Justices Renew Scrutiny of ‘Crime of Violence’ Catchall Definition

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By Alisa Johnson

Nov. 28 — A catchall definition of “crime of violence” is once again before the U.S. Supreme Court—this time in the context of the advisory U.S. Sentencing Guidelines ( Beckles v. United States, U.S., No. 15-8544, argued 11/28/16 ).

The U.S. Supreme Court’s decision in Johnson v. United States, 2015 BL 204915 (U.S. June 26, 2015)—in which the court struck down as unconstitutionally vague the residual clause of the Armed Career Criminal Act—left open the question whether nearly identical language in the sentencing guidelines is similarly deficient.

A decision in this case should have an immediate effect—Deputy U.S. Solicitor General Michael R. Dreeben, arguing for the government, told the court that there are thousands of cases in the pipeline waiting for a decision on the retroactivity issue.

Travis Beckles was sentenced as a career offender based on language in Section 4B1.2(a)(2) of the guidelines classifying his offense as a “crime of violence.”

During oral argument the parties sparred over three questions: Whether Johnson applies retroactively, whether the guideline’s residual clause is so vague that its application is a denial of due process, and whether, if the residual clause is void for vagueness, its deficiency fatally taints the commentary to the guideline, which specifically lists the defendant’s crime of carrying a sawed-off-shotgun.

Then and Now

The Supreme Court has “held that the residual clause has no meaning. And because it has no meaning, the Commission is in no better place to interpret or clarify that language. Where language is meaningless, how can it be clarified?” Janice L. Bergmann, of the Federal Public Defender’s Office, Ford Lauderdale, Fla., arguing for the defendant, queried.

Bergmann pointed to the practical effect of the career offender guideline: It “both doubles [Beckles’s] sentence and increases it by seven years.”

Justice Samuel A. Alito Jr. suggested to Bergmann that a sentencing provision providing for imprisonment for “up to 20 years” seems “a lot vaguer than what we have here.” Bergmann replied that the use of a vague guideline “is worse than indeterminate sentencing because it systematically injects arbitrariness into the entire sentencing process.”

This prompted Justice Stephen G. Breyer to comment that there was far more arbitrariness before the enactment of the guidelines. Alito pointed out that before the guidelines were enacted, a federal judge could “pick a sentence between zero and years based on that judge’s personal ideas about retribution, deterrence, and incapacitation.”

Breyer also pointed out that federal judges are not required to apply the guidelines at all. Chief Justice John G. Roberts Jr. added that there seems to be a steady decrease in the imposition of guidelines sentences but that “even the vaguest guideline would be an improvement” over an indeterminate sentence.

Bergmann said the guidelines remain “both the lodestone and the lodestar of federal sentencing.”

Justice Anthony M. Kennedy accused Bergmann of making the “sweeping” argument that “the more specific a legislature or an agency tries to make guidance for the judge, the more chance there is for vagueness.”

“That’s very difficult to accept,” Kennedy said.

Continued Vitality of Guidelines

Similarly, Dreeben, of the Department of Justice, said that guidelines sentences have not dropped significantly and that since 2011, they account for around 80 percent of federal sentences.

He affirmed that the government’s position is that there is no vagueness problem with the guideline in question because it is advisory rather than mandatory.

The government sides with the petitioner with respect to the due process issue, he said. He added that, in view of the commentary specifically addressing a sawed-off shotgun, “the residual clause is not vague as to that particular offense.”

Context is Everything

Alito said he could pick a random section of the guidelines and find language that would arguably be vague if contained in a statute. Dreeben told the court, “Due process does not itself require that all provisions of law not be vague in some customary dictionary sense. Due process protects fundamental fairness.”

He added that the purposes of the vagueness doctrine “are not implicated in traditional sentencing,” which does not produce “uniform or predictable results” but does maximize “individualization or proportionality.”

Justice Sonia Sotomayor asked Dreeben whether, if the court rules in the government’s favor and declares that Johnson is not retroactive, how much of Johnson survives. Dreeben made it clear that, in cases involving the ACCA, the government’s position is that Johnson is retroactive.

Sotomayor said the “essence” of Johnson is that the ACCA residual clause asked a sentencing judge to “basically fantasize about what the average case is like,” whereas the guideline is applied to specific facts that are reviewable.

Sentencing Commission Under Duress

Adam K. Mortara, of Washington, was appointed by the court as amicus curiae in support of the judgment below on the question whether Johnson applies to the guideline, thereby rendering challenges to sentences enhanced under it cognizable on collateral review.

He said the career offender guideline does not represent an exercise of the sentencing commission’s expertise as much as it is a response to a command of Congress in 28 U.S.C. 994(h). The guideline reflects what the commission was “commanded to do, which is make sure that sentences get at or near the statutory maximum,” he said.

For this reason, he said, the presumption of reasonableness normally given to within-guidelines sentences “completely goes away with the career offender guideline.” The unusual nature of the guideline is reflected in the statistics on its application, he added, saying only 25 percent of career offenders in 2015 were sentenced within the applicable guidelines range.

Justice Elena Kagan did not participate in the oral argument.

To contact the reporter on this story: Alisa Johnson in Washington at ajohnson@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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