Argument preview: Court to tackle constitutionality of residual clause in sentencing guidelines
on Nov 21, 2016 at 10:05 am
In 2015, in Johnson v. United States, the Supreme Court struck down the “residual clause” of the Armed Career Criminals Act (ACCA) as unconstitutionally vague, ruling that the provision did not give ordinary people adequate notice of what conduct was prohibited by the statute. The residual clause had included among the category of “violent felonies” any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Next week, in Beckles v. United States, the court will confront the constitutionality of the sentencing guidelines’ version of the residual clause. This is one of two cases this term that address the effect of Johnson on the vagueness doctrine. (The other case, Lynch v. Dimaya, arises in a statutory context.) Two of the nine justices who joined in the six-justice majority opinion in Johnson, including its author – the late Justice Antonin Scalia – will not participate in this case. Because Justice Elena Kagan is recused, a seven-member court will render a decision.
The U.S. Sentencing Commission, which is responsible for drafting and amending the sentencing guidelines, removed the guideline residual clause earlier this year and supplanted it in part by commentary, which is also at issue here. It did not, however, make the change retroactive. This case brings the question of retroactivity squarely in front of the court, continuing the interplay between the commission and the court. The ostensible issues of vagueness and retroactivity, however, camouflage a broader question about the meaning and function of advisory guidelines.
Notably, the government has changed its position on both retroactivity and vagueness. Although it supported the defendant’s claims in the U.S. Court of Appeals for the 11th Circuit – and those of similarly situated defendants in other circuits – it opposes them now. Adding another dimension to the controversy, the court appointed an amicus, or “friend of the court,” to defend the 11th Circuit’s holding that the vagueness doctrine does not apply to the sentencing guidelines. The decision in this case, therefore, will have broad ramifications for vagueness jurisprudence, the meaning of advisory guidelines, and the respective roles of the commission and the court.
Travis Beckles was convicted in 2007 of possession of a firearm – a sawed-off Browning shotgun – by a convicted felon, in violation of 18 USC §922(g) and §924(e). Based on an array of prior convictions for relatively minor drug and violent offenses, the presentence investigation found Beckles to be an armed career criminal under Section 924(e). He also fell under the guidelines’ career-offender provision because guideline commentary declared possession of a sawed-off shotgun to be a crime of violence under Section 4B1.2(a)(2) of the sentencing guidelines.
The district court sentenced Beckles at the low end of the guideline range, to 360 months. Because it concluded that Beckles had provided substantial assistance to the government, the court later decreased his sentence to 216 months. Beckles appealed his classification as an armed career criminal, arguing that possession of a sawed-off shotgun is not a crime of violence. The U.S. Court of Appeals for the 11th Circuit affirmed, holding that even if Section 922(g) does not make his conduct a “crime of violence,” USSG §4B1.2(a)(2) does.
Subsequently, Beckles filed a motion to vacate his sentence, arguing that the district court imposed an incorrect career-offender sentence because possession of a sawed-off shotgun was not a crime of violence. The district court denied the motion but issued a certificate of appealability. The court of appeals affirmed, and the Supreme Court vacated and remanded in light of Johnson. Because Beckles’ sentence was not based on the Armed Career Criminal Act’s residual clause that the Supreme Court had declared unconstitutionally vague in Johnson, but rather on a guideline provision (although identically worded) classifying the offense as a “crime of violence,” the appellate court affirmed again. The decision created a circuit split, and the Supreme Court agreed to consider three issues: Is Johnson retroactively applicable to the guideline residual clause; is Johnson’s constitutional holding applicable to Section 4B1.2(a)(2) of the sentencing guidelines; and is possession of sawed-off shotgun still a “crime of violence” under the guidelines after Johnson?
Beckles argues that because the guidelines’ residual clause is identical to the ACCA residual clause struck down in Johnson, it must also fall. He contends that the provision creates notice problems because it is too vague to allow adequate calculation of the consequences of particular conduct. Beckles also relies on the court’s decision last term in Welch v. United States, which declared the Johnson rule substantive for purposes of the retroactivity analysis set forth in Teague v. Lane, and therefore retroactively applicable on collateral appeal.
Beckles notes that the government has conceded in several appeals courts that Johnson invalidates Section 4B1.2 of the guidelines. All those courts of appeals, except for the 11th Circuit, agreed, many on plain-error review. He also argues that the Supreme Court itself has indicated that the residual clause would be invalid in all its applications, which would include the guidelines. As the guidelines remain what the court has termed the “lodestar” of federal sentencing, they are subject to constitutional review, including for vagueness.
Beckles also argues that any unconstitutionality determination should be made retroactive on collateral review, under the three-part Teague test. A rule declaring the provision void would be new and also substantive, he maintains, as Welch announced when it declared Johnson retroactive. In both situations, a finding of vagueness changes the substantive reach of the rules at issue by “altering the range of conduct or the class of persons that the[y] punish.” Someone whose conduct fell under either residual clause was placed in a category in which he no longer finds himself. Because Teague sets forth a categorical rule, logic demands that its holding be applied to all defendants on collateral review as long as there is any potential for relief.
