FEDERAL SENTENCING POST JOHNSON AND WELCH: The “Nuclear Explosion” of Federal Sentencing Reform Spring 2016 Ashley Leavitt J.D. Candidate 2016, Boston University School of Law INTRODUCTION

In declaring the residual clause of the definition of “violent felony” in the Armed Career

Criminal Act (ACCA) unconstitutionally vague, the Supreme Court in United States v. Johnson,

576 U.S. ___, 135 S. Ct. 2551 (2015), called into question other statutes relying on identical or

similar definitions of a “violent felony.” Dissenting in Johnson, Justice Alito feared such a

nuclear explosion, which has led to discretionary application of Johnson beyond the ACCA. In

examining the impact of the decision, this paper first explains the unconstitutionality of the

residual clause and the retroactivity of the Johnson decision including the recent decision in

Welch v. United States, No. 578 U.S. ___ (2016). Then, part II identifies what is left of the

ACCA. Finally, part III analyzes how courts are interpreting and applying Johnson to those

sentences based on the residual clause of the career offender Guideline.

I. JOHNSON AND THE RESIDUAL CLAUSE OF THE ACCA

The Armed Career Criminal Act imposes a fifteen-year mandatory minimum sentence1

on individuals convicted of being a felon2 in possession of a firearm who have three previous

1 ACCA increases the statutory penalty for felon in possession of a firearm from a ten-year maximum to a fifteen-year mandatory minimum. Johnson, 135 S.Ct. at 2555.

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convictions for a “violent felony” or a serious drug offense.3 A predicate offense qualifies as a

“violent felony” if the crime was punishable by a term of imprisonment exceeding one year that:

(i) has an element the use, attempted use, or threatened use of physical force against the person or another; or, (ii) is burglary, arson, or extortion, involved use of explosives, or otherwise involved conduct that presented a serious potential risk of physical injury to another.4 The italicized portion above, known as the residual clause, is no longer applicable after

Johnson.5 “Convinced that the indeterminacy of the wide-ranging inquiry required by the

residual clause both denies fair notice to defendants and invites arbitrary enforcement by

judges,” the Supreme Court found the residual clause violated the Constitution’s Fifth

Amendment guarantee of due process.6 Such a prohibition of vague criminal statutes was well

recognized before Johnson and applies to statutes defining elements of crimes, as well as,

statutes fixing sentences.7

A. The Residual Clause Inquiry: Estimating the Risk Posed By A Judicially Imagined “Ordinary Case” Defendants are deprived of their right to due process when the government takes away

their “life, liberty, or property under a criminal law so vague that it fails to give ordinary people

2 Also applies to anyone who possesses a firearm as a prohibited person, such as persons committed to mental institutions, drug users, and those dishonorably discharged from the Armed Forces. Id, 18 U.S.C. 922(g). 3 18 U.S.C. §924, United States v. Johnson, 135 S.Ct. 2551, 2555-56 (2015). 4 18 U.S.C. §924(e)(2)(B). 5 Johnson, 135 S.Ct. at 2555-57. 6 Id. at 2557; overruling James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 546 U.S. 1 (2011). In both James and Sykes, the Court rejected the claim that the residual clause violated the Constitution’s prohibition against vague criminal laws. Id. at 2556. 7 Id. at 2556-57; citing United States v. Batchelder, 442 U.S. 114, 123 (1979), and Connally v. General Consrt. Co., 269 U.S. 385, 391 (1926).

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fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”8

Accordingly, increasing a defendant’s sentence based on the shapeless, wide-ranging inquiry of

the residual clause denies due process of law.9

Attempting to interpret the ACCA residual clause, the Supreme Court in Begay applied

the categorical approach to determine whether a crime qualified as a violent felony “in terms of

how the law defines the offense and not in terms of how an individual offender may have

committed the offense on a particular occasion.”10 However, such an approach forced judges to

envision the type of conduct the crime involved in “the ordinary case” and then ask if that

conduct presented a serious potential risk of physical injury to another.11 This framework was

nearly impossible to apply consistently as it was based on speculation rather than real-world facts

or statutory elements.12 Such a combination of “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, produces more unpredictability and arbitrariness than the Due Process Clause

tolerates.”13 It is the nature of this inquiry and the uncertainty as to the types of factors that

should be considered that led to the numerous splits among the lower federal courts.14

Although the Supreme Court was clear in finding the residual clause void for vagueness,

ending the split among lower federal courts, silence on the retroactivity of the new rule created

another split among the lower federal courts.

8 Id. at 2556; citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). 9 Id. at 2557, 2560. 10 Begay v. United States, 553 U.S. 137, 141(2008); Taylor v. United States, 495 U.S. 575, 600 (1990). 11 Johnson, 135 S.Ct. at 2557; citing James, 550 U.S. at 208. 12 Id. at 2558. 13 Id. 14 Id. at 2560.

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B. A Short-lived Split: The Retroactivity of Johnson

Several days after issuing the Johnson decision, the Supreme Court granted certiorari,

vacated judgment, and remanded in over forty cases pending the decision in Johnson.15 Further,

the government was willing and likely to concede the application of Johnson on direct appeals

and first § 2255 petitions where one or more predicate offenses relied on the residual clause.16 In

some instances, the government even waived argument as to appeal waivers made at sentencing,

as well as, procedural hurdles; or, filed unopposed to motions to vacate the judgments and

remand for resentencing.17 As such, there have not been any decisions from any court of appeals

finding that Johnson is not retroactive on a first petition for post-conviction review. This is likely

due to the government conceding that Johnson is retroactive as noted.

15 See, e.g., United States v. Melvin, 621 F. App'x 226, (Mem)-227 (4th Cir. 2015) (remanding for resentencing where government conceded that conspiracy is no longer a crime of violence after Johnson); United States v. Hornyak, 805 F.3d 196, 198-200 (5th Cir. 2015) (remanding for resentencing where crime of evading arrest or detention with a vehicle was not a violent felony under force clause); United States v. Peoples, 613 F. App'x 425 (5th Cir. 2015) (same for assault convictions); United States v. Bell, 612 F. App’x 378, 379-80 (6th Cir 2015) (resentencing where aggravated assault was not a crime of violence in light of Johnson); United States v. Castle, No. 14-5472, 2015 WL 5103093, at *1 (6th Cir. Aug. 31, 2015) (same except prior violent felonies were all convictions for intentionally evading arrest in a motor vehicle); United States v. Brown, 795 F.3d 924 (Mem), 925 (8th Cir. 2015) (vacating judgment and remanding for resentencing where possession of a short-barreled shotgun was not a crime of violence in light of Johnson). 16 See, e.g., United States v. Whindleton, 797 F.3d 105, 112 (1st Cir. 2015) (recognizing the impact of Johnson on direct review, the government declined to pursue any argument); United States v. Abbott, No. 14-4764, 2015 WL 7888162, at *1 (4th Cir. Dec. 4, 2015) (agreement between parties that larceny from the person is not a violent felony and Johnson requires resentencing); United States v. Munoz-Navarro, 803 F.3d 765, 766 (5th Cir. 2015) (government waiving argument on appeal waiver and conceding attempted burglary of a habitation, evading arrest with a vehicle, attempted escape, and evading arrest without a vehicle are not violent felonies post-Johnson); United States v. Austin, No. 15-3210, 2015 WL 7776327, at *1 (6th Cir. Dec. 3, 2015) (government conceding that Johnson controls and sentence must be vacated and case remanded for resentencing); United States v. Green, No. 14-10359, 2015 WL 9015991, at *1 (9th Cir. Dec. 16, 2015) (agreeing with government and petitioner that resentencing is warranted); United States v. Jerry, No. 14-13387, 2015 WL 9461717, at *1 (11th Cir. Dec. 28, 2015) (government conceding that defendant’s three predicate offenses were based on the residual clause). 17 Melvin, 621 F. App’x at 227.

