Petition for Writ of Certiorari — Carlos Wilson, Petitioner v. United States
Supreme Court briefMay 1, 2018
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No. ____
IN THE
Supreme Court of the United States
______________
CARLOS ANDRE WILSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
______________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
______________
PETITION FOR A WRIT OF CERTIORARI
______________
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
ANDREW L. ADLER
Counsel of Record
ASS’T FED. PUBLIC DEFENDER
150 W. Flagler St., Suite 1500
Miami, FL 33130-1555
(305) 536-5900
Andrew_Adler@fd.org
Counsel for Petitioner
MAY 1ST, 2018
QUESTIONS PRESENTED
In Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), this Court
declared unconstitutionally vague the residual clause of the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). In Welch v. United States, 578 U.S. __,
136 S. Ct. 1257 (2016), this Court held that Johnson announced a new, substantive
rule of constitutional law that had retroactive effect in cases on collateral review.
In Beckles v. United States, 580 U.S. __, 137 S. Ct. 886 (2017), this Court held
that an identical residual clause contained in the Career Offender provision of the
Sentencing Guidelines was not unconstitutionally vague. U.S.S.G. § 4B1.2(a)(2).
The Court reasoned that the advisory Guidelines were not subject to the
constitutional vagueness prohibition at all because, unlike the ACCA, they do not
“fix the permissible range of sentences.” Beckles, 137 S. Ct. at 892.
However, the Court in Beckles “le[ft] open the question whether defendants
sentenced to terms of imprisonment before our decision in United States v. Booker,
543 U.S. 220 (2005)—that is, during the period in which the Guidelines did fix the
permissible range of sentences—may mount vagueness attacks on their sentences.”
Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (citations omitted).
The questions presented are:
1.
Whether U.S.S.G. § 4B1.2(a)(2)’s residual clause is void for vagueness
vis-à-vis defendants sentenced under the pre-Booker mandatory Guidelines.
2.
Whether invalidation of § 4B1.2(a)(2)’s mandatory residual clause has
retroactive effect in cases on collateral review.
i
PARTIES TO THE PROCEEDINGS
The caption contains the names of all of the parties to the proceedings.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
PARTIES TO THE PROCEEDINGS ............................................................................ ii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
LEGAL PROVISIONS INVOLVED .............................................................................. 1
STATEMENT OF THE CASE ....................................................................................... 2
A. LEGAL BACKGROUND .......................................................................................... 2
B. PROCEDURAL BACKGROUND ............................................................................... 6
REASONS FOR GRANTING THE PETITION .......................................................... 10
I.
THE DECISION BELOW CONTRAVENES THIS COURT’S PRECEDENTS .................. 10
II. THE QUESTIONS PRESENTED ARE OF GREAT PUBLIC IMPORTANCE
REQUIRING URGENT RESOLUTION BY THIS COURT ........................................... 21
III. THIS IS AN EXCELLENT VEHICLE ...................................................................... 23
CONCLUSION............................................................................................................. 26
iii
TABLE OF APPENDICES
Appendix A: Opinion of the U.S. Court of Appeals for the
Eleventh Circuit (Feb. 2, 2018) .............................................................. 1a
Appendix B: Order of the U.S. District Court for the
Southern District of Florida Denying 28 U.S.C. § 2255 Motion
and Granting Certificate of Appealability (Apr. 25, 2017) ................... 5a
iv
TABLE OF AUTHORITIES
CASES
Beckles v. United States,
580 U.S. __, 137 S. Ct. 886 (2017) .................................................................... passim
Brown v. United States,
868 F.3d 297 (4th Cir. 2017) .................................................................................... 22
Buford v. United States,
532 U.S. 59 (2001) ...................................................................................................... 3
Burns v. United States,
501 U.S. 129 (1991) ............................................................................................ 12, 13
Glover v. United States,
531 U.S. 198 (2001) .................................................................................................. 22
Hawkins v. United States,
706 F.3d 820 (7th Cir. 2013) .................................................................................... 12
In re Baptiste,
828 F.3d 1337 (11th Cir. 2016) .................................................................................. 5
In re Griffin,
823 F.3d 1350 (11th Cir. 2016) ........................................................................ passim
In re Hubbard,
825 F.3d 225 (4th Cir. 2016) .................................................................................... 19
Irizarry v. United States,
553 U.S. 708 (2008) .................................................................................................. 13
Johnson v. United States,
