Sentencing in the Aftermath of Johnson v. United States

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The U.S. Supreme Court's decision in Johnson v. United States left many questions unanswered, including how far exactly the decision reaches, according to Neal Modi, a University of Virginia School of Law student. This article is a winning entry in the 2016 Bloomberg Law Write-On Competition for law students. 

On April 18, the Supreme Court held in Welch v. United States that Johnson is retroactive on collateral review. 

By Neal Modi

Neal Modi is a second-year law student at the University of Virginia School of Law. He is a managing board member of the Virginia Journal of International Law, and will be a summer associate with Freshfields Bruckhaus Deringer in their New York office.

In the aftermath of a recent U.S. Supreme Court case, lower federal courts face a serious legal question: Does the vagueness doctrine apply to sentencing?

Johnson v. United States

Last term, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) (18 U.S.C. §924(e)(2)(B)), violated the Fifth Amendment. The court held that the clause, which increases sentences for certain offenders who previously engaged in a felony which “involve[d] conduct that presents a serious potential risk of physical injury to another,” was vague in that “it fails to give ordinary people fair notice … [and] so standardless that it invites arbitrary enforcement.” Johnson v. United States, 2015 BL 204915 (2015) (97 CrL 403, 7/1/15).

In Johnson, the court applied a two-step method known as the categorical approach to decipher whether the defendant's prior conviction qualified as a violent felony and merited a sentencing enhancement. First, the court determined the kind of conduct involved in an “ordinary case” of the defendant's prior crime. Next, the court assessed the degree of risk that conduct involves and whether it is serious enough to trigger the residual clause.

Ultimately, the court concluded that the statute lacked guidance as to what constituted an “ordinary case” of a prior crime. To make matters worse, the court found that assessing the degree of risk of that conduct was uncertain, indeterminate, and dangerously relied on the intuition of individual judges. Together, these steps converted the residual clause into a vague provision and contrary to the Fifth Amendment's Due Process Clause, the court held.

Writing for the majority, Justice Antonin Scalia expressed concern about the decision's consequences. If the residual clause is vague, what other sentencing provisions are likewise susceptible to vagueness attacks? Scalia cautiously explained that the Johnson holding would not affect “almost all” other sentencing provisions. Yet just how far the word “almost” stretches remains a lingering issue in the case's aftermath.

Beyond the ACCA

In October 2015, the U.S. Court of Appeals for the Ninth Circuit held that 18 U.S.C. §16(b), which defined a “crime of violence,” was subject to the same “constitutional defects” as the ACCA's residual clause.1 As with the ACCA's residual clause, Section 16(b) is subject to the categorical approach—demanding that judges look to the elements and nature of the offense, as opposed to the specific facts of the individual's crime, the Ninth Circuit noted. The court found the statute vague because application of the method in this case lacked adequate notice and invited arbitrary enforcement among judges.

A few months later, the Seventh Circuit held the same, finding Section 16(b) “materially indistinguishable” from the ACCA's residual clause.2

Raul Vivas-Ceja was convicted of illegal re-entry after removal under 18 U.S.C. §1326. The maximum sentence for violating Section 1326 depends on the defendant's criminal history before removal. Vivas-Ceja had been convicted of fleeing an officer, among other prior felonies. To the district court, this conviction qualified as a crime of violence under Section 16(b). The statutory maximum for Vivas-Ceja was thus elevated to 20 years.

The Seventh Circuit disagreed. Adopting the same categorical approach in Johnson, the court held that Section 16(b) lacked guidance as to what conduct fleeing an officer includes or the degree of risk such conduct presents in an “ordinary case.”

Whether the Ninth and Seventh circuits' decisions represent a correct extension of Johnson or whether Section 16(b) is a statute Scalia thought was unaffected by the Johnson opinion is unknown. Yet courts found both Section 16(b) and the ACCA's residual clause subject to the categorical approach. This shared method of analysis, combined with similarity in language, suggests that extending the Johnson holding to Section 16(b) may be proper.

Vagueness in Sentencing

Alongside Johnson, these recent decisions raise questions about the vagueness doctrine's application to sentencing. In one view, this should come as little surprise. If criminal defendants or the public are unaware of the punishment they will receive for certain conduct, they lack adequate notice on the consequences of engaging in that behavior. This prompts due process concerns.

The vagueness doctrine is relevant in another respect, too. Even when the public is mindful of certain behaviors' consequences, a law may be vague if its enforcement is arbitrary, capricious, or discriminatory.3 The Johnson decision represented this concern: Judges defining, on their own, the degree of risk certain conduct involves is inherently arbitrary.4

Nevertheless, Johnson and the circuit opinions discussed above involved vagueness challenges to statutes, not to the U.S. Sentencing Guidelines. Some circuits, relying on this distinction, declined to extend the vagueness doctrine to the guidelines.

For instance, in United States v. Matchett5, the Eleventh Circuit held that a vagueness challenge to §4B1.2(a)(2) of the guidelines—a career offender enhancement identical in language to the ACCA's residual clause—is not compelling.6

To the Eleventh Circuit, “the vagueness doctrine [only] applies to laws that prohibit conduct and fix punishments.”7 The sentencing guidelines, the Eleventh Circuit held, are merely advisory; they neither define a crime nor definitively fix a sentence.

