Welch: Building Blocks For Retroactively Challenging Unconstitutional Career Offender Designations

For defenders, the retroactive application of Johnson to clients serving unconstitutional Armed Career Criminal Act sentences seemed like a no brainer. In Johnson, the Supreme Court held that the ACCA’s residual clause was unconstitutionally vague. Our clients serving sentences based on convictions that were ACCA predicates under the residual clause were serving unconstitutional sentences. Because the change in the scope of who is covered under the ACCA is substantive, Johnson applies retroactively to ACCA sentences. In other words, a final ACCA conviction is remediable either as a first § 2255 motion, a second or successive motion under § 2255(h)(2), or as a sentencing innocence claim under § 2241 (as outlined in this post-Johnson blog post and article).

In Welch, with the agreement of both the government and the defense, the Court held today that Johnson applies retroactively because the decision is substantive within the meaning of retroactivity doctrine. Welch provides all of the building blocks we need to apply Johnson retroactively to the Career Offender statute and guideline. The key is the functional analysis the Supreme Court set out for distinguishing between substantive and procedural changes for the purposes of retroactivity: “[T]his Court has determined whether a new rule is substantive or procedural by considering the function of the rule, not its underlying constitutional source.”

The Career Offender statute requires that persons with the requisite predicate convictions “shall” have guidelines “at or near the maximum term authorized.” 28 U.S.C. § 994(h). The Career Offender guideline then defines predicate convictions to include the identical residual clause held unconstitutional in Johnson because of its indeterminacy. Many courts have been reluctant to make retroactive remedies available for prisoners serving unconstitutional Career Offender sentences. Seizing upon that reluctance, the government has advocated a hyper-technical view that, regardless of the gross effect of Career Offender designations on the ultimate sentence, the unconstitutional designation is merely a procedural hiccup rather than a substantive problem because the sentence remains within the statutory maximum.

The functional analysis declared in Welch destroys that argument. In LaBonte, the Supreme Court held that the Career Offender guideline cannot ameliorate the harsh effect required by the Career Offender statute. And the result of falling within the Career Offender guideline is drastic: the offense level can skyrocket and the Criminal History Category, no matter how low otherwise, automatically becomes a VI, the worst class of offenders. U.S.S.G. § 4B1.1(b). The same drastic effect pervades other guideline enhancements based on prior “crimes of violence” like the +6 or +10 enhancements in U.S.S.G. § 2K2.1. We have been arguing that Johnson renders an unconstitutional Career Offender sentence just as retroactively remediable as an unconstitutional ACCA sentence. In both contexts, Johnson “narrows the the scope of a criminal statute by interpreting its terms,” Schriro, 542 U.S. at 351-52, it “alters the range of conduct or the class of persons that the law punishes,” id. at 352, and “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense,” Saffle v. Parks, 494 U.S. 484, 494 (1990).

And remember, unconstitutional enhancement of the guideline range under the Career Offender residual clause drastically affects the ultimate sentence. In Peugh, the Supreme Court, in finding that the ex post facto clause applied to the advisory guidelines, held that an increase in the advisory guideline range creates a “‘significant risk’ of a higher sentence.” The Court cited empirical data establishing that “when a Guidelines range moves up or down, offenders’ sentences move with it.” Justice Kennedy famously said in the context of Sixth Amendment violations in Lafler and Glover that “any amount of jail time has Sixth Amendment significance.”

Given the drastic practical effect of the Career Offender designation, the functional analysis announced in Welch should put an end to the artificial distinction between unconstitutional ACCA designations and unconstitutional Career Offender designations. Applying Johnson to the identical Career Offender guideline – as all circuits save one have agreed makes sense – has the same functional effect described in Welch:

• As in Schriro, the rule changed “the substantive reach” of the Career Offender statute and guideline by altering “the class of persons” that they punish;

• Because Johnson changed which predicate convictions qualify for Career Offender treatment, “even the use of impeccable factfinding procedures could not legitimate” a sentence based on an invalid predicate;

• The Career Offender designation is not procedural because “Johnson had nothing to do with the range of permissible methods a court might use to determine” the Career Offender status; and

• “Johnson affected the reach of the [Career Offender] statute rather than the judicial procedures by which the statute is applied.”

Under Welch, the functional effect of Johnson on Career Offender status makes it a substantive decision that has retroactive effect under Teague in cases on collateral review.

For pending cases that depend on whether Johnson applies retroactively to sentences imposed based on Career Offender designation, we need to provide courts with Welch as supplemental and controlling authority in favor of retroactivity. For those cases not yet filed, Welch is a reminder to provide our Career Offender clients affected by Johnson with petitions for relief prior to Johnson’s one-year anniversary on June 25, 2016.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon