Mapping out what Beckles left unresolved: Johnson's uncertain impact on the once-mandatory career-offender guideline
Leah Litman and Samantha Jaffe have this great new entry at the Take Care website under the heading "The Mandatory Guidelines Predicament." It seeks to explain the still lingering issue of how the Supreme Court's 2015 Johnson vagueness ruling still impacts a certain subset of federal prisoners sentenced more than a decade earlier. I recommend the piece in full, and here is a taste:
In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness. ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions. ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.” The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively....
The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.
The Sentencing Guidelines, however, weren’t always advisory.... The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences. Nevertheless, there are still differences between the pre-Booker Guidelines and statutes. Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA. The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.
Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines.... Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague. It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested. AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions. AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization. The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.
That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions. The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.
The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit. If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem.... And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.
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