Sentencing Law and Policy

Spotlighting the travesty of how the Eleventh Circuit is handling Johnson claims

I highlighted in this post here last week the potent opinions by a number of Eleventh Circuit judges explaining why they think the Circuit's precendents for dealing with prisoner petitions based on the Supreme Court's landmark ruling in Johnson v. United States, 133 S. Ct. 2551 (2015), are so very wrong and unjust.  A helpful reader made sure that I did not miss this recent Bloomberg commentary on this topic authored by Noah Feldman headlined "This Is What 'Travesty of Justice' Looks Like."  Here are excerpts:

Call it Scalia’s revenge. In one of the last cases that he authored before he died in February, Justice Antonin Scalia convinced his colleagues to strike down a key clause of the Armed Career Criminal Act because it was unconstitutionally vague.  As a result, thousands of convicted felons are now asking courts to have their sentences reduced.

The legal rules for considering such post-conviction requests are tricky and technical.  But in most of the country, prisoners are getting another day in court to have their ACCA convictions reviewed in the light of the new legal principle.  In the Eleventh Circuit, which includes Alabama, Georgia and Florida, the process has gone badly awry [and] a judge on the circuit's court of appeals cried foul, calling for a fundamental change in how its handling these cases....

Before a prisoner can go back to the district court for what’s called a “second, successive” post-conviction petition, he or she needs special permission from a federal court of appeals.  The stakes are high for the prisoners.  In some cases, the difference might be between the 15-year minimum imposed on felons with three prior convictions, and a sentence of 10 years or less for fewer convictions.

Consequently, the U.S. Court of Appeals for the Eleventh Circuit has been immersed in the time-consuming process of figuring out who should be allowed a second chance to file a petition in District Court seeking review of their sentence.  It's studying presentence reports to ascertain whether any of the prior convictions should still count, and, if so, how that might change the petitioner's sentence.  Yet no other court of appeals appears to be engaging in this kind of case-by-case analysis. They’ve been approving the requests automatically and allowing a federal district court to sort out the details.

Judge Beverly Martin of the Eleventh Circuit issued an unusual and stirring opinion ... declaring that the process in her court wasn’t working.  Martin asserted that among the thousands of applications and hundreds of denials, her court has been making mistakes -- mistakes that, by their legal nature, can't be appealed. “A court of appeals is simply not equipped to construct a new basis for a prisoner’s old sentence in this way,” she wrote.

To make matters worse, the Eleventh Circuit gives itself 30 days to rule on each request.  The presentence report can be inadequate or misleading, and there are no attorneys involved to explain what it means.  And most prior convictions are under state law, which varies from place to place and have technical details that are hard for the court to determine without a lawyer’s help.

What's more, the Eleventh Circuit had rejected petitions for reconsideration before the Supreme Court said its Johnson ruling applied retroactively.

The upshot is that something very like a travesty of justice is happening in the Eleventh Circuit.  And as you know if you’re still reading this, the issue is sufficiently technical that it’s hard to draw attention to the problem.  But real people are spending potentially many extra years in prison on the basis of an unconstitutional law.  That’s wrong.  In the spirit of Justice Scalia, the Eleventh Circuit should change course and start allowing district courts to review post-Johnson ACCA petitions the way the other circuits do.

Perhaps previewing coming SCOTUS work in Beckles, four Eleventh Circuit judges make case against circuit's refusal to apply Johnson to guidelines

In this post 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.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with that career offender guideline, which in turn has led to most circuit courts finding Johnson-based constitutional problems with sentences based on that 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), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, but an amicus brief I helped put together urging en banc review in Matchett did not led to its reconsideration.  As blogged here last month, though, we know 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.

For a variety of reasons, I am expecting that SCOTUS will ultimately agree with the majority of circuits that Johnson's holding applies to the career offender guidelines and thereby reject the Eleventh Circuit's Matchett precedent.  What I did not expect was that a number of Eleventh Circuit judges would set forth, in essence, some amicus briefing to SCOTUS in order to explain in detail why they think their own circuit's work in Matchett was wrong.  But that is what I see via a series of recent concurring opinions in In Re: William Hunt and In re: Charles Therion Clayton, cases in which a panel felt duty-bound to reject habeas applications due to the Matchett precedent but then followed up with separate opinions by Circuit Judges Wilson and (Jill) Pryor and Rosenbaum and Martin all explaining why they think Matchett is so wrong and so troublesome as we await a SCOTUS ruling in Beckles.

If you have read this far into this post, you probably have some interest in the application of Johnson and its impact on the career offender guidelines, which in turns means you ought to find the time to read all the judicial thoughts shared in Hunt and Therion.  I know that is my plan for this evening, and to whet everyone's appetite I will close this post by quoting the closing paragraph authored by Judge Pryor in these cases:

If the Supreme Court decides in Beckles that the residual clause in the career offender guideline is void for vagueness, there may be new hope for the scores of inmates who have tried to obtain relief since Johnson, only to be turned away by this Court based upon Matchett.  I hope next time around we will avoid the mistakes I have identified. And I hope that, rather than being behind the march of justice, we, as our nation’s designated guardians, will be at the front.

SCOTUS grants cert on Johnson application to career offender guidelines

As noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines.  Excitingly for sentencing fans, today's final Supreme Court order list includes a grant or certiorari in Beckles v. United States, No. 15-8544, which SCOTUSblog has described this way:

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whetherJohnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

IN other words, Beckle buckle-up your seat-belts, sentencing fans, as the post-Johnson criminal history bumpy ride is now sure to continue in the Supreme Court for at least the next Term and likely beyond.

Notably and significantly, the SCOTUS order list reports that "Justice Kagan took no part in the consideration or decision of ... this petition." In other words, it seems that Justice Kagan's prior history as Solicitor General has caused her to be conflicted out of this case. Ergo, it will likely be only be a seven (or perhaps and eight-member) Court that will be resolving the application of vagueness doctrines in this case.  

A few (of many) prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Updating the bubbling lower-court vagueness mess six months after Johnson
• Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive
• Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on
• Helpful review of Johnson's impact a year latter, just before ACCA prisoners need to file Johnson collateral appeals

Helpful review of Johnson's impact a year latter, just before ACCA prisoners need to file Johnson collateral appeals

A year ago, as first reported in this post and immediate follow-ups here and here, the Supreme Court  in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  This morning's Washington Post has this effective (and well-timed) extended article, headlined "Local Small words, big consequences for possibly thousands of federal prisoners,"looking at the impact of that ruling now a year later.  I recomment the piece in full, and here are excerpts: 

Hundreds if not thousands of federal prisoners are likely to have their sentences shortened — and in some cases get immediate release — due to one of the final opinions written by Justice Antonin Scalia. Scalia’s little-noticed opinion focused on one phrase in federal law but has created uncertainty and upheaval for judges, prosecutors and defense attorneys facing a pile of prisoner requests to have their cases reviewed.

Federal inmates have until Sunday to try to challenge their prison terms after the Supreme Court labeled 12 words in the criminal code “unconstitutionally vague” in an opinion announced by Scalia last June, eight months before his death.  The ruling eliminated a section of law that prosecutors relied on to seek stiffer penaltiesfor defendants they said were especially dangerous.  Defense attorneys had decried the wording because it was used to brand too many defendants as violent....

For defense attorneys, the court’s decision provides a new avenue to challenge lengthy sentences for prisoners who received severe penalties for nonviolent offenses, such as resisting arrest.  “It was a dumping ground,” said Amy Baron-Evans of the Sentencing Resource Counsel Project of federal public defenders.  “It ended up sweeping in crimes that no one would think of as being violent.”

Filings from inmates are piling up in judicial chambers throughout the country.  In Atlanta, one judge took the unusual step this spring of flagging the names of 110 prisoners from her district eligible to refile for shorter sentences to alert them to the deadline this month — one year from the date the Supreme Court decision was handed down.  In Richmond last month, the U.S. Court of Appeals for the 4th Circuit, which covers Virginia, Maryland, West Virginia, North Carolina and South Carolina, received more than 500 filings for sentence reviews, according to the clerk’s office. In the same period last year, there were 18.  More than 350 petitions have been filed in the 8th Circuit in St. Louis since May, contributing to a record number of filings in a single month....

The language overturned by the Supreme Court in the criminal code echoes in other parts of the justice system.  Nearly identical words about career offenders appear in federal sentencing guidelines, which use a formula to give judges a recommended range of possible prison time for the defendants who come before them.

Federal public defenders and the U.S. Justice Department agree that the Supreme Court ruling negates those words in the guidelines for defendants sentenced since Scalia’s 2015 opinion.  The Supreme Court separately is being asked to settle a dispute about whether inmates punished before the 2015 opinion should have another chance at sentencing.

The Justice Department says they should not, according to the government’s court filings.  The judges who handed down those prison terms were not bound to a particular mandatory sentence and imposed what they thought were appropriate punishments that should stand, the government says.  To the public defenders, that position is at odds with the Obama administration’s advocacy for clemency. If the court rules that the decision does apply retroactively to the guidelines, another 6,000 federal inmates sentenced between 1992 and 2015 could ask to have their prison time cut, according to an estimate from the public defenders’ sentencing project.

Prosecutors say “the sky is going to fall and all of these violent people are going to be let out,” said federal public defender Paresh Patel, who is handling appeals for the Maryland office.  “People are not getting a windfall. They were wrongly sentenced as career offenders.”

Justice Department spokesman Patrick Rodenbush said the administration’s position is “fully consistent” with its clemency efforts.  The guidelines apply “only to individuals convicted of specific crimes of violence and are wholly distinct from grants of clemency to drug offenders who have been vetted for public safety concerns.”

Prosecutors worry about the ripple effects of Scalia’s opinion. Inmates and their lawyers argue that the court’s decision to eliminate words in one law should stick to other areas of law with parallel language. These filings raise new questions about what types of crimes meet the technical definition of a “crime of violence” and how judges assess a person’s criminal past.

In response to the Supreme Court’s decision, attorneys for Dustin John Higgs in May asked the 4th Circuit for permission to challenge his death sentence.  Higgs was sentenced in 2001 for ordering the murders of three young women in Beltsville. The women were shot to death on a desolate stretch of federal land near the Patuxent Wildlife Research Center. Higgs was convicted of using a firearm during a “crime of violence” — in this case kidnapping and murder....

