Without explanation, SCOTUS rejects vagueness challenges to pre-Booker mandatory application of career-offender guideline
It was a "civil" morning for US Supreme Court today, with two opinions from the civil side of its docket (one big, one little) and four cert grants on matters that are mostly civil and somewhat procedure (although one, Royal v. Murphy, deals with tribal jurisdiction over a capital prosecution). But there was still some interesting news for sentencing fans in today's SCOTUS order list in the form of somewhat surprising denials of certiorari in cases dealing with the residue of the Johnson vagueness ruling for guideline-sentenced defendants before Booker make the guidelines advisory.
This part of this SCOTUSblog Relist Watch post by John Elwood from a few weeks ago spotlights cases I have had my eye on:
Lester v. United States, 17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory. If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States, 17-5684, Gates v. United States, 17-6262, James v. United States, 17-6769 (all relisted nine times) and Robinson v. United States, 17-6877 (relisted seven times).
Sentencing gurus know that the Supreme Court in Beckles decided that the Court's big vagueness ruling in Johnson dealing with a key clause of the Armed Career Criminal Act did not entail constitutional problems for a parallel clause of the sentencing guidelines because the guidelines are now advisory, not mandatory. But defendants in the cases above, which SCOTUS had been mulling over now for many months, were sentenced with the problematic parallel clause of the sentencing guidelines before Booker made the guidelines advisory. But because judges could (and sometimes did) depart from the guidelines even before Booker made them mandatory (but cannot depart from applying ACCA), these cases presented an interesting and uncertain push-pull between the Johnson ruling and Beckles' gloss on its application.
I had been hoping that the collection of these cases as "serial relists" meant that SCOTUS was busy looking for the right vehicle for considering these post-Johnson matters. But today, as noted above, certiorari was denied by the Supreme Court in all these cases without any explanation. Of course, explanations for cert denials are not common. But because relists often lead to a cert grant or at least some discussion by some justice of the issue, I am starting my week bummed that an interesting intricate piece of sentencing jurisprudence did not prompt any substantive SCOTUS engagement.
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