Sentencing Law and Policy

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.

Justice Sotomayor gets in (last) shot complaining about the Supreme Court's unwillingness to take up challenges to old (vague?) guidelines

In this post a few months ago I flagged an article noting that in "at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by 'career offenders'" arguing that the Johnson vagueness ruling made their (pre-Booker) guideline sentences unconstitutional. (The Justices in Beckles decided that post-Booker sentences were not constitutionally problematic because the guidelines were advisory.)

In this morning's SCOTUS order list, these two dissent in another such case, though it seems this may be the last time they will:

19-7755 PATRICK, SCOTT M. V. UNITED STATES

The petition for a writ of certiorari is denied. Justice Sotomayor, with whom Justice Ginsburg joins, dissenting from the denial of certiorari: I dissent for the reasons set out in Brown v. United States, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).  Recognizing that the Court has repeatedly declined to grant certiorari on this important issue — whether the right recognized in Johnson v. United States, 576 U. S. 591 (2015), applies to defendants sentenced under the mandatory Sentencing Guidelines — I will cease noting my dissent in future petitions presenting the question.  I hope, however, that the Court will at some point reconsider its reluctance to answer it.

Prior related posts:

• Noticing that two Justices keep noticing challenges to old (vague?) guidelines

Noticing that two Justices keep noticing challenges to old (vague?) guidelines

Law360 has this lengthy new piece, headlined "In Dissent: Why 2 Justices Keep Spotlighting Career Offenders," which flags the notable sentencing-related work of a couple of Justices in orderl lists. Here are the essentials:

Close watchers of the U.S. Supreme Court may have noticed a recurring theme in orders issued over the past two years.

In at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by “career offenders,” or people serving extra-long sentences due to prior violent crime or drug convictions.

The petitioners claim that the U.S. Sentencing Guidelines, which were mandatory at the time of their sentencing hearings, defined violent crimes by using an unconstitutionally vague phrase.  Their argument is supported by [the 2015 Johnson] high court ruling that invalidated the exact same phrase as it was used in a separate law.  The Seventh Circuit Court of Appeals and district courts in four other circuits have explicitly agreed with their reasoning, but six appellate courts have rejected it. Sotomayor highlighted that fact in an October 2018 dissent called Thilo Brown v. U.S. — the first time she and Ginsburg publicly scolded their colleagues for refusing to take up the split.

“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,” Sotomayor wrote, citing figures in an amicus brief supporting Brown. “That sounds like the kind of case we ought to hear.”...

Despite their efforts, the two justices have had no success in peeling off peers. With the court looking unlikely to resolve the circuit split, some career offenders in places like Wisconsin, Illinois and Texas are getting out years earlier than planned. Others, in places like California, Tennessee and Kansas, have no shot at relief beyond a presidential clemency or legislative reform....

Part of the reason for the other justices’ reluctance to take up the issue could be the fact that the alleged injustice is an “issue of diminishing importance,” according to Leah Litman, a University of Michigan law professor who co-signed briefs in related cases. “No one is still being sentenced under that provision,” Litman said. “It just concerns people being resentenced. Because it won’t arise in the future, it has less purchase on the court’s time.”

"The Orwell Court: How the Supreme Court Recast History and Minimized the Role of the U.S. Sentencing Guidelines to Justify Limiting the Impact of Johnson v. United States"

The title of this post is the title of this article recently posted to SSRN and authored by Brandon Beck. Here is its abstract:

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States, struck a portion of the Armed Career Criminal Act as void for vagueness.  Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions.  Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson came to be and the mechanisms through which the Supreme Court has subsequently weakened Johnson’s effect.  It will describe two specific mechanisms: (1) the Supreme Court’s recasting of the history of federal sentencing in an attempt to contextualize the holding of Booker v. United States as a return to the bygone days of indeterminate sentencing; and (2) the Supreme Court’s evolving view of the role of the United States Sentencing Guidelines (Guidelines) in the federal criminal system that minimizes the Guidelines’ actual influence over a district court’s sentencing decisions.  It will then explain why these mechanisms — one that exerts control over the past and one that exerts control over the present — are both unfounded.  Finally, this Article will suggest ways in which those involved in federal criminal law — the United States Sentencing Commission (Sentencing Commission), Congress, the courts, and the criminal bar — can address the problems that the Court’s recent decisions have caused in our criminal justice system.

Split California Court of Appeal rejects claim that second-degree felony murder provision unconstitutionally vague

A helpful reader made sure I saw an interesting and lengthy split California Court of Appeal ruling in In re White, No. E068801 (Cal. 4th App. Dist. April 30, 2019) (available here). Here is how the majority opinion gets started, along with the start of its substantive analysis:

Petitioner Gregory White challenges the constitutionality of his conviction for second degree felony murder (Pen. Code, § 187) on the basis of the United States Supreme Court’s decision in Johnson v. United States (2015) __ U.S. __, 135 S.Ct. 2551 (Johnson), and seeks relief via a petition for writ of habeas corpus....

As we discuss herein, there are some general similarities and some differences between the categorical approach analysis to the ACCA’s residual clause that the United States Supreme Court found unconstitutionally vague in Johnson and the abstract analysis under California law for the second degree felony-murder rule.  However, on this record, we do not find unconstitutional vagueness in petitioner’s conviction for second degree felony murder for the death of an accomplice arising out of the felonious manufacture of methamphetamine.  Accordingly, we will deny the petition.

Here is how the dissenting opinion authored by Judge Raphael gets started:

Under California’s second degree felony-murder law, petitioner Gregory White’s guilt depended upon an abstract legal issue that had nothing to do with his actions.  The trial court had to adjudicate whether California’s offense of manufacturing methamphetamine — in general, not in White’s case in particular — was “inherently dangerous to human life” such that it qualified as a felony murder predicate.  If so, the fact that White’s co-conspirator died from burns incurred during the manufacture meant White was guilty of not just the drug crime, but of murdering his accomplice.

Had our Legislature listed methamphetamine manufacture among the crimes that can serve as a predicate for first degree felony murder, White would be guilty of murder with no claim that the crime of conviction was unconstitutionally vague.  The Legislature would have provided notice to the public and adequately guided the courts.  But there is no statutory list of predicate crimes for second degree felony murder.  A defendant such as White may find out whether his crime qualifies after he committed it, when a court determines whether the crime, taken in the abstract, fits the amorphous inherent-dangerousness-to-life standard....

I conclude that under Johnson, California’s second degree felony-murder law is unconstitutionally vague because it requires courts to assess the hypothetical risk posed by an abstract generic version of the offense.

In sparring opinion surrounding en banc denial, Eleventh Circuit judges debate the metaphysics of Booker and Johnson

The full Eleventh Circuit needed only one sentence in this order in Lester v. US to deny en banc review in a case in which a pre-Booker career offender sought collateral review based on the void-for-vagueness doctrine of Johnson.  But a number of judges on that court, including the former Acting Chair of the US Sentencing Commission, Judge William Pryor, needed more than 60 pages to explain their views on the soundness of this denial.  While hard-core fans of habeas doctrines will likely enjoy all the back-and-forth within all the separate opinions, many sentencing fans might get a kick out of how Judge Rosenbaum characterizes Judge Pryor's account of the the past and present of sentencing law:

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.  Id. at 19.  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.

I am tempted to joke that I still kind of feel like it was Justice Scalia's opinion in Blakely that did, in some sense, "alter the space-time continuum."  But rather than further joke or philosophize on these matters, I will just encourage readers to check out all the sound and fury to be found in Lester.

Lawyers, guns and vagueness: how will SCOTUS look to get out of this Johnson mess?

With apologies to the late great Warren Zevon, I cannot help but riff on the all-time greatest song with lawyers as the first word of its title as I think about the Supreme Court's scheduled oral argument this morning in United States v. Davis.  Over at SCOTUSblog, Leah Litman has this extended preview of the argument under the title "Who’s afraid of the categorical approach?," and it provides some context for my pop-culture reference: 

Davis is the latest in a string of cases stemming from Johnson v. United States, the 2015 decision invalidating the Armed Career Criminal Act’s residual clause (Section 924(e)(2)) as unconstitutionally void for vagueness....  [T]he now-defunct residual clause defined a violent felony as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”... 

And last term, Sessions v. Dimaya invalidated a provision worded similarly to ACCA’s residual clause — Section 16(b), the federal criminal code’s general definition of “crime of violence.” Section 16(b) defined a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  That brings us to Davis.  Davis involves a provision, Section 924(c)(3)(B), that is identical to Section 16(b).  Section 924(c) creates a graduating set of penalties for using a firearm “during and in relation to any crime of violence.”

But why would the two statutes, Section 16(b) and Section 924(c), be interpreted differently if they are worded the same way?  In arguing that Section 924(c) is not void for vagueness even though Section 16(b) was, the government makes a few points.  None of them completely distinguish the two provisions.  For example, the government invokes the canon of constitutional avoidance, which says that courts should interpret statutes in ways that avoid the statute being unconstitutional.  That argument also applied to Section 16(b) in Dimaya.  The government also maintains that the best interpretation of Section 924(c) is that it calls for a circumstance-specific determination about whether a defendant’s actual offense conduct satisfies the substantial-risk test because Section 924(c) “applies only to the conduct for which the defendant is currently being prosecuted.” That claim would ostensibly apply to Section 16(b) as well, or at least some applications of it.  Because Section 16(b) is the general definition of crime of violence, it is incorporated into many different criminal statutes, some of which use the term to refer to the conduct for which the defendant is currently being prosecuted.

But distinguishing Sections 16(b) and 924(c) may not be necessary if the court thinks that upholding Section 924(c) is more important than sensibly distinguishing 924(c) from 16(b)....  There is also the more important question of how courts would interpret Section 924(c) if they didn’t use the categorical approach.  In Dimaya, Thomas and Alito said they wanted to adopt a circumstance-specific approach that assessed the defendant’s actual offense conduct (i.e., the specific facts about what the defendant did). Perhaps unsurprisingly, the government urges the court to adopt that approach to interpreting Section 924(c). The respondent, Maurice Davis, counters that the government’s interpretation of Section 924(c) would be both unpredictable and sweeping, and would leave matters to the whim of juries, generating conflicting results.  Davis also argues that the government’s proposed interpretation of Section 924(c) is inconsistent with the statute’s text, which directs courts to determine whether “an offense” “by its nature” involves a substantial risk, not whether the facts underlying the offense involve a substantial risk.

Another preview of this case and today's argument is available here from Jordan Rubin at Bloomberg Law under the headline "Guns, Violence, Gorsuch in Spotlight in Supreme Court Dispute."

Because Justice Gorsuch was the key swing vote in Dimaya, these previews sensibly highlight his importance in the resolution in Davis. But I will also be interested to see if Justice Kavanaugh has anything notable to say during oral argument today. Because his predecessor, Justice Anthony Kennedy, was not a big fan of Johnson jurisprudence, and because his pal Chief Justice Roberts also seems to favor the government in these cases, I am inclined to guess Justice Kavanaugh will be resistant to extending Johnson. But you never know how his extended history as a circuit judge might shape his views on these kinds of cases.

Post-Johnson litigation creates intricate procedural debates in Eleventh Circuit

Thanks to this post at How Appealing, I just saw that the Eleventh Circuit yesterday needed just one sentence to deny rehearing en banc in US v. St. Hubert, a case concerning vagueness challenges to two federal firearm convictions under 18 U.S.C. § 924(c).  But judges of the court had a lot to say thanks to the enduring constitutional and procedural mess created by the Johnson case and its progeny and their potential impact on federal prisoners serving all sorts of lengthy mandatory minimum sentences. 

The six distinct opinions concurring and dissenting from the en banc denial, which collective run 88 pages, defy easy summary.  But if anyone thinks they are really, really, really interested in post-Johnson litigation and all its echoes and challenges (both substantively and procedurally), the Eleventh Circuit has provided an extra law-nerd slice of March Madness with St. Hubert.

En banc Fourth Circuit, splitting 8-7, finds key clause of § 924(c) mandatory-minimum statute unconstitutionally vague

A helpful reader made sure I did not miss the Fourth Circuit delivery today of over 100 pages of debate over vagueness challenges to the application of “crime of violence” as set forth in 18 U.S.C. § 924(c)(3)(B) in the form of an en banc ruling in US v. Simms, No. 15-4640 (4th Cir. Jan. 24, 2019) (available here). Here is the start of the majority opinion:

Joseph Decore Simms was convicted of brandishing a firearm in connection with a “crime of violence,” as defined in 18 U.S.C. § 924(c)(3)(B).  He appeals, contending that § 924(c)(3)(B), as long understood, is unconstitutionally vague. The Government concedes this point but urges us to abandon the settled meaning of the statute and employ a new definition of “crime of violence.”