Even if Higgs does not personally benefit, prosecutors say, a new interpretation in his case could upend plea agreements with others facing similar firearms counts.  The uncertainty is already changing the way prosecutors draw up and negotiate charges.

The article states that "federal inmates have until Sunday to try to challenge their prison terms," based on the one-year statute of limitations in AEDPA for bringing 2255 collateral appeals following certain critical legal development. As the title of my post indicates, it seems clear that inmates serving ACCA sentences need to get Johnson claims filed now due to this statutory deadline. Less clear, though, is whether inmates eager to extend the reach of Johnson to the career offender guidelines or other statutes are subject to the smae deadline (and, as noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines). Also, I suppose, based on the right facts, equitable tolling arguments could be made (though probably would face an uphill battle) for any inmates who missed the AEDPA deadline for bringing Johnson claims in various settings.

Long story short, as I forecasted in some of the posts below right after the Johnson ruling last year, it seems all but certain that many thousands of inmates (and thousands of lawyers) are going to be having Johnson dreams or nightmares for many years to come.

A few (of many) prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• "The Circuit Split on Johnson Retroactivity"
• Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
• Updating the bubbling lower-court vagueness mess six months after Johnson
• Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive
• Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on

Ninth Circuit discusses timing and tolling for successor 2255 petitions making Johnson claims

Hard-core habeas fans know that all sorts of procedural issues can potentially trip up federal defendants serving Armed Career Criminal Act sentences from being able to bring claims collaterally attacking their sentences based on Johnson v. US.  Some of the procedural trip-wires, and potential work-arounds, are discussed today by a Ninth Circuit panel in Orona v. US, No. 16-70568 (9th Cir. June 22, 2016) (available here).

I am not sure any of the particulars discussed in Orona are that noteworthy, but I thought the case merited a blog mention because this week is, arguably, the last week in which defendants with long-final sentences can bring timely collateral attacks based on Johnson.

Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on

This week's entry in the always amusing and informative Relist Watch SCOTUSblog posting by John Elwood has flagged two cases of note for sentencing fans, especially for those especially interested in the continued fall-out from the Supreme Court's big Johnson vagueness ruling last year.  I will reprint, with all the humor and links, Elwood's coverage of these cases:

Our next new relist is Jones v. United States, 15-8629. No, not that one.  Not that one either.  Or that.  Now you’re trying my patience.  Can we just agree it’s a pretty common case caption?  And indeed, this case has been up to the Court once before.  The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision.  During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void.  On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense.  During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review.  Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”

Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.”   Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday....

 

Jones v. United States

15-8629

Issue: (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

(relisted after the June 2 Conference)

 

Beckles v. United States

15-8544

Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

(relisted after the June 2 Conference)

"Why Vague Sentencing Guidelines Violate the Due Process Clause"

The title of this post is the title of this new article by Kelsey Heilman now available via SSRN. Here is the abstract:

The United States Sentencing Guidelines are the mandatory starting point and the lodestone for the sentences of 75,000 federal defendants each year.  Though advisory after the 2005 Supreme Court decision in United States v. Booker, the Guidelines continue to exert tremendous influence over federal sentencing practice.  Last term, in Johnson v. United States, the Supreme Court struck down as unconstitutionally vague a sentencing provision of the Armed Career Criminals Act.  In the ensuing year, a circuit split developed regarding whether that decision dooms a textually identical provision of the Guidelines, with some courts holding advisory sentencing guidelines are completely immune from due process challenges.  In this Article, I argue the Guidelines violate the Due Process Clause of the United States Constitution if they are so vague they deny fair notice to defendants and invite arbitrary enforcement by judges.

Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity

A helpful reader altered me to a remarkable concurrence authored by Eleventh Circuit Judge Beverly Martin in In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (available here). Here is the full text of the concurrence, which serves as an explanatory preamble to a list of 110 Welch impacted cases within the circuit:

I agree that Troy Robinson cannot benefit from Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), because his sentence is valid even without the residual clause.  I write separately to note that Mr. Robinson is one of dozens of prisoners who has tried to file similar applications based on Johnson.  Prior to yesterday’s decision in Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court not because Johnson wouldn’t benefit them but because our Court held that Johnson could never apply in these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.  As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.  See Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 2482–83 (2005).

Although I have not taken the time to investigate the merits of these cases, below is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson.  I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications.  I have separated out the cases that arise under the residual clause in the Armed Career Criminal Act (ACCA) and the cases that arise under the identical language in United States Sentencing Guidelines § 4B1.2 (which includes cases for which the guidelines were mandatory together with those for which the guidelines were advisory).  I have also listed the district court in which each sentence was imposed, to the extent Federal Public Defender offices are monitoring these cases.

Because these cases all involve prisoners seeking collateral review of their prison terms, the Sixth Amendment does not provide them with a constitutional right to the assistance of counsel. I believe district judges may have discretion to appoint lawyers for these prisoners under the Criminal Justice Act, and federal defenders and private lawyers can take up their cases upon their own initiative. I hope many will.  Indeed, I cannot help but wonder if some lawyers still working through thousands of federal clemency petitions (all of which wouls seem to have limited chance of success) might reallocate some of their energies to helping Johnson/Welch claimants on this list and elsewhere throughout the country.

Two thoughtful reactions to the quick SCOTUS retroactivity work in Welch

As first noted here, this morning the US Supreme Court ruled in Welch v. United States that its recent significant ruling in Johnson that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague is to be applied retroactively.  I provided my first reaction to the consequential Welch decision in this post, and now I can link to two other thoughtful takes on Welch:

From Steve Sady at the Ninth Circuit Blog here, "Welch: Building Blocks For Retroactively Challenging Unconstitutional Career Offender Designations"

From Steve Vladeck at PrawfBlawg here, "The Subtle But Serious Flaw in the Supreme Court's Welch Ruling"

Seeing Montgomery and Welch as SCOTUS Teague make-up calls

A few years ago I wrote this extended article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," which made the case for modern doctrines to be far less concerned about sentence finality, and far more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences.  Though I did not in that article call for the Supreme Court's Teague doctrines to be ignored, passages from it suggesting Teague's limit on retroactivity ought to be narrowly construed appeared in amicus briefs I signed in Montgomery and Welch. 

I have been pleased that Montgomery and now Welch both resulted in a significant block of Justices declaring prior Eighth And Fifth Amendment rulings fully retroactive.  But how the Court majority has gotten there has been more than a bit puzzling because, as I see, the Court keeps massaging Teague while it suggests that it is faithfully applying the doctrine.  In Montgomery, as I explain in this new commentary, six Justices signed on to an opinion (including Chief Justice Roberts) that seems, at least indirectly, to rewrite significantly the very foundational legal basis for Teague.  And, in the final line of his solo dissent in Welch today, Justice Thomas complains that the majoity opinion in Welch (which has the votes of both Chief Justice Roberts and Justice Alito) shows that "the Court keeps moving the [retroactivity] goalposts" through its "unprincipled expansion of Teague [so that] every end is instead a new beginning."

I bring all this up because, upon reading Welch, this one passage from the majority opinion stood out for a couple of reasons: 

[W]here the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest.  As Justice Harlan wrote, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.).

First and foremost, I am pleased and I think it potentially quite important (and in harmony with my own writings) to see the Supreme Court state expressly that "finality interests are at their weakest" when substantive law has changed and a defendant is still dealing with the consequences of the conviction or sentence based on the now-changed substantive law.  

Second, as explained in the title of this post, the quote from Justice Harlan seems especially notable here in describing the limited societal interest in "permitting the criminal process to rest at a point where it ought properly never to repose."  I suspect that Chief Justice Roberts was somewhat more comfortable with the Teague rewriting in Montgomery and that both the Chief and Justice Alito were content with the Court's work in Welch because they may have come to the conclusion the Court ultimately took unfairly long before finally finding constitutional problems with mandatory juve LWOP and the residual clause of ACCA.  In both settings, lots and lots of defendants subject to really long prison terms have been persistently complaining for decades that these extreme sentencing laws were constitutionally problematic.  I would guess that, as judicial umpires calling balls and strikes, the Chief and Justice Alito could live with a "Teague" make-up call to help the defendants who before kept getting strikes called against them.

Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive

As reported here, just a few weeks ago the Supreme Court heard oral argument in Welch v. United States to address the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.   Justice Kennedy authored this opinion for the Court in its 7-1 ruling, and here is the heart of the opinion's analytical conclusion:

Under this [Teague] framework, the rule announced in Johnson is substantive.  By striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering “the range of conduct or the class of persons that the [Act] punishes.” Schriro, supra, at 353.  Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause.  An offender in that situation faced 15 years to life in prison.  After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison.  The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence.  Johnson establishes, in other words, that “even the use of impeccable factfinding procedures could not legitimate” a sentence based on that clause.  United States v. United States Coin & Currency, 401 U. S. 715, 724 (1971).  It follows that Johnson is a substantive decision.

In the wake of the oral argument, I find this substantive ruling not at all surprising. What is a bit surprising, though, is that Justice Thomas not Justice Alito is the sole dissenter. Here is how his dissent gets started:

Last Term the Court held in Johnson v. United States, 576 U. S. ___ (2015), that because the residual clause of the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B)(ii), “combin[es] indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” it is unconstitutionally vague.  576 U. S., at ___ (slip op., at 6).  Federal prisoners then sought to invoke Johnson as a basis for vacating their sentences in federal collateral review proceedings.  See 28 U. S. C. §2255(a).

Today the Court holds that Johnson applies retroactively to already final sentences of federal prisoners.  That holding comes at a steep price.  The majority ignores an insuperable procedural obstacle: when, as here, a court fails to rule on a claim not presented in a prisoner’s §2255 motion, there is no error for us to reverse.  The majority also misconstrues the retroactivity framework developed in Teague v. Lane, 489 U. S. 288 (1989), and its progeny, thereby undermining any principled limitation on the finality of federal convictions.  I respectfully dissent.