Underlining the Matchett decision is a real fear that vagueness challenges to the sentencing guidelines will remove the discretionary license judges enjoy under it. For example, a judge may grant a defendant a two-level decrease to their offense if the defendant was a “minor participant” in the crime.8 Likewise, a judge may impose a six-level increase if “in a manner creating a substantial risk of serious bodily injury” the defendant knowingly harmed a government employee.9

Just who qualifies as a “minor participant” or what constitutes “a substantial risk of serious bodily injury” is left to the sentencing judge. In this vein, the Matchett court argued that vagueness challenges to the guidelines would invite instability and increased litigation.10

Though valid concerns, whether the vagueness doctrine should extend to the guidelines is a more complicated issue. Indeed, declining to permit vagueness challenges to the guidelines may upset the twin aims of sentencing: promoting uniformity among similarly situated defendants while preserving judicial discretion. See Booker v. United States, 543 U.S. 212, 263 (2005).

Permitting vague guidelines to persist reduces uniformity because a vague rule does not indicate how it should be interpreted and thereby permits judges to interpret that rule in an inconsistent manner.

As for discretion, Booker—the Supreme Court's 2005 case holding that the guidelines are no longer mandatory11—did not afford judges broad discretion to interpret the guidelines as written, but instead permitted discretion only to “tailor [a defendant's] sentencing in light of other statutory concerns” found in 18 U.S.C. §3553(a).12

Vetoing vagueness challenges to the guidelines to maintain general judicial discretion is inconsistent with Booker’s instructions.

The Limited Scope Of Vagueness Challenges

By and large, the sentencing guidelines prescribe sentences based on a defendant's “real conduct.”13 This basis for sentencing—asking judges to make both quantitative (e.g., how many ounces of drugs did the defendant possess?), and qualitative (e.g., was the defendant a minimal, minor, or major participant?) decisions—is defendant- and fact-specific.

This “real conduct” or “real offense” approach is likely to overcome vagueness challenges. Applying the guidelines to a defendant's precise conduct does not lack adequate notice nor is it without standards. Ad hoc determinations by judges are not an issue. What's more, the Johnson decision is not inconsistent with that position. The ACCA's residual clause was unconstitutional because it required a judge to hypothesize about an ordinary case of the defendant's prior crime.

Sentencing Commission

The U.S. Sentencing Commission took up this issue. In January 2016, the commission adopted a “Johnson fix,” amending and thereby preserving Section 4B1.2(a)(2)—the career offender enhancement provision identical in language as the ACCA's residual clause.14 The amendment takes effect Aug. 1, 2016. But it is not clear that this fix represents the limits of Johnson’s holding or that decision's application to the guidelines. In fact, as the Matchett decision made clear, not all courts agree that this amendment is necessary.


The Johnson opinion, despite Scalia's guarded language, left many questions in its wake, including just how far the decision reaches. At least one circuit declined to extend the Johnson holding beyond the ACCA. Other circuits went further, extending the holding to similarly worded sections in Title 18. In flux is whether the advisory guidelines are vulnerable to vagueness attacks and which other statutes are similarly at risk.

Should the issue arrive at the Supreme Court, the weight of prior sentencing holdings may favor striking a sensible balance between uniformity and discretion. Whether vagueness challenges upset or advance these aims may be the central issue.

Dimaya v. Lynch, 803 F.3d 1110, 1114 (9th Cir. 2015) (98 CrL 101, 10/28/15).

United States v. Vivas-Ceja, 2015 BL 421176 (7th Cir. Dec. 22, 2015).

See Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).

See Johnson, 135 S.Ct. at 2557.

802 F.3d 1185 (11th Cir. 2015) (97 CrL 715, 9/23/15).

See also United States v. Tichenor, 683 F.3d 358, 365 (7th Cir. 2012) (holding same but held prior to Johnson).

Matchett, 802 F.3d at 1189.

U.S.S.G. §3B1.2(b). A “minor participant” is “less culpable than most other participants, but whose role could not be described as minimal.” U.S.S.G. §3B1.2 cmt. n. 5.

U.S.S.G. §3A1.2(c).

10  Matchett, 802 F.3d at 1196.

11  United States v. Booker, 543 U.S. 220 (2005).

12 See (76 CrL 251, 1/19/05). See also, Kimbrough v. United States, 552 U.S. 85, 101 (2007) (82 CrL 275, 12/12/07).

13  Booker, 543 U.S. at 253.

14  80 Fed. Reg. 49, 314 (2015).

2016 Bloomberg Law Write-On Competition

For the second year in a row, we invited law students from schools around the country to submit original articles, the best of which would be published in selected Bloomberg BNA Law Reports. Entries were evaluated by our editorial team based on accuracy, depth of analysis, writing style and usefulness to our audience. The winning articles will appear during the month of April in 10 Bloomberg BNA publications and on Bloomberg Law.