We cannot do so. Neither the statutory language nor controlling precedent offer any support for the Government’s proposed reinterpretation.  Rather, the text and structure of § 924(c)(3)(B) plainly set forth a definition of “crime of violence” that fails to comport with due process.  Accordingly, we reverse and remand for further proceedings consistent with this opinion.

The majority needs about 40 pages to explain its conclusions, and then we get a lengthy concurrence and a series of dissents. Judge Wilkinson's dissent has this notable starting paragraph:

Once upon a time, now seemingly a geologic age ago, the federal judiciary appeared sold on the inherent advantages that trial courts and trial juries bring to fact-finding in our criminal justice system.  No longer.  My colleagues in the majority ably demonstrate that application of the categorical approach to 18 U.S.C. § 924(c)(3)(B) saddles that statute with a fatal constitutional infirmity.  My colleagues in dissent — whom I join — ably demonstrate why that infirmity need not exist; the better reading of the statute avoids it by applying the case-specific approach in place of the categorical.  I write separately to further explain how application of the categorical approach here is part of a troubling trend: the gratuitous conversion of issues of fact into questions of law; the usurpation of authority by appellate courts and the resultant atrophy of trial courts’ fact-finding function.

Notably, the issue in this case is now before SCOTUS after its grant three weeks ago in US v. Davis.  So, if you are not content with 100 pages on this issue today (coming a few months after the Eleventh Circuit gave us 150 pages coming out the other way), you can look forward to full SCOTUS briefing and more in the months ahead.

Supreme Court grants cert on vagueness challenges to 924(c) provision in wake of Johnson and Dimaya

As detailed in this new order list, the US Supreme Court today granted certiorari in a number of new cases.  The cases involving Maryland and North Carolina partisan-gerrymandering are sure to get the most attention, but criminal law fans should be excited about the grant in US v. Davis, No. 18-431, in which the feds petitioned for review of this question:

Whether the subsection-specific definition of “crime of violence” in 18 U.S.C. 924(c)(3)(B), which applies only in the limited context of a federal criminal prosecution for possessing, using, or carrying a firearm in connection with acts comprising such a crime, is unconstitutionally vague

This paragraph from the government's petition for cert explains why and how federal prosecutors are eager to distinguish the statutory provision at issue in this case from those struck down in Sessions v. Dimaya, 138 S. Ct. 1204 (2018) and Johnson v. United States, 135 S. Ct. 2551 (2015):

Although the government has previously advocated an ordinary-case categorical approach to the determination whether an offense constitutes a “crime of violence” under Section 924(c)(3)(B), nothing in the statute or the decisions of this Court requires such an approach.  Section 924(c)(3)(B)’s subsection-specific “crime of violence” definition is applicable only to the conduct for which the defendant is currently being prosecuted, not to any conduct for which the defendant may have been convicted in the past.  It can naturally be read as inviting a case-specific determination as to whether that currently at issue conduct — not the hypothetical conduct of an “ordinary case” — satisfies the substantial-risk test in 18 U.S.C. 924(c)(3)(B).  And, so construed, Section 924(c)(3)(B) does not implicate the constitutional infirmity with the ordinary-case approach that was identified in Dimaya and Johnson v. United States, 135 S. Ct. 2551, 2561 (2015).  Indeed, the Court in those cases “d[id] not doubt” that such a case-specific approach, involving a jury finding beyond a reasonable doubt about the “real-world conduct” proved in the case, would be fully constitutional.  Dimaya, 138 S. Ct. at 1215 (quoting Johnson, 135 S. Ct. at 2561).

Got that? Simple stuff here, and simply fascinating to think about whether the Dimaya five (perhaps joined by the new guy) could be prepared to continue its vagueness movement through the bowels of federal law.

Over dissent, SCOTUS refuses to take up Johnson challenge to then-mandatory career-offender guidelines

The Supreme Court had recently relisted a set of cases concerning whether and how the Court's vagueness ruling in Johnson applied to a key provision of the career-offender sentencing guideline when that guideline was still mandatory before the Booker ruling. (Sentencing gurus know that the Justices in Beckles decided that Booker melted away any constitutional vagueness problems when it make the guidelines advisory.) Today, via this new order list, the Court denied cert on all these cases.

I am a bit surprised and a lot disappointed by these cert denials, largely for reasons expressed by Justice Sotomayor in this dissent joined by Justice Ginsburg in Brown v. US, No. 17–9276.  Here is how the four-page dissent from the denial of certiorari starts and ends:

Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences.  They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision.  These petitioners argue that their sentences, too, are unconstitutional.  This important question, which has generated divergence among the lower courts, calls out for an answer.  Because this Court’s decision to deny certiorari precludes petitioners from obtaining such an answer, I respectfully dissent....

The question for a petitioner like Brown, then, is whether he may rely on the right recognized in Johnson to challenge identical language in the mandatory Guidelines. Three Courts of Appeals have said no.  See 868 F.3d 297 (CA4 2017) (case below); Raybon v. United States, 867 F.3d 625 (CA6 2017); United States v. Greer, 881 F.3d 1241 (CA10 2018).  One Court of Appeals has said yes.  See Cross v. United States, 892 F.3d 288 (CA7 2018).  Another has strongly hinted yes in a different posture, after which point the Government dismissed at least one appeal that would have allowed the court to answer the question directly.  See Moore v. United States, 871 F.3d 72, 80–84 (CA1 2017); see also United States v. Roy, 282 F. Supp. 3d 421 (Mass. 2017); United States v. Roy, Withdrawal of Appeal in No. 17–2169 (CA1).  One other court has concluded that the mandatory Guidelines themselves cannot be challenged for vagueness.  See In re Griffin, 823 F.3d 1350, 1354 (CA11 2016).

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. See this Court’s Rules 10(a), (c).  Because the Court nevertheless declines to do so, I respectfully dissent.

En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge

If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here).  Here is part of the start of the majority opinion:

The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague.  As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A).  The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  Id. § 924(c)(3)(B).

This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds.  In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed....  In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague.  Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).

On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague.  As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....

The obvious (and decisive) question, then: Which is it here — categorical or conduct-based?  Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.”  Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.”  Hooper v. California, 155 U.S. 648, 657 (1895)....

Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be.  Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. 

The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:

How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.

I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury.  The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess.  Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes.  Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.

A bunch of Dimaya GVRs and a hundreds of criminal case cert denials in first SCOTUS order list of October Term 2018

As noted in this post a few weeks ago, law professor Rory Little had this great lengthy post at SCOTUSblog previewing the criminal side of the Supreme Court's docket under the heading "Criminal cases in the October 2018 term: A law professor’s dream."  But as the Court's term officially gets started today, this first SCOTUS order list may seem a bit like a criminal defense lawyer's nightmare because of the extraordinary number of criminal cases in which cert is denied.  Of course, every first order list to start every new Term includes a huge number of denials of cert in all the criminal cases that stack up over the summer break.  But it still is a bit startling to scroll through page after page after page after page of what all appear to be criminal cases in which cert has been denied this morning.

That all said, the SCOTUS order list does include a bunch of GVRs based on the vagueness ruling in Sessions v. Dimaya, most of which appear to involve criminal cases.  I have not been able to follow all the Dimaya fall-out as closely as some true experts, but I suspect that these GVRs are noteworthy not only because they come amidst a sea of cert denials.  Also, there might well be some significant criminal case relists hiding in the certiorari carnage that today's order list reflects.  So criminal justice fans and sentencing fans may still be able to find a SCOTUS silver lining in today's order list.  And, of course, on so many fronts, SCOTUS activity is just getting heated up.

A terrific partial unpacking of "Johnson v. United States: Three years out"

I noted in posts here and here last month, Attorney General Jeff Sessions and Senators Orrin Hatch and Tom Cotton are talking up the need for reform to the Armed Career Criminal Act in response to the Supreme Court's 2015 ruling in Johnson v. US.   I just now noticed that Andrew Hamm has this lengthy follow-up post at SCOTUSblog under the title "Johnson v. United States: Three years out."  I recommend that post in full, and here is a flavor:

After the decision in Johnson, individuals sentenced under ACCA’s now-defunct residual clause filed petitions for collateral review, a procedure that allows prisoners, within certain constraints, to ask a court to amend their sentences.  Additional follow-on litigation to Johnson has involved questions about other aspects of ACCA’s “violent felony” definition, as in next term’s United States v. Stitt, as well as vagueness challenges to definitions of “violent felony” in other statutes, as in last term’s Sessions v. Dimaya.

But even as these and other challenges play out in the courts, Johnson’s real-world consequences in the three years since the case was decided raise other questions about recidivism, re-entry and policy.  For example, have people sentenced as career offenders and released early after Johnson gone on to commit more crimes?  If some have, are certain, less vague sentence enhancements — as Sessions has recommended and as new legislation introduced by two Republican senators would impose — the proper “fix” to Johnson?  This post looks at some of the different factors at play....

Earlier this month, two Republican senators, Orrin Hatch of Utah and Tom Cotton of Arkansas, introduced the Restoring the Armed Career Criminal Act to, as they wrote in an op-ed for the Washington Examiner, “fix the law that was struck down.” In their press releases announcing the proposed legislation, Hatch and Cotton mentioned victims in their states whom Sessions also discussed.  According to a one-pager about the legislation, the act “would do away with the concepts of ‘violent felony’ and ‘serious drug offense’ and replace them with a single category of ‘serious felony.’ A serious felony would be any crime punishable by 10 years or more.”

Brian Colas, Cotton’s general counsel, and Baron-Evans agree that this new legislation would avoid the vagueness problems of the original ACCA residual clause.  They disagree on how broadly the law would sweep.  Whereas Colas points to the fact the crimes must be punishable by 10 years or more, which he takes as a proxy for the high seriousness of an offense, Baron-Evans worries about the many people regularly sentenced to less than 10 years but for whom 10 years or more would represent a statutory maximum.

Raghavan suggests that subjecting drug offenders to the same sentencing enhancement as violent offenders may not be warranted based on recidivism rates. In its 2016 report on people sentenced as career offenders, the Sentencing Commission split individuals into three categories: career offenders with only drug-trafficking offenses, those with only violent offenses, and those with mixed offenses.  People sentenced as career offenders with only drug-trafficking offenses had a lower recidivism rate than those in the other categories. Among those who did recidivate, those with only drug-trafficking offenses “tended to take longer to do so” than those in the other categories. Additionally, “offenders in the other two pathways who were rearrested were more likely to have been rearrested for another violent offense” than offenders with only drug-trafficking offenses.

The next step for the legislation is the Senate Judiciary Committee.  Colas estimates that it will take six to eight months for this legislation to get through the committee. He notes that the act will be absorbed into a “broader fight” for criminal justice reform in Congress. 

This post provides a clear and balanced review of data and the state of the debate over one proposed ACCA fix in the wake of Johnson.  But I call the post only a "partial unpacking" of the post-Johnson landscape because it does not address whether and how federal ACCA charging practices have changed after Johnson and/or whether it might be especially sound to just give judges more sentencing discretion in response to an array of ACCA problems.

The reason Johnson in particular, and ACCA in general, is so consequential and the subject of so much litigation is because ACCA's intricate and vague rules about predicate offenses turn a regulatory crime (possessing a firearm as a felon) with normally only a 10-year maximum sentence into a mega-crime with a 15-year mandatory minimum sentence.  Rather than dicker excessively over the particulars of the rules for qualifying predicates in future ACCA debates, it might make a lot more sentence to just raise the normal maximum to, say, 15 years and also lower the ACCA minimum to, say, 5 years.  By so doing, persons with priors that might or might not qualify for ACCA treatment still could be sentenced under (advisory) guidelines in the 5-to-15-year range without a need to litigate all the particulars of all the priors.  Just a thought for would-be staffers looking forward to "six to eight months" of ACCA debates.

Prior related posts:

• "Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act" 
• Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act

"Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act"

The title of this post is the title of this timely new paper now available via SSRN authored by Sheldon Evans.  Here is the abstract:

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism.  This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality.  This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.