"Normative Retroactivity"

The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:

When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule.  The current retroactivity doctrine relies on a confusing substance-procedure dichotomy.  Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question.  Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.

This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity.  Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations.  Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.

A telling, but still unsatisfying, SCOTUS discussion of retroactivity during oral argument in Welch

As previewed in this post, yesterday the Supreme Court heard oral argument in Welch v. United States, which is principally concerned with the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague.  I am deeply interested in this Welch case, not only because I helped with this law professor amicus brief in Welch, but also because I have authored this law review article to explain my view that traditional SCOTUS retroactivity doctrines — so called Teague doctrines — developed with unique concern for the importance of preserving the finality of convictions are not necessarily the best was to examine whether and when a new sentencing rule ought to apply retroactivity.

Helpfully, Rory Little has followed up his terrific Welch oral argument preview post at SCOTUSblog with this spot-on oral argument review post titled "Argument analysis: A likely decision in favor of retroactivity?."  Having read the full argument transcript in Welch (which is available here), I fell well positioned to assert that Rory's analysis is a much better and more enjoyable read, and it includes these essential insights at its start and end:

While it is not possible to describe the intricacies of retroactivity doctrine here — let alone wise if we want to keep our readers awake — it looks like last Term’s decision in Johnson v. United States will be declared to apply retroactively for all purposes, including on first and even successive (assuming they are timely filed) habeas corpus petitions. And as I explained in my preview, that result is likely, although not certain, to result in substantial sentencing reductions for a significant number of convicted federal defendants....

The law of retroactivity presents intellectual conundra that may never be fully settled.  The decision in this case is likely to be simply one more precedent in the wavering doctrinal line.  We will never know what Justice Harlan, or Justice Scalia, thinks of it.  But convicted federal felons whose sentences are reduced by five or more years will not care about the intricacies, while young law professors aspiring to tenure will have new grist for their mills.

Though I am no longer a young law professor, the intricacies of retroactivity doctrines as articulated in Teague and its progeny are a source of frustration and concern for me.  And the Welch oral argument leaves me concerned that the current Justices are going to be content to apply existing Teague doctrines in a quirky manner to a quirky case (as they have recently show they are wont to do in Montgomery v. Louisiana decided a few months ago).  As I suggest in this law review article, applying traditional Teague doctrines in retroactivity cases that involving only sentencing issues necessarily involves banging a square equitable peg into and round Teague doctrinal hole.  And yet, after reading the Welch transcript, it seems the Justices are for now content to just keep banging away.

Based on Johnson, split Fifth Circuit panel finds another simlar provision of federal law is unconstitutionally vague

A helpful reader alerted me to a notable new split ruling handed down by the Fifth Circuit yesterday in US v. Gonzalez-Longoria, No. 15-40041 (5th Cir. Feb. 10, 2016) (available here). Here is how the majority opinion gets started:

In this appeal, we address for the first time whether 18 U.S.C. § 16’s statutory definition of “crime of violence” is unconstitutionally vague.  We consider this question in the light of the Supreme Court’s recent holding that a similar provision of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Johnson v. United States, 135 S.Ct. 2551 (2015).  In Johnson, the Court held that the ACCA violated the constitutional prohibition against vague criminal statutes by defining “violent felony” as any crime that “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).  Section 16 contains a similar definition: a “crime of violence” is “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.”  The Seventh and Ninth Circuits have both held that this language is sufficiently similar to the ACCA’s language to suffer the same unconstitutional fate.  United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). We agree, and accordingly hold § 16 unconstitutional.

And here is how the dissent gets started and sums up its differing analysis of Johnson's impact here:

“It is the uncertainty that charms one. A mist makes things wonderful.” Oscar Wilde, The Picture of Dorian Gray. Perhaps true for Oscar Wilde, but not in the criminal law, where too much uncertainty denies defendants fair notice and permits arbitrary enforcement of the laws. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)....

In summary, we should not strike Congressional law, 18 U.S.C. § 16(b), because, first, the concerns raised by the Court in Johnson with respect to ACCA’s residual clause are less implicated by Section 16(b); second, because Leocal is precedent only the Supreme Court should adjust; and, third, because Section 16(b) does not involve the interplay of interpretative method and statutory text causing the double indeterminacy that was the due process muddle rejected in Johnson.  Gonzalez-Longoria was on sufficient notice that his prior crime of Assault Causing Bodily Injury with Prior Conviction of Family Violence is one society condemns as violent because it involves a substantial risk that, in the course of its commission, force will be used against another.  I dissent.

SCOTUS grants cert on Johnson/ACCA vagueness retroactivity!

The new year is off to quite a start for federal sentencing fans: in addition to lots of notable action by the US Sentencing Commission this afternoon (basics here), the Supreme Court this afternoon granted cert via this order in Welch v. US to address the retroactive impact of its big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  Lyle Denniston has this new post at SCOTUSblog discussing the grant, and here is how it gets started:

Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States.  A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.

Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release.   The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.

The new case is Welch v. United States; it will be argued in March.

US Sentencing Commission promulgates "Johnson fix" guideline amendment and proposes many other notable amendments

As noted in this recent post, today the US Sentencing Commission conducted a public meeting at which it was scheduled to "Vote to Promulgate Proposed Crime of Violence Amendment" and to "Vote to Publish Proposed Guideline Amendments and Issues for Comment." I suggested that these two agenda items could be a very big deal for federal sentencing fans; after watcing the meeting online, I now think the slate of new proposed guideline amendments that the USSC just unanimously voted to publish may be an even bigger deal than the "crime of violence" amendment that was also just officially promulgated by the USSC.

I say this because,

(1) on the crime of violence guideline amendment front, the USSC's new promulgated amendment (a) seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision, and (b) seemingly will not be given retroactive effect because doing so could prove almost administratively impossible. Meanwhile....

(2) on the other proposed guideline amendment front, the USSC appears to be proposing potential amendments to a number of the most controversial and consequential amendments that it had not addressed in prior recent amendment efforts.  Specifically, it seems that the USSC, after having adjusted the drug and fraud guidelines in the last two amendment cycles, now is ready and eager to consider at least some significant tweaks to the immigration and child pornography guidelines.

Because it is not easy to fully assess the potential import and impact of all the USSC action today simply by watching the public meeting live, I am hopeful that some follow-up documents will soon be available on the Commission's website so that all federal sentencing fans can fully understand and assess all of today's action.  But, even before we see any official accounting of today's USSC efforts, I am eager to compliment all the members and staff of the Commission for reminding me that at least some inside-the-Beltway folks can conduct (and complete) critically important and consequential government work in an efficient and bipartisan manner (and on a Friday afternoon, no less).  Kudos to the USSC!

UPDATE: I just got an official email from the US Sentencing Commission that included this text and links:

At today’s public meeting, the U.S. Sentencing Commission unanimously voted to adopt an amendment relating to the definition of “crime of violence” in the Career Offender and other federal sentencing guidelines (press release). This amendment was the result of a multi-year study prompted by concerns and problems relating to the definition of “crime of violence.” The amendment, which eliminates the so-called “residual clause,” was informed by the recent Supreme Court case, Johnson v. United States, issued in June 2015. Read the adopted amendment.

In addition, the Commission proposed an amendment on immigration offenses which would recalibrate the guidelines to ensure more proportional sentences that reflect the totality of the circumstances in a particular case. The Commission also proposed amendments that would allow for higher penalties for animal fighting offenses. An update to the Commission’s policy statement pertaining to compassionate release was also proposed. Read all of the proposed amendments and issues for comment.

Might SCOTUS take up Johnson retroactivity ASAP via Texas case appealed from district court?

Hard-core federal sentencing fans (and/or obsessive readers of this blog) know that lower federal courts have been splitting since the summer over the reroactive application of Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  As noted in this prior post, some prisoners have been urging SCOTUS to take up this issue ASAP via an original habeas petition, but now the US Solicitor General (which has been supportive of Johnson retroactivity) has this new SCOTUS filing suggesting that the Supreme Court might consider taking up the issue ASAP via a case from Texas being appealed directly from the district court's denial of relied.

This new SCOTUSblog posting by Lyle Denniston provide some broader context on all the substantive and procedural issues raised by post-Johnson litigation; it notes that the Justices are slated to consider this case from Texas, Harrimon v US, during their conference today.  Here is the basic backstory of this particular case:

When Harrimon’s case was in lower courts, his sentence for illegal possession of a gun by a convicted felon was originally set at ninety-six months — eight years — but then was raised to fifteen years and eight months (188 months) by applying the enhancement provision of the residual clause.  After the Johnson decision emerged, Harrimon began a federal habeas challenge to the longer sentence, seeking to rely upon that decision on the premise that it applied retroactively.

While his case was still pending in a trial court, the Fifth Circuit in a separate case ruled that theJohnson decision would not apply retroactively to cases pending on post-conviction review, such as federal habeas challenges.  The district court judge rejected Harrimon’s plea, and his lawyers then moved on to the Fifth Circuit.  However, instead of waiting for that court to decide his appeal, his lawyers filed a petition asking the Supreme Court to review his challenge prior to a decision by the appeals court.

I would love to see SCOTUS take up the Johnson retroactivity issue ASAP for a variety of substantive and procedural reasons. And I sincerely hope that the Justices feel some significant obligation to help lower federal courts properly clean up the uncertain mess that SCOTUS itself made through its remarkable Johnson vagueness ruling.

A few prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• "The Circuit Split on Johnson Retroactivity"
• Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
• Updating the bubbling lower-court vagueness mess six months after Johnson

Based on SCOTUS Johnson ruling, Seventh Circuit declares statutory sentence enhancement for illegal reentry offenses

A helpful reader made sure I did not miss a notable post-Johnson vagueness ruling by a Seventh Circuit panel in US v. Vivas-Ceja, No. 15-1770 (7th Cir. Dec. 22, 2015) (available here). Here is how the panel opinion gets started:

Raul Vivas-Ceja pleaded guilty to illegally reentering the United States after removal, the maximum sentence for which is raised to 20 years if the defendant has been convicted of an “aggravated felony” prior to removal.  See 8 U.S.C. § 1326(b)(2).  As relevant here, the definition of “aggravated felony” is supplied by the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … 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.”

