Wednesday, July 01, 2015

Johnson: Remembrance Of Illegal Sentences Past

After two dissents on vagueness in James and Sykes, Justice Scalia finally prevailed in Johnson, declaring the residual clause of the Armed Career Criminal Act void for vagueness. This means that any client whose ACCA conviction depended on prior convictions beyond the specifically listed offenses, in their federal generic form, has a sentencing innocence claim. And since many state burglary statutes are indivisibly overbroad, prisoners with non-generic prior burglary convictions are among the potential beneficiaries of the Supreme Court’s decision. For those clients, we need to be pulling files and working up motions and petitions for relief to challenge the increase from a 10-year maximum for possession of a firearm under 18 U.S.C. § 922(g) to a mandatory minimum of 15 years under the ACCA.

In Johnson, the question was whether a prior conviction for possession of a sawed-off shotgun constituted a “violent felony” under the residual clause of the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii). After the first argument, the Supreme Court asked for supplemental briefing and re-argument on whether the residual clause, which includes offenses that present a “serious potential risk of physical injury to another,” was void for vagueness. In an opinion authored by Justice Scalia, the Court held that imposition of an increased sentence under the ACCA’s residual clause violates the Due Process Clause because the residual clause is unconstitutionally vague:

“We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant’s sentence under the clause denies due process of law.”

“Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution’s guarantee of due process.” The Court’s holding invalidated all applications of the residual clause, because the Court rejected the argument that “a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp.”

Residual Clause Prior Convictions For Non-Generic Burglary And For Eluding

We are already hearing from our clients in prison who are receiving partial and inaccurate information about what Johnson means. Prisoners need to know that neither listed generic predicate offenses, nor convictions for “serious drug offenses,” nor crimes with an element of physical force appear to be directly affected by Johnson. But Johnson is a huge deal in the Ninth Circuit, where the burglary statutes of many States have been held NOT to constitute generic federal burglary under Taylor, as reinforced by Descamps.

Up to now, the Ninth Circuit’s decision in Mayer approved the use of non-generic burglaries as ACCA predicate convictions under the residual clause – but no longer. Then-Chief Judge Kozinski famously dissented in Mayer, along with Judges Reinhardt and Fletcher, calling the decision “a train wreck in the making.” United States v. Mayer, 560 F.3d 948, 951 (9th Cir. 2009) (Kozinski, C. J., dissenting from denial of rehearing en banc). Johnson not only rejected the holding of Mayer, Justice Scalia approvingly quoted Judge Kozinski’s critique of how courts should assess the risks in the “ordinary case” under the residual clause: “A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?” On June 30, 2015, the Supreme Court granted certiorari, vacated the judgment, and remanded in over 40 cases being held pending Johnson, including an action brought by Mr. Mayer.

With Mayer’s holding reversed, the rule of Descamps and Taylor governs, meaning that overbroad burglary statutes are not predicate ACCA convictions. The Ninth Circuit en banc in Grisel and in other cases has held that the “building” elements of several state burglary statutes are overly broad. In United States v. Wilkinson, the Ninth Circuit also held in an unpublished opinion that a state burglary statute including licensed entries was overbroad and required relief from an ACCA conviction. 589 F. App’x 348, 350 (9th Cir. 2014). With the last refuge of the residual clause no longer available, our clients sentenced based on non-generic burglaries are serving illegal sentences.

Another big area for Johnson review will be predicate ACCA convictions under felony eluding statutes. Several years ago, over Justice Scalia’s vagueness dissent, the Court upheld eluding as a “violent felony” under the residual clause in Sykes v. United States, 131 S. Ct. 2267 (2011). We have been attacking eluding convictions ever since because most state eluding statutes, unlike the Indiana statute in Sykes, encompass relatively innocuous conduct including temporary non-compliance with the flashing lights. Johnson expressly overrules Sykes, so all ACCA sentences predicated on eluding convictions need a second look. After Johnson, the Supreme Court granted certiorari, vacated the decision, and remanded in United States v. Martinez, 771 F.3d 672 (9th Cir. 2014), in which the Ninth Circuit had followed Snyder and Cisneros on Oregon eluding to find that California eluding constituted an ACCA “violent felony.”

Johnson Beyond The ACCA

The scope of the Supreme Court’s holding on the residual clause extends beyond the ACCA to any statutory or guidelines provision that combines a “serious potential risk” criteria with application of the categorical approach. The Sentencing Commission used identical language in the residual clause for the statutorily-based career offender “crime of violence” definition. U.S.S.G. § 4B1.2(a)(2). The Ninth Circuit already held in United States v. Coronado that the Supreme Court’s interpretation of the residual clause applies equally to the career offender residual clause. 603 F.3d at 708 (9th Cir. 2010). Enhancement based on an unconstitutionally vague guideline should be just as much of a due process violation as enhancement under the ACCA. The Supreme Court’s post-Johnson GVRs – granted, vacated, and remanded – included seven career offender sentences that are now based on unconstitutional enhancements.

