Recent Supreme Court Decision in Johnson v. United States Should Prompt Changes Beyond the ACCA
The federal Armed Career Criminal Act (ACCA) provides for an enhanced penalty, a mandatory minimum 15 year sentence, for felons possessing firearms who have previously been convicted of a combination of three serious drug offenses or “violent felonies.” Congress defined “violent felonies” in three ways: 1: crimes which have as an element use of force or the threat or attempt to use force against another; 2: arson, burglary, extortion or any crime that involves the use of explosives; and 3: any crime that “otherwise involves conduct that presents a serious potential risk of injury to another.” 81 U.S.C. § 924(c)(2). The last definition is known as the “residual clause” and it has been the subject of five Supreme Court decisions since 2007. In the most recent, Johnson v. United States, decided last week, the Court finally threw in the towel on attempting to construe this provision and held that it was unconstitutionally vague. In Johnson, the lower courts had held that Johnson’s prior conviction for possession of a sawed-off shotgun qualified as a “violent felony” under the residual clause. Initially the Supreme Court granted certiorari only to determine whether that offense qualified as an ACCA “crime of violence.” After argument on this narrow issue, however, the Court asked for supplemental briefing and argument on the constitutionality of the residual clause and eventually decided the broader, constitutional issue, holding that the clause was so vague that it violated due process.
So, as of June 26, 2015, there are only two definitions of “violent felony” that can serve as predicates for the enhanced ACCA mandatory minimum sentence: either the predicate offense must have as an element of the offense the use, threat of use or attempted use of force, or it must be arson, burglary, extortion or an offense involving explosives.
The federal Sentencing Guidelines, which provide for substantially increased sentencing ranges for so-called “Career Offenders,” may and should also be affected by Johnson’s holding. A defendant over 18 can be sentenced as a Career Offender for any two prior convictions of a “crime of violence or controlled substance offence” – a far larger population of defendants than those charged for being felons in possession of a firearm. U.S.S.G. §4B1.1(a). Because the definition for “crime of violence” is the same as the ACCA definition of “violent felony,” the First Circuit has construed them identically, such that precedent as to the ACCA definition is generally applicable to the Guidelines definition, and vice-versa. See, e.g., U.S. v. Williams, 529 F.3d 1, 4 n.3 (1st Cir. 2008) (authority interpreting one “generally persuasive” in interpreting the other); U.S. v. Almenas, 553 F.3d 27, 34 n.7 (1st Cir. 2009) (ACCA and Guidelines definitions read “in pari passu”).
Is the residual clause of the Guidelines definition of “crime of violence” still valid after Johnson? As a constitutional matter, probably it is. Because the Supreme Court has held that the Guidelines are not mandatory but only advisory as to what sentence a Court may impose, the construction of Guideline language does not implicate Due Process concerns, at least not in the sense in which the ACCA language does, in that it need not provide fair notice to individuals of the penalties they may incur by violating the law. Fair notice is provided by the statutory scheme of penalties, and while the Guidelines may increase or decrease a recommended sentencing range within the statutory scheme, they do not mandate anything. The sentencing judge may sentence a defendant anywhere within the statutory range of sentences, and thus the statute provides minimal fair notice of potential sentencing exposure, both maximum and minimum, to a potential criminal actor.
Further, while Congress has spoken only through the statute, the Guidelines include Commentary, promulgated by the same Sentencing Commission that writes the Guidelines themselves. Thus, in the Commentary to the definition of “crime of violence” in the Guidelines the very offense which was at issue in Johnson, possession of a sawed-off shotgun, is explicitly denominated as a “crime of violence” for Career Offender purposes: “Unlawfully possessing a firearm described in 26 U.S.C. § 5485(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a “crime of violence.” U.S.S.G. §4B1.2, Application Note 1, para. 5.
So, while Mr. Johnson will not receive a mandatory minimum sentence as an Armed Career Criminal for having previously been convicted of possession of a sawed-off shotgun, that conviction could make him a Career Offender under the Guidelines. What of the residual clause where no gloss is given in the Commentary? While continuing to include crimes such as assault and battery on a police officer and resisting arrest as “crimes of violence” for Guidelines purposes even though they no longer qualify as “violent felonies” for ACCA purposes may not offend due process, the structure and purpose of the Guidelines themselves militate against doing so. If the Supreme Court, after several attempts to provide a clear gloss on the ACCA residual clause, and years of similarly unsuccessful efforts by District Courts and Courts of Appeals, has concluded that the clause must be stricken because its meaning is indiscernable, that conclusion should equally apply to the virtually identical residual clause in the Guidelines, which has long been interpreted, as noted above, in pari passu with the ACCA residual clause. The same inconsistencies and confusions apply to both equally.
The primary purposes of the Sentencing Guidelines, as set out in Congress’ statutory directive on sentencing, 18 U.S.C. § 3553(a)(6), the enabling legislation for the Guidelines, 28 U.S.C. § 991(b)(B), and in the Guidelines themselves, U.S.S.G. Part A(1)(3), para. 2, are: effectiveness, fairness, uniformity and consistency in sentencing. The Commission also notes that in formulating the Guidelines and determining how detailed to get, the “complexity and workability of the [Guidelines] system” was a primary consideration. Inconsistency and confusion in applying the residual clause defeats the fundamental purposes of the Guidelines, and for this reason, the Supreme Court’s decision in Johnson should signal the end to using the residual clause for determining Career Offender predicates. Just as Congress is now free to enact more specific legislation as to what constitutes a “violent felony,” the Sentencing Commission can reformulate its definition, or even add more specific commentary (as it has done in the past), thus avoiding the kind of inconsistency and resultant unfairness that led the Court to decide Johnson as it did, without either party requesting it.