The district court concluded that Vivas-Ceja’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b), raising the maximum sentence to 20 years.  The court imposed a sentence of 21 months.  Vivas-Ceja appeals, arguing that § 16(b)’s definition of “crime of violence” is unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

The Fifth Amendment’s Due Process Clause prohibits the government from depriving a person of liberty under a statute “so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement.”  Id. at 2556.  In Johnson the Supreme Court held that sentencing a defendant under the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), violates this prohibition.  Section 16(b) is materially indistinguishable from the ACCA’s residual clause.  We hold that it too is unconstitutionally vague according to the reasoning of Johnson.  We therefore vacate Vivas-Ceja’s sentence and remand for resentencing.

Updating the bubbling lower-court vagueness mess six months after Johnson

Over at Casetext, Leah Litman has this effective and extensive new commentary (with lots of links) titled "Circuit Splits & Original Writs: What the Supreme Court must address — and now — in the wake of Johnson v. United States."  Here is how it gets started:

Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  In a previous Casetext post, I described an emerging circuit split regarding whether the Supreme Court had “made” Johnson retroactive.  The Anti-terrorism and Effective Death Penalty Act (AEDPA) — in particular title 28 section 2255(h)(2) — permits prisoners to file a second or successive petition for post-conviction review if the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”  By early August, less than two months after Johnson, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits had issued conflicting opinions about whether the Supreme Court has “made” Johnson retroactive.

In the last four months, that circuit split has deepened.  And, as my prior post explained, the statutory restrictions on post-conviction review mean that the Supreme Court cannot review by way of a petition for certiorari the court of appeals’ determination to allow a second or successive petition for post-conviction relief to proceed. Under title 28 section 2244(b)(3)(E), “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not … be the subject of a petition … for a writ of certiorari.”  So while the circuits disagree about whether the Supreme Court has “made” Johnson retroactive, the Supreme Court cannot resolve whether it has “made” Johnson retroactive in the traditional way, by granting certiorari to review one of the court of appeals’ decisions.

More troubling, it is has become prohibitively difficult for the Supreme Court to weigh in on the split by granting review in a case involving a first petition for post-conviction review because the United States is conceding that Johnson is retroactive.  The courts of appeals and district courts have uniformly (and rightly, in my view) agreed with the United States, granting prisoners’ “first” — that is, initial — petitions for post-conviction review in cases where prisoners were sentenced under ACCA’s residual clause.  And because no one is appealing these decisions — the government agrees Johnson is retroactive, and the decisions are favorable to prisoners — the Supreme Court will not be able to clarify whether Johnson is retroactive, or “make” Johnson retroactive, by granting certiorari in a case involving a “first” petition for post-conviction review.

In this post, I’ll highlight several circuit splits that have emerged in light of Johnson — about whether the decision is applicable to various provisions of the federal Sentencing Guidelines, and about whether the rule that Johnson announced has been made retroactive.  I’ll also argue that the Supreme Court should exercise its discretion to weigh in on whether it has made Johnson retroactive by way of one of the extraordinary writs it has the power to issue. The Court has on its docket at least two petitions seeking such non-traditional habeas relief, and it will consider the petitions some time in January.

In the six months since Johnson was decided, at least two circuit splits have emerged. One concerns whether other provisions, including the career offender Guideline of the Federal Sentencing Guidelines, are also unconstitutionally vague.  There is also some uncertainty about whether various procedural hurdles — specifically retroactivity and procedural default — bar defendants from being resentenced.  The second circuit split concerns whether the Supreme Court has “made” the rule invalidating ACCA’s residual clause retroactive.

"Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?"

The title of this post is the title of this notable, lengthy commentary by Steve Vladeck over at PrawfsBlawg, which gets started this way:

I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split — given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016.  And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications — perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).

Or not.

In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two.  As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock — and to not support efforts to have the Supreme Court so hold before next June's deadline. 

A few prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Should SCOTUS deal with Johnson retroactivity through an original habeas petition?

Should SCOTUS deal with Johnson retroactivity through an original habeas petition?

The question in the title of this post should get habeas and/or sentencing geeks like me really excited, and I apologize in advance to everyone else.  But the question is on my mind and has me excited after reading this terrific (and lengthy) new PrawfBlawg post by Steve Vladeck titled "How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)." The full post is today's must read for habeas and/or sentencing geeks, but the start and end of the effort should whet geeky appetites:

Thanks to Montgomery v. Louisiana, the retroactivity of new Supreme Court decisions is already an important part of the Court's current Term.  But as I explain in the post that follows, a new application pending before the Justices, In re Butler, raises a far more important retroactivity question, one that is already the subject of a 5-3 (and growing) circuit split, one that has an ever-shortening clock, and, most significantly, one that may only be definitively answerable if the Court does something it hasn't done in 90 years — issue an "original" writ of habeas corpus.

To unpack this dense but significant topic, Part I flags the origins of the problem — the restrictions on second-or-successive applications for post-conviction relief in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and the Supreme Court's fractured 2001 interpretation of those provisions in Tyler v. Cain.  Part II turns to the current circuit split, which involves whether the Court's June decision in Johnson v. United States, which invalidated a provision of the Armed Career Criminals Act (ACCA), can be retroactively enforced in second-or-successive petitions.  Part III explains why that circuit split can't be resolved by the Supreme Court via certiorari — and why, instead, the best way for the Court to take up the Johnson question is through an "original" writ of habeas corpus in a case like Butler.  Finally, Part IV argues that the Court should use Butler not just to answer the Johnson question, but also to resolve the debate over Tyler, lest this exact same scenario repeat itself after the next Johnson-like ruling....

In a paper I wrote in 2011, I argued that there's actually a value in preserving the obscurity of the Supreme Court's original habeas jurisdiction — and that, if original writs became common, they'd lose their utility as a safety valve, since Congress would presumably also think to take away that authority as part of future jurisdiction-stripping initiatives.  But there's a difference between elusive remedies and illusory ones.  For two decades, we have labored under the fiction that AEDPA's gatekeeper provisions don't raise serious constitutional problems entirely because of this safety valve.  If, as a result of disuse, it turns out that the safety valve is sealed shut, then we can no longer dodge those constitutional questions.  Thus, although we may be in the midst of a perfect storm for retroactivity, a case like Butler may actually be the perfect vehicle for the Justices to remind themselves about their original habeas authority — and, in the process, to issue an opinion that dramatically reduces the need for such relief in future retroactivity cases.

US Sentencing Commission hearing about how to fix Johnson problems in sentencing guidelines

As this webpage reports, this morning the US Sentencing Commission is holding a public hearing in Washington, DC "to receive testimony from invited witnesses on proposed amendments to the federal sentencing guidelines."  This hearing is being live-streamed here, and this hearing agenda now has links to all the scheduled witnesses' written testimony.

Helpfully, the start of this written testimony from the first witness, Judge Irene Keeley, Chair, Committee on Criminal Law of the Judicial Conference of the United States, provide a useful overview of what the USSC is working on:

On behalf of the Criminal Law Committee of the Judicial Conference of the United States, I thank the Sentencing Commission for providing us the opportunity to comment on proposed changes to the sentencing guidelines definitions of “crime of violence” and related issues.  The topic of today’s hearing is important to the Judicial Conference and judges throughout the nation.  We applaud the Commission for undertaking its multi-year study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction and the impact of such definitions on the relevant statutory and guideline provisions. We also thank the Commission for considering whether to promulgate these guideline amendments to address questions that have been or may be raised by the Supreme Court’s recent opinion in Johnson v. United States, 135 S. Ct. 2551 (2015).

The Judicial Conference has authorized the Criminal Law Committee to act with regard to submission from time to time to the Sentencing Commission of proposed amendments to the sentencing guidelines, including proposals that would increase the flexibility of the guidelines.  The Judicial Conference has also resolved “that the federal judiciary is committed to a sentencing guideline system that is fair, workable, transparent, predictable, and flexible.”

As I discuss below, the Criminal Law Committee is generally in favor of the Commission’s proposed amendments, particularly those intended to address or anticipate questions raised by Johnson.  As you know, the definition of the term “crime of violence” for purposes of the career offender guideline has been the subject of substantial litigation in the federal courts.  We support any efforts to resolve ambiguity and simplify the legal approaches required by Supreme Court jurisprudence.  Additionally, our Committee has repeatedly urged the Commission to resolve circuit conflicts in order to avoid unnecessary litigation and to eliminate unwarranted disparity in application of the guidelines.  The Commission’s proposed amendment would reduce uncertainty raised by the opinion while making the guidelines more clear and workable.  

With regard to the proposed guideline amendments concerning issues unrelated to Johnson, the Committee generally supports or defers to the Commission’s recommendations.  The Committee opposes amending, however, the current definition of “felony” in the career offender guideline. Finally, the Committee supports revising other guidelines to conform to the definitions used in the career offender guideline to reduce complexity and make the guidelines system more simple and workable. 

The simple, sound and shrewd ACCA/Johnson fix in SRCA 2015

I have now had a chance to give extra thought to the proposed statutory changes appearing in Section 105 of the Senate's Sentencing Reform and Corrections Act of 2015 (basics of SRCA 2015, S. 2123, here).  When I first looked at this Section, labelled an "Amendment to certain penalties for certain firearm offenses and armed career criminal provision," I was a bit surprised to see it did not seem to directly address or respond to the Supreme Court's recent ruling in Johnson v. United States striking down a portion of the Armed Career Criminal Act as unconstitutionally vague.  But upon reflection, I have come to the conclusion, as reflected in the title of this post, that the proposed statutory changes appearing in Section 105 of SRCA constitute a simple, sound and shrewd way to fix some of the broader ACCA problems that Johnson reflects.  Let me explain my thinking here.

1.  Though the Johnson vagueness ruling addressed the most confounding statutory provision of ACCA (the so-called "residual clause"), the ruling is really just a symptom of the broader ACCA disease.  That broader disease concerns the fact that, under current federal law, the same basic offense of being a felon in possession of a firearm (FIP) has a statutory maximum prison sentence of 10 years UNLESS the offender has three ACCA-qualifying priors, in which case the offender faces a mandatory minimum 15-year prison sentence.  Because the stakes of what qualifies as an ACCA prior is now so consequential, there is (understandably) lots and lots of litigation over what state priors trigger ACCA.