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Rather, the split concerned the application of Johnson to defendants sentenced under the

ACCA, in reliance on the residual clause, who were attacking their sentence on collateral review

through a successive petition.18 Pursuant to 28 U.S.C. § 2255(a), a prisoner may petition the

court to vacate, set aside, or correct their sentence if that sentence was “in violation of the

Constitution or laws of the United States, …or that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to collateral attack.” Before filing a second or

successive § 2255 motion, the court of appeals must certify a petition upon the application of a

prisoner who makes a prima facie showing that the claim rests on “a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable.”19

Recently, the Supreme Court in Welch resolved the split in ruling that Johnson

announced a new substantive rule of constitutional law that applies retroactivity.20 Thus, the split

was short-lived, but a large number of individuals are still waiting in prison, serving

unconstitutional sentences, while others in similar circumstances, but different circuits, were

already resentenced and released.21 Irrespective of Welch, the one-year statute of limitations

applying to §2255 motions requires that claims based on Johnson must be filed, or refilled, by

June 26, 2016.22 The following is a brief summary of Johnson-based decisions dealing with

successive § 2255 petitions exhibiting the disparities between circuits in interpreting and

applying Johnson:

18 28 U.S.C §2255. 19 28 U.S.C. §2255(h)(2); 28 U.S.C. 2244(b)(3)(C). 20 Welch v. United States, 136 S. Ct. 1257, 1265 (2016). 21 See In re Williams, 806 F.3d 322, 325 (5th Cir. 2015) (recognizing that by rejecting the retroactivity of Johnson and denying the petitioner’s petition to file a successive § 2255, a similarly situated prisoner in the First Circuit was granted leave to file a successive writ under § 2255, thus creating a disparity among circuits). 22 28 U.S.C. §2255(f)(3).

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(i) First Circuit

The First Circuit in Pakala granted cert to a pro se defendant to file a second or

successive § 2255 petition in the district court.23 Based on the government’s concession that

Johnson announced a new rule of constitutional law that was previously unavailable and the

defendant made a prima facie showing, the application was granted.24 Similar to the Seventh

Circuit in Price v. United States,25 the First Circuit made clear that allowing the petition did not

reflect on the merits of the claim.26 On the same day Pakala was decided, the First Circuit Court

of Appeals also granted certification to file a successive application under 28 U.S.C § 2255 in

Powell v. United States.27

To gain a better understanding of the Johnson decision in practice, I spoke with the

federal public defender office of Massachusetts. As one of the districts with the government

conceding the retroactivity of the decision by waiving argument, the focus of the discussion was

on the way in which the public defenders are identifying prisoners and screening individual cases

for meritorious claims.

After the general order28 appointing counsel and ordering the disclosure of presentence

reports was issued on October 6, 2015, the public defenders began with a list provided by the

Sentencing Commission. Included in the list were 150 armed career criminals and 350 career

offenders. Although largely useful, the list was both under-inclusive and over-inclusive. For

23 Pakala v. United States, 804 F.3d 139, 139 (1st Cir. 2015) (acknowledging that the retroactivity question has divided the circuits). 24 Id. at 139-40. 25 795 F.3d 731, 735 (7th Cir. 2015). 26 Id. at 139. 27 No. 15-2202 (October 20, 2015). 28 Other federal district courts with known standing orders include Maryland, Virginia, and Indiana.

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instance, there were some defendants that were not on the list who were found to have colorable

claims through the defender office’s own records or through defendants contacting the office

with claims. Regarding over-inclusion, there were cases that overlapped with clemency

proceedings that the Federal Public Defenders are not permitted to handle. For those sentenced

under the ACCA or the Guidelines who did not have a colorable claim for whatever reason, the

public defenders sent a letter to the defendant explaining their analysis of the case.

After pinpointing the predicate offenses for which the defendant was deemed an armed

career criminal or a career offender, the federal public defenders have to determine which, if any,

relied on the residual clause. Then, even if the court relied on the residual clause, the predicate

offense may still qualify under the force clause or as an enumerated offense. It is this

determination that presents the most daunting, especially for Massachusetts, because numerous

misdemeanors carry a maximum sentence of two and a half years. Due to the amount of state

misdemeanors that qualify as felonies under the ACCA and the sentencing guidelines,

Massachusetts has a high percentage of armed career criminals and career offenders. Thus, the

impact on the public defender office is much greater than in states such as New Hampshire,

where misdemeanors are punishable up to one year.29

To really appreciate the impact of the Johnson decision, one must visit the “Johnson

wing” of the Massachusetts Federal Public Defender Office. This designated wing, staffed with a

supervisor and team focused exclusively on Johnson-based claims, shows the full extent of such

a change in our criminal laws, which is only exacerbated when questions of retroactivity are

unclear. Although the Massachusetts Federal Public Defenders seem to have the resources in

29 The New Hampshire Federal Public Defender’s Office indicated that they have a similar general order, but do not have any designated group working on Johnson-based claims as it is not necessary.

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place, the amount of defendants that must be screened coupled with the one-year time limitation

makes the task nearly impossible to complete. This is irrespective of Welch. Moreover, the

question of Johnson’s applicability to the Guidelines, discussed further infra part III, has created

a larger problem, yielding further disparate application of the Guidelines.

(ii) Second Circuit

Although not in the form of a published decision, the Second Circuit Court of Appeals in

Rivera granted a petitioner’s motion for leave to file a successive § 2255 claim.30 The Court

directed the district court to address whether Johnson announced a new rule of law made

retroactive permitting the claim to proceed. 31 The district court, in agreement with the

government and petitioner, applied Johnson retroactively and ordered the immediate release of

the petitioner.32

(iii) Fifth Circuit:

In denying a certificate to file a second or successive § 2255 motion, the Fifth Circuit in

In re Williams held that Johnson did not create a new rule of substantive constitutional law.33 The

“distinction between substance and procedure is an important one in the habeas context.”34

Although Johnson did announce a new rule of constitutional law, the rule is not substantive

under the second prong of Teague, because Congress still retains the power to increase sentences

30 See Rivera v. United States, No. 13-4654 (2d Cir. October 5, 2015) 31 Id. 32 See Rivera v. United States, Nos. 3:03-cr-242, No. 3:13-cr-1742 (Conn. October 6, 2015); citing Price, 795 F.3d at 734-35. Relying on Rivera, the United States District Court for the W.D. New York remanded to the sentencing judge for resentencing making clear that Johnson is retroactive and denying the government’s request to stay the proceedings pending the decision in Welch. See Figueroa v. United States, 2016 WL 1459650, *1 (W.D.N.Y. April 14, 2016). 33 In re Williams, 806 F.3d at 325. 34 Bousley v. United States, 523 U.S. 614, 620 (1998). See also Schiro v. Summerlin, 542 U.S. 348, 351 (2004) (finding that new substantive rules generally apply retroactively and Teague retroactivity bar does not apply).

