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October 19, 2015
"13 Words That Could Mean Freedom for Many: The debate over the federal ‘residual clause’"
The title of this post is the headline of this effective Marshall Project piece discussing some of the sentencing guideline fall out of the Supreme Court's Johnson ACCA vagueness ruling. I recommend the full piece, which starts this way (links from original):
Erskine Smith was 24 when he pleaded guilty to selling cocaine in Pittsburgh. Before the plea, a letter from the government estimated his sentence at 108 months to 135 months, or about nine to 11 years. But once he pleaded guilty, Smith received a presentence report that floored him: the report set the sentence at a mandatory 292 months to 365 months, or about 24 to 30 years. A judge sentenced him in 1993 to 30 years in prison.
The primary reason for the extra years: Two prior “crimes of violence” that the court agreed made Smith a career offender. Smith had punched a man at age 18 and assaulted another in his hotel room at 20. Each conviction was for simple assault, a Pennsylvania misdemeanor, for which he served no jail time. But the federal government classified the crimes as violent felonies, a designation that meant Smith would be sentenced under the career offender guideline of the Federal Sentencing Guidelines, which boosts sentences for people who have previously been convicted of two violent or drug felonies.
Each year, about 2,000 people are sentenced under the career offender guideline. For about three-quarters of them, the most recent crime is drug-related. Though the sentencing guidelines have been advisory since 2005, experts say judges still tend to rely on them. Federal non-career drug offenders get an average of nearly 69 months, while career drug offenders get an average of nearly 169 months, according to data from 2005 to 2014 analyzed by the Federal Defenders.
But a June Supreme Court ruling may get some of them, including Smith, a new sentence. In Johnson v. United States, the Court struck down the the less-than-sexily named “residual clause” of the Armed Career Criminal Act, deciding it was unconstitutionally vague. Because of the decision, many people sentenced under the Armed Career Criminal Act will get at least five years knocked off their sentence.
The same clause appears in the career offender guideline, and defense lawyers are hoping it will meet the same fate. They are now asking federal appellate courts to apply Johnson to the career offender guideline and resentence long-serving prisoners who have not benefited from recent, more publicized, reforms.
Some prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- What does Johnson mean for the past, present and future of the career offender guidelines?
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Eleventh Circuit panel categorically rejects Johnson vagueness attack on career offender guidelines
- New amicus brief to Eleventh Circuit seeking reconsideration of Johnson vagueness challenge to career-offender guideline
October 19, 2015 at 11:20 AM | Permalink
There was a GVR (in light of Johnson) on today's order list in a career offender case. (Banks No. 15-5722)
Posted by: Anonymous | Oct 19, 2015 4:17:57 PM