In an effort to find solutions for this ailing doctrine, this Article analyzes how states have structured their own recidivist sentencing laws to avoid the same problems wreaking havoc in the federal courts.  Of all the state approaches, a conduct-based approach is most promising because of its practical application and ideological consistency.  Moreover, the many roadblocks articulated by the Court over the years that have supposedly prevented it from taking a conduct-based approach are overcome after considering the constitutional and practical sentencing landscape.

Assailing the new expanded mandatory minimum for "career offenders" being pushed by AG Jeff Sessions

As noted in prior posts here and here, earlier this month Attorney General Jeff Sessions gave a big speech advocating for reform to the Armed Career Criminal Act in part as a response to the Supreme Court's 2015 ruling in Johnson finding a part of ACCA vague.  Writing at The American Prospect, Manuel Madrid has this new piece unpacking the particulars of this effort.  The full headline and subheadline summarizes the themes of the piece: "Jeff Sessions and the Conservative Nostalgia for Harsh Sentencing: A new Republican bill would slap nonviolent criminals with 15-year mandatory minimum sentences. White-collar crimes, property crimes, and drug-related offenses would all count toward being considered a 'career armed criminal'.”  Here are some excerpts:

Attorney General Jeff Sessions’s full-court press for more tough-on-crime policies has found a home in Congress.  Speaking before a crowd of law enforcement officials and prosecutors ... in Little Rock, Arkansas, Sessions called for legislation to reinstate an aggressive Reagan-era sentencing law that targets repeat offenders....

About an hour before the speech, Republican Senators Orrin Hatch of Utah, Tom Cotton of Arkansas, and Lindsey Graham of South Carolina offered a glimpse into what such a fix would look like with their new bill, the Restoring the Armed Career Criminal Act of 2018. The proposed legislation revises the language in the original act and broadens its scope to avoid possible legal challenges, while extending hefty mandatory minimum prison sentences to violent and nonviolent criminals alike....

While the original act might have been defended on the grounds that it at least attempted to hone in on some violent criminals, the Cotton-Hatch-Graham redux abandons all pretenses of even trying.  Under the new bill, nonviolent crimes such as identity theft, fraud, and money laundering could earn a person the label of armed career criminal. And the list goes on: Property crimes like burglary and theft and a score of drug-related crimes would all be on the table.

Before the 2015 Supreme Court decision, about 600 offenders were charged each year under the Armed Career Criminal Act. That number dropped to 265 last year.  The change would likely open the floodgates to more mandatory minimum prison sentences, which already disproportionately affect minorities.  In 2017, more than half of felons charged with unlawful possession of a firearm were black and almost 20 percent were Hispanic.  Only 4.4 percent were charged as armed career criminals....

During his time in the Senate, Sessions, along with Senator Cotton, persuaded other Republicans to join them in torpedoing a bipartisan sentencing reform bill in 2016 which would have shortened existing mandatory minimums and narrowed the scope of drug convictions that triggered them....

The drastic expansion of the Armed Career Criminal Act proposed in the Cotton-Hatch-Graham bill would accelerate the federal government’s backsliding on criminal justice, achieving little more than earning the praise from a minority of conservative politicians nostalgic for the hardline policies of decades past.

Prior related posts:

• "Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act" 
• Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act

Big new Third Circuit opinion sorts through various post-Johnson habeas ACCA headaches

A helpful readers alerted me to a lengthy opinion handed down this morning by a Third Circuit panel in US v. Peppers, No. 17-1029 (3d Cir. Aug. 13, 2018) (available here).  I suspect only hard-core Johnson-habeas-ACCA fans will read all 48 pages of this notable ruling, and its introduction helpfully summarizes what is to be found within:

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm.  That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions.  Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague.  He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause.  But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment.  The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson.  Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand.  First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause.  Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson.  Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on postsentencing cases (i.e., the current state of the law) to support his Johnson claim.  Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such.  Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction.  We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.

Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act

As detailed in this press release, "Senators Orrin Hatch (R-UT) and Tom Cotton (R-AR) introduced The Restoring the Armed Career Criminal Act of 2018, legislation that will protect Americans from the most violent, repeat offenders." Here is part of the release:

“True criminal justice reform includes giving prosecutors the tools they need to seek enhanced penalties against the worst repeat offenders, said Hatch. “Prosecutors lost one of those tools three years ago when the Supreme Court ruled that a provision of the Armed Career Criminal Act was unconstitutionally vague. Criminals released early from prison as a result of that decision have gone on to commit heinous crimes, including the murder of three innocent Utahns. Our bill will bring much-needed clarity to the law while empowering prosecutors to pursue justice.”...

The National Association of Police Organizations offered their full support for this bill. In addition, the National Sheriffs’ Association has written a letter of support with over 3,000 elected sheriffs nationwide. Click here to read the full letter....

Originally passed by a unanimous vote in the House and Senate in 1984, the Armed Career Criminal Act requires a minimum 15-year prison sentence for felons convicted of unlawful possession of a firearm who have three prior state or federal convictions for violent felonies or serious drug offenses, which must have been committed on three different occasions. These are the worst-of-the worst, career criminals.

The ACCA defines serious drug offenses as those punishable by imprisonment for 10 years or more. It defines violent felonies [in three ways, one of which was declared by the Supreme Court in Johnson] unconstitutionally vague and thus effectively void....

The Restoring the Armed Career Criminal Act of 2018 would do away with the concepts of “violent felony” and “serious drug offense” and replace them with a single category of “serious felony.” A serious felony would be any crime punishable by 10 years or more. By defining “serious felony” solely based on the potential term of imprisonment, the bill would address the vagueness issue and remove any discretion or doubt about which offenses qualify.

The bill would give federal prosecutors an additional tool to go after the most dangerous, career criminals and would not apply to low-level offenders. Specifically, the ACCA would still apply only in a case where a felon who possesses a firearm in violation of 18 U.S.C. § 922(g) has previously been convicted three times of serious felonies, which must have been committed on different occasions.

I noted in this post that the Armed Career Criminal Act is long overdue for a fix, but the solution presented here strikes me as problematic because it expands the reach of a severe mandatory minimum and still has ACCA's reach turn on prior offense definitions. Statutory mandatory minimums are always clunky, and all that may be needed to effectively achieve ACCA's goals would be to raise the applicable maximum terms for illegal gun possession by those with three or more felony convictions.  Judges could and would then use the US Sentencing Commission's guidelines, rather than the fortuity of some prior offense definitions, to determine who are truly the 'worst-of-the worst, career criminals" that should be imprisoned for decades.

Prior related post:

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act" 

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"

The title of this post is the headline of this press release from the US Department of Justice today, and here are some of the comments that follow that focus on ACCA:

[B]ecause of a 2015 Supreme Court decision holding that the definition of violent felony was too vague — we are missing one of the most important law enforcement tools we had. The Johnson case is quite significant.

Regardless of the merits of the Court’s decision, the consequences have been devastating for Americans across the country.

This court decision led to the release of a man from right here in Little Rock. Eight months after he was released from prison, he was arrested for aggravated assault and domestic battery. A year after that he was arrested for kidnapping, rape, aggravated assault, battery, and terroristic threats. He is accused of raping a 62-year old woman and an autistic homeless man.

This court ruling also led to the release of a man who allegedly punched a pregnant woman at a nightclub in Forrest City. When police intervened, he allegedly assaulted three of them, cutting one of them on the forehead.

A man from Pine Bluff got his 15 year sentence cut in half. A year later, he got into an argument with a co-worker. According to the allegations against him, the co-worker turned around to walk away when the defendant sucker-punched him, broke his nose and eye sockets, chipped a tooth and busted his lip.

Two of these criminals I’ve talked about are now back in prison. They were let out of prison, reoffended, and now they’re back in prison.

But the consequences are not limited to Arkansas. This is a nationwide problem and it’s a cause for deep concern. In Utah, a career criminal released by this decision tortured and murdered two teenagers and then threw their bodies down a mineshaft. A released career criminal in California allegedly murdered his father, carjacked a vehicle and killed the driver. In Oregon, a released career criminal held a Subway sandwich shop hostage and then shot a police officer just 18 days after he was released.

Sadly, I could go on and on. So why did this happen? The Supreme Court struck down part of a law called the Armed Career Criminal Act. It had been on the books for 30 years and applied thousands of times.

This is the law that requires a minimum 15- year sentence for felons caught with a firearm after their third violent felony or serious drug trafficking conviction.

These are not the mythical “low-level, nonviolent drug offenders,” who we are always told are being excessively imprisoned. These are criminals who have already committed multiple serious offenses and then were caught with a gun.

This is no little matter. In 2016, the U.S. Sentencing Commission found that nearly seven out of ten career criminals reoffended after being released. Federal firearms offenders were found to be the most likely to be rearrested of any category. These criminals are both. They are career criminals and firearms offenders. I was a United States Attorney before the Armed Career Criminal Act — and I was United States Attorney afterward. I’ve seen its importance firsthand as we worked to reduce crime in America.

Nationwide, the Supreme Court’s decision has resulted in more than 1,400 violent career criminals back onto our streets — including 18 here in Arkansas. Nine of these Arkansas criminals have already been arrested again.

Six-hundred of those 1,400 criminals have been arrested again. It’s only been three years since the Court decision, but 42 percent have already reoffended.

On average, these 600 criminals have been arrested or reoffended three times in the last three years. A majority of those who have been out of prison for just two years have been arrested again. Releasing repeat offenders has consequences. Every crime committed by a recidivist released by this court case would not have happened. Every one of their victims would not have been victimized.

We must fix the law so violent career criminals are not let out of jail early. Their recidivism rate is staggering indeed, but let’s remember: this is still likely an underrepresentation of their illegal activity. Any law officer in this room will tell you that criminals rarely get caught on their first offense. We can only imagine how many crimes they have really committed and how many innocent people they have victimized.

Releasing hardened criminals into our communities before they serve their minimum term is not fair to crime victims. And it is not fair to law enforcement. You shouldn’t have to go into danger time and again to arrest the same people.

Congress and our legislatures need to help us and consider legislation that protects the public. We need Congress to fix the law so that we can keep violent career criminals off of our streets. That shouldn’t be controversial.

Fortunately, some Members of Congress are helping. My good friend Senator Cotton understands this issue. He is working on legislation that is intended to fix this problem for good — and I want to thank him for his outstanding leadership on criminal justice issues.

We should look for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

I agree with Attorney General Sessions that we need a Johnson fix and more.  Reform to the Armed Career Criminal Act is long overdue (Justices Scalia and Alito have bemoaning ACCA problems and urged Congress to act for many, many years before Johnson).  Beyond just the vagueness problem Johnson addressed, there are deeper problems with the entire structure of the Armed Career Criminal Act, particularly its reliance on a severe mandatory minimum prison term (of 15 years) for the mere act of possessing a firearm or ammunition. Consequently, I do not think a mere Johnson fix to ACCA will be a fully sound or effective response to the genuine concerns flagged by AG Sessions.

In a future post, I hope to be able to discuss the specifics of Senator Tom Cotton's approach to fixing ACCA.  For now, I will just suggest it will be interesting to see if anyone in Congress will be willing to try to roll an ACCA fix into existing criminal justice reform proposals that are now seemingly languishing on the Hill.

Fascinating split Sixth Circuit discussion of how Johnson-invalidated ACCA sentences are to be corrected and reviewed

For those who like to think a lot about federal collateral review procedures and the aftermath of Johnson and sentencing retroactivity (and who doesn't), the Sixth Circuit today handed down a fascinating split panel decision in US v. Nichols, No. 17-5580 (6th Cir. July 30, 2018) (available here).  In Nichols, the defendant succeeded in challenging in the district court his 24-year sentence for a firearm offense under the Armed Career Criminal Act based on the Supreme Court's Johnson ruling that one ACCA provision was unconstitutionally vague.  So far so good.  But here is where it gets interesting:

By the time the district court entered Defendant’s corrected sentence, Defendant had already served twelve years in prison — two years in excess of the ten-year statutory maximum for his firearm offense.  The Guidelines range for Defendant’s conduct, absent the ACCA enhancement, was 51 to 63 months’ imprisonment, which is well below the statutory maximum of ten years.  Based on his belief that a period of over-incarceration can be calculated and credited toward the completion of a consecutive sentence, Defendant asked the district court to impose a Guidelines-range sentence and, in any event, to impose a sentence of a specific term of months.  The district court denied Defendant’s request and instead imposed a corrected sentence of “time served,” which was equivalent to a term of about twelve years’ imprisonment. (R. 52 at PageID #347.) Defendant requested reconsideration, which the district court denied.  Defendant then filed this timely appeal.