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based on prior felonies.35 In reliance on In re Williams, the District Court in Harrimon dismissed

a first § 2255 petition on the basis that Johnson’s rule is not substantive.36 In any event, the

government took the position that the Supreme Court should grant cert to resolve whether

Johnson is retroactive on collateral review, and that Johnson is a new rule of substantive

constitutional law.37 Only after the decision in Welch, the Fifth Circuit vacated the denial of post-

conviction relief and remanded for resentencing.38

(iv) Sixth Circuit

Authorizing the petitioner to file a second or successive § 2255 petition, the Sixth Circuit

in In re Watkins, held that Johnson announced a substantive rule that the Supreme Court made

retroactive on collateral review.39 Taking into consideration the split that had emerged, the Court

specifically rejected the Fifth and Eleventh Circuits’ view that Johnson was not retroactive by

maintaining that Johnson's substantive rule “neither prohibits Congress from punishing a

criminal who has a prior conviction for attempted burglary nor prohibits Congress from

increasing that criminal's sentence because of his prior conviction.”40 The Sixth Circuit reasoned

that such a conclusion “misses the point,” sidestepping the retroactive application of a

substantive rule on the grounds that the residual clause could be amended at a later date.41

(v) Seventh Circuit

In Price v. United States, the Seventh Circuit granted leave to file a successive petition

under § 2255(h)(2), concluding that Johnson announced a new substantive rule for the reason

35 In re Williams, 806 F.3d at at 325-26. 36 See Harrimon v. United States, 15-cv-00152 (N.D. Tex. Nov. 19, 2015); and, Harrimon v. United States, 15-7426 (Dec. 11, 2015). 37 Id. 38 United States v. Harrimon, No. 15-11175, 2016 WL 1719086, at *1 (5th Cir. Apr. 28, 2016). 39 No. 15-5038, 2015 WL 9241176, at *6 (6th Cir. Dec. 17, 2015). 40 Id.; quoting In re Rivero, 797 F.3d 986, 990 (11th Cir. 2015). 41 Id.

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that a defendant sentenced under the residual clause is likely facing a punishment that the law

cannot impose.42 With the government conceding the retroactivity, the Seventh Circuit was

unable to escape the logical conclusion that the Supreme Court itself made Johnson categorically

retroactive to cases on collateral review.43 Although Price made a prima facie showing that he

may be entitled to sentencing relief under Johnson, the Court noted that there could be other

predicate offenses that qualify as an enumerated offense or under the force clause.44 It was likely

not the case for Price, as the defendant was released from custody upon filing the successive

petition in the district court.45

(vi) Eighth Circuit

In Woods v. United States, the Eighth Circuit acknowledged that every circuit confronted

with the issue of Johnson’s retroactivity for purposes of a second or success §2255 petition has

taken a different approach.46 Further, as a practice of the Eighth Circuit, the government’s

concessions of retroactivity of a new rule are generally accepted as a sufficient prima facie

showing to allow a successive § 2255 petition and thus granted Woods petitition.47 Just two

weeks later, in Menteer v. United States, the Eight Circuit clarified their decision in Woods.48 In

42 795 F.3d at 734. 43 Id. at 732, 734. 44 Id. at 735. 45 Price v. United States, No. 2:04-cr-81 (N.D. Ind. Aug. 25, 2015). 46 805 F.3d 1152, 1154 (8th Cir. 2015); comparing Price, 795 F.3d at 734 (holding Johnson announced a new substantive rule and prior Supreme Court holdings make it retroactive); In re Gieswein, 802 F.3d at 1148–49 (holding the Supreme Court has not held in a case or a combination of cases that the rule in Johnson is retroactive to cases on collateral review, and therefore it has not “made” Johnson retroactive); In re Rivero, 797 F.3d at 989 (holding Supreme Court “made” new substantive rules retroactive in Schriro v. Summerlin, 542 U.S. 348, 351 (2004), but finding Johnson did not announce a new substantive rule under Summerlin); and, Pakala, 804 F.3d at 140 (noting the circuit split, declining to address the issue, and finding petitioner made prima facie showing of retroactivity where government conceded retroactivity). 47 Id. (noting that the approach is consistent with the First Circuit). 48 806 F.3d 1156, 1156 (8th Cir. 2015).

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Menteer, the petitioner relied solely on the concession of the government and did not conduct

any analysis of whether Johnson announced a new rule of constitutional law that was made

retroactive to cases on collateral review.49 For that reason, the Court cautioned that the district

court cannot defer to the “preliminary determination” granting authorization.50 Nevertheless, the

Court granted Menteer’s leave to file a successive § 2255 motion.

Later, the Eight Circuit decided Richardson and again relied on the government’s

concession that Johnson may apply retroactively in collateral proceedings to authorize the

petitioner’s successive § 2255 motion.51 Again, the Court granted authorization with respect to

the defendant’s ACCA claim, but did reject the petitioner’s motion for authorization to the extent

that it sought to challenge his sentencing guidelines calculations.52

(vii) Ninth Circuit

The Court of Appeals for the Ninth Circuit in United States v. Streit granted the

government and the prisoner’s joint emergency motion seeking authorization to file a second or

successive § 2255 petitions based on Johnson.53 In the joint motion, the parties cited to the

Seventh Circuit decision in Price and conceded the retroactive effect of Johnson. In granting the

petition, the court found that the petitioner made a prima facie claim that Johnson announced a

new rule of constitutional law, made retroactive to cases on collateral review that was previously

unavailable.54 The Ninth Circuit granted another a similar successive Johnson-based petition the

same day.55

49 Id. 50 Id. 51 Richardson v. United States, 2015 WL 8956210, at *1 (8th Cir. Dec. 16, 2015). 52 Id. 53 No. 15-72506 (9th Cir. Aug. 25, 2015). 54 Id. 55 Waits v. United States, No. 15-72596 (9th Cir. Aug. 25, 2015).

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(viii) Tenth Circuit

Directly in conflict with the First, Second, Sixth, Seventh, Eighth and Ninth Circuits, the

Tenth Circuit denied certification to prisoners requesting to file successive petitions.56 In denying

authorization to file a successive § 2255 in In re Gieswein, the Tenth Circuit Court of Appeals

found their inquiry statutorily limited to whether the Supreme Court explicitly held the new rule

retroactive to cases on collateral review.57 Rejecting the Seventh Circuit’s position in Price, the

Tenth Circuit found their own precedent did not allow them to make its “own determination that

a new rule fits within [a] Teague exception [to non-retroactivity].”58

(ix) Eleventh Circuit

Similar to the Fifth and Tenth Circuit, the Eleventh Circuit in In re Rivero denied an

application for leave to file a successive § 2255 motion, finding that “the rule announced in

Johnson does not meet the criteria the Supreme Court uses to determine whether the retroactivity

exception for new substantive rules applies.”59 Although a new substantive rule, the Supreme

Court did not expressly hold that the invalidation of the residual clause applied retroactively and

Congress could amend the residual clause.60 Differentiating but citing In re Rivero with approval,

the Eleventh Circuit in Mays limited the retroactivity of Johnson to petitions seeking habeas

relief for the first time.61 The Court distinguished an initial petition from a successive in that the

56 In re Gieswein, 802 F.3d 1143 (10th Cir.2015). 57 Id. at 1146. 58 Id. at 1148; citing Cannon v. Mullin, 297, F.3d 989, 994 (10th Cir. 2002) (holding that the Supreme Court is the only entity that can “make” a new rule retroactive…through a “holding” to that effect). 59 In re Rivero, 797 F.3d at 988–90. 60 Id. at 989-90. 61 Mays v. United States, ___ F.3d ___ (2016), 2016 WL 1211429, at *6 (March 29, 2016).

