactively to his final judgment. Beckles explains that under this test, a court must determine when the defendant’s conviction became final, whether the rule is new, and if the rule is new, whether the rule falls within an exception to nonretroactivity because it is substantive or is a “watershed procedural” rule. In this case, Beckles concedes that the application of the Johnson rule to the Guidelines is new and then notes that the Court recently held that Johnson announced a substantive rule that has retroactive effect. Beckles then argues that the Johnson rule has the same substantive function when applied to the Guidelines because invalidating § 4B1.2(a)(2)’s residual clause changes the substantive reach of the career offender guideline by altering the range of conduct or the class of persons that the guideline punishes. Thus, Beckles contends, this ends the retroactivity analysis and supports finding that the application of Johnson’s rule to the Guidelines should have retroactive effect.
The United States counters that Beckles’s proposed new rule, the application of the Johnson rule to the Sentencing Guidelines, is procedural rather than substantive and thus does not fall within the exception to nonretroactivity. The United States argues that the rule is procedural by asserting that a sentencing guidelines range does not impose substantive limits on the range of sentences, and thus a rule invalidating a provision of the guidelines would not be substantive. To support this argument, the United States notes that courts are permitted to exercise discretion to tailor sentences based on the facts of each case, and the courts can use this discretion to impose any sentence within the authorized range. The United States also notes that courts have described sentence miscalculations as procedural errors. Additionally, the United States looks to the practical effect of Beckles’s asserted rule to argue that it is procedural rather than substantive. The practical effect, the United States contends, is that the rule would change the starting benchmark for sentence calculation, but it would not alter the range of conduct or the class of persons that the law punishes because Beckles will still be subject to the same range of punishment. The United States also argues that the rule is procedural because the Court has already held that materially similar rules are procedural under Teague. Further, the United States contends that though the Court held that the Johnson rule itself was substantive, this does not mean that Beckles’s proposed new rule would be substantive.
IS POSSESSION OF A SAWED-OFF SHOTGUN A “CRIME OF VIOLENCE” AFTER JOHNSON?
Beckles contends that after Johnson, his offense is not a crime of violence under § 4B1.2(a)(2). Beckles asserts that this is because once § 4B1.2(a)(2)’s residual clause is invalidated for vagueness, the commentary to the Sentencing Guidelines, which supported the lower court’s finding that his offense was a crime of violence, becomes inconsistent with the text of the Guidelines.In Stinson v. United States, 508 U.S. 36 (1993), Beckles notes, the Court held that commentary interpreting or explaining a guideline is authoritative unless it is inconsistent with that guideline. Beckles thus maintains that applying Stinson to this case means that the commentary to § 4B1.2(a)(2) may not be used to support his sentence, and thus his offense no longer qualifies as a crime of violence.
The United States counters that even if the Court finds that § 4B1.2(a)(2)’s residual clause was void for vagueness, Beckles is not entitled to relief because the commentary to the Sentencing Guidelines, upon which the Court based his sentence, defined a “crime of violence” independently from § 4B1.2(a)(2)’s residual clause. The United States supports this assertion by noting that the commentary did not indicate that the listed offenses qualified as crimes of violence only under § 4B1.2(a)(2)’s residual clause. The United States contends that the history and structure of the Guidelines also supports this assertion. Further, the United States asserts that Beckles errs when he argues that the first step in the vagueness analysis is to excise § 4B1.2(a)(2)’s residual clause, and the second step is to consider the commentary. Instead, the United States looks to similar cases and asserts that the Court should instead use the commentary to clarify the otherwise vague guideline.