The guideline for non-ACCA unlawful possession of a firearm is implicated as well, because it permits an increase of up to ten offense levels based on prior “crimes of violence” under the career offender definition of that term, including the invalid residual clause. U.S.S.G. § 2K2.1(a). The GVRs include vacation of the Ninth Circuit’s unpublished opinion in United States v. Talmore, 585 F. App’x 567 (9th Cir. 2014). In Talmore, the court had upheld an increase in the base offense level under § 2K2.1 for simple felon-in-possession based on a California burglary conviction.

We are also going to need to keep track of Johnson in the context of illegal reentry prosecutions under 8 U.S.C. § 1326. The definition of “aggravated felony” incorporates the definition of “crime of violence” from 18 U.S.C. § 16(b), which includes a residual clause very similar to the ACCA residual clause. 8 U.S.C. § 1101(a)(43)(F). In looking at prior removal proceedings, as well as enhancements under U.S.S.G. § 2L1.2(b)(1)(C), we may have new arguments based on Johnson and the Due Process Clause. Since we only just received the Court’s Johnson ruling, we are going to need to keep the Court’s vagueness holding in mind in dealing with any statutes and Guidelines with residual clause-type language.

Procedural Mechanisms For Review

The prospective benefits for our clients from Johnson should be relatively straightforward: we need to assert and preserve challenges to prior convictions that implicate residual clauses in cases at trial and on direct appeal. The big questions for obtaining review will arise in the many cases where clients are serving illegal sentences after direct review is over. Many of the principles for raising sentencing innocence claims in this context will be very similar to the principles we set out for both statutory and guidelines cases in our 2014 outline entitled Helping Justice Trump Finality For Defendants With Sentencing Innocence Claims After Begay, Descamps, and Burrage (available here).

The procedural mechanism for review will depend on the stage of litigation. For cases we would have won on appeal under Johnson, a motion to recall the mandate may be appropriate, even under the demanding Ninth Circuit standard. Where Johnson is directly controlling, the Ninth Circuit should provide the forum for preventing the patent injustice of the client serving an illegal sentence.

For those clients who have not previously filed a motion under 28 U.S.C. § 2255, relief should be available because the sentence “was imposed in violation of the Constitution or laws of the United States.” At least for the year after Johnson, our clients should be able to obtain a ruling on the merits under § 2255 where the prior conviction was no longer an ACCA predicate and the petition is the client’s first § 2255 motion. But it may be a good idea to couple your § 2255 motion with alternative invocation of 28 U.S.C. § 2241 under the “escape hatch” of § 2255(e) in case the government asserts any procedural obstacles.

For those for whom a § 2255 motion would be a second or successive petition, § 2241 may provide the primary means for relief. Section 2255(h) limits second or successive motions to claims based on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” In Ezell, the Ninth Circuit found no successive § 2255 jurisdiction for Descamps relief because the court determined that Descamps did not announce a new rule, and, if the rule was new, it was not a rule of constitutional law. Given the roots of Johnson in the Due Process Clause, Ezell's reasoning may require a second look. But the remedy for cases in which § 2255 provides an inadequate path to relief should be a § 2241 petition raised under the § 2255(e) “escape hatch,” which applies when “the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of the detention.”

The “escape hatch” litigation makes perfect sense for obtaining relief under Johnson. Under Supreme Court and Ninth Circuit law, once a statute has been authoritatively construed by the Supreme Court, the interpretation is what the statute has always meant. Thus, the residual clause struck down in Johnson has never been part of a constitutionally-permissible construction of the ACCA. Under retroactivity doctrine, this is a change in the substantive law, at step one of Teague analysis, which is distinct from the retroactivity restrictions that apply to new rules of constitutional criminal procedure at Teague’s step two. For the same reason, guidelines enhancements based on the residual clause for career offender and firearms offense levels have also always been void for vagueness, resulting in increased sentences that would be unreasonable without the high starting point compelled by the unlawful guideline provisions.

The “manifest injustice” that overcomes procedural obstacles is established for ACCA sentences by the mandatory minimum 15 years of imprisonment. And the Solicitor General, in confessing error in Persaud, provided the rock-solid rationale for allowing a second look at ACCA sentences under the § 2255(e) “escape hatch”: "Sentences that exceed the statutory maximum, or that impose a statutory mandatory minimum based on a legal error, are cognizable under the savings clause. . . . The imposition of an erroneous mandatory minimum sentence is likewise a fundamental error that raises separation-of-powers concerns analogous to those implicated by a sentence above the statutory maximum."