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requirement of § 2255(h), that the rule must be “made retroactive…by the Supreme Court,” is

inapplicable and a broader retroactivity analysis is required per Teague.62

C. Resolving The Spilt: Welch v. United States On April 18, 2016, less than three weeks after the oral arguments, the United States

Supreme Court ruled seven to one that Johnson is a new substantive rule and thus “made”

retroactive.63 The Court proceeded on the assumption that Teague applies to a federal collateral

challenge of a federal conviction as it does to challenges of state convictions.64

Under the Teague doctrine, “new constitutional rules of criminal procedure will not be

applicable to those cases that have become final before the new rules are announced.”65

However, and relevant here, new substantive rules generally do apply retroactively.66 A rule is

substantive if it alters the “range of conduct or class of persons that the law punishes,” including

“decisions that narrow the scope of a criminal statute buy interpreting its terms, as well as

constitutional determinations that place particular conduct or persons covered by the statute

beyond the State’s power to punish.”67 The Supreme Court in Welch found it undisputed that

Johnson announced a new rule as “the result was not dictated by precedent existing at the time

the conviction became final.”68 Further, in finding that Johnson changed the substantive reach of

the ACCA by altering the range of conduct or class of persons that the ACCA punishes, the rule

62 Id., See also 28 U.S.C §2255(h) 63 See Welch, 136 S. Ct. at 1265. 64 Id. at 1264; citing Chaidez v. United States, 568 U.S. 1103, 1113, n. 16 (2013) and, Danforth v. Minnesota, 552 U.S. 264, 269, n. 4 (2008). 65 Teague v. Lane, 489 U.S. 288, 310 (1989). 66 Schriro v. Summerlin, 542 U.S. 348, 351 (2004). 67 Id. at 351-353. In contrast, procedural rules regulate the “manner of determining the defendant’s culpability” and do not produce a class of people convicted of conduct the law does not make criminal. Id. at 353. 68 Welch, 136 S. Ct. at 1264; quoting Teague, 489 U.S. at 301.

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is substantive.69 Simply, Johnson had “nothing to do with” the judicial procedures by which the

statute is applied, rather, it affected the reach of the underlying statue.70

Speaking solely to the ACCA, Welch said nothing in regards to Guidelines cases and

although Justice Alito deemed the decision to strike down the residual clause as

unconstitutionally vague a “nuclear explosion” when dissenting in Johnson, he joined the

majority in Welch.

II. WHAT IS LEFT OF THE ACCA AFTER JOHNSON?

The decision in Johnson was limited to the void for vagueness challenge of the residual

clause, leaving in tact the element clause, often referred to as the force clause, and the four

enumerated offenses.71 Hence, an individual cannot be deemed an armed career criminal, unless

the three predicate violent felonies either involved an element of force; or, were burglary, arson,

or extortion; or involved the use of an explosive.72 Such a determination requires the Court to

engage in statutory interpretation, not judicial fact-finding.73

A. Force Clause: Violent Force

The force clause requires the predicate felony to have “as an element the use, attempted

use, or threatened use of physical force against the person of another.”74 However, the Supreme

Court clarified that the term physical force in the ACCA means violent physical force.75 Violent

force is a substantial degree of force that is capable of causing physical pain or injury to another

69 Id. at ___ (slip op., at 9). 70 Id. 71 Johnson, 135 S.Ct. at 2563. 72 18 U.S.C. §924(e)(2)(B)(i). 73 James, 550 U.S. at 214. 74 Id. 75 United States v. Johnson, 559 U.S. 133, 140 (2010).

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person.76 To determine if the state statute of conviction meets the ACCA’s definition of violent

felony, the court must determine that the elements are the same as, or narrower than the violent

force required under the ACCA.77

B. Enumerated Offenses: Generic Crimes

To determine whether a state statute matches one of the enumerated offenses78 (burglary,

arson, or extortion), a court compares the elements of the state statute with the elements of the

“generic” crime, or the offense as commonly understood.79 This is different from the residual

clause in that the elements-to-elements comparison is grounded in real-world facts and statutory

elements, not the risk posed by a crime in an ordinary case. For example, the burglary statutes of

many states have been held not to constitute generic federal burglary under Taylor,80 because

those state’s burglary statutes are indivisibly overbroad and convictions under the statutes cannot

qualify as the enumerated generic “burglary” crime.81

C. Divisibility

Whether a state statute of conviction qualifies as a violent felony under either clause of

the ACCA depends on the divisibility of the statute under which the defendant was convicted.

This distinction is paramount because convictions under divisible statutes enable a sentencing

court to conclude that a jury, or a judge at a plea colloquy, has convicted the defendant of every

element of the ACCA-qualifying crime.82 Generally, this is true because prosecutors charging a

76 Id. 77 Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). 78 18 U.S.C. § 924(e)(2)(B)(ii), 79 Descamps, 133 S.Ct. at 2281. 80 Id. 81 See e.g., United States v. Castro-Vazquez, 802 F.3d 28, 35-36 (1st Cir. 2015); 82 Id. at 2290.

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violation of a divisible statute must select the relevant element from the list of alternatives.83

However, if the statute is overbroad and indivisible, the sentencing court cannot discern from the

indictment or jury instructions which form of the crime the defendant was convicted.84

(i) Indivisible Statutes: The Categorical Approach

A statue is indivisible if it does not list potential offense elements in the alternative,

therefore containing a single, indivisible set of elements.85 Put another way, if an indivisible

statute allows for both violent and nonviolent means of commission, the offense is not a

categorical crime of violence. Employing the categorical approach, the court may only consider

the fact of conviction and the statutory definition of the prior offense, not the underlying

conduct.86 If the statutes elements are the same or more narrow than those of the generic offense,

the prior conviction qualifies as a predicate violent felony.87 If the elements are overbroad, the

prior offense cannot serve as an ACCA predicate and the inquiry stops there, even if the

defendant actually committed the offense in its generic form.88 Thus, the only way a facially

overbroad statute can qualify as a predicate offense is via the modified categorical approach and

if the statute is divisible.89

83 Id. 84 Id. 85 Descamps, 133 S.Ct. at 2279 (limiting the use of the modified categorical approach to sentencing under ACCA only when the crime of which the defendant was convicted was divisible). 86 Taylor v. United States, 495 U.S. 575, 602 (1990); see also Descamps, 133 S.Ct. at 2279-80 (rejecting Ninth Circuit’s evidence-based inquiry and limiting the modified approach to a elements-based inquiry). 87 Descamps, 133 S.Ct. at 2279. 88 Id. at 2284-85. 89 United States v. Fish, 758 F.3d 1, 14 (1st Cir. 2014).

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(ii) Divisible Statutes: The Modified Categorical Approach

If the statute is divisible, 90 the court may use the modified categorical approach,

permitting consideration of extra-statutory documents such as jury instructions, plea agreements,

and charging documents.91 This information is used solely to determine whether the defendant

was convicted of the particular “statutory definition” that corresponds with an enumerated

offense or has an element of violent force.92 A narrow exception to the categorical approach, the

modified approach is limited to determining which of the statute’s alternative elements formed

the basis of the defendant’s prior conviction.93 Thus, a court may not consider police reports or

any other facts disclosed by the record of conviction, as the facts underlying the conviction are

irrelevant.94 If the permitted documents do not identify the basis of the defendant’s prior

conviction, the court must determine that each of the possible offenses would qualify as a violent

felony to be considered an ACCA predicate.95 Used as a tool, the modified approach “merely

helps implement the categorical approach when a defendant was convicted of violating a

divisible statute…when a statute lists multiple, alternative elements, and so effectively creates

several different crimes.”96

90 Descamps used a burglary statute as an example of a divisible statute. Burglary could involve entry into a building or an automobile. Where entry into an automobile does not match the generic burglary definition, the court may look at the extra-statutory documents to ascertain the actual crime for which the defendant was convicted. 133 S.Ct. at 2281. 91 Shepard v. United States, 544 U.S. 13, 16 (2005); citing Taylor, 495 U.S. at 602. 92 Descamps, 133 S.Ct. at 2283. 93 Id. 94 Shepard, 133 S.Ct. at 21 (inquiry is nature of the offense of conviction, not the actual conduct of the defendant). 95 United States v. Holloway, 630 F.3d 252, 257 (1st Cir. 2011). 96 Descamps, 133 S.Ct. at 2287; citing Nijhawan v. Holder, 557 U.S. 29, 41 (2009).