Why does the defendant care?  Here is why: "While in prison, Defendant was convicted and sentenced for conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C); possession of heroin by an inmate ... and conspiracy. The district court sentenced Defendant to an additional 151 months’ imprisonment, to be served consecutively to Defendant’s existing 24-year term of imprisonment for the firearm offense."  The defendant here is eager to be fully resentenced on his gun crime to as low a term as possible so that extra time already served will be credited against his drug crime sentence. 

Because the statutory maximum sentence for the defendant's gun crime is only 10 years after the ACCA correction, the majority in Nichols reasonably asserts that "time served" is functionally a 12-year illegal sentence that must be corrected.  Interestingly, the panel also concludes that reasonableness review applies in this corrected sentencing setting, and they also find the time-served sentence procedurally unreasonable for lack of adequate explanation.

Judge Batchelder pens a lengthy dissent in which she laments the way the majority frames and remedies the situation here.  The tail end of her dissent summarizes her concerns with the panel ruling and her suggested solution:

Finally, I question the merit of the majority’s proffered legal doctrine that holds, in three parts: (1) that a time-served sentence equates to a term-of-months sentence in the number of months actually served; (2) that the sentence is illegal when that post hoc term of months exceeds the newly applicable statutory maximum (or, broadly stated, actions that were taken pursuant to a statute are ex post facto unlawful when the statute is retroactively unconstitutional); and (3) the resulting illegal sentence is per se reversible plain error.  So, again, as applied here: any corrected sentence of time served for an inmate who has already served more than the newly applicable 10-year maximum is per se reversible plain error.  Moreover, the inmate must receive a full resentencing sufficient for reasonableness review.

Given the breadth of this holding and the vast number of sentences to which it might henceforth apply, this opinion will doubtless have consequences, foreseeable and unforeseen.  How many corrected sentences will now be per se reversible plain error?  How many inmates, like Nichols, will discover that they have long been unlawfully incarcerated, and what will be the effect of that discovery?  Will they, like Nichols, pursue a time bank or offset?  Or will they seek compensation for that newly discovered unlawful incarceration?  What of an inmate who suffered an injury, committed a crime, or unsuccessfully demanded special accommodations while so incarcerated — how does the calculus change when it is later declared via post hoc stipulation that the inmate was only in prison because he was being held unlawfully?

Rather than holding that the corrected sentence of time served necessarily equates to a term of years equal to the amount of time already served and invoking the legal fictions and consequences that follow, we might be better served by viewing a “time-served sentence” as different in kind from a “term of years sentence,” either of which could satisfy the district court’s discretionary choice of relief under § 2255. That is, of course, an entirely different analysis from the one the majority has undertaken here, though compatible with the approach taken by the district courts that have been resolving § 2255 motions based on Johnson/Welch.

Guest post: "The Eleventh Circuit’s Take On Handling The Wave of Dimaya-Related Litigation"

A helpful reader alerted me to an order recently issued by the Eleventh Circuit concerning how it wished to handle prisoner litigation in the wake of the Supreme Court's big recent Dimaya vagueness ruling.  In response, I reached out to the academic rock-star who comes to mind in conjunction with federal habeas litigation, Leah Litman, as she was kind enough to write up this terrific guest post:

In the wake of Sessions v. Dimaya, at least one court of appeals has changed its practice from the post-Johnson days, and happily so.  Even better, that court is the U.S. Court of Appeals for the Eleventh Circuit.

By way of background: Dimaya, like Johnson before it, immediately precipitated a wave of resentencing requests by prisoners seeing to have their sentences corrected in light of the decision. Some of these prisoners were sentenced under statutes that incorporate section 16(b); others were sentenced under statutes that merely resemble section 16(b) (sometimes resembling section 16(b) in every possible way, such as section 924(c)).  Some of these prisoners are seeking to file their first section 2255 motion; others seeking permission to file a second or successive section 2255 motion. 

In a post for the Harvard Law Review blog, I wrote about some of the obstacles that prisoners in these situations will face.  Prisoners seeking to file second or successive 2255 motions face significantly more obstacles than prisoners seeking to file their initial section 2255 motions.  For example, prisoners seeking to file second or successive 2255 motions have to obtain authorization from a court of appeals before they can file in the district court.  And to obtain that authorization, prisoners have to show not only that the decision on which they are relying is retroactive, but that the Supreme Court has made it retroactive.  By contrast, prisoners seeking to file their initial section 2255 motions have to show only that the decision on which they are relying is retroactive.   

In the post-Johnson litigation, the U.S. Court of Appeals for the Eleventh Circuit adopted an approach under which it would adjudicate all section 2255 motions relying on Johnson.  It maintained that approach even after the Supreme Court had granted certiorari in Welch to decide whether Johnson is retroactive (the Court likely granted certiorari in Welch just to make Johnson retroactive).  It also maintained that same approach after the Court granted certiorari in Beckles to decide whether an analogous provision in the U.S. Sentencing Guidelines was also unconstitutionally void for vagueness.

The Eleventh Circuit’s case-management decision was fairly high stakes, as I explained in this essay in the Northwestern Law Review with Shakeer Rahman and in this Take Care post with Lark Turner.  For one thing, processing defendant’s initial section 2255 motions would push defendants’ cases toward second or successive 2255 motions, at which the obstacles to recovery would be greater.  Processing so many section 2255 motions in short order also risked losing cases in the fray, particularly given that defendants have no constitutional right to counsel in their section 2255 motions.  Moreover, the Eleventh Circuit had also interpreted section 2244 to require it to dismiss any claim in a second or successive 2255 motion that had been presented in a previous petition.   The Eleventh Circuit’s practice was also contrary to the other circuits:  In In re Embry, the U.S. Court of Appeals for the Sixth Circuit, in a decision by Judge Sutton, explained why holding cases in abeyance of Beckles made the most sense.  Other courts of appeals did the same.

In the wake of Dimaya, the U.S. Court of Appeals for the Eleventh Circuit has brought its practices into line with other circuits.  The Eleventh Circuit issued an order (“General Order 43”) in which it ordered all second or successive 2255 motions involving section 924(c) to be held in abeyance for the Eleventh Circuit’s decision in Ovalles v. United States.  The Eleventh Circuit took Ovalles en banc to decide whether section 924(c) is unconstitutionally void for vagueness in light of Dimaya (the court ordered briefing on whether courts must use the categorical approach to interpret section 924(c), but General Order 43 recognizes the court will decide the constitutionality of section 924(c) as part of the case).   Thus, Ovalles is to Dimaya as Beckles was to Johnson:  Both cases will or would decide whether an analogous provision is unconstitutionally vague in light of the preceding Supreme Court decision.  But whereas the Eleventh Circuit refused to hold cases in abeyance for Beckles, it is doing so for Ovalles.

I am not exactly optimistic that the Eleventh Circuit is going to invalidate section 924(c) in light of Dimaya.  I think the Eleventh Circuit is likely to hold that courts need not use the categorical approach when interpreting section 924(c), and distinguish section 924(c) from 16(b) on that basis.

Nonetheless, I think a rare kudos is appropriate here for the Eleventh Circuit’s decision in General Order 43.  By electing to hold cases for Ovalles, the Eleventh Circuit is avoiding unnecessary duplication in litigation, which would waste everyone’s (the courts, public defenders, and litigants) time.  It is also avoiding generating a slew of unfavorable precedents for defendants:  In the wake of Johnson, the Eleventh Circuit disposed of many Guidelines cases by holding that the defendant’s prior convictions qualified as violent felonies under the enumerated offense or element of force clauses, even assuming the Guideline’s residual clause was vague.   Doing so ensured that the court’s decisions would be insulated from having to go through another round of review in the event the Supreme Court ultimately held the Guideline unconstitutionally vague.  But it also generated a ton of unfavorable precedent to the defendants, without argument and even without full briefing, given that that is how courts of appeals dispose of requests to file second or successive motions.  By changing course and holding cases for Ovalles, the Eleventh Circuit is avoiding repeating the same error.  And that’s something, these days.

Without explanation, SCOTUS rejects vagueness challenges to pre-Booker mandatory application of career-offender guideline

It was a "civil" morning for US Supreme Court today, with two opinions from the civil side of its docket (one big, one little) and four cert grants on matters that are mostly civil and somewhat procedure (although one, Royal v. Murphy, deals with tribal jurisdiction over a capital prosecution).   But there was still some interesting news for sentencing fans in today's SCOTUS order list in the form of somewhat surprising denials of certiorari in cases dealing with the residue of the Johnson vagueness ruling for guideline-sentenced defendants before Booker make the guidelines advisory.

This part of this SCOTUSblog Relist Watch post by John Elwood from a few weeks ago spotlights cases I have had my eye on:

Lester v. United States, 17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States, 17-5684, Gates v. United States, 17-6262, James v. United States, 17-6769 (all relisted nine times) and Robinson v. United States, 17-6877 (relisted seven times). 

Sentencing gurus know that the Supreme Court in Beckles decided that the Court's big vagueness ruling in Johnson dealing with a key clause of the Armed Career Criminal Act did not entail constitutional problems for a parallel clause of the sentencing guidelines because the guidelines are now advisory, not mandatory.  But defendants in the cases above, which SCOTUS had been mulling over now for many months, were sentenced with the problematic parallel clause of the sentencing guidelines before Booker made the guidelines advisory.  But because judges could (and sometimes did) depart from the guidelines even before Booker made them mandatory (but cannot depart from applying ACCA), these cases presented an interesting and uncertain push-pull between the Johnson ruling and Beckles' gloss on its application.

I had been hoping that the collection of these cases as "serial relists" meant that SCOTUS was busy looking for the right vehicle for considering these post-Johnson matters.  But today, as noted above, certiorari was denied by the Supreme Court in all these cases without any explanation.  Of course, explanations for cert denials are not common.  But because relists often lead to a cert grant or at least some discussion by some justice of the issue, I am starting my week bummed that an interesting intricate piece of sentencing jurisprudence did not prompt any substantive SCOTUS engagement.

"Legal Innocence and Federal Habeas"

The title of this post is the title of this notable new paper available via SSRN authored by Leah Litman that is a must read for anyone following post-Miller or post-Johnson litigation (and who isn't?). Here is the abstract:

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted.  The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant.  The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. 

This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so.  As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate.  These cases raise similar concerns and implicate many of the same features of our criminal law system.  By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

A couple dozen Dimaya GVRs in federal criminal cases in latest SCOTUS order list

The US Supreme Court this morning handed down this order list, and criminal justice fans should take notice of the significant number of federal criminal cases in which certiorari is granted followed by the "judgments are vacated, and the cases are remanded to the United States Court of Appeals ... for further consideration in light of Sessions v. Dimaya." 

Based on a quick scan, it would appear that SCOTUS has now "GVRed" at least one of every type of post-Dimaya case that John Elwood flagged in this SCOTUSblog "Relist Watch" post a few weeks ago (though in one case it appears SCOTUS said the GVR was to allow further consideration in light of Beckles).

Long story short: the fall-out from the Dimaya vagueness ruling seems likely to take many months (perhaps years) and many rulings to sort out.  Of course, I said this same thing about the Johnson vagueness ruling in 2015, and Dimaya et al three years later is really just itself one big part of the post-Johnson fall-out.  And because Johnson was fundamentally the product of the late Justice Scalia's continued railing against the residual clause of the Armed Career Criminal Act, the long tail of the Johnson/Dimaya jurisprudence serves as an interesting (and perhaps never-ending) part of his constitutional legacy.

Lots of sentencing fun — thanks to enduring Johnson fallout — to be found in cert pool relists

The Justice of the Supreme Court will have a conference tomorrow to discuss cert petitions, and that means John Elwood has another of his always valuable "Relist Watch" posts up at SCOTUSblog. This version of relists has lots that should interest sentencing fans, and I will reprint those parts here:

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else....

Lester v. United States, 17-1366, would justify readers in feeling a bit of déjà vu all over again.  The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States, 17-5684, Gates v. United States, 17-6262, James v. United States, 17-6769 (all relisted nine times) and Robinson v. United States, 17-6877 (relisted seven times).  This case is unusual in that the improbably named petitioner Stoney Lester filed his petition before the court of appeals had even ruled on his case, and certiorari before judgment is a rare (and rarely successful) move.  Lester’s petition was filed after Allen and Gates and James had already been relisted five times, making me wonder whether my boy Jack rushed to file a petition hoping the court would pick this case to be the sole combatant on this issue.  This case has one benefit: According to Lester, his case, alone among all cases presenting the question, was granted a certificate of appealability by the relevant court of appeals.  But the government waived its right to file a responsive brief, so unless the court calls for a response, Lester is a longshot for bringing home the roses.