COSTS OF ALLOWING RETROACTIVE RESENTENCING IN LIGHT OF JOHNSON
Beckles argues that the categorical approach to retroactivity as articulated in Teague v. Lane, 489 U.S. 288 (1989), requires that courts examine the rule in isolation. Beckles suggests that the retroactivity analysis should focus on whether a defendant could potentially benefit from a retroactive adoption of the rule, not on whether a defendant would actually benefit. Applying this doctrine in light of Johnson v. United States, 135 S. Ct. 2551 (2015), Beckles contends that fewer people and types of actions will trigger “career offender” enhancements. Scholars of criminal law, federal courts, and sentencing (“the Scholars”), in support of Beckles, argue that if retroactivity applies, then resentencing prisoners who no longer qualify as “career offenders” will not unduly burden the federal courts. The Scholars maintain that the courts can easily adopt resentencing procedures from prior cases in which retroactivity was found to apply. The Scholars estimate that only 12,000 prisoners will even qualify for resentencing because their designation as “career offenders” falls beyond the scope of § 4B1.2(a)(2)’s residual clause.
In contrast, the United States argues that applying the retroactivity doctrine to cases involving “career offenders” sentenced under § 4B1.2(a)(2) would strain the resources of the federal courts and go against the public interest in keeping criminal convictions final. The United States agrees with Beckles’s amici that there will be “thousands” of proceedings but disagrees that this will cause only a minimal impact on the judicial system. The United States contends that significant numbers of prisoners sentenced under other sections of the Sentencing Guidelines will also qualify for resentencing because the same definition of “crime of violence” used in § 4B1.2(a)(2) appears elsewhere in the Guidelines. Furthermore, the United States argues that resentencing proceedings are inherently complicated, require lengthy investigations, and will divert resources away from adjudicating new crimes. The United States suggests that widespread resentencing and reduction in prison time for “career offenders” will pose a public safety risk by allowing criminals prone to recidivism back into the community.
RISK OF PERMITTING VAGUE SENTENCING GUIDELINES
Beckles argues that allowing § 4B1.2(a)(2)’s definition of “career offender” to stand as vague would violate the Due Process Clause of the Fifth Amendment. Beckles maintains that allowing courts to rely on vague Sentencing Guidelines would perpetuate the Court’s concern in Johnson that declining application of the vagueness doctrine would permit judges to arbitrarily enforce the Guidelines and prevent individuals from having fair notice. The Scholars argue that it is irrelevant that the Guidelines are not mandatory because they have a “controlling influence” over judges. The Scholars contend that vague Guidelines create “arbitrary and discriminatory” enforcement challenges that judicial discretion alone cannot offset. Furthermore, the Federal Defenders, in support of Beckles, argue that not voiding § 4B1.2(a)(2) as vague would adversely impact African Americans. The Federal Defenders contend that African Americans are more likely to be categorized as “career offenders” under the Guidelines because police practices, such as the targeting of minorities, translate to more convictions labeled as “crimes of violence.”
In contrast, the United States argues that Beckles was not denied due process because § 4B1.2(a)(2)’s definition of “career offender” is not vague. The United States contends that the Sentencing Guidelines serve an advisory role only. Likewise, the United States argues that judges must explain any deviation from the Guidelines, thereby preventing unabridged judicial discretion. Adam Mortara, in support of the United States, suggests that defendants should have no expectation of due process claims because of the Guidelines’ advisory nature. Mortara argues that the Guidelines, as merely advisory, do not draw a reliable line for deciding what constitutes legal and illegal actions. Furthermore, the United States argues that the Guidelines’ advisory nature makes “severity or perceived unfairness” an immaterial indicator of § 4B1.2(a)(2)’s validity. The United States contends that allowing claims of aggravated racial disparities and disproportionate treatment of African Americans into the vagueness and retroactivity doctrines would cause misapplication of the Guidelines and confusion in the district courts.
- Kevin Daley, This is One of the Biggest Pending SCOTUS Cases You Haven’t Heard Of, The Daily Caller (Aug. 23, 2016).
- Kevin Lessmiller, High Court to Revisit Enhanced Sentencing, Courthouse News Service (June 27, 2016).
- Lance J. Rogers, SCOTUS to Weigh Extending ‘Crime of Violence’ Ruling, Bloomberg BNA (June 29, 2016).