576 U.S. __, 135 S. Ct. 2551 (2015) .................................................................. passim
Koon v. United States,
518 U.S. 81 (1996) .................................................................................................... 12
v
Miller v. Florida,
482 U.S. 423 (1987) .................................................................................................. 20
Mistretta v. United States,
488 U.S. 361 (1989) .................................................................................................. 11
Raybon v. United States,
867 F.3d 625 (6th Cir. 2017) .................................................................................... 22
Stinson v. United States,
508 U.S. 36 (1993) .............................................................................................. 11, 12
United States v. Batchelder,
442 U.S. 114 (1979) .................................................................................................. 17
United States v. Booker,
543 U.S. 220 (2005) .......................................................................................... passim
United States v. Esprit,
841 F.3d 1235 (11th Cir. 2016) ................................................................................ 25
United States v. Garcia-Martinez,
845 F.3d 1126 (11th Cir. 2017) ................................................................................ 25
United States v. Greer,
881 F.3d 1241 (10th Cir. 2018) ................................................................................ 22
United States v. St. Hubert,
883 F.3d 1319 (11th Cir. 2018) .................................................................................. 9
Welch v. United States,
578 U.S. __, 136 S. Ct. 1257 (2016) .................................................................. passim
STATUTES
18 U.S.C. § 924(e)(2)(B)(ii)......................................................................................... 1, 2
18 U.S.C. § 3553(a) ...................................................................................................... 10
vi
18 U.S.C. § 3553(b) ...................................................................................................... 12
18 U.S.C. § 3553(e)....................................................................................................... 12
18 U.S.C. § 3553(f) ....................................................................................................... 12
18 U.S.C. § 3559(a)(3) .................................................................................................. 25
18 U.S.C. § 3583(b)(2) .................................................................................................. 25
21 U.S.C. § 841(a)(1) ...................................................................................................... 6
21 U.S.C. § 841(b) ........................................................................................................ 25
28 U.S.C. § 1254(1) ........................................................................................................ 1
28 U.S.C. § 2244(b)(3)(E) ......................................................................................... 5, 26
28 U.S.C. § 2255 ................................................................................................... passim
28 U.S.C. § 2255(f)(3) ................................................................................................... 24
28 U.S.C. § 2255(h) ............................................................................................ 4, 24, 26
28 U.S.C. § 994(h) .................................................................................................... 3, 13
SENTENCING GUIDELINES
U.S.S.G. § 4B1.1 cmt. backg’d (2015) ............................................................................ 3
U.S.S.G. § 4B1.1(b) ........................................................................................................ 3
U.S.S.G. § 4B1.2(a)(2) .......................................................................................... passim
U.S.S.G., app. C, amend. 782 (Nov. 1, 2014) ................................................................ 7
U.S.S.G., app. C, amend. 788 (Nov. 1, 2014) ................................................................ 7
U.S.S.G., app. C, amend. 798 (Aug. 1, 2016) .......................................................... 4, 25
vii
OTHER AUTHORITIES
Beckles, 137 S. Ct. 886,
Am. Br. of Fed. Pub. & Cmty. Def. & NAFD (U.S. No. 15-8544) (Aug. 18, 2016) .. 21
Raybon v. United States, 867 F.3d 625,
Amicus Br. of Sixth Circuit Fed. & Cmty. Def. (6th Cir. No. 16-2522) (Oct. 18,
2017) .......................................................................................................................... 21
viii
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully seek a writ of certiorari to review a decision of the
United States Court of Appeals for the Eleventh Circuit.
OPINIONS BELOW
The Eleventh Circuit’s opinion is unreported but available at 710 Fed. App’x
435 and is reproduced as Appendix A. App. 1a. The district court’s order denying
the 28 U.S.C. § 2255 motion is unreported but reproduced as Appendix B. App. 5a.
JURISDICTION
The court of appeals issued its decision on February 2, 2018. This Court has
jurisdiction under 28 U.S.C. § 1254(1).