2.  The Johnson ruling, culminating a decade of Supreme Court (and lower court) struggles with one clause defining ACCA predicates, eliminated one source of uncertainty and litigation by declaring that clause unconstitutionally vague.  But lots of other parts of ACCA have also generated uncertainty and litigation, and the Johnson ruling did nothing to resolve or minimize the importance of all that uncertainty and litigation.  Moreover, if Congress were to try to just "fix" the language of the ACCA residual clause that Johnson struck down, litigation would be sure to follow concerning the meaning of any fix language. 

3.  Into this enduring ACCA morass comes Section 105 of SRCA which, through a relative tweak, arguably fixes all these problems by raising the FIP statutory prison maximum to 15 years while lowering the ACCA mandatory minimum to 10 years.  Through this simple change, there will no longer be a critical imperative for prosecutors (or probation officers) or sentencing judges (or appellate courts) to figure out in every close case whether an FIP offender qualifies for ACCA.  If SRCA 2015 becomes law, in the many cases that legally are "close calls," federal judges will reasonably conclude that a prison sentence in the range of 10 to 15 is about right, and there will be no need to have a major legal fight over what exactly qualifies as an ACCA predicate.  (In addition, if Section 105 of SRCA 2015 is enacted, judges will have greater discretion to punish harshly the worst FIP offenders who do not trigger ACCA and will also still be compelled to give at least 10 years to FIP offenders who clearly qualify for ACCA penalties.)

4.  The US Sentencing Commission's recent statement concerning SRCA 2015 discusses why its own extensive research on mandatory minimums support this reform (and why it would, in turn, be just to make this change retroactive):

The Commission observed [in its extensive study of mandatory minimum sentencing provisions] that the ACCA’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, which increased the potential for inconsistent application insofar as the 15-year penalty may be viewed as excessively severe in those cases.  To mitigate both the over-severity and disparate application of the ACCA, the Commission recommended that Congress consider clarifying the statutory definitions in the ACCA and reduce its severity.

5. By making its ACCA changes retroactive, SRCA 2015 not only could bring more equitable and just outcomes to many offenders previously subject to severe ACCA terms based on debatable interpretations of ACCA priors, it also could potentially short-circuit lots of complicated (and expensive) post-Johnson habeas litigtion that might well divide lower courts and take years to resolve through layers of complicated federal appeals. (Post-Johnson litigation is already starting to divide lower courts on some issues, and lots of enduring litigation messiness (and costs) seem inevitable without the SRCA fix and its retroactivity provision.)

I could go on and on (especially to praise the particular way SRCA 2015 makes its ACCA fix retroactive), but I fear this post is already more than long enough.  And I am be especially interested in hearing from those laboring in the post-Johnson ACCA litigation trenches concerning whether they share my latest feeling that the SRCA 2015 fix may now represent the best of all possible ACCA worlds. 

"Why California's Second-Degree Felony-Murder Rule Is Now Void for Vagueness"

The title of this post is the title of this notable new paper authored by Evan Tsen Lee now available via SSRN. Here is the abstract:

For years, justices on the California Supreme Court (CSC) have engaged in public soul-searching about whether to overrule the state’s second-degree felony-murder doctrine.  Now there is a powerful external reason for the CSC to revisit the question: The United States Supreme Court (USSC) has just struck down the so-called “residual clause” of the federal three-strikes statute as unconstitutionally vague.

Although the immediate intuition of experienced judges and lawyers will be to deny that this decision has any application to the felony-murder rule, this Article will show that, from the standpoint of vagueness, the two provisions are materially indistinguishable.

"13 Words That Could Mean Freedom for Many: The debate over the federal ‘residual clause’"

The title of this post is the headline of this effective Marshall Project piece discussing some of the sentencing guideline fall out of the Supreme Court's Johnson ACCA vagueness ruling.  I recommend the full piece, which starts this way (links from original):

Erskine Smith was 24 when he pleaded guilty to selling cocaine in Pittsburgh. Before the plea, a letter from the government estimated his sentence at 108 months to 135 months, or about nine to 11 years.  But once he pleaded guilty, Smith received a presentence report that floored him: the report set the sentence at a mandatory 292 months to 365 months, or about 24 to 30 years.  A judge sentenced him in 1993 to 30 years in prison.

The primary reason for the extra years: Two prior “crimes of violence” that the court agreed made Smith a career offender.  Smith had punched a man at age 18 and assaulted another in his hotel room at 20.  Each conviction was for simple assault, a Pennsylvania misdemeanor, for which he served no jail time.  But the federal government classified the crimes as violent felonies, a designation that meant Smith would be sentenced under the career offender guideline of the Federal Sentencing Guidelines, which boosts sentences for people who have previously been convicted of two violent or drug felonies.

Each year, about 2,000 people are sentenced under the career offender guideline. For about three-quarters of them, the most recent crime is drug-related.  Though the sentencing guidelines have been advisory since 2005, experts say judges still tend to rely on them.  Federal non-career drug offenders get an average of nearly 69 months, while career drug offenders get an average of nearly 169 months, according to data from 2005 to 2014 analyzed by the Federal Defenders.

But a June Supreme Court ruling may get some of them, including Smith, a new sentence. In Johnson v. United States, the Court struck down the the less-than-sexily named “residual clause” of the Armed Career Criminal Act, deciding it was unconstitutionally vague.  Because of the decision, many people sentenced under the Armed Career Criminal Act will get at least five years knocked off their sentence.

The same clause appears in the career offender guideline, and defense lawyers are hoping it will meet the same fate.  They are now asking federal appellate courts to apply Johnson to the career offender guideline and resentence long-serving prisoners who have not benefited from recent, more publicized, reforms.

Some prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• What does Johnson mean for the past, present and future of the career offender guidelines? 
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Eleventh Circuit panel categorically rejects Johnson vagueness attack on career offender guidelines
• New amicus brief to Eleventh Circuit seeking reconsideration of Johnson vagueness challenge to career-offender guideline

New amicus brief to Eleventh Circuit seeking reconsideration of Johnson vagueness challenge to career-offender guideline

In this post just a few days 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 career offender guideline of the US Sentencing Guidelines.  Notably, the Justice Department has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is part of the guideline definition of a career offender.  And a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But, as noted in this post a few weeks ago, an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (11th Cir. Sept. 21, 2015) (available here), squarely addressed this issue and ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  I considered this ruling suspect, and thanks to Carissa Hessick and David Markus, I have now been able to play a role in explaining to the full Eleventh Circuit just why.  Specifically, Carissa primarily drafted and I primarily tweaked an amicus brief that David helped finalize and file today urging en banc review in Matchett.  The full brief can be downloaded via SSRN, and here is how it gets started:

The U.S. Sentencing Guidelines dramatically increase a defendant’s sentencing range if she has at least two prior convictions for a “crime of violence,” which U.S.S.G. § 4B1.2(a)(2) defines to include crimes that “involve[] conduct that presents a serious potential risk of physical injury to another.”  As the panel in this case acknowledged, that definition is identical to the definition in 18 U.S.C. § 924(e)(2)(B), which the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), found to be unconstitutionally vague in violation of the Due Process Clause.

Nevertheless, the panel in this case held that § 4B1.2(a)(2) is not unconstitutionally vague, reasoning that the vagueness doctrine does not apply to the now-advisory Sentencing Guidelines.  That conclusion is inconsistent with Supreme Court decisions on the vagueness doctrine and the Sentencing Guidelines.  The panel’s decision also upsets the careful balance that the Supreme Court has struck between uniformity and discretion in federal sentencing after United States v. Booker, 543 U.S. 220 (2005).  Finally, the panel decision fails to appreciate that it faced a unique situation in which a Guideline contains language identical to a federal statute declared void for vagueness by the Supreme Court.  Both the narrow basis for that decision, as well as ordinary Commission practice of reviewing and revising the Sentencing Guidelines, ensure that few Guidelines will become susceptible to serious vagueness challenges.  This Court accordingly should grant en banc review.

"The Supreme Court’s Johnson v. United States Ruling: A Vagueness Doctrine Revolution?"

The title of this post is the title of this helpful "Legal Backgrounder" coming from the Washington Legal Foundation and authored by David Debold and Rachel Mondl. Here are a couple of paragraphs from the start and end of the reader-friendly piece:

Apart from the direct effect of Johnson on ACCA sentences, the decision marks an important step in the Court’s vagueness jurisprudence.  Also not to be overlooked is Justice Thomas’s concurrence, which likened the vagueness doctrine to the much-maligned concept of substantive due process, thus raising questions about the legitimacy of a vagueness doctrine in the first place.  In the end, though, the debate over the legitimacy of substantive-due-process rights should have no bearing on the Court’s void-for-vagueness precedents, because vague laws offend traditional notions of procedural due process — that is, the process by which the government may deprive a person of life, liberty, or property....

More than an opinion on mandatory-minimum sentences, Johnson provides a welcome clarification of the law on unconstitutional vagueness.  Yet it remains to be seen how far-reaching the decision will be.  The majority opinion widens the opportunities for challenges to laws where previous challenges would not have been possible under a vague-in-all-applications regime.  Time will tell whether more of those challenges will succeed, or, instead, whether Johnson is relegated to “unique” status, its result ordained by the profound and repeated inability of the Supreme Court and courts of appeals to craft a principled, workable standard for applying a peculiar type ofstatute.  One thing is certain: Johnson will not be the last word on the vagueness doctrine.

"Johnson v. United States and the Future of the Void-for-Vagueness Doctrine"

The title of this post is the title of this notable new paper by Carissa Byrne Hessick now available on SSRN. Here is the abstract:

Last Term, in Johnson v. United States, the U.S. Supreme Court struck down a portion of the Armed Career Criminal Act as unconstitutionally vague.  The Johnson opinion is certain to have a large impact on federal criminal defendants charged with unlawfully possessing a firearm. But it is also likely to have other important consequences.  The language deemed vague in Johnson is similar or identical to language in the Federal Sentencing Guidelines and other statutes.  What is more, the Johnson opinion elaborates on the void-for-vagueness doctrine in important ways.  Those elaborations ought to make vagueness challenges easier to win in the future.