The United States has changed its argument in this line of cases several times. In Johnson, the government defended the constitutionality of ACCA’s residual clause. In Welch, it joined the petitioner in arguing in favor of retroactivity. In the guidelines’ residual cases, it sided with defendants in the lower courts, supporting identical treatment of the residual clauses in ACCA and the guidelines with respect to both vagueness and retroactivity. In front of the Supreme Court, however, it has reversed course. The government now argues that even if the court rules that the guidelines’ residual clause is invalid, the scope of such a rule would be merely procedural, because it would regulate the manner of imposing a sentence rather than setting substantive limits on permissible sentences. In Johnson, the government points out, statutory sentencing limits were at issue; the guidelines only advise on sentencing ranges.
Under the government’s reasoning, the court’s invalidation of ACCA’s residual clause lowered the statutory range of the maximum sentence that could be imposed. That characteristic made it substantive, and therefore retroactively applicable. In contrast, the guidelines’ residual rule functions procedurally, not substantively, because it regulates the manner of imposing a sentence but does not set limits on permissible sentences. Since the guidelines are merely advisory, the range they suggest does not delimit the boundary of a lawful sentence as ACCA does. Therefore, retroactivity does not follow from Johnson and Welch.
According to the government, retroactive application of Johnson in the guidelines context would undermine “the basic purpose of the retroactivity doctrine to leave undisturbed final sentences that were imposed in accordance with the governing procedural law” and would inflict substantial reliance costs, especially because the court has upheld the clause twice before. Disruptions would be substantial: Resentencings would not be restricted to career offenders but would also occur in cases involving other guidelines that reference a “crime of violence.”
Interestingly, the government has also chosen to highlight the potential cost to the public of early “releas[es] [of] dangerous recidivists into communities.” The government argues that only a longer sentence – 120 months or more – will decrease the recidivism rate for those classified as career- or armed-career offenders. The Federal Public and Community Defenders and the National Association of Federal Defenders, who have filed an amicus brief on behalf of Beckles, not only disagree with that analysis but note the particularly discriminatory impact of the career-offender provision on African-Americans because of differences in policing.
On the merits of the claim, the government concedes that the guidelines are sufficiently substantive to be subject to vagueness review. This contrasts with the holding of the U.S. Court of Appeals for the 11th Circuit, the sole court of appeals to conclude that the vagueness doctrine does not apply to the guidelines. The government’s argument hinges on “the calculated range generally exert[ing] a significant effect on the actual sentence.” That conclusion appears, however, to conflict with the picture of the advisory nature of the guidelines painted in the retroactivity section. The government seems to be vacillating in its description of the guidelines’ current role in sentencing.
Despite the government’s willingness to apply the vagueness doctrine on principle, it rejects its applicability here out of hand, because, it argues, the sentencing court relied on an application note in the guidelines commentary that specifically defined “crime of violence.” Therefore, in the government’s view, even if the guidelines’ residual clause were facially void, Beckles would not be entitled to any relief. Any declaration of vagueness, the government argues, should exclude those offenses expressly identified in the commentary.
The court-appointed amicus, in an at times acerbic brief, forcefully defends the 11th Circuit’s holding. He focuses on the advisory nature of the guidelines, calling them “not in force.” Their character makes it impossible to find the guidelines’ residual clause vague, he argues, because “[o]nly regulations of private conduct are subject to vagueness challenges.” Only the commission can and should respond to vagueness concerns in light of data; application of the vagueness doctrine would interfere with its work. The amicus asserts that finding the guidelines’ residual clause unconstitutionally vague would not only hamstring the commission, but also open the door to countless future vagueness challenges to guideline provisions and Section 3553(a) factors. Moreover, it would threaten the existence of the remedy set forth in United States v. Booker, which made the guidelines advisory, as well as some state guideline regimes. According to the amicus, therefore, the stakes in this case could not be higher, and only the 11th Circuit has come to the right conclusion.
One of the other amicus briefs also focuses on the distinction between mandatory and advisory guidelines, and urges the court to order resentencings at least for those offenders who were sentenced under Section 4B1.2 before Booker, when the guidelines were still mandatory.
Beckles’ final argument addresses the relationship between the commentary and the guidelines’ residual clause. In contrast to ACCA, the guideline commentary at the time of Beckles’ sentencing specifically noted that possession of a sawed-off shotgun constitutes a “crime of violence.” The lower court, therefore, found the commentary to have provided an independent reason for the career offender enhancement. The government also cited this lower court finding as grounds for denying relief to Beckles in this case. Beckles, however, links that commentary provision directly to the residual clause. In making this argument, he relies on Stinson v. United States, which declared that the commentary defines and interprets a guideline’s text. He argues that the history of the commentary note also supports the view that without the residual clause, it can no longer stand.
The government maintains, on the other hand, that the commentary did not interpret the guidelines’ residual clause itself, but rather presented a general and independent definition of “crime of violence.” It cites guideline history to support its argument, as well as a 2016 amendment in which the commission excised the residual clause and, “[f]or easier application,” amended the second sentence in the definition of “crime of violence” to add more crimes, including the unlawful possession of a firearm described in 26 U.S.C. §5845(a). Alternatively, the government contends that the guideline residual clause is not unconstitutionally vague with respect to the definitions provided in the commentary.
Oral argument, scheduled for Monday, November 28, will allow 25 minutes each to Beckles and the government, with 15 minutes for the court-appointed amicus. The questions should give a sense of the court’s focus here.