≡ Menu

SCOTUS: Residual clause of Armed Career Criminal Act is unconstitutionally vague

Johnson v. United States, USSC No. 13-7120, 2015 WL 2473450 (June 26, 2015), reversing and remanding United States v. Johnson, 526 Fed. Appx. 708 (8th Cir. 2013) (per curiam) (unpublished) (8th Cir. 2013); Scotusblog page (including links to briefs and commentary)

A six-Justice majority of the Supreme Court holds that “the indeterminacy of the wide-ranging inquiry required by the residual clause [of the Armed Career Criminal Act] both denies fair notice to defendants and invites arbitrary enforcement by judges” because the case law has failed to establish a generally applicable test that prevents application of the clause from devolving into “guesswork and intuition.” (Slip op. at 5, 8). Therefore, using the residual clause to increase a defendant’s sentence denies the defendant due process of law.

Under the ACCA, a person convicted of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g) faces a 15-year minimum mandatory sentence if the person has three or more prior convictions for a “violent felony,” 18 U.S.C. § 924(e)(1). A “violent felony” is a felony that either (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.” § 924(e)(2)(B) (emphasis added). The italicized phrase is known as the “residual clause.”

The Court’s interpretations of the residual clause in Sykes v. United States, 131 S. Ct. 2267 (2011), Chambers v. United States, 555 U.S. 122 (2009), Begay v. United States, 553 U.S. 137 (2008), and James v. United States, 550 U.S. 192 (2007), require the clause be applied using a “categorical approach” under which the sentencing court considers whether the elements of the prior offense are of the type that would justify treating it as a violent felony, without looking into the specific conduct that led to the conviction. With the elements rather than the specific conduct in mind, a sentencing court is supposed to picture the kind of conduct that the crime involves in “the ordinary case” and then decide whether that abstraction presents a serious potential risk of physical injury to another, using the enumerated violent felonies (burglary, arson, extortion, or crimes involving the use of explosives) as guides to evaluate that risk, James550 U.S. at 208.

Despite the Court’s four attempts to clarify the residual clause, the lower courts’ application of the clause led to circuit splits and inconsistent results and “pervasive disagreement about the nature of the inquiry one is supposed to conduct and the kinds of factors one is supposed to consider.” (Slip op. at 9). This case provides an example: Johnson was given an enhanced sentence under the clause for a prior conviction for possession of a short-barreled shotgun. (Slip op. at 3). Had he been convicted in the Seventh Circuit instead of the Eighth, that prior conviction wouldn’t have counted, see United States v. Miller, 721 F.3d 435 (7th Cir. 2013) (conviction under § 941.28(2) for possession of a short-barreled shotgun was not a violent felony under residual clause). These splits and inconsistencies and disagreements led to questions about the constitutionality of the clause, Sykes, 131 S. Ct. at 2284-89 (Scalia, J., dissenting), and James, 550 U.S. at 215-31 (Scalia, J., dissenting).

In this case five other justices join Justice Scalia in concluding that “this Court’s repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy.” (Slip op. at 7).

Two features of the residual clause conspire to make it unconstitutionally vague. In the first place, the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime. It ties the judicial assessment of risk to a judicially imagined “ordinary case” of a crime, not to real-world facts or statutory elements. How does one go about deciding what kind of conduct the “ordinary case” of a crime involves? “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” United States v. Mayer, 560 F.3d 948, 952 (C.A.9 2009) (Kozinski, C. J., dissenting from denial of rehearing en banc). ….  The residual clause offers no reliable way to choose between … competing accounts of what [an] “ordinary” [offense] involves.

At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise “serious potential risk” standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction. By asking whether the crime “otherwise involves conduct that presents a serious potential risk,” moreover, the residual clause forces courts to interpret “serious potential risk” in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives. These offenses are “far from clear in respect to the degree of risk each poses.” Begay, 553 U.S., at 143. …. By combining 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, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates. (Slip op. at 5-6).

Justices Kennedy and Thomas concur in the judgement, on the grounds that under the categorical approach outlined in the Court’s prior cases, a conviction for possession of a short-barreled shotgun conviction shouldn’t count under the residual clause. Justice Alito dissents, concluding the conviction does count under the residual clause. In addition, both Justice Thomas (concurrence at 5-18) and Justice Alito, in an argument endorsed by Justice Kennedy (dissent at 6-17), pointedly dispute the majority’s conclusion that the residual clause is unconstitutionally vague.

This result is not too surprising, and was predicted (here, among other places) in light of the Court’s order for reargument on the vagueness issue. The question now is, what is the impact on federal prisoners sentenced under the ACCA?

Clearly, ACCA sentences imposed based on a provision other than the residual clause are not affected; as the majority notes, “[t]oday’s decision does not call into question application of the Act to the four enumerated offenses [burglary, arson, extortion, or one involving use of explosives], or the remainder of the Act’s definition of a violent felony.” (Slip op. at 15). And just as clearly, defendants currently facing an enhanced sentence based on convictions being counted under the residual clause can’t now be sentenced under that provision. So, too, defendants who were given an enhanced sentence on the basis of prior convictions counted under the residual clause and whose cases are on direct appeal get the benefit of the ruling in this decision, and should be entitled to resentencing. Griffith v. Kentucky, 479 U.S. 314, 322-23 (1986) (new rules apply to criminal cases that have not yet become final); Greene v. Fisher, 132 S. Ct. 38, 44 (2011) (finality occurs when direct appeal rights have been exhausted).

What about defendants whose conviction and sentence are final, and who now want to seek resentencing via collateral review? That will depend on whether this ruling is deemed to be substantive or procedural, for under Teague v. Lane, 489 U.S. 288 (1989), new procedural rules aren’t applicable on collateral review. For a good argument that this decision will apply retroactively on collateral review, see Leah Litman, Residual Impact: Resentencing Implications of Johnson’s Potential Ruling on ACCA’s Constitutionality, 115 Colum. L. Rev. Sidebar 55, 60-63, 65-73 (2015). Lipman also discusses the even thornier problems of whether Johnson can be used by persons who have previously filed a petition for collateral review, id. at 75-77, as well as the possible use of the decision to challenge a sentence imposed in reliance on the career-offender sentencing guideline, U.S. Sentencing Guidelines Manual §§ 4B1.1 and 4B1.2(a)(2), which uses language similar to the ACCA’s residual clause, id. at 63-64, 73-74.

UPDATE (6/29/15): Rory Little, Scotusblog’s commentator on the case, asks whether the real problem with the residual clause was not the statute, but the Court’s own “categorical” approach. His analysis is here.

{ 1 comment… add one }
  • Cole June 29, 2015, 7:39 am

    Here’s my question – does this ruling provide grounds to revisit the holding of State v. Givens, 28 Wis. 2d 109, 115, 135 N.W.2d 780 (1965), which found that the phrase “otherwise disorderly conduct” of sec. 947.01 was not unconstitutionally vague? Seems that setting precise limits on what is “disorderly” is even more difficult and arbitrary than limiting what crimes create a “serious potential risk of physical injury.”

    On the one hand, I’d love an opportunity to curb the charging of bullshit DC cases under the “otherwise disorderly” verbiage. On the other hand, sometimes the “otherwise disorderly” clause of DC provides a helpful way to settle troublesome cases when the DA wants a conviction but clients would rather plead to DC than a more specific charge…

Leave a Comment