Finally, I am at a loss for what might have enticed the court to relist Kitchen v. United States, 17-7521.  Neither of the issues it presents is very promising.  First, the petitioner argues that a prior Florida conviction for drug trafficking that rests upon the mere possession of drugs does not qualify as a “controlled substance offense” for purposes of a federal sentencing guidelines enhancement, because the Florida statute lacks an element of intent to distribute.  But the case simply involves the construction of one of the sentencing guidelines, and the court usually just allows the Sentencing Commission to resolve such splits.  The other issue the petition raises — whether the federal prohibition on felons possessing firearms exceeds Congress’ authority under the commerce clause when applied to intrastate possession of a handgun — is interesting, but splitless, and would be reviewed only for plain error because Kitchen did not raise it in district court. Which raises the question why this case is here. Did the cert-pool author have too much vino rosso? Maybe the court simply kept the case around because of the petitioner’s unusual name: Sadonnie Marquis Kitchen.

First ripple of Dimaya disruptions appears in SCOTUS relists

In this post the day after the Supreme Court's big ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), I asked "How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?".  Though not providing a direct answer to this question, this most recent Relist Watch posting by John Elwood over at SCOTUSblog reinforces my sense that the Dimaya disruptions are likely to be plentiful and complicated. Here are amusing excerpts from John Elwood's post (with links from the original):

We have a record number of relists, at least during the seven-plus years I’ve been watching carefully: 44. Of those, 42 are cases that obviously were held for Dimaya, and now the court is trying to decide what to do with them. Just identifying all those relists on the court’s docket, and then figuring out the legal issues involved, was a big job for people who really do have other responsibilities.  But although the task was a bit dull, at least it involved an enormous amount of backbreaking labor. And so let me begin where I usually end: Thanks to Kevin Brooks for identifying all the relists, and thanks to Aurora Temple Barnes for sorting through the heaps of PDFs I lobbed at her and identifying the questions presented and creating tidy case pages. 

The Dimaya relists fall into three main groups.  First, there are many cases that simply present the very same question as Dimaya about the constitutionality of § 16(b). This group is enormous, including Sessions v. Magana-Pena, 15-1494, Sessions v. Lopez-Islava, 15-1496, Sessions v. Miranda-Godinez, 16-398, Sessions v. Baptiste, 16-978, Sessions v. Shuti, 16-991, Gonzalez-Longoria v. United States, 16-6259, Solano-Cruz v. United States, 16-6288, Perdomo v. United States, 16-7214, Bello v. United States, 16-7667, Alvaro-Velasco v. United States, 16-8058, Castaneda-Morales v. United States, 16-8734, Maldonado-Landaverde v. United States, 16-9318, Linares-Mazariego v. United States, 16-9319, Larios-Villatoro v. United States, 16-9660, Diaz-Esparza v. Session, 17-820, Gomez-Ureaba v. United States, 17-5283, Garcia-Hernandez v. United States, 17-5305, Hernandez-Ramirez v. United States, 17-6065, Ontiveros-Cedillo v. United States, 17-6721, Gutierrez-Lopez v. United States, 17-6751, Casabon-Ramirez v. United States, 17-7183, and -- so far as we can tell (the parties haven’t gotten back to us yet), Eaton v. United States, 17-6680.  These cases should have been easy to resolve by denying cert or granting, vacating and remanding for further consideration in light of Dimaya. That they were not is the clearest example that the volume was just too great.

The second group of Dimaya relists involves application of that case to a Sentencing Guidelines provision -- a type of claim the government argues is foreclosed by Beckles v. United States. Those cases include first-time relists United States v. Hernandez-Lara, 16-617, Aguirre-Arellano v. United States, 16-8675, and Rodriguez v. United States, 17-5476, as well as returning relist Robinson v. United States, 17-6877.

The third and final group of Dimaya relists involves cases that ask whether the logic of that case and Johnson v. United States invalidates 18 U.S.C. §924(c)(3)(B), yet another criminal code provision defining “crime of violence.”  This week’s new relists that involve that question include Taylor v. United States, 16-6392, Prickett v. United States, 16-7373, Glover v. United States, 16-8777, Taylor v. United States, 16-8996, Davis v. United States, 16-8997, United States v. Jenkins, 17-97, United States v. Jackson, 17-651, McCoy v. United States, 17-5484, Winters v. United States, 17-5495, Lin v. United States, 17-5767, Eizember v. United States, 17-6117, Enix v. United States, 17-6340, Ecourse-Westbrook v. United States, 17-6368, and Carreon v. United States, 17-6926.  The government argues that after Dimaya, these cases should be sent back to the courts of appeals to consider narrowing constructions of Section 924(c) that might resolve the constitutional issues.  Unsurprisingly, criminal defendants argue that the court should just grant review on this issue.  We’ll see which side prevails.

Prior related post:

• How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them? 

How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?

The big Supreme Court vagueness ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), is properly being discussed as a significant immigration ruling: the Justice were considering (and struck down as vague) how Congress defined an offense of violence in 18 U.S.C. § 16(b) in a case involving a alien subject to deportation for committing a certain kind of crime.

But, critically, the now-unconstitutional definition of a "crime of violence" in § 16(b) is referenced throughout the federal criminal code within various criminal offenses and sentence enhancements.  And, notably, definitional language identical to § 16(b) appears in 18 U.S.C. § 924(c)(3)(B), which is part of a statute that adds significant amounts of prison time for any possession or use of a gun in connection with a crime of violence.  In other words, as the title of this post suggests, there are certainly some number of persons serving federal prison time based on a definition of a  "crime of violence" deemed unconstitutionally vague in Dimaya.

But, as my post title suggests, it is hard to know how many federal prisoners have viable Dimaya claims, while it is easy to know that all prisoners will face an array of possible procedural headaches when trying now to raise Dimaya claims.  Helpfully, Leah Litman thoroughly covers, in this lengthy new Harvard Law Review blog posting, the array of procedural hurdles that Dimaya defendants are likely to face.  Here is how her extended piece starts and ends:

The Supreme Court decided Sessions v. Dimaya and struck down the federal definition of “crime of violence” as unconstitutionally vague. The statute, section 16(b) (along with its very analogous cousin, section 924(c)), has meaningfully contributed to mass incarceration, racial disparities in sentencing, and excessive sentencing at the federal level. Dimaya recognized that section 16(b) did so in part through sprawling, amorphous phrasing that could be interpreted and applied in capricious and largely unbounded ways to expand the category of “crime of violence.”  The impact of the Dimaya decision is potentially enormous, both for deportations (the case before the Court) and for criminal sentences....

Whether Dimaya rights wrongful convictions will depend on how courts interpret a slew of procedural restrictions on federal resentencing and federal post-conviction review....

Dimaya spoke of “lesson[s] so hard learned” from Johnson and the ACCA debacle that Johnson corrected.  But another lesson that was hard learned from Johnson is that Johnson, or in this case Dimaya, will just be the beginning.  Whether those decisions will ultimately benefit the individuals who are currently wrongly incarcerated will depend on what comes next, and specifically on how courts interpret the many draconian restrictions on post-conviction review.

Two notable opinions from SCOTUS on vagueness and habeas review

The US Supreme Court handed down two big opinions this morning that criminal justice fans will want to check out. Here are the basics with links from How Appealing:

Justice Elena Kagan announced the judgment of the Court and delivered the opinion of the Court in large measure in Sessions v. Dimaya, No. 15-1498. Justice Neil M. Gorsuch issued an opinion concurring in part and concurring in the judgment. Chief Justice John G. Roberts, Jr. issued a dissenting opinion, in which Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito, Jr. joined. And Justice Thomas issued a dissenting opinion, in which Justices Kennedy and Alito joined in part.

Justice Stephen G. Breyer delivered the opinion of the Court in Wilson v. Sellers, No. 16-6855.  Justice Gorsuch issued a dissenting opinion, in which Justices Thomas and Alito joined. 

The Dimaya opinion, which runs nearly 100 pages in total, starts this way:

Three Terms ago, in Johnson v. United States, this Court held that part of a federal law’s definition of “violent felony” was impermissibly vague. See 576 U. S. ___ (2015). The question in this case is whether a similarly worded clause in a statute’s definition of “crime of violence” suffers from the same constitutional defect. Adhering to our analysis in Johnson, we hold that it does.

The Wilson opinion is much shorter, but its start is much longer:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).  Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons — both legal and factual — why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U.S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U.S. 86, 101–102 (2011).

This is a straightforward inquiry when the last state court to decide a prisoner’s federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. We have affirmed this approach time and again. See, e.g., Porter v. McCollum, 558 U.S. 30, 39–44 (2009) (per curiam); Rompilla v. Beard, 545 U. S. 374, 388–392 (2005); Wiggins v. Smith, 539 U. S. 510, 523–538 (2003).

The issue before us, however, is more difficult.  It concerns how a federal habeas court is to find the state court’s reasons when the relevant state-court decision on the merits, say, a state supreme court decision, does not come accompanied with those reasons.  For instance, the decision may consist of a one-word order, such as “affirmed” or “denied.” What then is the federal habeas court to do?  We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale.  It should then presume that the unexplained decision adopted the same reasoning.  But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

"A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'"

The title of this post is the title of this notable new article authored by Conrad Kahn and Danli Song now available via SSRN. Here is the abstract:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA).  If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause.  But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause.  This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong — specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause.  This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

Mapping out what Beckles left unresolved: Johnson's uncertain impact on the once-mandatory career-offender guideline

Leah Litman and Samantha Jaffe have this great new entry at the Take Care website under the heading "The Mandatory Guidelines Predicament."  It seeks to explain the still lingering issue of how the Supreme Court's 2015 Johnson vagueness ruling still impacts a certain subset of federal prisoners sentenced more than a decade earlier.  I recommend the piece in full, and here is a taste:

In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness.  ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions.  ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.”  The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively....

The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.

The Sentencing Guidelines, however, weren’t always advisory.... The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences.  Nevertheless, there are still differences between the pre-Booker Guidelines and statutes.  Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”  In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA.  The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.

Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines....  Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague.  It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested.  AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions.  AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization.  The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.

That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions.  The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.

The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit.  If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem.... And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.

Noting Justice Department's latest ACCA/AEDPA litigation switch in time hoping to avoid nine Justices

Adam Liptak's latest New York Times Sidebar column, headlined "Serving Extra Years in Prison, and the Courthouse Doors Are Closed," does an effective (though necessarily incomplete) job of reviewing the notable recent change in litigation position coming from the Justice Department.  Here are extended highlights from an article highlighting a complicated and important matter of federal habeas procedure:

It is one thing for a new administration to switch sides in a legal dispute.  That is merely unusual.  It is another to urge the Supreme Court to deny review in a case that would test whether the government’s new position is correct.

In a Supreme Court brief filed last month, the Justice Department tried to have it both ways.  It told the justices that it no longer believed that some federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court.  For the last 16 years, the Justice Department had taken the opposite view.  It said so in at least 11 Supreme Court briefs.  You might think the Supreme Court should settle things.

But the department urged the justices to refuse to hear an appeal from Dan C. McCarthan, a Florida man who said he was sentenced to seven more years than the law allowed.  It did so even as it acknowledged that the legal question was significant and that the department’s new position could lead to harsh results, condemning inmates to serve out unlawful sentences.

The administration’s request that the Supreme Court deny review in Mr. McCarthan’s case was “incredibly unseemly” and “not a good look for the Department of Justice,” said Leah Litman, a law professor at the University of California, Irvine, and an authority on the complicated web of statutes that govern post-conviction challenges from federal prisoners....

The Justice Department’s litigation two-step also drew a sharp response from Mr. McCarthan’s lawyers, who include Kannon K. Shanmugam, a partner at Williams & Connolly. “There is nothing inherently wrong with a new administration’s changing position on a question before this court — although it is rare on a question involving the administration of the criminal justice system,” Mr. Shanmugam wrote in a brief filed last week.  “But when the government changes position on a concededly important question that has divided the circuits, it should at least have the courage of its convictions and be willing to defend its new position on the merits in this court.”