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III. JOHNSON’S INEVITABLE INFLUENCE ON THE CAREER OFFENDER GUIDELINES

The United States Sentencing Guidelines (“USSG”) provide for a career offender

enhancement if the defendant was at least eighteen years old at the time the defendant committed

the offense of conviction, the offense of conviction is a felony that is either a “crime of violence”

or a “controlled substance offense,” and the defendant has at least two prior felony convictions of

either a “crime of violence” or a “controlled substance offense.”97 A predicate offense qualifies

as a “crime of violence” if the crime was punishable by a term of imprisonment exceeding one

year that:

(i) has an element the use, attempted use, or threatened use of physical force against the person or another; or (ii) is burglary of a dwelling, arson, or extortion, involved use of explosives, or otherwise involved conduct that presented a serious potential risk of physical injury to another.98

While Johnson involved the residual clause of the ACCA, cases interpreting the ACCA

have consistently served as controlling precedent for guidelines cases in the lower courts.99 This

is so because the definition of “crime of violence” under the guidelines is nearly identical to the

definition of “violent felony” under the ACCA and both definitions include an identically

worded residual clause (italicized above) denoting crimes that present “a serious potential risk of

physical injury to another.”100 As such, in deciding the residual clause in the ACCA was

unconstitutionally vague in Johnson, the Court looked at four decisions interpreting the residual

97 U.S.S.G. § 4B1.1(a) 98 U.S.S.G. § 4B1.2(a) 99 See United States v. Holloway, 630 F.3d 252, 254 n.1 (1st Cir. 2011) (finding that decisions construing one term inform construction of the other). 100 Compare 18 U.S.C. § 924(e)(2)(B)(ii), with U.S.S.G. § 4B1.2(a)(2).

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clause language in the § 4B1.2(a)(2) context and only two in the ACCA context.101 In the days

following the Johnson decision, the Supreme Court also vacated the sentences of fifteen career

offenders sentenced under the identical residual clause, including three cases on collateral

review.102

In response to the decision in Johnson and recognizing the reliance on the ACCA for

guidelines cases, the Sentencing Commission revised the guidelines on January 8, 2016 to take

effect August 1, 2016, which includes the striking of the residual clause from the career offender

guideline.103 The question remains, however, whether the residual clause of a “crime of violence”

under the advisory guidelines is subject to the same retroactive effect of Johnson, thus, providing

relief for those deemed career offenders in reliance on the residual clause. Although Welch

announced that Johnson is a new substantive rule that is retroactive - solving one split, the

Supreme Court’s silence on Johnson’s application to the guidelines, despite consideration in oral

101 Johnson, 135 U.S. at 2559-60. The four guidelines decisions were United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013), United States v. Whitson, 597 F.3d 1218 (11th Cir. 2010), United States v. McDonald, 592 F.3d 808 (7th Cir. 2010), and United States v. Williams, 559 F.3d 1143 (10th Cir. 2009). 102 See, e.g., see Caldwell v. United States, 136 S. Ct. 417 (2015); Banks v. United States, 136 S. Ct. 365 (2015); McCarthren v. United States, 136 S. Ct. 332 (2015); Gonzales v. United States, 136 S. Ct. 84 (2015); Maldonado v. United States, 135 S. Ct. 2929 (2015); Smith v. United States, 135 S. Ct. 2930 (2015); Vinales v. United States, 135 S. Ct. 2928 (2015); Richardson v. United States, No. 15-6053, 2016 WL 763200 (S. Ct. Feb. 29, 2016); Moon v. United States, No. 15-7189, 2016 WL 1173109 (S. Ct. Mar. 28. 2016); Jeffries v. United States, No 15-7300, 2016 WL 1173110 (S. Ct. Mar. 28, 2016); Beckles v. United States, 135 S. Ct. 2928 (2015) (§ 2255 motion); Denson v. United States, 135 S. Ct. 2931 (2015) (§ 2255 motion); Jones v. United States, 135 S. Ct. 2944 (2015) (§ 2255 motion); Jones v. United States, 136 S. Ct. 333 (2015) (§ 2255 motion); and, Wynn v. United States, 135 S. Ct. 2945 (2015) (§ 2255 motion). 103 See Amendment to the Sentencing Guidelines (Preliminary) (Jan. 8, 2016) (available at http://www.ussc.gov/sites/default/files/ pdf/amendment-process/reader-friendly-amendments/20160108_RF.pdf (last accessed January 20, 2016)).

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argument on the issue,104 left the emerging split undisturbed and the lower federal courts without

guidance.105

A. Yet Another Circuit Split: A Look Into Just One Nuclear Explosion of Johnson

The majority of the circuits have determined that the guidelines are subject to void for

vagueness challenges and the residual clause is thus unconstitutional after Johnson, while the

lone Eleventh Circuit has determined otherwise. In any event, the inquiry does not stop there for

cases on collateral review and, unsurprisingly, the circuit courts have come to very different

conclusions regarding the retroactivity in the context of the USSG as opposed to the ACCA.

Thus, a large number of individuals continue to wait in prison, while serving unconstitutional

sentences, while others in similar circumstances, but different circuits or even different districts,

are being resentenced and released.

(i) Johnson Applies to The Career Offender Guidelines At The Very Least By Concession And Assumption

Considering the judicial inconsistencies that motivated the Supreme Court in Johnson are

likewise present in USSG cases, the Tenth Circuit on direct appeal found that residual clause of

the career offender guideline is also unconstitutionally vague.106 Simply put, “[i]f one iteration of

104 Welch v. United States, 2016 WL 1243208 (U.S.), 20, 47-49 (U.S. Oral. Arg., 2016)(J. Breyer commenting that “a person whose sentence is higher than it otherwise would have been due to an unconstitutional provision of law must get the lower sentence even if he was sentenced 50 years ago. That's what we would be saying. Now, there are many, many reasons why certain guidelines or perhaps statutory portions of the Sentencing Act might be held unconstitutional. But I think I agree with you. The reason isn't the point in Teague. The fact is that it's whether the thing is struck out, because if it's struck out, there is no basis for holding the person in the prison, you see?”). 105 See generally Welch, 136 S. Ct. 1257 (2016). 106 United States v. Madrid, No. 14-2159, 2015 WL 6647060, at *4 (10th Cir. Nov. 2, 2015)

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the clause is unconstitutionally vague, so too is the other.”107 Given the reliance on the ACCA for

guidance in interpreting the career offender provision, “it stretches credulity to say that we could

apply the residual clause of the Guidelines in a way that is constitutional, when courts cannot do

so in the context of the ACCA.”108 Accordingly, the petitioner’s claim that the career offender

sentence was imposed “in violation of the Constitution” was undoubtedly cognizable under 28

U.S.C. § 2255(a).109

In so finding, the Court’s analysis was not swayed by the advisory nature of the USSG.

Rather, in accordance with Peugh v. United States, the Guidelines are subject to constitutional

challenge “notwithstanding the fact that sentencing courts possess discretion to deviate from the

recommended sentencing range.”110 More specifically, the sentencing range is the mandatory

starting point for the district court in making a sentencing determination and can be reversed if

applied incorrectly.111 Of significance, the Court in Peugh considered and foreclosed many of the

arguments rejecting vagueness challenges to the Guidelines, including dismissing the

government's argument that the Guidelines were merely “guideposts” that lacked “the force and

effect of laws.”112 While the Due Process Clause inquiry in Johnson is distinct from the ex post

facto inquiry in Peugh, it similarly depends on principles of fair notice and avoiding arbitrary

107 Id.; citing United States v. Tiger, 538 F.3d 1297, 1298 (10th Cir.2008) (remanding § 4B1.2(a) sentencing enhancement because a Supreme Court decision construing the ACCA “applies equally to the sentencing guidelines”). 108 Id. 109 Unlike other grounds for relief under 28 U.S.C. § 2255(a), there is no requirement that constitutional error also constitute a “miscarriage of justice.” See Narvaez v. United States, 674 F.3d 621, 623 n.2 (7th Cir. 2011) (“miscarriage of justice” standard applies only to “a non-jurisdictional, non-constitutional error of law”); United States v. Foote, 784 F.3d 931, 936 (4th Cir. 2015); Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011). 110 Id.; citing Peugh v. United States, 133 S.Ct. 2072, 2082 (2013) (undercutting prior circuit decisions finding that the guidelines were not susceptible to constitutional challenges). 111 Id.; citing Gall v. United States, 552 U.S. 38, 49–51 (2007). 112 Peugh, 133 S.Ct. at 2085-86; quoting United States v. Booker, 543 U.S. 220, 234 (2005).