The same analysis should result in jurisdiction under § 2255 and, if necessary, § 2241, for sentences imposed based on unlawful guideline enhancements. In Reina-Rodriguez, the Ninth Circuit granted relief under § 2255 where an illegal reentry sentence was unlawfully enhanced by a burglary conviction that did not categorically constitute a “crime of violence.” 655 F.3d at 1193. There are some compelling cases in which the unreasonableness of the sentence is clear: an unlawful career offender sentence increases an unarmed bank robbery, or low-level drug case, from, for example, 37 months with acceptance of responsibility (U.S.S.G. § 2B3.1 or 2D1.1(c) – 100 grams of heroin or half a kilogram of cocaine – for base level 22 at criminal history category III), to 151 months (career offender offense level 32, minus three for acceptance of responsibility, at criminal history category VI). The more than nine-year increase would be unreasonable in the absence of a valid career offender enhancement.

The same unreasonable swing can be found under the firearms guidelines where an unconstitutional ten-level enhancement would increase the low-end sentence from 15 to 51 months at criminal history category I, without acceptance of responsibility. At criminal history category VI, the difference at the low end, without acceptance of responsibility, would be between 37 and 100 months. While the effect of enhancements pre-Booker was mandatory, the post-Booker effect of the unlawful enhancements also establishes manifest injustice given the Supreme Court’s repeated characterization of the Guidelines as the “starting point and initial benchmark” in deciding the ultimate sentence, most recently holding in Peugh, 133 S.Ct. at 2080, that Guidelines amendments implicated the Ex Post Facto Clause because of their strong influence on the ultimate sentence.

There are other cases where the difference between the career offender and non-career offender sentencing ranges were the same or overlapped, in which case the courts may be more reluctant to take a second look. Sentencing ranges two or three times higher seem obvious. Especially where parties agreed to a bottom of the range resolution calibrated to the guidelines, the difference between sentence with and without the unconstitutional enhancement works a manifest injustice on the prisoner serving an illegal sentence. After all, by analogy to the Sixth Amendment context, the Supreme Court has reminded us that even a day of unlawful imprisonment due to ineffective counsel during plea negotiations warrants relief. Lafler v. Cooper, 132 S.Ct. 1376, 1386 (2012) (“any amount of [additional] jail time has Sixth Amendment significance.”)(citing Glover v. United States, 531 U.S. 198, 203 (2001)).

Starting Points For Litigation

In looking at sentencing innocence, there are a few starting points from our outline that should be emphasized. First, our clients need representation on Johnson issues, so we should be assisting them in applying for appointed counsel under the Criminal Justice Act. Second, these cases, like any others, require negotiations with the prosecutors, which after Johnson may be unusually fruitful. In some litigation involving sentencing innocence under the ACCA, the government has declined to assert potential procedural obstacles. Ethical prosecutors faced with clear sentencing innocence have conceded without extensive litigation and entered into agreed judgments. Negotiation should be an initial step.

Third, the Federal Public Defender ethic of “every day counts” means we need to move quickly but deliberately in these cases. Once the cases have been identified, the presentence report should provide the basic information to figure out whether there is play and what procedural device is most suitable. For those filing under § 2241, questions of venue and choice of law need to be researched. Although petitions regarding the execution of a sentence are generally filed in the district of custody, the sentencing district may be the appropriate venue to challenge the lawfulness of the sentence. In any event, the law of the home district should generally apply regardless of where the case is filed, given § 2255’s default to the home district.

One Last Thought About ACCA Litigation

The ACCA is not only poorly drafted, its irrational harshness has become one of the engines driving mass over-incarceration in America. Remember the recent Sixth Circuit case where possession of a shotgun shell under benign circumstances required the judge to blind his conscience and impose the 15 years, even though the defendant had not been in trouble for over 20 years? The concurring judge upholding the unconscionable sentence, after comparing the result to something out of a Charles Dickens novel, said, “I therefore join the continuous flood of voices expressing concern that the ACCA and other mandatory minimum laws are ineffective in achieving their purpose and damaging to our federal criminal justice system and our nation.” Under the ACCA, the prior convictions can be for relatively innocuous conduct and, unlike career offender designation which at least has roots in empirical data from the parole era, there is no time limit on the prior convictions. As a federal defender wrote back in 1994:

“A hunter in possession of a rifle is stopped by a game warden. The hunter has led an exemplary life for thirty-five years. A record check reveals that in 1959 he was convicted at the age of eighteen for three unarmed burglaries of businesses in a single night, in which little or nothing was taken. Under the Armed Career Criminal Act, the hunter is an armed career criminal subject to a mandatory term of fifteen years incarceration, with no probation or parole, and a potential sentence of life without parole.

"A penal statute’s moral validity should be reflected in society’s acceptance of both the prohibition and the punishment as generally applied. There are undoubtedly individuals who, merely by possessing a firearm, create an easily recognized danger to the community based on their prior convictions for crimes of violence. However, the ACCA is so loosely written that appropriate application is aberrational, rather than the norm.”

What’s Wrong With Three Strikes You’re Out, 7 Fed. Sent. R. 69 (1994). When we are challenging ACCA and other similar enhancements, our clients are often being subjected to punishments far in excess of what is fair and reasonable. When the court or the government does the right thing in these cases, we are not receiving a gift or a windfall – we are making the punishment at least come somewhat closer to fitting the crime.

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


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