Nine federal appeals courts allow the challenges, while two do not.  The new case, McCarthan v. Collins, No. 17-85, started in 2003, when Mr. McCarthan pleaded guilty to a federal gun charge.  That conviction would ordinarily have subjected him to a maximum sentence of 10 years.  But the judge sentenced him to more than 17 years under a federal law that requires longer terms for career criminals.

A career criminal, the law says, is one who has been convicted of at least three serious drug offenses or violent felonies.  One of the convictions that justified Mr. McCarthan’s extra seven years was for escape....  When Mr. McCarthan was sentenced, courts treated all escapes as violent.... [But] “a ‘walkaway’ escape is not a ‘violent felony,’” the [Supreme] court ruled in 2009, six years after Mr. McCarthan was sentenced to extra time based on just such an escape.  He then asked the courts to take another look at his sentence.

In March, the 11th Circuit rejected Mr. McCarthan’s challenge.  The vote was 7 to 4, with the majority saying that Mr. McCarthan had filed his challenge too late under a federal law that places strict limits on habeas corpus petitions.  But the law has an exception, enacted in 1948, for cases in which the ordinary procedure “is inadequate or ineffective to test the legality” of a prisoner’s detention.

The Justice Department had long agreed that the exception applied in cases like Mr. McCarthan’s. It said so in Mr. McCarthan’s own case before the 11th Circuit.  Since the government and Mr. McCarthan agreed that he should at least be allowed the present his challenge, the 11th Circuit appointed a lawyer to argue the opposite position. Then it accepted the appointed lawyer’s argument, which was based on a technical analysis of various statutory provisions.

Only one other federal appeals court has interpreted the 1948 law to bar challenges like Mr. McCarthan’s.  In 2011, the United States Court of Appeals for the 10th Circuit, in Denver, ruled that a prisoner who had pleaded guilty to money laundering in 1999 could not challenge his conviction after the Supreme Court, in a decision issued nearly a decade later, undermined the prosecution’s theory.  The 10th Circuit’s majority opinion was written by Judge Neil M. Gorsuch, who joined the Supreme Court this year.  His 2011 opinion, Professor Litman wrote in January, before his nomination, “makes one wonder what a Justice Gorsuch would mean for criminal justice at the Supreme Court.”

In 2011, the Justice Department criticized Judge Gorsuch’s opinion.  Last month, it endorsed it.  Mr. McCarthan, the department’s brief said, should have argued from the start that his escape was not a violent felony, even though the law at the time was squarely against him.  He should have asked “to have the adverse precedent overturned,” the brief said. It was now too late to raise the question, the brief said.

Interesting comments from the new Justice during reargument of vagueness issues in Sessions v. Dimaya

The first week of oral argument in front of the Supreme Court in the 2017 Term includes reargument in two immigration cases, Sessions v. Dimaya and Jennings v. Rodriguez, that raise constitutional question that could have a range of implications for a range of criminal justice issue.  Dimaya is a follow-up on the (new?) doctrines the Supreme Court started developing in Johnson v. US finding a portion of the Armed Career Criminal Act void for vagueness, and Rodriguez involves broad issues of detention length and due process.

Dimaya was argued yesterday, and I have not yet had a chance to read this full argument transcript closely.  But a quick scan of the transcript with a focus on what the new Justice, Neil Gorsuch, had to say revealed that he is already showing a commitment to textualism and seems quite engaged with interesting issues at the intersection of civil and criminal sanctions.  For example, consider this passage at the start of a question a series of questions for the government's lawyer:

First, getting back to the standard of review and the distinction between criminal and civil, this Court seems to have drawn that line based on the severity of the consequences that follow to the individual, but that seems to me a tough line here to draw because I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn't trade places in the world for someone who is deported -- deported from this country pursuant to a civil order or perhaps the subject of a civil forfeiture requirement and loses his home.

So how sound is that line that we've drawn in the past, especially when the civil/criminal divide itself is now a seven-part balancing test, not exclusive, so there may be more than seven factors as I understand it.  And I look at the text of the Constitution, always a good place to start, and the Due Process Clause speaks of the loss of life, liberty, or property.  It doesn't draw a civil/criminal line, and yet, elsewhere, even in the Fifth Amendment, I do see that line drawn, the right to self-incrimination, for example. So help me out with that.

Time will tell how this line of inquiry might find expression in opinions of Justice Gorsuch or other justices in the months ahead. Notably, elsewhere in the transcript, it appears the advocates and other Justices follow-up on points made by Justice Gorsuch in ways that provide further proof that the addition of a single new Justice does serve in some ways to change the entire Court.

UPDATE:  Not very long after this post went up, Kevin Johnson posted at SCOTUSblog this analysis of the Dimaya oral argument under the title "Faithful to Scalia, Gorsuch may be deciding vote for immigrant." Here is his final paragraph:

In sum, the oral argument suggests that Dimaya has a fair chance of prevailing in the Supreme Court.  Gorsuch, the possible deciding vote in the case, seemed willing to apply Scalia’s opinion in Johnson to Dimaya’s case -- maybe even more faithfully than Scalia himself would have done.  And Gorsuch had ready responses to line-drawing and other problems that might arise if the vagueness doctrine were held to invalidate the immigration statute’s residual clause.

Can a federal sentence really "be close to absurd" and yet also be affirmed as reasonable?

The peculiar and perhaps metaphysical question in the title of this post is prompted by a Second Circuit panel decision today in US v. Jones, No. 15‐1518 (2d Cir. Sept. 11, 2017) (available here). The Jones case get intricate thanks to the timing and uncertainties of criminal history litigation. The start of the panel opinion provides a flavor of the mess:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release.  The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first‐degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline — a second basis for finding a crime of violence — was not unconstitutional.  The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness. In light of Beckles, we find that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court.

Judge Calabresi (my former boss) authors a separate concurring opinion in which he explains the various factors and fortuities which he thinks requires an affirmance of a sentence that seems technically sound by infused with problems of timing and equity. I cannot briefly recount he are the curious particulars, but this sentence captures Judge Calabresi's obvious frustration:

What is more — and this may be the true source of my sense of absurdity — there appears to be no way in which we can ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure.

For what it is worth, I think reasonableness review can and should be a very flexible and robust means for circuit courts to require resentencing whenever it has a basis for being concerned, procedurally or substantively, with any aspects of the proceedings below in light of the sentencing commands of 3553(a). Consequently, I think the Second Circuit could have said simply that "happenstances that have worked against Jones" since the time of his initial sentencing cast new light on the 3553(a) factors and thus his sentence is procedurally unreasonable and he should be resentenced.

Formalism (and floodgate/functionality fears?) prevail over functional analysis in Beckles

I was involved in preparing an amicus brief in the Beckles case decided by the Supreme Court this morning (basics here, full opinion here), and that brief argued (unsuccessfully) that the advisory federal sentencing guidelines should be subject to vagueness challenges.  The argument was, in its essence, a functional one highlighting the significant impact that guideline calculations still have on sentencing outcomes even though they are advisory.  Justice Sotomayor's separate opinion in Beckles, though concurring on narrow grounds, wholly embraced this functional argument to make the case that the guidelines should be subject to vagueness challenges.  Here are some passages from her extended decision that capture her functional perspective (with cites omitted, but key emphasis from original):

In most cases, it is the range set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that specifies the number of years a defendant will spend in prison. District courts impose a sentence within the Guidelines (or below the Guidelines based on a Government motion) over 80% of the time.  And when Guidelines ranges change — because the Guidelines themselves change, or because the court is informed of an error it made in applying them — sentences change, too. It is therefore no exaggeration to say that the Guidelines are, in a real sense, the basis for the sentence imposed by the district court....

As set out above, although the Guidelines do not bind a district court as a formal matter, as a functional matter they anchor both the district court’s discretion and the appellate review process....

Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she “would not have imprisoned Beckles to 360 months” in prison. Years of Beckles’ life thus turned solely on whether the career-offender Guideline applied. There is no meaningful way in which the Guideline exerted less effect on Beckles’ sentence than did the statute setting his minimum and maximum terms of imprisonment; indeed, it was the Guidelines, not just the statute, that fixed Beckles’ sentence in every meaningful way. Nothing of substance, in other words, distinguishes the Guidelines from the kind of laws we held susceptible to vagueness challenges in Johnson; both law and Guideline alike operate to extend the time a person spends in prison. The Due Process Clause should apply equally to each.

Notably, as Justice Sotomayor highlights in various ways in her opinion, this kind of functional concern with the continued importance of advisory guideline calculations drove the majority opinions in prior recent cases like Peugh dealing with application of the Ex Post Facto clause and Molina-Martinez dealing with plain error review. But this time around, a more formalistic approach carried the day.

As my post title here suggests, I think the formalistic approach to application of the vagueness doctrine at sentencing prevail because a number of key Justices, particularly perhaps the Chief and Justice Kennedy, may have been especially concerned about what a "vagueness at sentencing" doctrine could end up looking like and how often it might arise. Notably, Justice Kennedy authored an intriguing little concurrence in Beckles that suggests he is concerned about arbitrary sentencing, but was here even more concerned about application of traditional vagueness doctrine to sentencing. Here is what Justice Kennedy had to say:

As sentencing laws and standards continue to evolve, cases may arise in which the formulation of a sentencing provision leads to a sentence, or a pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns. In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed. That something is vague as a general matter, however, does not necessarily mean that it is vague within the well-established legal meaning of that term. And it seems most unlikely that the definitional structure used to explain vagueness in the context of fair warning to a transgressor, or of preventing arbitrary enforcement, is, by automatic transference, applicable to the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015).

The existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing. Some other explication of the constitutional limitations likely would be required.

Though I find intriguing the suggestion by Justice Kennedy that there could and sould be "some other explication of the constitutional limitations" on the realm of judicial discretion in sentencing, the ruling in Beckles may itself ensure that such an explication never gets developed in the context of the Due Process Clause.  (Whether Justice Kennedy and others might explicate such limits in non-capital sentencing as they have in capital sentencing through the Eighth Amendment might still be ripe with possibilities.)

SCOTUS rules in Beckles that federal advisory guidelines are not subject to Due Process vagueness challenges

The Supreme Court this morning issued a big opinion concerning the operation of and challenges to the federal sentencing guidelines in Beckles v. United States, No. No. 15–8544 (S. Ct. March 6, 2017) (available here). Here is how the opinion authored by Justice Thomas gets started: 

At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG).   This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness.  Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.

After the oral argument tone in this case, I am not surprised to see this result. But I expect I may have more to say about the particulars of this Beckles ruling in the coming hours and days.  To begin, I think the sentiments in the closing section of the opinion of the Court best accounts for the Beckles outcome:

In addition to directing sentencing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The Government concedes that “American judges have long made th[e] sorts of judgments” called for by the §3553(a) factors “in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors — like the Guidelines — do not mandate any specific sentences, but rather guide the exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on their validity.

Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as §4B1.2(a)’s residual clause. For example, courts must assess “the need for the sentence imposed” to achieve certain goals — such as to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” and “provide the defendant with needed educational or vocational training . . . in the most effective manner.” §3553(a)(2). If petitioner were correct that §4B1.2(a)’s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement.

The Government tries to have it both ways, arguing that the individualized sentencing required by the other §3553(a) factors is different in kind from that required by the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief for United States 10–11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to promote respect for the law.” §3553(a)(2)(A). And neither the Guidelines nor the other §3553 factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional.

The Government also suggests that the Guidelines are not like the other §3553(a) factors “because they require a court to decide whether the facts of the case satisfy a legal standard in order to derive a specific numerical range.” Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing. Section 3553(a) states that district courts “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§3553(a)(2)].” In fact, the Guidelines generally offer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines — but not §3553(a)’s other sentencing factors — are amenable to vagueness review.

"Judge Gorsuch & Johnson Resentencing"

The title of this post is the title of this timely new commentary now on SSRN authored by Leah Litman about the latest "hot name" to replace Justice Scalia on the Supreme Court.  Here is the first paragraph:

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence.  The case concerns an issue on which the court of appeals disagree, and so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are.  Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law.  While there is much to like about Prost — it is well written, clearly reasoned, and adopts an administrable rule — the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts.

"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"

The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans.  Here is the abstract:

Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes.  This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States.  The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.

Fourth Circuit panel rejects North Carolina's efforts to defend constitutionally hinky provisions of state sex offender rules

The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here).  In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws.  Here is how the unanimous opinion gets started:

The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders.”  See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).