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enforcement of sentencing provisions and the vagueness principles “apply not only to statutes

defining elements of crimes, but also to statutes fixing sentences.”113

In addition to the Tenth Circuit, the First, Second, Third, Fourth, Sixth, Seventh, Eighth,

and Ninth Circuits have all applied Johnson to the guidelines' residual clause, many just

assuming and conceding that the residual clause of the guidelines is also constitutionally void for

vagueness.

In Soto-Rivera, the First Circuit held that the list of enumerated offenses contained in the

guidelines commentary was interpreting only the residual clause, and that post-Johnson, such

commentary is no longer of any effect.114 As such, “the residual clause § 4B1.2(a) sets forth a

limited universe of specific offenses that qualify as a ‘crime of violence.’ There is simply no

mechanism or textual hook in the Guideline that allows us to import offenses not specifically

listed therein into 4B1.2(a)'s definition of ‘crime of violence.’”115 Although the First Circuit has

yet to decide whether Johnson necessarily invalidates the residual clause of the career offender

Guidelines, they proceeded by assumption where the government conceded its application.116

Nevertheless, the government continues to take the position that Johnson’s constitutionally based

holding regarding the residual clause of the ACCA applies with equal force to the guideline’s

residual clause of the career offender guideline.117

Similarly, the Second Circuit in Maldonado proceeded on the theory that the same

reasoning that invalidated the ACCA’s residual clause applies to the identically worded career

113 Johnson, 135 S. Ct. at 2557. 114 United States v. Soto-Rivera, 811 F.3d 53, 61 (1st Cir. 2016). 115 Id. at 60. 116 Id. at 62 n.9 (refusing to address Johnson’s applicability to the USSG given the government explicitly waived any reliance on the career offender residual clause); and, United States v. Castro-Vazquez, 802 F.3d 28, 38 (1st Cir. 2015) (declining to “decide whether the residual clause of the guidelines fails under Johnson” and proceeding on assumption). 117 United States v. Parsons, 2016 WL 859505 (C.A.1 2016), 18-19.

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offender residual clause.118 Although the court addressed the other circuits’ concerns about the

constitutionally of the career offender residual clause, the Second Circuit also declined to decide

whether the due process concerns that led to the invalidity of the ACCA residual clause were

equally applicable to the USSG given the parties concessions.119 Following Maldonado, the

Second Circuit reiterated that the career offender residual clause is invalid after Johnson, in light

of the “identical” language in both clauses and the overlapping authority interpreting them.120

The Third Circuit also concedes the application of Johnson to the Guidelines.121 Noting,

but not relying on the split among circuits, the Third Circuit turned to their “own circuit

precedent interpreting the residual clauses in the Guidelines and the ACCA in light of their

identical wording and by the Government's concession” to remand for resentencing.122

In relying on the “substantially similar” residual clauses of the ACCA and the Guidelines,

the Fourth Circuit “assume[d] without deciding that plain error occurred” where the district court

imposed a sentence based on the defendant’s career offender status predicated on the residual

clause.123 Nonetheless, the Court failed to provide relief because the error did not affect the

defendant’s substantial rights, that it “affected the outcome of the district court proceedings”

because the sentencing judge imposed a sentence above the range.124

118 United States v. Maldonado, No. 12-3487-CR, 2016 WL 229833, at *3 (2d Cir. Jan. 20, 2016). 119 Id. at *4. 120 United States v. Welch, No. 12-4402-CR L, 2016 WL 536656, at *4 (2d Cir. Feb. 11, 2016). 121 United States v. Townsend, No. 14-3652, 2015 WL 9311394, at *5, n.14 (3d Cir. Dec. 23, 2015). 122 Id. at *5, n.14. 123 United States v. Frazier, 621 F. App'x 166, 168-69 (4th Cir. 2015). 124 Id. at 168.

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The Fifth Circuit Court of Appeals did not publish an opinion to the effect; however, it

has taken the position that Johnson applies to the career offender guidelines by granting an

unopposed motion to remand for resentencing.125

Without much discussion, both the Sixth and Seventh Circuits pointed to their practice of

interpreting both residual clauses identically, thus, proceeding on the assumption that Johnson

applies equally to the career offender guidelines. 126 The Sixth Circuit in Darden found that the

defendant “deserve[d] the same relief as Johnson: the vacating of his sentence.”127 The Sixth

Circuit similarly stated that an appellant, whose sentence is enhanced due to the career offender

provisions of the USSG, is “entitled to the same relief as offenders sentenced under the residual

clause of the ACCA” post-Johnson, and remanded for resentencing in United States v. Harbin.128

While the Seventh Circuit, on a first § 2255 petition and without any briefing by either side, left

it to the district court to address on remand.129

The Eighth Circuit relied on the similar rationale of the Tenth Circuit in finding that,

although the USSG are not statutes, the district courts are required to consider them, which calls

into doubt the notion that the guidelines cannot be unconstitutionally vague because they do not

proscribe conduct.130 In vacating and remanding a sentence based on the residual clause, the

Court noted that its prior precedent in rejecting vagueness challenges to the Guidelines may not

125 United States v. Estrada, No. 15-40264 (5th Cir. Oct. 26, 2015). 126 See United States v. Darden, 605 F. App'x 545, (Mem)-546 (6th Cir. 2015); and, Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015). 127 Id. 128 610 F. App'x 562, 563 (6th Cir. 2015) citing Darden, 605 Fed.Appx. 545 (6th Cir. July 6, 2015). 129 Ramirez, 799 F.3d at 856. 130 United States v. Taylor, 803 F.3d 931, 932 (8th Cir. 2015). (calling into doubt United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990); citing Gall, 552 U.S. at 49, 51.

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be consistent with Johnson, but left the question for the district court to address.131 Following

Taylor, the Eighth Circuit Court of Appeals, assumed without deciding that the holding of

Johnson applies to the residual clause in the career offender guidelines.132

Finally, the Ninth Circuit in making no distinction between “violent felony” in the ACCA

and “crime of violence” in the career offender guidelines, remanded for consideration of

“whether the due process concerns that led Johnson to invalidate the ACCA residual clause as

void for vagueness are equally applicable to the Sentencing Guidelines.”133 Nevertheless, the

Court assumed that, in light of Johnson, the two predicate offenses, deeming the defendant a

career offender, may not be crimes of violence.134

Evident in the collection of decisions from the majority of circuits, there is little debate

that the reliance on the ACCA in forming and interpreting the Guidelines necessarily dictates the

same or similar application of Johnson to the Guidelines regardless of their advisory nature. On

the other hand, when it comes to granting relief on collateral review, these courts are not all in

agreement as discussed further infra part (iii).

(ii) Johnson Does Not Apply to Guidelines: The Approach of the Eleventh Circuit

Beckles was one of the fifteen career offender cases remand from the Supreme Court after

Johnson. In an unpublished decision on remand, the Court of Appeals for the Eleventh Circuit,

did not think the Supreme Court’s decision involving the ACCA was “clearly on point” as

“Johnson says and decided nothing about career-offender enhancements under the Sentencing

131 Id. at 933. 132 United States v. Benedict, No. 14-3412, 2016 WL 805694, at *7 (8th Cir. Mar. 2, 2016). 133 United States v. Willis, 795 F.3d 986, 996 (9th Cir. 2015). 134 Id. at 989.

