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Is the Career Offender Enhancement's Residual Clause under the United States Sentencing Guidelines next on the chopping block after Johnson v. United States, 576 U.S. ___ (2015)?

On June 26, 2015—the same day that the Supreme Court issued its landmark decision that the fundamental right to marry is guaranteed to same-sex couples in Obergefell v. Hodges—the Supreme Court issued another decision that will affect an untold number of federal prisoners.  In an opinion authored by Justice Scalia, the Court in Johnson v. United States  revisited the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), the fifth time it has done so in the last seven years.  So why does the ACCA appear so often on the Court’s docket? 

The ACCA is a repeat-offender statute that targets federal firearm offenders by imposing a 15 year minimum sentence for any person who has three prior convictions in any court for “a violent felony or a serious drug offense” and is then convicted of a federal firearms offense.  The issue that consistently has plagued the Court is what convictions constitute “a violent felony” to trigger the statute. 

The ACCA defines “a violent felony” as one that:

(i)  has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii)  is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

(emphasis added).  The emphasized language is referred to as the “residual clause,” and was the subject of the Court’s opinion in Johnson.  

In prior opinions, the Court held that convictions for fleeing law enforcement by vehicle (2011) and attempted burglary (2007) fit the definition while driving under the influence (2009) and failing to report for incarceration (2009) do not.  Justice Scalia previously declared the clause a “drafting failure” and opined that it should be struck down as unconstitutionally vague.  For example, Justice Scalia warned in 2011 that failure to strike the residual clause would continue to invite a parade of cases to enter the Court’s docket:  “[T]he residual-clause series will be endless, and we will be doing ad hoc application of ACCA to the vast variety of state criminal offenses until the cows come home.”  His proclamation garnered approval from Justice Kagan by separate opinion while Justice Thomas recognized the “muddied” state of ACCA jurisprudence.

By an 8-1 decision in Johnson, Justice Scalia and five other justices ruled that the residual clause was “unconstitutionally vague.”[1]  The felonious offense that triggered the Court’s ire was a prior conviction for possession of a sawed-off shotgun.  As Justice Scalia opined: four prior Supreme Court opinions raised the issue of what crimes trigger the residual clause and nine years of jurisprudence[2] should have motivated Congress to fix the clause:

Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise.  Each of the uncertainties in the residual clause may be tolerable in isolation, but “their sum makes a task for us which at best could be only guesswork.”  United States v. Evans, 333 U. S. 483, 495 (1948). Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.

With Congress failing to act, the majority struck down the residual clause because it “violate[d] the Constitution’s guarantee of due process.”  The effect of Johnson became apparent just a few days later when the Supreme Court vacated 41 judgments and remanded cases to their respective Circuits “for further consideration in light of Johnson.” 

The broader consequence of Johnson is on offenders who received career offender enhancements under the United States Sentencing Guidelines (“USSG”).  Two weeks after Johnson, the Sixth Circuit vacated the sentencing of a defendant who received a career offender enhancement by a two-page per curiam opinion in light of the Court’s decision in Johnson.  

The career offender enhancement is found in Section 4B1.1 of the USSG.  It provides for the maximum authorized sentencing term under the USSG for a federal offender (1) convicted of a felony that is (A) a “crime of violence” or (B) a controlled substance offense and (2) had previously been convicted of two or more prior felonies, each of which is either (A) a “crime of violence” or (B) a controlled substance offense.  Section 4B1.2 of the USSG defines “crime of violence.”  It contains a residual clause that is nearly identical to that of the ACCA: 
 
The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that … is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

(emphasis added).

The Sixth Circuit will not likely be the last to address what effect Johnson has on the USSG career offender enhancement.  The Sentencing Commissions statistics show that, since October 2009, 11,340 defendants have been subject to the career offender enhancement, compared to the 2,967 subject to the ACCA and nearly four times more defendants on average each year.  Regardless of the likely trend, we will probably not see Johnson reflected in the actual published Guidelines until 2016.  See http://famm.org/wp-content/uploads/2013/08/FS-Guideline-Amendments-in-a-Nutshell-1.12.pdf for a summary of the Guideline amendment process.
 


 

[1] Justices Kennedy and Thomas concurred in the judgment by separate opinion but refused to find the clause unconstitutionally vague.

[2] Since Congress last amended ACCA in 2002, approximately 2,000 federal appeals by defendants invoked the ACCA.  The annual number of appeals and the sections of the United States Sentencing Guidelines they invoke are available from 1995 through 2014 at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/XXXX/Table57.pdf where “XXXX” is the four digit year.