SCOTUS to Weigh Extending ‘Crime of Violence' Ruling

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By Lance J. Rogers

June 27 — The U.S. Supreme Court agreed June 27 to hear arguments next term in a case that may make a big difference to prisoners whose sentences were enhanced under the “crime of violence” boost set out in the career-offender provisions of the federal sentencing guidelines ( Beckles v. United States, U.S., No. 15-8544, cert. granted 6/27/16 ).

“This is a big deal,” James E. Felman, of Kynes Markman & Felman, Tampa, Fla., told Bloomberg BNA.

If the court concludes next term that a sentencing boost in the guidelines for violent career offenders is unconstitutionally vague under Johnson v. United States, No. 13-7120, 2015 BL 204915 (U.S. 2015) (97 CrL 403, 7/1/15), it could undo the sentences of large numbers of federal prisoners, Felman said.

Douglas A. Berman, an Ohio State University law professor who writes the Sentencing Law and Policy blog, had an even more colorful appraisal: “buckle-up your seat-belts, sentencing fans, as the post- Johnson criminal history bumpy ride is now sure to continue in the Supreme Court for at least the next Term and likely beyond.”

Johnson Redux?

Travis Beckles is arguing that his enhanced sentence for possessing a sawed-off shotgun during a crime should be recalculated because the enhancement suffers from the same infirmity that prompted the justices to strike down the residual clause in the Armed Career Criminal Act last summer.

Beckles points out in his petition for certiorari that the residual clause defining “violent felony” in 18 U.S.C. § 924(e)(2)(B) that was declared unconstitutional in Johnson is nearly identical to the provision in the federal sentencing guidelines, U.S.S.G. § 4B1.2(a)(2), that led to his enhanced sentence.

The government, on the other hand, is urging the justices to affirm the Eleventh Circuit, which rejected the analogy to Johnson when it upheld Beckles's sentence on remand after Johnson was decided.

The circuit court of appeals ruled that Johnson doesn't apply here because Beckles wasn't sentenced under the ACCA but was instead sentenced under the express language in the federal sentencing guidelines classifying his offense as a “crime of violence.”

Johnson says and decided nothing about career-offender enhancements under the Sentencing Guidelines or about the Guidelines commentary underlying Beckles's status as a career-offender,” the court said in its per curiam opinion.

The Sixth Circuit has reached the opposite conclusion on this question.

And Then There Were Seven

The career-offender boost is defensible on the theory that certain recidivists should be handled more harshly, Felman said. “But the difficulty with it is that it can pack quite a wallop and there have been so many examples of cases where the prior conduct just doesn't look like that big a deal,” he added.

Just two months ago, the justices ruled 7-1 that Johnson applies retroactively to habeas corpus collateral review in Welch v. United States, No. 15-6418, 2016 BL 120401 (U.S. 2016) (99 CrL 64, 4/20/16). In order for Beckles to prevail, the court would have to rule that the Johnson analysis applies retroactively in the sentencing guidelines scenario as well.

Beckles is also asking the court to clarify whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in the commentary to Section 4B1.2, remains a “crime of violence” after Johnson.

The court announced that Justice Elena Kagan did not take part in the consideration or decision of this petition. So the matter may be heard by a seven-member bench if the Senate still hasn't confirmed a replacement for the late Justice Antonin Scalia, the author of the Johnson decision.

The Federal Public Defender's Office, Fort Lauderdale, Fla., is representing Beckles. The Department of Justice, Washington, is representing the government.

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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