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Guidelines or about the Guidelines commentary underlying Beckles's status as a career-

offender.”135

Refusing to relinquish the pre-Peugh position, the Eleventh Circuit in Matchett held that

Johnson does not apply to the Guidelines, because by its plain language Johnson is limited to

criminal statutes that define elements of a crime or fix punishments, and the advisory Guidelines

do neither.136 This is the only circuit to affirmatively hold that Guideline § 4B1.2's residual

clause is not unconstitutional after Johnson because the “[v]agueness doctrine of the Due Process

Clause d[oes] not apply to advisory sentencing guidelines.”137

This principle relies on the notion that “vagueness challenges to statutes not threatening

First Amendment interests are examined in light of the facts of the case at hand; the statute is

judged on an as-applied basis.”138 Contrary to the Eleventh Circuit’s position, Johnson called into

question this as-applied approach stating that “although statements in some of our opinions could

be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision

is constitutional merely because there is some conduct that clearly falls within the provision's

grasp.”139

Another flaw in the Court’s reasoning is the failure to take into consideration the arbitrary

enforcement of judges in which the vagueness doctrine rests and solely relied on the lack of fair

notice as inapplicable to the guidelines.140 However, explicit in Johnson was the two features of

the residual clause that conspire to make it hopelessly indeterminate and unconstitutionally

vague: (1) “[b]y tying the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a

135 Beckles v. United States, 616 F. App'x 415, 416 (11th Cir. 2015). 136 United States v. Matchett, 802 F.3d 1185, 1194-95 (11th Cir. 2015). 137 Id. at 1194 138 See id.; and Maynard v. Cartwright, 486 U.S. 356, 361 (1988). 139 See Johnson, 135 S.Ct. at 2560–61. 140 Matchett, 802 F.3d at 1194 (emphasis in original).

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crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty

about how to estimate the risk posed by a crime;” and, at the same time, (2)”the residual clause

leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” If that

is not clear enough, Welch amplified that the problem with the residual clause was applying the

“serious potential risk” standard “under the categorical approach required courts to assess the

hypothetical risk posed by an abstract generic version of the offense.” It follows that such an

stance by the Eleventh Circuit wholly ignores the Supreme Court’s repeated failure to craft a

principled standard and ultimately the lower courts lack of consistency in applying the residual

clause. 141 Consequently, the Eleventh Circuit has been widely criticized - most notably for the

reason that all the cases supporting the holding predate Peugh and Johnson.142

(iii)Welch’s Retroactivity and Johnson’s Application to the Career Offender Guidelines Does Not Necessarily Mean Johnson Is Retroactive on Collateral Review For Guidelines Based Petitions

Under the principles of Teague, a Supreme Court decision applies retroactively to cases on

collateral review if it announces a “new” rule that is “substantive.”143 As previously discussed in

the context of the ACCA, substantive rules include “decisions that narrow the scope of a criminal

statute by interpreting its terms” and “constitutional determinations that place particular conduct

or persons covered by the statute beyond the State's power to punish.”144 Procedural rules,

however, generally do not apply retroactively unless they fall within narrow exception of

“watershed rules of criminal procedure,” which implicate the fundamental fairness and accuracy

of the criminal proceeding.145

141 Johnson, 135 S. Ct. at 2554. 142 See, e.g., Madrid, 805 F.3d at 1212 n.10. 143 Schriro v. Summerlin, 542 U.S. 348, 351 (2004). 144 Id. at 351-352. 145 Id. at 352.

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Johnson is a new rule that is substantive, clarified in Welch and as applied to the ACCA.

Although Welch made no mention of the Guidelines, the Court did distinguish that the inquiry

required by the residual clause was the reason why it failed.146 Such an inquiry does not comport

with the guarantee of due process as the consequence is, “condemn[ing] someone to prison for

15 years to life.”147 The result for the Guidelines is no different and often times the resulting

enhancement is more than a five-year difference. The logic for retroactivity is also no different:

Johnson is not a procedural decision[,] [it[ had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Armed Career Criminal Act,…did not… “allocate decisionmaking authority” between judge and jury, or regulate the evidence that the court could consider in making its decision…Johnson affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied. Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review.148

Nevertheless, the Guidelines have been subjected to a separate analysis to determine if the

application of Johnson is simply a non-watershed procedural rule subject to the Teague bar due

to the Guidelines advisory nature.

a. Relief on Collateral Review Unsurprisingly, the Tenth Circuit recently authorized a second or successive challenge to

the career offender guidelines in light of Johnson and Welch. In doing so, the Tenth Circuit

expanded upon their decision in Madrid, and assumed without question that Welch “made”

Johnson retroactive to ACCA and career offender cases alike in authorizing a successive § 2255

motion in In re Encinias.149

146 Welch, 136 S.Ct. at 1262. 147 Id.; quoting Johnson, 135 S.Ct. at 2560. 148 Welch, 136 S. Ct. at 1265 (citations omitted). 149 In re Encinias, No. 16-8038, 2016 WL 1719323, at *2, n. 4 (10th Cir. Apr. 29, 2016).

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It is also worth noting that the Sixth Circuit has held that “the Supreme Court has made

Johnson's rule categorically retroactive to cases on collateral review.”150 Although In re Watkins

involved a sentencing enhancement under the ACCA, and not the Sentencing Guidelines, the

Sixth Circuit made note that it has treated the “identically worded” residual clause of U.S.S.G. §

4B1.2(a)(2) like the residual clause of the ACCA.151 Additionally, no distinction was drawn

between a Fifth Circuit ACCA case and an Eleventh Circuit Sentencing Guidelines case when

rejecting both circuits' conclusions that Johnson was not retroactive.152 Subsequently, the Sixth

Circuit has also granted three second or successive § 2255 petitions based on Guidelines

claims.153

b. No Relief on Collateral Review Even if the Johnson ruling and the vagueness doctrine apply to the federal sentencing

guidelines, defendants sentenced under the career offender guideline may not be able to get or

even seek any sentencing relief comparable to defendants sentenced under the ACCA. This is

precisely the detriment faced by prisoners petitioning for collateral review based on their career

offender enhanced sentence in the Eleventh Circuit and various federal district courts.154

150 In re Watkins, 810 F.3d at 384 (granting a motion to file a second § 2255 petition in light of Johnson). 151 See, e.g., United States v. Darden, 605 F. App'x at 546. 152 See In re Watkins, 810 F.3d at 383 (treating as analogous In re Williams, 800 F.3d 322 (5th Cir. 2015) and In re Rivero, 797 F.3d 986 (11th Cir. 2015)). 153 In re Homrich, No. 15-1999 (6th Cir. Mar. 28, 2016); In re Grant, No. 15-5795 (6th Cir. Mar. 7, 2016); and In re Swain, No. 15-2949 (6th Cir. Feb. 22, 2016). 154 See, e.g., Frazier v. United States, 2016 WL 885082, at *6 (E.D. Tenn. Mar. 8, 2016) (concluding that “while Johnson effected a substantive change in the law by altering the range of lawful sentences under the ACCA, extension of that same reasoning to the Guidelines would result in only procedural changes to the sentencing process”); Hallman v. United States, 2016 WL 593817, at *5 (W.D.N.C. Feb. 12, 2016) (quoting Schiro, Johnson's effect on guidelines residual clause “did not ‘narrow the scope of a criminal statute by interpreting its terms' or ‘place particular conduct or persons covered by the statute beyond the State's power to punish’”); United States v. Willoughby, ––– F.Supp.3d ––––, 2015 WL 7306338, at *7 (N.D.Ohio Nov. 18,

