It seems like a simple issue. The United States Supreme Court ruled last June that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague, in violation of due process. The Sentencing Guidelines use the same language.

Doesn’t that mean the similar provision in the Sentencing Guidelines is unconstitutionally vague?

The Tenth Circuit said yes, while the Eleventh Circuit recently said no. Other circuits haven’t squarely decided the issue – leaving it for district courts to resolve.

The ACCA enhances the sentences for offenders who have qualifying prior violent felonies. Its residual clause encompasses any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.A. § 924(e)(2)(B)(ii). In Johnson v. U.S., 135 S.Ct. 2551, 192 L.Ed.2d 569 (June 26, 2015), the Supreme Court ruled that this language is unconstitutionally vague.

The Sentencing Guidelines contain an armed career criminal provision, which enhances the offense level for offenders with prior convictions for crimes of violence. The residual clause defines a crime of violence as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

Same language. Same unconstitutionality?

An Eleventh Circuit panel has said no, stating that, by its terms, Johnson is limited to criminal statutes that define elements of a crime or fix punishments, and the advisory Guidelines do neither.

The Tenth Circuit has reached the opposite conclusion. Citing concerns about judicial inconsistency as a motivation for the Supreme Court’s decision in Johnson, the Tenth Circuit held that the residual clause of the Guidelines is unconstitutionally vague, even though the Guidelines are advisory rather than statutory.

A Seventh Circuit panel noted circuit precedent that reasoned that the Sentencing Guidelines are not subject to challenge for unconstitutional vagueness, because they are advisory, not mandatory. However, because the defendant had not asked the panel to reconsider that precedent in light of Johnson, the panel said it would “leave that question for another day,” while noting that the U.S. Sentencing Commission has begun the process of amending the career-offender Guideline to delete the residual clause, bringing the Guidelines into alignment with Johnson.

The majority opinion for an Eighth Circuit panel called into doubt circuit precedent that, like the Seventh Circuit’s precedent, had reasoned that the Sentencing Guidelines were not susceptible to a challenge on vagueness grounds. The panel majority instructed the district court to resolve the constitutional question on remand. The dissenting judge believed that the circuit precedent was still good law.

Similarly, the Sixth Circuit has vacated a judgment and remanded for reconsideration in light of Johnson.


Sixth Circuit: U.S. v. Darden, 605 Fed.Appx. 545 (C.A.6-Ky. July 6, 2015) (mem.)

Seventh Circuit: U.S. v. Rollins, 800 F.3d 859 (C.A.7-Wis. Sept. 1, 2015)

Eighth Circuit: U.S. v. Taylor, 2015 WL 5918562 (C.A.8-Ark. Oct. 9, 2015)

Tenth Circuit: U.S. v. Madrid, 2015 WL 6647060 (C.A.10-N.M. Nov. 2, 2015)

Eleventh Circuit: U.S. v. Matchett, 2015 WL 5515439 (C.A.11-Fla. Sept. 21, 2015); Beckles v. U.S., 2015 WL 5692334 (C.A.11-Fla. Sept. 29, 2015) (on remand after Supreme Court granted certiorari, vacated the judgment, and remanded for reconsideration in light of Johnson)

Selected district court decisions: U.S. v. Cotton, 2015 WL 4757560 (E.D.N.C. Aug. 12, 2015) (Johnson does not apply to the Sentencing Guidelines); U.S. v. Litzy, 2015 WL 5895199 (S.D.W.Va. Oct. 8, 2015) (Johnson applies to the Sentencing Guidelines)

This post was written by Loren Singer, Principal Attorney Editor, Thomson Reuters.

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