LEGAL PROVISIONS INVOLVED
The Armed Career Criminal Act defines a “violent felony” to include any
felony “that is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii). The italicized language is the “residual clause.”
At the time of Petitioner’s sentencing, the Career Offender provision of the
Sentencing Guidelines contained an identical residual clause, defining a “crime of
violence” to include any felony “that is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2001).
1
STATEMENT OF THE CASE
A. LEGAL BACKGROUND
1.
The Armed Career Criminal Act (“ACCA”) transforms a ten-year
statutory maximum penalty into a fifteen-year mandatory minimum for certain
defendants convicted of federal firearms offenses. 18 U.S.C. §§ 924(a)(2), 924(e).
The ACCA enhancement applies when the defendant has a total of three “violent
felonies” or “serious drug offenses.” 18 U.S.C. § 924(e). For purposes of the ACCA,
“violent felony” is defined as, inter alia, any felony “that is burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii)
(emphasis added). The italicized language is known as the “residual clause.”
In Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), the Court
held that the ACCA’s residual clause was unconstitutionally vague.
The Court
explained:
make
“Two
features
unconstitutionally vague.”
of
the
residual
Id. at 2557.
clause
conspire
to
it
First, the “ordinary-case” analysis—
requiring courts to “picture the kind of conduct that the crime involves in the
ordinary case, and to judge whether that abstraction presents a serious risk of
physical injury”—created “grave uncertainty about how to estimate the risk posed
by a crime.”
Id. (citation omitted).
And, second, the residual clause created
“uncertainty about how much risk it takes for a crime to qualify as a violent felony,”
because it “forces courts to interpret ‘serious potential risk’ in light of the four
enumerated crime” preceding it, and those crimes were “far from clear in respect to
2
the degree of risk each poses.” Id. at 2558 (citation omitted). Those uncertainties
led the Court to conclude 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,”
“produc[ing]
more
unpredictability
and
arbitrariness than the Due Process Clause tolerates.” Id. at 2557–58.
In Welch v. United States, 578 U.S. __, 136 S. Ct. 1257 (2016), the Court held
that Johnson announced a new, substantive rule of constitutional law, and it
therefore had retroactive effect to cases on collateral review. The Court reaffirmed
that “a rule is substantive rather than procedural if it alters the range of conduct or
the class of persons that the law punishes,” and that determination is made “by
considering the function of the rule.” Id. at 1264–65 (citation omitted). The Court
concluded that, “[u]nder th[at] framework, the rule announced in Johnson is
substantive,” because it “changed the substantive reach” of the ACCA by “altering
the range of conduct or the class of persons that the Act punishes.” Id. at 1265.
2.
The
Career
Offender
provision
of
the
Sentencing
Guidelines
implements a congressional mandate to assure that a certain category of offenders
receive a sentence “at or near the maximum term authorized.” 28 U.S.C. § 994(h);
see U.S.S.G. § 4B1.1 cmt. backg’d (2015). The career offender provision creates a
“category of offender subject to particularly severe punishment.” Buford v. United
States, 532 U.S. 59, 60 (2001). It does so by generally prescribing enhanced offense
levels and automatically placing career offenders in criminal history category VI,
the highest category available under the Guidelines. See U.S.S.G. § 4B1.1(b).
3
A defendant is a career offender if he is at least eighteen years of age,
commits an offense that is a “crime of violence” or controlled substance offense, and
has at least two prior felony convictions for a “crime of violence” or controlled
substance offense. U.S.S.G. § 4B1.1. At the time of Petitioner’s sentencing in 2001,
the term “crime of violence” was defined to include any felony “that is burglary of a
dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2) (2001) (emphasis added).1
The italicized language in the Career
Offender Guideline was perfectly identical to the ACCA residual clause that
Johnson invalidated.
As a result, thousands of federal prisoners who had been sentenced as career
offenders sought to collaterally challenge their sentences under 28 U.S.C. § 2255 in
light of Johnson. Some of those prisoners had been sentenced before this Court’s
decision in United States v. Booker, 543 U.S. 220 (2005) rendered the Guidelines
advisory. Because those prisoners had been sentenced over a decade earlier, many
had already filed an initial § 2255 motion in the past. Thus, they were legally
required to obtain authorization from the court of appeals before filing a second or
successive § 2255 motion based on Johnson. 28 U.S.C. § 2255(h).