This Commentary examines the implications of Johnson.  It also briefly discusses Justice Thomas’s concurrence.  Justice Thomas refused to join the majority opinion, instead opting to decide the case in Johnson’s favor on statutory construction grounds. In addition to his statutory construction analysis, Justice Thomas questioned the constitutional basis of the void-for-vagueness doctrine.  Justice Thomas’s approach to the vagueness doctrine, if adopted by other members of the Court, could eviscerate the notice function of the doctrine.

Eleventh Circuit panel categorically rejects Johnson vagueness attack on career offender guidelines

In this prior post a few days 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 possibility that Johnson could impact past, present and future sentencings pursuant to the career offender guideline of the US Sentencing Guidelines. 

Since then, I believe that the Department of Justice has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is also used in the guideline definition of a career offender.  In addition, as noted in this post from last month, the US Sentencing Commission has proposed amending the career offender guideline to eliminate the Johnson-problematic definition of a crime of violence.   And I believe at least a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But today an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (Sept. 21, 2015) (available here), squarely addresses this issue and rules that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  Here is how the Matchett opinion gets started:

This appeal presents an issue of first impression for this Court: whether the vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to the advisory Sentencing Guidelines.  Calvin Matchett pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and now challenges both the denial of his motion to suppress the firearm and the calculation of his sentence.  Police Officer Jesse Smith stopped Matchett when he saw Matchett carrying a flat-screen television in a residential neighborhood on a weekday morning.  After speaking with Matchett, Officer Smith frisked him based on his confrontational demeanor and the risk that he had a burglary tool that could be used as a weapon.  When Officer Smith found a loaded handgun in Matchett’s pocket, Matchett fought with Officer Smith for over three minutes in an attempt to flee.  The district court did not err when it denied Matchett’s motion to suppress.  It also correctly determined that Matchett’s previous convictions for burglary of an unoccupied dwelling were crimes of violence and that Matchett’s resistance created a substantial risk of death or bodily injury in the course of fleeing from a law enforcement officer.  We reject Matchett’s argument that the definition of “crime of violence” in the Sentencing Guidelines is unconstitutionally vague in light of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).  The vagueness doctrine applies only to laws that prohibit conduct and fix punishments, not advisory guidelines.  We affirm.

Some prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• What does Johnson mean for the past, present and future of the career offender guidelines? 
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

Third Circuit panel explains Scylla and Charybdis of habeas law to prisoner John (Odysseus) Doe

Anyone who loves to read about and think a lot about federal post-conviction sentencing review rules — and really, who doesn't? — will want to make sure to preserve some time today to try to consume all of the extraordinary work done yesterday by a Third Circuit panel in US v. Doe, No. 13-4274 (3d Cir. Sept 2, 2015) (available here). The Doe decision runs 50 pages (with a table of contents longer than a page), but the starting quotes and introduction highlight the basics:

“The whole thing was a very cleverly planned jigsaw puzzle, so arranged that every fresh piece of knowledge that came to light made the solution of the whole more difficult.” — Agatha Christie, Murder on the Orient Express.

“It’s like kind of complicated to me” — John Doe, on the withdrawal of his § 2255 motion.

John Doe, whose identity we protect because he is a Government informant, appeals from the denial of (1) a 28 U.S.C. § 2255 motion filed in 2012 and (2) a request made in 2013 to reopen a § 2255 motion filed in 2008.  Doe was sentenced pursuant to the then-mandatory Sentencing Guidelines as a “career offender” on the basis of two convictions for simple assault in Pennsylvania.  He argued in his 2008 motion that his convictions were not “crimes of violence” within the meaning of the Guidelines and thus he was not a career offender.  Our precedent foreclosed that argument when he made it, but, in light of the Supreme Court case Begay v. United States, 553 U.S. 137 (2008), we reversed ourselves, and Doe’s argument became plausible.  He therefore filed another § 2255 motion, but it too was denied.

This case presents many procedural complexities of first impression within this Circuit. If Doe can manage the Odyssean twists and turns of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), including the Scylla of the second-or-successive bar and the Charybdis of the statute of limitations, he may find a meritorious claim at the end of his journey.  However, we do not definitively reach the merits here and instead remand to let Doe’s case continue its uncertain course.

Three months after jury's death verdict, Tsarnaev lawyers move for new penalty trial

As reported in this AP article, headlined "Lawyers ask for new trial outside Boston for marathon bomber," the Dzhokhar Tsarnaev's attorneys have now moved in federal district court for a new penalty phase trial based mostly their claim that "due to continuous and unrelenting publicity combined with pervasive connections between jurors and the events surrounding the Boston Marathon Bombing that precluded impartial adjudication in both appearance and fact."  (This last phrase comes from the start of the papers filed yesterday, which can be accessed at this link thanks to The Marshall Project.)  

Here is a partial summary of the filing via the AP piece (including an extra legal twist thanks to the Supreme Court's recent Johnson ruling):

They argued that, because of widespread outrage in Boston after the deadly 2013 attack, jurors in the city couldn't be objective before finding him guilty and recommending a death sentence.  As evidence of "continuous and unrelenting publicity," they provided a long list of public events held in honor of the victims, including a new city holiday and several races.

Widespread media coverage featured stories about survivors, including one "powerfully emotional" moment during the 2015 marathon when amputee Rebekah Gregory ran the last 3.5 miles on a prosthetic leg before falling to her knees at the finish line, crying, the filing said.  Banners posted around the city urged solidarity.  Even on social media, the lawyers wrote, jurors were inundated with posts from relatives and friends.

"Put simply, prejudicial media coverage, events and environment saturated greater Boston, including the social networks of actual trial jurors, and made it an improper venue for the trial of this case," the filing said.

The filing concludes that the atmosphere tainted Tsarnaev's constitutional right to an impartial trial.  It asks that his guilty verdict be overturned and that the court provide a new trial to determine his guilt and his penalty....

The defense tried unsuccessfully during the trial to have it moved elsewhere, warning that too many people had personal ties to the marathon or the attack and that anguish in Boston was too powerful to provide a fair trial.

The filing Monday reiterated that request and added new legal arguments, including that a recent U.S. Supreme Court ruling throws many convictions into question.  That ruling centered on the legal definition of a "crime of violence," a distinction that can carry heavier penalties.  The court ruled that part of the federal definition was unconstitutionally vague and struck it down.

In the Tsarnaev case, jurors were told that 15 of his convictions were for crimes of violence, but the trial court didn't explain which part of the definition they met, according to the filing.  Therefore, Tsarnaev should be acquitted for all of those charges, his attorneys wrote.  Tsarnaev was charged with placing and discharging an explosive in public, for example, but his lawyers said "the 'delivery' and 'placement' of an explosive do not involve violent force."

"The Circuit Split on Johnson Retroactivity"

The title of this post is the headline of this effective new Casetext analysis of the intricate lower-court legal story already emerging in the wake of the Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  Authored by Leah Litman, the full piece merits a full read, and here is how it gets started:

In Johnson v. United States, the Supreme Court held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Defendants therefore can no longer be sentenced under the residual clause to a 15-year mandatory minimum term of imprisonment.  But what about defendants who have already been sentenced under ACCA’s residual clause?  I predicted in April, before Johnson was decided, that determining who can be resentenced in light of Johnson would be fraught with difficulties.  The courts of appeals have begun to sort through this question, and I’ll highlight one such case in this post.

In In re Rivero, the Eleventh Circuit purported to decide an important question that affects who can be resentenced in light of Johnson — namely, whether the Supreme Court has made Johnson retroactive.  Generally, new rules of constitutional law do not apply to convictions that have become final.  But certain “retroactive” rules apply to convictions that have become final; prisoners can raise claims that are based on retroactive rules in post-conviction review — review that occurs after a defendant’s conviction has become final.  If a prisoner has already filed one petition for post-conviction review, he may file a second or successive petition for post-conviction review only if the Supreme Court has made a rule retroactive (as opposed to a court of appeals or district court doing so).

I said that the Eleventh Circuit “purported” to decide whether the Supreme Court has made Johnson retroactive because the Eleventh Circuit’s decision is a bit quirky.  Most importantly, the defendant wasn’t actually sentenced under ACCA — he was sentenced under an analogous provision of the Sentencing Guidelines (the “career-offender Guideline”).  But the Eleventh Circuit “assumed” that Johnson applied to the career-offender Guideline and that the career-offender Guideline was therefore unconstitutional. Working off that assumption, the Eleventh Circuit went out of its way to disagree with the Seventh Circuit on whether the Supreme Court has made Johnson retroactive.

Rivero has thus created a potentially unnecessary circuit split, as well as some uncertainty about who can be resentenced in light of Johnson.  I’ll offer some thoughts on how narrowly or broadly Rivero can be read. (Spoiler: I think it should be read pretty narrowly.)

Some prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• What does Johnson mean for the past, present and future of the career offender guidelines? 
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
• Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson
• Split Eleventh Circuit panel splits from Seventh Circuit approach on Johnson retroactivity

Split Eleventh Circuit panel splits from Seventh Circuit approach on Johnson retroactivity

I had an inkling it might not take too long for lower courts to become divided on what the Supreme Court's big Johnson Armed Career Criminal Act ruling, which declared the residual clause of ACCA was void for vagueness, could and should mean for long-ago imposed sentences.  And, sure enough, less than seven weeks after the Johnson ruling, we already have a big circuit split.

As detailed in this post last week, the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here), decided that a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 could bring a new, successor 2255 motion based on the Johnson ruling.  But, now as flagged effective via this post at the "Southern District of Florida" blog, a divided three-judge panel of the the Eleventh Circuit had a different take on this issue in In re Rivero, No. 15-13089 (11th Cir. Aug. 12, 2015) (available here). Here is a key passage from the marjority opinion in Rivero:

We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015).  In Price, the Seventh Circuit explained that “[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review” because “[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him.”  Id. at *7.  We disagree.  We can “escap[e] th[at] logical conclusion” because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.