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In one instance, although the Seventh Circuit authorized a second or successive challenge

to an enhanced guideline based sentence in light of Johnson, the district court entertaining the

petition in Stork dismissed the motion to vacate the petitioner’s sentence under § 2255.155 In

doing so, the Court found that the new rule announced in Johnson is procedural and not

watershed when applied to the guidelines 156 The Court rejected the rule as substantive, because,

at most, a career offender can argue “en route to imposing a lawful sentence, the Court used an

improper procedure by considering an unlawfully vague Guideline.”157 In finding it clear it was

not a watershed rule of criminal procedure, the Court compared it to Gideon v. Wainwright: the

only example the Supreme Court has ever given of a rule that would meet this standard.158

Surely, such a procedural designation of the Guidelines in the context of Teague, is in

glaring contrast to Gall’s requirement that “district courts must begin their analysis with the

Guidelines and remain cognizant of them throughout the sentencing process.”159 Further, such an

argument rejects the fact that the district court contemplating a non-guidelines sentence “must

consider the extent of the deviation and ensure that the justification is sufficiently compelling to

2015) (quoting Schiro, reasoning that because an advisory Guidelines sentence “must always fit within the limits set by Congress, an erroneous career-offender designation carries no risk that a defendant ‘faces a punishment that the law cannot impose upon him’ ”). 155 Stork v. United States, No. 15-2687, 2015 WL 5915990 (7th Cir. Aug. 13, 2015); Stork v. United States, 2015 WL 8056023 (N.D.Ind.), *10. 156 Stork, No. 3:10-CR-132, 2015 WL 8056023, at *5 (holding that “because a new rule invalidating the residual clause of the Guidelines would be neither a substantive rule nor a watershed rule of criminal procedure, it would not apply retroactively to cases on collateral review, and thus offers [petitioner] no relief”). 157 Id. at *6 158 Id. 159 Gall, 552 U.S., at 50, n. 6 (emphasis added).

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support the degree of the variance.”160 In doing so, the Guidelines are in a real sense the

foundation for the sentence.161

Another district court within the Seventh Circuit expressly reached the opposite

conclusion of Stork, identifying the flaws in Stork’s decision.162 Most notably, the Court could

not “find a single case issued by the Seventh Circuit after Peugh that applies…the proposition

that the guidelines are not subject to vagueness challenges.”163 Although ultimately denying the

petitioners successive § 2255 motion, the Court did grant the prisoner a certificate of

appealability without requiring a hearing.164 This was so because in light of the unsettled nature

of “just how far Johnson will reach[,] [it] could represent a seismic shift for the guidelines, both

going forward and on collateral review…[and] simply put, there is ample room for disagreement

amongst reasonable jurists on this issue, and Johnson has only complicated matters further.”165

Where the petitioner sought a second or successive § 2255 petition based on the

guidelines and not the ACCA, the Eighth Circuit found an alternative ground for denial was that

Johnson did not invalidate the residual clause of the career offender guideline.166 In any event,

following the decision, the court appointed the public defender’s office to represent the petitioner

160 Id. at 51. (emphasis added). 161 Peugh, 133 S. Ct. at 2083, citing Gall, 552 U.S. at 50. 162 Cummings v. United States, No. 15-CV-1219-JPS, 2016 WL 799267, at *4, *8 (E.D. Wis. Feb. 29, 2016). 163 Id. at *9. 164 Id. at *17. 165 Id. at *16. 166 In re Rivero, 797 F.3d at 991. Compare Matchett, 802 F.3d at 1194 (making clear that the vagueness doctrine, which rests on a lack of notice, does not apply to the advisory sentencing guidelines”) with Madrid, 805 F.3d at 1207 (applying Johnson to career offender guidelines considering the lack of notice and inconsistent sentences).

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and brief whether the decision in Johnson was made retroactive on collateral review and whether

the USSG can rely on Johnson in support of an application to file a successive petition.167

The day after the decision in Welch, the Eleventh Circuit Court of Appeals in In re

Robinson denied a successive § 2255 application because the predicate offenses qualified under

the force clause or was an enumerated offense.168 Regardless, this case is worth a glimmer of

hope for the Eleventh Circuit as one justice, Judge Beverly Martin, wrote a concurring opinion

purely in an attempt to alert those whose petitions were denied before the decision came out in

Welch to refile before the June 26, 2016 deadline:

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, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2016 WL 1551144 (Apr. 18, 2016), all these applicants were turned away from our Court, at least in part, because our Court held that Johnson could not apply in any of these cases. Some of those who filed applications in other courts have already been freed because they were serving an unconstitutional prison sentence.1 As best I can tell, all the prisoners we turned away may only have until June 26, 2016, to refile applications based on Johnson.

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 and U.S. Attorney offices are monitoring these cases.169

Judge Martin then included a list of one hundred ten individual prisoners by name, docket

number, and sentencing court, and included eighty-one prisoners with Johnson claims based on

167 In re Rivero, No. 15-13089 (11th Cir. Sept. 14, 2015). 168 In re Robinson, No. 16-11304-D, 2016 WL 1583616, at *1 (11th Cir. Apr. 19, 2016). 169 Id. at *2.

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the ACCA as well as twenty-nine based on the career offender guidelines.170 The twenty-nine

career offender guideline cases were included, even though the Eleventh Circuit explicitly ruled

that Johnson does not apply to the advisory guidelines, because the concurrence opined that

Matchett was wrongly decided, every other circuit has found or assumed that Johnson applies to

the Guidelines, and some courts have even granted second or successive § 2255 motions.171 The

concurrence in In re Robinson clearly recognized the disparities that have ensued to prisoners

who were sentenced in the Eleventh Circuit. Even more importantly, this concurring opinion

indirectly points out that these prisoners seeking collateral review lack the Sixth Amendment

right to counsel and so it is within the district judge’s discretion to appoint a Federal Public

Defender.

Despite the Eleventh Circuit stubbornly resisting the decision in Johnson on all fronts, it

is hopeful that the concurrence in In re Robinson, as well as, the pressure of wide criticism by

other circuits will eventually create a uniform application of Johnson to the guidelines.

CONCLUSION

Welch’s silence on the residual clause of the career offender guidelines, despite the

emerging split, did not help career offender based petitions, but it did not foreclose those

petitioners either. While only speculation, something can be gleaned from the fact that Justice

Alito, fearing the nuclear explosion in his dissent in Johnson, joined the majority in Welch -

making no mention of the guidelines.

Johnson should apply to the Guidelines for the same substantive reasons as the ACCA: it

narrows the scope and reach of the career offender guidelines, altering the class of persons that

are within the government’s power to punish (at least without some justification). Thus, on

170 Id. 171 Id. at n. 2.

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second or successive petitions, the inquiry should end at Welch. This is reasonable considering

the career offender guideline's residual clause (1) uses the precise language that Johnson held

was impermissibly vague in the ACCA; and, (2) relies heavily on the ACCA in interpretation

and application.

The result of such an application of Johnson to the Guidelines creates no new wave of

petitioners seeking resentencing. Rather, the courts resisting such a change are already receiving

such applications for petitions, denying them, and hoping that either the statute of limitations

runs, the prisoner sentence runs, or the Supreme Court never addresses the issue, but leaving the

possibility that they may have to entertain those petitions again.

Asserting some common sense into the successive petition analysis, those being released

upon resentencing based on direct appeals or first § 2255 motions, have not spent nearly as much

time incarcerated on an unconstitutional sentence as those resorting to second or successive

petitions. In consideration of the harsh sentences imposed by the federal government, it is

unfortunate and frankly a grave injustice that there is little interest in correcting sentences that

prisoners do not deserve under that law as it now stands when the basis for those sentences are

unconstitutionally vague.