John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment.  The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14- 208.18(a)(2) and section 14-208.18(a)(3).  For the reasons set out below, we affirm the judgment of the district court.

Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11.  But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....

In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence.  In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.

Guest posting from Prof Carissa Hessick on SCOTUS argument: "Beckles and the Continued Complexity of Post-Booker Federal Sentencing"

I am pleased to be able to reprint this original commentary concerning today's SCOTUS oral argument from LawProf Carissa Hessick:

Earlier today the Supreme Court heard argument in Beckles v. United States.  Beckles raises two questions: (1) whether the now-advisory Federal Sentencing Guidelines are subject to vagueness challenges under the Due Process Clause, and (2) whether, assuming the Guidelines are subject to vagueness challenge, a ruling that a Guideline is unconstitutionally vague is retroactive under the Teague framework.  The Beckles case and today’s argument illustrate how complicated federal sentencing has become since the Supreme Court decided to treat the Federal Sentencing Guidelines as advisory in Booker v. United States.

In the decade since Booker was decided, the Supreme Court has clarified that, although the Federal Sentencing Guidelines are no longer mandatory, they are also not entirely voluntary.  Deputy Solicitor General Michael Dreeben did a fantastic job in his argument explaining the middle path that the Court has carved for the Guidelines since Booker.  He not only described the anchoring effect of the Guidelines, but he also noted that the Court has adopted procedural mechanisms “designed to reinforce the primacy of the Guidelines.”  The current advisory system, according to Dreeben, “injects law into the sentencing process.”

As the Beckles argument illustrates, the middle path that the Court has carved is complicated.  The Court continues to struggle with how to regulate an advisory system in light of the fact that the purely discretionary system that the Federal Sentencing Guidelines replaced was essentially unregulated.  Indeed, counsel for Beckles spent much of her argument fending off questions by various Justices about how a Guideline could be unconstitutionally vague if a purely discretionary system is permissible under the Constitution. Justices Alito, Breyer, Kennedy, and Chief Justice Roberts all asked questions to this effect.  Notably, later questions by Justice Breyer and the Chief Justice appeared to accept that a purely discretionary system might be subject to different rules than an advisory system.

The complexity of the middle path was on full display in today’s argument in part because the United States relied on the complexity of that path to take what Justice Kennedy and a court-appointed amicus characterized as inconsistent positions.  The United States argued that the advisory Guidelines are subject to vagueness challenges because of the important role that they continue to play in the post-Booker world.  But the government argued that the advisory status of the Guidelines should prevent the Court from making any vagueness ruling retroactive.  The government distinguished this case from a recent juvenile life-without-parole case, saying that juvenile LWOP cases require a particular finding in order for a defendant to be eligible for a life-without-parole sentence.  In contrast, according to the government, the Guidelines affect only the likelihood that a defendant will receive a particular sentence.  The government relied on the distinction between likelihood of a sentence and eligibility for a sentence as the reason it took different positions on the vagueness question and the retroactivity question. And while Justice Sotomayor pressed the government on this distinction, none of the attorneys or the Justices mentioned an important fact about this case: When Beckles was sentenced in a Florida district court, the prevailing law in the Eleventh Circuit actually required such a finding. (Because of the amount of time taken up by questions about vagueness, petitioner’s counsel addressed the likelihood/eligibility argument only in the single minute she had remaining for rebuttal. The argument was made in an amicus that Doug and I co-authored with Leah Litman, which is available here.)

Other odd aspects of the Court’s post-Booker jurisprudence were also on display during the Beckles argument.  Chief Justice Roberts and Justice Alito both raised the question whether the Court’s recent decisions about the quasi-legal status of the advisory Guidelines should endure in the face of changing sentencing patterns in the district courts.  And Justice Breyer, who has often served as a champion for the U.S. Sentencing Commission, raised the possibility that the courts should be more indulgent of vague sentencing guidelines than vague statutes because the Commission is in a better position than Congress to refine the law.

Perhaps because this area of the law is so complex, both Justice Ginsburg and Justice Kennedy appeared to cast about for an easy way to dispose of this case.  At one point Justice Ginsburg said as much: “I thought . . . that if we decide the first issue, . . . the case is over.  But -- so I was thinking, well, we could decide that issue and not reach either vagueness or retroactivity.”  Much to his credit, Deputy Solicitor General Dreeben discouraged the Court from taking that path, even though it would have meant a victory for the Government.  Dreeben noted that there are many cases that raise the vagueness and the retroactivity questions that are currently pending in the lower courts.  And he made an institutional appeal to the Justices to resolve the retroactivity issue even if they could decide this case based on some commentary in the Guidelines.  I admire Dreeben for making this appeal to the Justices.  But I don’t think that his appeal went far enough. There are a number of defendants in the Eleventh Circuit who have viable vagueness claims that are not claiming retroactivity.  Because the Eleventh Circuit refused to recognize any vagueness challenges to the Guidelines, the Court should also rule on the vagueness issue even if it determines that its ruling will not be retroactive.

Although I was not at the argument this morning, it is hard to read the transcript of the Beckles argument and think that the defendant is likely to prevail. Only Justice Sotomayor seemed to be asking friendly questions of petitioner’s counsel, and only she seemed to resist the Government’s likelihood/eligibility argument.

But even if Beckles does not prevail, we may see another vagueness challenge to the Guidelines in the not-so-distant future.  For one thing, Dreeben made clear in today’s argument that the Government has not taken a position on retroactivity for pre-Booker mandatory sentences.  So if Beckles loses on the retroactivity question, then the courts of appeals will have to decide retroactivity in those pre-Booker cases, and if the courts split on that question, the Supreme Court may need to take another case.  For another, the Court has granted cert in another statutory vagueness case, Lynch v. Dimaya.  The statute at issue in Dimaya, 18 U.S.C. § 16(b), has been incorporated into a Guideline, U.S.S.G. § 2L1.2(b)(1)(C).  So if the Court decides that § 16(b) is unconstitutionally vague in Dimaya, and if the Court does not answer the vagueness question in Beckles, then the Court may need to take another Guidelines vagueness case.

Many SCOTUS Justices seems disinclined to find vagueness problems with sentencing guidelines given backdrop of unguided sentencing discretion

I have only just gotten started reading the transcript of the oral argument in Beckles v. United States (which is available here), and the first set of big questions suggests some Justices are not drawn to a basic sentencing vagueness claim.  Consider these passages from early in the transcript, which I have tweaked stylistically for improved exposition:

JUSTICE ALITO: Let me ask you a more fundamental question. And I don't want to unduly shock the attorneys who are here from the Sentencing Commission, but imagine there were no sentencing guidelines.  So you have a criminal provision that says that a person who's convicted of this offense may be imprisoned for not more than 20 years.  That's all it says.  Now, is that unconstitutionally vague?

MS. BERGMANN: No, Your Honor.

JUSTICE ALITO: Well, that seems to be a lot vaguer than what we have here. So how do you -- how do you reconcile those two propositions?

MS. BERGMANN: Well, Your Honor, we submit that arbitrary determinant sentencing such as with a vague guideline is not the same as an indeterminate sentencing scheme such as the Court described.  Our position is that the use of a vague guideline, in fact, is worse than indeterminate sentencing because it systematically injects arbitrariness into the entire sentencing process.

JUSTICE BREYER: And there is more arbitrariness because of this guideline than there was before the Guidelines were passed? Is there any evidence of that? I have a lot of evidence it wasn't.

MS. BERGMANN: Well, I think, Your Honor, it's especially so here because --

JUSTICE BREYER:  Especially so.  Is it so at all? There was a system before the Guidelines exactly as Justice Alito said.  Moreover, that system is existing today side by side with the Guidelines in any case in which the judge decides not to use the Guidelines.  So I don't get it. I really don't. And you can be brief here, because it's really the government that has to answer this question for me.  I don't understand where they're coming from on this, and you don't have to answer more than briefly, but I do have exactly the same question that Justice Alito had....

CHIEF JUSTICE ROBERTS: Well, if the indeterminate sentencing is all right, it would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it's too vague to be applied....

JUSTICE KENNEDY: Well, but your argument applies to State systems as well, and you're telling us that the more specific a legislature or an agency tries to make guidance for the judge, the more chance there is for vagueness....  Your argument is sweeping.  And you're saying the more specific guidance you give, the more dangers there is of unconstitutionality.  That's very difficult to accept.

These statements notwithstanding, the extraordinary presentation by Deputy Solicitor General Michael Dreeben (who has long been my all-time favorite SCOTUS advocate) may have helped move at least some of the Justices to better appreciate how the career offender guidelines could be deemed unconstitutionally vague in the wake of the Johnson ACCA ruling back in summer 2015.

"Assessing the Impact of Johnson v. United States on the Void-for-Vagueness Doctrine"

The title of this post is the title of this effective and extensive new Casetext essay authored by Carissa Hessick. It starts and ends this way:

Johnson v. United States, 135 S. Ct. 2551 (2015)

, held that the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague.  Johnson generated a large amount of litigation in the federal courts.  Less than a year after it was decided, the Supreme Court decided another Johnson case, Welch v. United States, 136 S. Ct. 1257 (2016), which held that the rule in Johnson should be applied retroactively to those defendants whose convictions and sentences have already become final.  The Supreme Court has also agreed to hear two new Johnson cases in the 2016 Term.

Johnson raised important constitutional doubts about federal statutes that employ the so-called “categorical approach” to classifying criminal conduct, as well as doubts about certain Federal Sentencing Guidelines.  This short essay describes Johnson and explores the Johnson-related issues that the Court will hear this Term....

Johnson v. United States is of the most cited U.S. Supreme Court cases from recent Terms.  Johnson obviously affected the large number of defendants who were sentenced under the residual clause of the Armed Career Criminal Act.  It may, however, have a lasting impact on the vagueness doctrine itself.  By questioning the viability of the categorical approach and by clarifying that the doctrine applies also to laws that fix sentences, Johnson has called into doubt the constitutionality of other federal criminal laws and various Federal Sentencing Guidelines.  We will have to await the decisions in Lynch v. Dimaya and Beckles v. United States in order to fully assess the legacy of Johnson.  If the government loses those cases, then we are likely to see a further challenges to laws that fall within the long shadow of Johnson.

"How the Sentencing Commission Does and Does Not Matter in Beckles v. United States"

The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Luke Beasley. Here is the abstract:

This Essay considers how significant the differences between the Armed Career Criminal Act and the Sentencing Guidelines are to one question the Supreme Court is poised to address in Beckles v. United States -- namely, whether a rule invalidating the so-called "residual clause" in the Sentencing Guidelines applies retroactively to cases on collateral review.  This Essay collects evidence from resentencings that have occurred after courts have found the Guidelines' residual clause invalid.  These resentencings have resulted in defendants receiving significantly less prison time. 

The extent to which a rule invalidating the Guidelines' residual clause affects defendants' sentences -- often significantly -- justifies revisiting defendants' sentences because whatever finality interests exist in the defendants' sentences are outweighed by the effects that a rule invalidating the Guidelines' residual clause has on the amount of prison time defendants serve.  The Supreme Court should also not hesitate to make a rule invalidating the Guideline retroactive because the Sentencing Commission decided not to make retroactive an amendment deleting the Guideline's residual clause.  The Commission never investigated how difficult it would be to make that amendment retroactive.

A few of many related prior posts and related materials:

• SCOTUS grants cert on Johnson application to career offender guidelines
• Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
• "What Lurks Below Beckles"
• Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner
• "Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."
• Topical archive of many related posts:  Vagueness in Johnson and thereafter

"Cost-Benefit Analysis and Retroactivity: The brief for respondent in Beckles v. U.S."

The title of this is the title of this timely and astute New Jersey Law Journal commentary authored by (former federal prosecutor) Steven Sanders. I recommend the piece in full, and here are excerpts from its beginning and ending:

In late June, the Supreme Court granted certiorari in Beckles v. United States, 136 S. Ct. 2510 (2016).  Beckles actually raises three questions, but only two of them are pertinent here: (1) is the "residual clause" of the U.S. Sentencing Guidelines' career offender provision void for vagueness under Johnson v. United States, 135 S.Ct. 2551 (2014); and (2) can a defendant whose Guidelines sentence became final before Johnson issued nonetheless invoke Johnson's new rule in a motion filed under 28 U.S.C. §2255.  In its recently filed merits brief, the government argues that the answer to question (1) is "yes," but that Beckles and thousands like him have no legal remedy because the answer to question (2) is "no."

