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September 28, 2020

Split First Circuit panel recognizes, in 2255 proceeding, Johnson vagueness claim as to old mandatory career-offender guideline

The very title of this post is likely inscrutable to persons not intimately familiar with the ins and outs of federal sentencing law and practice.  But those who are intimately familiar with the ins and outs of federal sentencing law and practice will want to check out Shea v. US, No. 17-1899 (1st Cir. Sept 28, 2020) (available here), to see the debate over whether an armed bank robber originally sentenced in 1995 to over 47 years in federal prison might now have a chance to be resentenced.  The majority (per Judge Thompson) says yes in a lengthy opinion that starts this way:

In Johnson v. United States, 576 U.S. 591, 597 (2015), the Supreme Court held that a jumble of words in a federal law could not be used to fix a defendant's sentence, a rule that applies retroactively.  See Welch v. United States, 136 S. Ct. 1257, 1264 (2016).  Years ago, judges used the same wording in another binding rule with "the force and effect of law[ ]," United States v. Booker, 543 U.S. 220, 234 (2005) — § 4B1.2(a)(2) of the U.S. Sentencing Guidelines — to fix defendants' sentences.  Because Johnson made that unconstitutional, we reverse the district court's decision denying the motion to vacate and remand for further proceedings.

Judge Selya has a short dissent that starts this way:

Time-and-number limitations, generally applicable to certain collateral review proceedings, may sometimes be relaxed when a petitioner seeks to avail himself of a new rule of constitutional law announced by the Supreme Court and expressly made retroactive to cases previously decided.  See Teague v. Lane, 489 U.S. 288, 310 (1989) ("[N]ew constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced . . . [u]nless they fall within an exception to the general rule."); see also Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (discussing exceptions to general bar on retroactivity).  But this principle does not provide free rein to the lower federal courts — the courts of appeals and the district courts — either to extend a rule into uncharted waters or to speculate about where a Supreme Court decision might eventually lead.  My colleagues' decision crosses this line, staking out a position that the Court has yet to articulate.  Because I cannot join this excursion into forbidden terrain, I write separately.

September 28, 2020 at 11:04 PM | Permalink


Sounds like the Government might seek rehearing en banc, and then either side will file the Petition for Certiorari. If retroactive, this principle could affect hundreds of old bank robbery cases.

Posted by: James J. Gormley | Sep 30, 2020 2:59:57 PM

which led to the application of the career offender guideline.

Posted by: James J. Gormley | Sep 30, 2020 3:01:55 PM

It is unlikely that there are that many cases that fit the criteria: (1) pre-Booker; (2) career offender; (3) based on crime of violence invalidated by Johnson. Any such person probably has been serving time since 2003, which means - including good time - he or she would have served over 20 years already.

In fact, I heard a year ago, when the issue had presented itself in a cert petition, the Supreme Court passed on it because the issue was of insufficient national importance, expressly because it would affect so few people. Unlikely the decision will go further...

Posted by: Tom Root | Oct 3, 2020 8:39:35 PM

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