Our dissenting colleague assumes that the new rule announced in Johnson also applies to the residual clause of the career offender enhancement in the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), but that assumption makes clear that precedents of the Supreme Court do not “necessarily dictate,” In re Anderson, 396 F.3d at 1339 (internal quotation marks and citation omitted), that Rivero may file his second or successive motion to vacate, set aside, or correct his sentence.  See Dissenting Op. at 15 n.2.  The Supreme Court has never held that the Sentencing Guidelines are subject to a vagueness challenge. And four of our sister circuits have held that the Sentencing Guidelines — whether mandatory or advisory — cannot be unconstitutionally vague because they “do not establish the illegality of any conduct” and are “designed to assist and limit the discretion of the sentencing judge.” United States v. Tichenor, 683 F.3d 358, 363–66, 365 n.3 (7th Cir. 2012); see also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. Wivell, 893 F.2d 156, 159–160 (8th Cir. 1990).  But the absence of Supreme Court precedent provides an alternative ground for why we must deny Rivero’s application for leave to file a second or successive motion.

Especially because the Justice Department appears to be supporting Johnson retroactivity, I suspect we may end up with more circuits lining up behind Price than behind Rivero in the weeks ahead. But whatever transpires in other lower courts, it is now already clear that SCOTUS is going to need to take up Johnson's application before too long.

Some prior related posts:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• What does Johnson mean for the past, present and future of the career offender guidelines? 
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
• Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson

Could USSC's proposed amendment dealing with SCOTUS Johnson ruling be made retroactive (and how many federal prisioners could then get reduced sentences)?

Readers know that I have been making much of the potential practical impact of the Supreme Court's big ruling in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015) (available here).  Johnson declared that that a key clause defining violent offenses in the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   I have made much of the Johnson ruling's potental impact in part because its holding is inevitably going to echo for quite some time — in some ways predictable and in some ways unpredictable — through other important parts of federal sentencing law.

Perhaps the biggest early post-Johnson federal sentencing echo emerged late last week when, as reported in this US Sentencing Commission news release, the USSC put forth "proposed changes to the existing guideline definitions of a 'crime of violence' [which are] primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015)."   This recent post provides the basic details of what the USSC is proposing, and all the official details appear in this USSC document.  

I am still working through the potential import and impact of what the USSC is proposing, and the USSC itself stresses that its proposed guideline amendment is not just preliminary.  But, as the question in the title of this post suggests, the import and impact of what the USSC is proposing would be that much bigger and that much more consequential if any USSC post-Johnson amendments were to be made fully retroactive by the Commission to all federal prisoners currently serving long guideline-career-offender-based sentences.

As hard-core federal sentencing practitioners know, sorting through whether, how and for whom guidelines amendments are made retroactive can be a tough slog both legally and practically.  But because many current prisoners potentially impacted any post-Johnson guideline amendments may already be able to bring Johnson-based constitutional challenges to their existing sentences, it might actually prove more efficient and effective for all actors in the federal sentencing system for the USSC to make any of its post-Johnson guideline amendments fully retroactive — rather than to have everyone in the system await court rulings (and inevitable circuit splits?) on just what Johnson means for prisoners now serving long prison sentences based on the existing (constitutionally suspect) guideline definitions of "crime of violence."

Some prior posts on Johnson and its possible impact:

• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• What does Johnson mean for the past, present and future of the career offender guidelines? 
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import
• Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started? 

US Sentencing Commission proposes guidelines amendments to deal with SCOTUS Johnson ruling

I just finished watching on-line the brief public meeting today of the US Sentencing Commission, and the efficient event tracked closely this on-line notice/agenda.  Ever the efficient agency, within minutes of the conclusion of the meeting, the USSC got up on its website this news release reporting on the Commission's significant actions today:

The United States Sentencing Commission voted today to seek comment on proposed changes to the existing guideline definitions of a “crime of violence.” The proposed changes are primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).

In Johnson, the Supreme Court struck down as unconstitutionally vague a portion of the statutory definition of “violent felony” used in a similar penalty provision in the Armed Career Criminal Act (ACCA). While the Supreme Court in Johnson did not consider or address sentencing guidelines, the statutory language the Court found unconstitutionally vague, often referred to as the “residual clause,” is identical to language contained in the “career offender” sentencing guideline, and other guidelines which enhance sentences based on prior convictions for a crime of violence.

Consistent with Johnson, the proposal would eliminate from the guideline definition of “crime of violence” the residual clause, which provides that a “crime of violence” includes a felony offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another. In addition, the proposal would provide definitions for several enumerated crimes of violence.

“We already see litigation over the impact of Johnson on the sentencing guidelines,” said Judge Patti B. Saris, Chair of the Commission. “In light of uncertainty resulting from the Johnson decision, we feel that it is prudent to begin considering whether, as a matter of policy, the guidelines should also eliminate the residual clause. We want to begin the process of seeking public comment so that the Commission could vote on a guideline amendment as early as possible, perhaps as soon as January 2016. However, this proposal is only preliminary and we look forward to public comment furthering informing us on this complex topic. We also intend to continue to study recidivist enhancements including those based on prior drug convictions in the guidelines throughout the upcoming amendment cycle.”

The Commission also unanimously approved its list of priorities for the coming year. Among its top priorities again is continuing to work with Congress to reduce the severity and scope of certain mandatory minimum penalties and to consider expanding the “safety valve” statute that exempts certain low-level non-violent offenders from mandatory minimum penalties.

“The Commission has taken some steps on its own to reduce federal drug sentences and relieve some of the overpopulation in the federal prisons, but only Congress can make the more fundamental changes needed to address the severity and disparity problems associated with certain mandatory minimum penalties,” said Judge Saris. “We look forward to continuing to work with Congress on this vital issue.”

The Commission will continue to work on several multi-year projects, including an examination of the overall structure of the advisory guideline system, a comprehensive recidivism study, and a review of federal practices relating to the imposition and violations of conditions of probation and supervised release and immigration.

Here are the two key documents released by the Commission on its website today that reflect and detail the summary provided by the press release:

• "Reader-Friendly" Version of Proposed Amendment

• Federal Register Notice of Final Priorities

Seventh Circuit authorizes successive 2255 attack on ACCA sentence based on Johnson

A helpful reader altered me to a significant post-Johnson ruling today by the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here).  Price, which some ACCA prisoners may come to consider priceless, authorizes a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 to bring a new, successor 2255 motion based on the Johnson ruling.  Here are a few key passages from this notable ruling: 

Price now asks this court to authorize the district court to entertain a successive collateral attack, 28 U.S.C. § 2244(b)(3), in which he proposes to assert a claim under Johnson v. United States, 135 S. Ct. 2551 (2015).  Johnson holds that the imposition of an enhanced sentence under the residual clause of ACCA violates due process because the clause is too vague to provide adequate notice. Id. at 2557.  We invited the government to respond, and it has done so. We now conclude, consistently with the government’s position, that Johnson announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions....

Johnson, we conclude, announced a new substantive rule.  In deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited “a certain category of punishment for a class of defendants because of their status.”  Saffle, 494 U.S. at 494.  A defendant who was sentenced under the residual clause necessarily bears a significant risk of facing “a punishment that the law cannot impose upon him.”  Summerlin, 542 U.S. at 352.  There is no escaping the logical conclusion that the Court itself has made Johnson categorically retroactive to cases on collateral review.  Because Price has made a prima facie showing that he may be entitled to sentencing relief under Johnson, we GRANT Price’s application and AUTHORIZE the district court to consider a successive collateral attack presenting this claim.

We add a cautionary note in closing.  Our review of Price’s substantive claim is necessarily preliminary, and as we just noted, our holding is limited to the conclusion that Price has made a prima facie showing of a tenable claim under Johnson.  The district court will have the opportunity to examine the claim in more detail as the case proceeds. That court is authorized under § 2244(b)(4) to dismiss any claim that it concludes upon closer examination does not satisfy the criteria for authorization.  The judge is likely to be familiar with the case (or to become familiar easily) because § 2255 motions must be filed in the applicant’s sentencing court, which has access to the criminal record and familiarity with the case.  Our conclusions are tentative largely because of the strict time constraints under which we must review these applications. Tyler, 533 U.S. at 664 (“It is unlikely that a court of appeals could make such a determination in the allotted time [30 days] if it had to do more than simply rely on Supreme Court holdings.”).  For example, we do not know whether Price has other qualifying convictions that were not considered at sentencing because, at that time, the three on which the court relied were sufficient.  If he is successful in vacating his sentence under Johnson, the parties will be free to argue this and any other pertinent questions on resentencing.

A few (quickie) direct appeal Johnson remands in Sixth and Ninth Circuits

Regular readers know I am (too?) eagerly anticipating all the lower court litigation that seems sure to unfold in the weeks and months ahead in the wake of the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   And now, thanks to some helpful readers and Westlaw, I can report on the first few of what might be called "Johnson sightings" in the circuit courts.

Specifically, in these two unpublished opinions handed down earlier this week, the Sixth and Ninth Circuits relied on Johnson to remand sentencing claims to district courts: US v. Darden, No. 14-5537 (6th Cir. July 6, 2015) (available here); US v. McGregor, No. 13-10384 (9th Cir. July 7, 2015) (available here).  The Darden ruling is the more notable of these two remands because the defendant was not appealing application of ACCA but rather the issue was "whether one of Darden’s previous convictions qualifies as a 'crime of violence”' under the residual clause of § 4B1.2(a)(2)" of the US Sentencing Guidelines. Here is how the Sixth Circuit panel quickly justified a remand:

In Johnson v. United States, No. 13-7120 (U.S. June 26, 2015) (slip op. at 10, 15), the Supreme Court held that the identically worded residual clause of the Armed Career Criminal Act is void for vagueness.  Compare U.S.S.G. § 4B1.2(a)(2) with 18 U.S.C. § 924(e)(2)(B)(ii).  We have previously interpreted both residual clauses identically, see United States v. Ford, 560 F.3d 420, 421 (6th Cir. 2009); United States v. Houston, 187 F.3d 593, 594–95 (6th Cir. 1999), and Darden deserves the same relief as Johnson: the vacating of his sentence.  Indeed, after Johnson, the Supreme Court vacated the sentences of offenders who were sentenced under the Guidelines’ residual clause.  United States v. Maldonado, 581 F. App’x 19, 22–23 (2d Cir. 2014), vacated, 576 U.S. __ (2015); Beckles v. United States, 579 F. App’x 833, 833–34 (11th Cir. 2014), vacated, 576 U.S. __ (2015). The same relief is appropriate here.

