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Court Considers Residual Clause in Federal Sentencing Guidelines

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By Casey C. Sullivan, Esq. on November 28, 2016 2:59 PM

About a year and a half ago, the Supreme Court ruled in Johnson v. United States that the so-called residual clause in the Armed Career Criminals Act was unconstitutionally vague. That clause, which covered any crime involving "a serious potential risk of physical injury to another," was too vague to put the public on notice of what conduct was prohibited, the Court found. And that ruling has had legs, upending many sentences under the federal three strikes law.

Now, the Supreme Court is considering whether an identical phrase in the federal sentencing guidelines is similarly invalid.

Tackling the Residual Clause in Sentencing Guidelines

Federal sentencing guidelines propose longer sentences for "career offenders," including, until recently, those who have committed a "crime of violence" that "involves conduct that presents a serious potential risk of physical injury to another." The guidelines' application notes further detailed what offenses constituted a "crime of violence," including the possession of a sawed-off shotgun.

Following the Court's ruling in Johnson, the U.S. Sentencing Commission removed the language echoing the ACCA's residual clause from the guidelines this year. But that was too late for Travis Beckles, who was sentenced under the clause for possessing a sawed-off shotgun.

Today, Beckles argued before the Supreme Court that he is entitled to resentencing without a career criminal enhancement.

What's Better, No Guidelines or Vague Ones?

At oral arguments, the justices seemed skeptical of Beckles's position that an indeterminate sentencing scheme would withstand constitutional scrutiny, while the language at issue would not. Imagine a criminal provision "that says that a person who's convicted of this offense may be imprisoned for not more than 20 years," nothing more, Justice Alito posited. Would it be unconstitutionally vague?

No, according to Janice L. Bergmann, arguing for Beckles. "Our position," she explained, "is that the use of a vague guideline, in fact, is worse than indeterminate sentencing because it systematically injects arbitrariness into the entire sentencing process."

But, "if the indeterminate sentencing is all right," Chief Justice Roberts wondered, "it would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it's too vague to be applied."

Tackle Retroactivity First, the Government Argues

Deputy Solicitor General Michael R. Dreeben attempted to clarify. The country has had indeterminate sentencing since the 1790 Crimes Act. Judicial discretion in sentencing does not raise vagueness issues, while sentencing guidelines may.

But because the guidelines are not determinative, the government argued, they are simply procedural. As such, a ruling on their vagueness would not have retroactive effect. Indeed, retroactivity should be the first step in the Court's analysis, Dreeben urged. Judges are currently "sitting on hundreds upon hundreds of these cases," Dreeben said, and "looking to a decision by this Court on the retroactivity question."

The Court is expected to issue a ruling before the end of the term in June, though how it will come out remains hard to predict after today's arguments.

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