The government's non-retroactivity argument in Beckles represents a total reversal of the position it took before the en banc Eleventh Circuit only one month before Johnson issued. And that reversal seems to stem from the government's concern about the costs the justice system would incur from conducting resentencings for prisoners who very likely would receive lower sentences were they afforded a remedy.  The government's belief that the costs of dispensing justice outweigh the benefits (i.e., less prison time for thousands of people the government acknowledges have been over-sentenced) is eye-opening, to say the least.  That it has broadcast that belief in a Supreme Court brief is downright disturbing....

In sum, the government's retroactivity position in Beckles seems more like a belated attempt at damage control than a principled effort to apply the law consistently across a set of similarly situated defendants.  The government would do well to heed Solicitor General Frederick Lehmann's powerful observation — now inscribed on the walls of the Department of Justice — that "[t]he United States wins its point whenever justice is done its citizens in the courts." See Brady v. Maryland, 373 U.S. 83, 87 & n.2 (1963).

A few of many related prior posts and related materials:

• SCOTUS grants cert on Johnson application to career offender guidelines
• Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
• "What Lurks Below Beckles"
• Beckles v. United States -- Amici Curiae Brief of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner
• Topical archive of many related posts:  Vagueness in Johnson and thereafter

Looking at the impact of SCOTUS Johnson ruling in the heart of the state in the heart of it all

I live in the center of a state that sometimes uses the tourism slogan "Ohio, The Heart of It All."  Though some might dicker with the formal accuracy of this sloganeering, there is little basis to resist the claim that Ohio is a bellwether state, and that reality makes extra interesting this new Columbus Dispatch article about the impact of the most consequential of Supreme Court sentencing rulings in recent years.  The piece is headlined "U.S. Supreme Court ruling on sentencing law could free hundreds in Ohio," and here are excerpts:

Celia Ward has the menu planned for her son’s welcome-home dinner: fried chicken, cabbage, cornbread and mac and cheese. It’s been a while since Hozae Rodriguez Ward, 39, sat down at his mother’s table.

From 1995 to 2007, he was in the county jail and state prison. Since 2009, he has been in federal prison.  But according to the U.S. Supreme Court, he should have been home five years ago.  Ward is eligible for immediate release after the high court ruled on June 25, 2015, that the Armed Career Criminal Act, under which Ward was sentenced, was too vague.

The ruling probably affects many more than just Ward.  The federal public defender’s office in Cincinnati is conducting an “initial” review of 400 federal inmates sentenced under the act to see if they, too, have been in prison too long.  The office covers only the Southern District of Ohio.  The total number of inmates affected nationwide is unknown, but there are 89 district courts in the 50 states, including two in Ohio.

On Wednesday in Columbus, U.S. District Judge Michael H. Watson ordered Ward’s release, which should occur within 30 days.  Watson sentenced Ward on June 30, 2009, to the minimum mandatory term of 15 years after he pleaded guilty to being a felon in possession of ammunition. “No one is terribly comfortable with that, given your previous record,” Watson said.  “Nonetheless, you’ve served more than twice the guideline range, as recalculated.”  The defense and prosecution agreed that, based on the high court’s ruling, Ward’s maximum sentence should have been 27 months.

The Armed Career Criminal Act imposed a mandatory minimum 15-year prison sentence on felons convicted of a firearm offense who had three previous convictions for violent felonies or serious drug offenses.  The act defined those violent felonies as burglary, arson, extortion and those involving the use of explosives.  The problem, the justices wrote in Johnson v. United States, is that the act continued to add a broad “residual clause” that included crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”  The court ruled that the residual clause violated the Fifth Amendment’s due-process provision because it was too vague and “invites arbitrary enforcement” by judges....

“We’ve had numerous folks who have walked out the Bureau of Prison door,” said Kevin Schad, appellate director for the federal public defender’s office for the Southern District of Ohio.  In addition to his office’s 400 cases, others are being reviewed by attorneys appointed by the court to help, said Schad, who filed the motion in Ward’s sentencing....

Schad said the number of inmates affected by the ruling might grow.  The Supreme Court has agreed to hear an outgrowth of Johnson v. United States.  The petitioners in Beckles v. United States argue that a similarly vague clause exists in other enhanced-sentencing guidelines.  “That opened up a whole number of other cases,” Schad said. 

"Clarity in Criminal Law"

The title of this post is the title of this timely new article authored by Shon Hopwood now available via SSRN. Here is the abstract:

Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code.  Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe.  Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted.

This Article suggests what that reaction should be.  It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine.  Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.

Eleventh Circuit judges discuss guidelines and vagueness at great length after denying en banc review in Matchett

As regular readers should recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett was not sufficiently convincing to that court.  Today, as revealed here, the Eleventh Circuit announced that a majority of its members voters against considering this issue en banc.  (For practical reasons, even though I disagree on the merits, this decision now makes sense: as blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in:the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whetherJohnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.)

The actual order denying en banc review is only one-sentence long.  But following the order comes 80+ pages of fascinating concurring and dissenting opinions that will surely intrigue any and everyone closely following the legal and practical issues that Beckles implicates.  Highly recommended reading for all sentencing fans and law nerds.

"What Lurks Below Beckles"

The title of this post is the title of this timely new paper available via SSRN authored by Leah Litman and Shakeer Rahman. Here is the abstract:

The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review.  Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well.  But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will mean nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s.  This is due to a number of a circuit splits that the Supreme Court may not get an opportunity to address after the Beckles case.

The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them.  Doing so may be the only way to ensure that prisoners — particularly those in the Eleventh Circuit — will have a remedy for their unlawful sentences and to ensure that any right announced in Beckles applies uniformly across the country.  

While the Court typically limits itself to analyzing questions that are directly raised in the petition for certiorari, AEDPA is a reason the Court should depart from that practice here. Two decades ago, when the Supreme Court upheld AEDPA’s restrictions post-conviction review, several Justices warned that circuit splits related to successive motions might re-open the question of whether AEDPA’s restrictions are constitutional.  As we show below, the aftermath of Johnson and Welch in the lower courts is what those Justices warned about.  These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions that are not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.

Split en banc Seventh Circuit ruling, previewing coming Beckles debate before SCOTUS, applies Johnson to career-offender guidelines

As regular readers may recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines.  As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines. 

In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline.  But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  

As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett has not led to its reconsideration.  As blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in: the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whether Johnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.  Continuing my friendly ways in this setting, I had the honor and pleasure to work with Carissa Hessick and Leah Litman on this new SCOTUS Beckles amicus brief explaining why we think the US Sentencing Guidelines are subject to vagueness challenges and why any ruling that a guideline is unconstitutionally vague should be made retroactive.

Though folks interested in a full understanding of the Beckles case might read all the extant SCOTUS briefing, folks interested in understanding the substantive highlights and the basic arguments on both sides of this intricate and important story can now just turn to the split en banc ruling of the Seventh Circuit yesterday in US v. Hurlburt, No. 14-3611 (7th Cir. Aug. 29, 2016) (available here).  Here are two key paragraphs from the start of the majority opinion (per Judge Sykes) in Hurlburt:

The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B).  One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague.  Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).  The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline.  An emerging consensus of the circuits holds that it does. See infra pp. 16–17.

In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent — namely, United States v. Tichenor, 683 F.3d 358, 364–65 (7th Cir. 2012) — holds that the Guidelines are not susceptible to challenge on vagueness grounds.  But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning.  Accordingly, we now overrule Tichenor.  Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

And here are a few key paragraphs from the dissenting opinion (per Judge Hamilton) in Hurlburt:

The doctrinal foundation of the majority opinion is inconsistent with the overall sweep of Supreme Court decisions following United States v. Booker, 543 U.S. 220 (2005), which held the Guidelines advisory as the remedy for the Sixth Amendment problems with mandatory sentencing rules that require judicial fact‐finding. Since Booker, the Supreme Court has been trying to maintain a delicate balance, recognizing that the difference between “binding law” and “advice” depends on the different standards of appellate review. See Gall, 552 U.S. at 50–51....

If the Supreme Court extends the rationale of Peugh, as the majority does here, and embraces wholeheartedly the concept that the Guidelines are like laws, that result would be difficult to reconcile with the Booker remedy, which spared the Guidelines from Sixth Amendment challenges by making them advisory. The delicate doctrinal balance the Court has tried to maintain since Booker would be threatened by extending vagueness jurisprudence to the advisory Guidelines.

Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts

I just saw this fascinating new Empirical SCOTUS post by Adam Feldman titled "Five SCOTUS Decisions Making Waves in the Lower Courts." I was not at all surprised that three of the five cases making the list are sentencing cases (and the other two deal with criminal procedure matters), and here are snippets from the post providing the highlights:

[Supreme Court] rulings in many cases each Term go under the radar [because] they deal with less politically salient issues. Some of these cases, however, have the greatest downstream effects.

This post looks at five “sleeper cases” from this past Term that have made their major impact through the lower courts. The immediate significance of these decisions is in how they change or clarify rules and laws and consequently the trajectory of many lower court decisions. They are especially impactful in criminal cases as they tend to arise when dealing with rights of those accused or convicted of crimes.

The post ranks the cases based on the relative number of times they have been cited by a combination of federal and state lower courts (even though these decisions were made across several months of the Term, the number of times they were cited makes it unlikely that the variation in decision timing has a substantial effect on this list of cases).

5) Mathis v. United States, decided June 23, 2016 (75 lower court citations)...

4) Ross v. Blake, decided June 6, 2016 (107 lower court citations)...

3) Mullenix v. Luna (per curiam), decided November 9, 2015 (213 lower court citations)...

2) Montgomery v. Louisiana, decided January 25, 2016 (373 lower court citations) ....

1) Welch v. United States, decided April 18, 2016 (765 lower court citations) ...

My colleagues and students are certainly tired of hearing me claim that sentencing issues are often the most important public policy issues of this generation and that SCOTUS sentencing rulings are often the most consequential of all cases. Needless to say, these notable empirics is not going to reduce my tendency to aggrandize the issues and cases that are my own professional obsession.

Split en banc Fifth Circuit limits reach of Johnson vagueness ruling while debating what makes for a "constitutional sockdolager"

Especially while traveling and being engaged with lots of other projects, I have not been able to keep up fully this summer with many lower federal court cases exploring the application of the Supreme Court's Johnson ACCA vagueness ruling to other comparable provisions of other federal sentencing statutes and guidelines.  Helpfully, though, an en banc ruling by the Fifth Circuit late last week in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Aug. 5, 2016) (available here), provides something of a primer on developments in one notable context. Here is how the en banc majority opinion (per Judge Higginson) gets started and a key part of its analysis:

This case presents the question whether the “crime of violence” definition provided by 18 U.S.C. § 16(b), when incorporated by reference into United States Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague on its face in light of Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Court struck as unconstitutionally vague the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). We hold that 18 U.S.C. § 16(b) is not unconstitutionally vague....

The [textual] distinctions [in how “crime of violence” is defined in § 16(b)] mean that the concerns raised by the Court in Johnson with respect to Armed Career Criminal Act’s residual clause do not cause the same problems in the context of 18 U.S.C. § 16(b). While there might be specific situations in which 18 U.S.C. § 16(b) would be vague — although Gonzalez-Longoria does not suggest any in particular — it is certainly not a statute that “simply has no core.”

And here is how the dissenting opinion (per Judge Jolly) gets started and key parts of its analysis (with emphasis from the original):

I am in agreement with the majority’s framework for deciding this case. Specifically, I agree that Johnson “highlighted two features of the [Armed Career Criminal] Act’s residual clause that together make the clause unconstitutionally vague [and that] 18 U.S.C. § 16(b) shares these two features.” I also agree that “neither feature causes the same level of indeterminacy in the context of 18 U.S.C. § 16(b).”  The majority, however, drifts from reason — and into the miasma of the minutiae — when it determines that these vagaries suffice to distinguish § 16(b) from the residual clause.  Accordingly, I respectfully dissent....

I can agree that [a textual distinction] provides a shadow of difference, but hardly a constitutional sockdolager. This difference between the two statutes is particularly slight because, through judicial interpretation, § 16(b) not only contains an example, it contains the very example that most troubled the Johnson Court....

These statutes read extremely similarly. The majority of circuits to have considered the question have held that these two similar texts must suffer the same constitutional fate. The majority, engrossed by thinly sliced and meaningless distinctions, adopts the minority view and errs by losing track of the entirety: these statutes, in constitutional essence, say the same thing.