Critically, the vacating of these sentences on appeal does not entail the certainty of a win for the defendant upon return to the district court. But it does highlight that Johnson is likely, at the very least, to get many defendants still pressing related sentencing claims on direct appeal the important first opportunity to get back in front of the district court for a new round of proceedings.

Some prior posts on Johnson and its possible impact:

• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA 
• Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Has any post-Johnson ACCA (or career offender) prisoner litigation now gotten started?

The question in the title of this post is my post-holiday follow-up thought in light of my prior posts here and here and here concerning the uncertain (but surely significant) fall-out from the Supreme Court's big ruling in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." Summarizing prior postings, I feel confident that, thanks to Johnson, there are now (1) many hundreds — perhaps many thousands — of current federal prisoners serving lengthy ACCA statutorily-mandated prison terms that are constitutionally suspect, and (2) many thousands — perhaps many tens of thousands — of current federal prisoners serving lengthy career-offender guideline-recommended prison terms that are now subject to a new kind of legal challenge.  This post seeks to know if any of these hundreds or thousands of federal prisoners have filed new Johnson-based challenges to their sentences yet.

Among the many reasons I am eager to follow this litigation closely and ASAP is because I see so much doctrinal and practical uncertainty, both substantively and procedurally, as to how this litigation may and should play out.   Indeed, uncertainty about the impact of Johnson is the only thing I am certain about, especially in light of some recent (conflicting?) analysis of post-Johnson litigation issues I have seen.  Consider, for example, the divergent analysis of post-Johsnon issues in this piece by Gray Proctor titled "Retroactivity and the Uncertain Application of Johnson v. United States: Is the Rule ‘Constitutional’ on Post-Conviction Review?" and in this blog post by Steven Sady titled simply "Johnson: Remembrance Of Illegal Sentences Past."

Long story short, there is sure to be a long litigation story behind every prisoner's effort to use Johsnon to shorten his lengthy prison term.  Especially for the sake of those prisoners whose current sentences are now the hardest to justify, both legally and practically, I hope these long litigation stories are getting started ASAP.

Some prior posts on Johnson and its possible impact:

• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA 
• Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Want does Johnson mean for the past, present and future of the career offender guidelines?

As first reported in this post, the the Supreme Court late last week in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."  In this initial post, I quickly explored Johnson's appliction to those previously sentenced under ACCA, and I will have more to say on that topic in the future.  But in this post, I wanted to flag the possibility that Johnson could impact past, present and future sentencing pursuant to the career offender guideline of the US Sentencing Guidelines.  

The possible impact of Johnson on guideline sentencing arises because the key phrase declared unconstitutionally vague in Johnson — the phrase which defines predicate offenses to include any offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" — is also used in the definition of a career offender predicate under USSG 4B1.1 and 4B1.2.  And, critically, many more federal defendants get sentenced pursuant to the career offender guidelines than pursuant to ACCA.  Indeed, according to Sentencing Commission data, it appears as many as four times more defendants on average each year (roughly 2,200 as opposed to 550) are subject to the career offender guideline than are subject ot ACCA.  

But, importantly, even though the career offender guideline uses the same phrasing as the ACCA statute as the basis of a big sentencing enhancement, this part of the guideline is not necessarily going to be deemed unconstitutionally vague in all cases because lower courts have suggested traditional vagueness doctrines simply do not apply to guidelines in the same way the apply to statutes.  Morevoer, the arguments against applying vagueness doctrines to the application of the federal sentencing guidelines would seem to be even stronger in a post-Booker world in which the guidelines are only advisory.

Moreover, even if the Johnson ruling and vagueness doctrines apply to the federal sentencing guidelines, defendants sentenced in the past under the career offender guideline may be able to get (or even seek) any sentencing relief comparable to ACCA-sentenced defendants.  As noted in prior posts, ACCA's application is such a big deal because it changes a 10-year statutory max sentencing term into a 15-year statutory minimum.  In contrast, the career offender guideline only changes a calculated guideline range within an otherwise applicable statutory range.  That difference certainly means that the best a career offender defendant can hope to get from Johnson is a chance at resentencing, not an automatically lower sentence.

Beyond the interesting and intricate question about Johnson's impact on past career offender sentences, I also think the present and future of this guideline's application remains uncertain.  Given that vagueness doctrine might not apply to the guideline, perhaps district judges could (and even should) still keep applying as it did in the past the phrasing found problematic in Johnson.  Or perhaps district judges ought to now just adopt the approach to the probelmtic clause that was advocated by Justice Alito in dissent in Johnson (discussed in this post).  Or perhaps the US Sentencing Commission needs to use its emergency amendment authority ASAP to just delete or revise the phrase that Johnson addressed because, if it does not, it is near certain different courts nationwide will take different approaches to how to implement the guideline now in light of Johnson.

In sum: Johnson + career offender guideline = lots and lots of uncertainty and interpretive headaches.

Some prior posts on Johnson and its possible impact:

• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
• Some real-world (conservative?) reasons why only Justice Alito advocated "real-world conduct" approach to ACCA 
• Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Lots and lots of Johnson GVRs with Justice Alito explaining their meaning and (limited?) import

Today's final Supreme Court order list confirms my view that the Johnson ACCA vagueness ruling is the most consequential criminal case of the just-completed SCOTUS Term.  That is because the list has, by my count, over 40 cases in which the Justices have now "GVRed" an Armed Career Criminal Act sentence: in all these appeals to the court, the order list states that certiorari for each case is granted and then the judgment is vacated, and the case is remanded to the appropriate circuit court "for further consideration in light of Johnson v. United States, 576 U.S. ___ (2015)."

Notably, there were GVRs in this order list to nearly every one of the 12 federal circuit courts, and I am confident that even the few circuits left out of this morning's GVR fun have at least a few Johnson pipeline cases already on their docket. Consequently, it will be interesting to see which of the circuits is the first to have a significant Johnson implementation ruling. To that end, Justice Alito notably added this statement to nearly every Johnson GVR:

Justice Alito concurring in the decision to grant, vacate, and remand in this case: Following the recommendation of the Solicitor General, the Court has held the petition in this and many other cases pending the decision in Johnson v. United States, 576 U.S. ____ (2015). In holding this petition and now in vacating and remanding the decision below in this case, the Court has not differentiated between cases in which the petitioner would be entitled to relief if the Court held (as it now has) that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. Sec. 924(e)(2)(B)(ii), is void for vagueness and cases in which relief would not be warranted for a procedural reason. On remand, the Court of Appeals should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.

Some prior posts on Johnson and its possible impact:

• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
• How many federal prisoners have "strongJohnson claims" (and how many lawyers will help figure this out)?

How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?

After this post, I am going to take some time off-line in order to calmly and carefully read all the opinions in the big SCOTUS constitutional sentencing ruling today in Johnson v. US.  (Sadly, I think it is a bit too early to get some liquid assistance in calming down, but that will change in due time.) Helpfully, Justice Scalia's opinion for the Court in Johnson is relatively short and thus it should not prove too difficult for everyone to figure out the import of the Johnson ruling for future applications of ACCA or even for future vagueness/due process Fifth Amendment constitutional jurisprudence.

But, as the title of this post is meant to highlights, I suspect it may prove quite difficult for everyone to figure out the impact of the Johnson ruling for past applications of ACCA and those currently serving long federal ACCA mandatory prison sentences.  I am pretty sure vagueness ruling are considered substantive for retroactivity purposes, so even long-ago sentenced federal prisoners should at least be able to get into federal court to now bring Johnson claims.  But not every federal prisoner serving an ACCA sentence has even a viable Johnson claim and I suspect most do not have what I would call a strong Johnson claim.  In my mind, to have a strong Johnson claim, a defendant would have to be able to show he clearly qualified for an ACCA sentence based on and only on a triggering prior conviction that hinged on the application of the (now unconstitutional) residual clause.

That said, I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim.  And the potential legal consequences of a strong Johnson claim claim could be profound because it may mean that a prisoner who previously had to be sentences to at least a mandatory 15 years in federal prison now may only legally be sentenced to at most 10 years in federl prison.

I have a feeling that this new Johnson ruling may ruin the weekend (and perhaps many weeks) for some federal prosecutors and officials at the Justice Department because they are perhaps duty bound to try to start figuring out how many federal prisoners may have strong (or even viable) Johnson claims and what to now do about these prisoners.  In addition, I am hopeful that some federal defenders and even private (pro bono Clemency project 2104) lawyers will also start working hard to identify and obtain relief for persons now in federal prison serving lengthy ACCA sentences that the Supreme Court today concluded were constitutionally invalid. 

Some prior posts on Johnson and its possible impact (last two from before the opinion)

• A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
• SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
• "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
• How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?

A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson

As noted here, the US Supreme Court issued a (very?) big constitutional criminal procedure ruling today in Johnson v. US.  I will need at least a few hours (if not a few days and certainly many reads) to really figure out how big a deal Johnson is.  But I can and will here, at the risk of prioritizing speed over accuracy, quickly type out the first big 5 thoughts that have come to mind concerning the  line-up of jurists in the Johnson ruling:

1.  It is truly amazing (and quite significant) that Justice Scalia was able to convince five of his colleagues (including three of the four newer Justices) to issue a big pro-defendant constitutional criminal procedure ruling in Johnson.

2.  It is very significant that Chief Justice Roberts joined Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

3.  It is interesting that Justice Kennedy briefly concurred separately and did not join Justice Scalia's significant pro-defendant constitutional criminal procedure ruling for the Court in Johnson.

4. It is notable that the concurrence authored by Justice Thomas is longer than the majority opinion (and I suspect it was going to be the opinion for the Court before Justice Scalia convinced his colleagues to order rehearing on the constitutional issue the majority addressed).

5. It is not at all surprising Justice Alito alone dissents, and I may start formally counting how many (non-capital) criminal cases have been (and will in the coming years) be defined by that reality.