Marvin Griffin was one such inmate, and he filed a pro se application for
leave to file a successive § 2255 motion based on Johnson. See 11th Cir. No. 16-
Shortly after Johnson, the Sentencing Commission amended § 4B1.2 and deleted
its residual clause. U.S.S.G., app. C, amend. 798 (Aug. 1, 2016). All references here
are to the pre-amendment version of § 4B1.2(a)(2).
1
4
12012. Without appointing counsel or holding oral argument, the Eleventh Circuit
issued a published opinion denying the application. In re Griffin, 823 F.3d 1350
(11th Cir. 2016). In doing so, the Court made two holdings. First, it held that “the
Guidelines—whether mandatory or advisory—cannot be unconstitutionally vague.”
Id. at 1354. Second, and alternatively, the court held that any ruling invalidating
§ 4B1.2(a)(2)’s then-mandatory residual clause would not be retroactive.
Id.
at 1355. Because In re Griffin arose in the context of a successive application, Mr.
Griffin was statutorily barred from seeking rehearing or certiorari review.
28
U.S.C. § 2244(b)(3)(E).2
3.
After In re Griffin, this Court granted certiorari in Beckles v. United
States, 580 U.S. __, 137 S. Ct. 886 (2017) to decide, inter alia, whether Johnson
rendered § 4B1.2(a)(2)’s residual clause void for vagueness, and, if so, whether that
holding would have retroactive effect in cases on collateral review.
The Court
ultimately did not reach the retroactivity question, because it held that the advisory
Guidelines were not subject to the constitutional prohibition on vagueness at all,
and therefore the residual clause in § 4B1.2(a)(2) could not be unconstitutionally
vague.
Mr. Griffin nonetheless re-filed two subsequent Johnson applications with the
court of appeals—one with counseled briefing, urging reconsideration of In re
Griffin; and one after this Court’s decision Beckles. See 11th Cir. Nos. 16-13752 &
17-11663. In the interim period, however, the court of appeals held that inmates
were legally barred from re-filing a Johnson-based application after a previous
application had been denied on the merits. In re Baptiste, 828 F.3d 1337 (11th Cir.
2016). Accordingly, Mr. Griffin’s subsequent applications were denied on that basis.
2
5
The Court’s holding was expressly (and repeatedly) limited to the advisory
Guidelines.
Id. at 890, 895–96.
Moreover, throughout the opinion, the Court
contrasted the post-Booker advisory Guidelines subject to its holding from the preBooker mandatory Guidelines. As a result, Justice Sotomayor’s separate opinion
made explicit what was implicit in the majority opinion—namely, that it did not
address defendants sentenced under the pre-Booker mandatory Guidelines:
The Court’s adherence to the formalistic distinction between
mandatory and advisory rules at least leaves open the question
whether defendants sentenced to terms of imprisonment before our
decision in United States v. Booker, 543 U.S. 220 (2005)—that is,
during the period in which the Guidelines did “fix the permissible
range of sentences,” ante, at 892—may mount vagueness attacks on
their sentences. That question is not presented by this case and I, like
the majority, take no position on its appropriate resolution.
Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (internal citations
omitted). This case squarely presents that question left open in Beckles.
B. PROCEDURAL BACKGROUND
1.
In 2001, Petitioner pled guilty in the Southern District of Florida to a
single count of possession with intent to distribute more than five grams of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). The sentencing court determined that
Petitioner was subject to the career-offender enhancement based in part on a 1988
Florida conviction for burglary of a dwelling.
The enhancement ultimately
increased his offense level from 23 to 31, and his criminal history category from IV
to VI.
Without the enhancement, his guideline range would have been 70–87
6
months; with it, his range skyrocketed to 188–235 months. Thus, the enhancement
increased the high-end of Petitioner’s guideline range by more than 12 years.3
At the time of Petitioner’s sentencing, the Guidelines were mandatory and
had the force and effect of law. Because there were no objections to the calculation
of the guideline range, the sentencing hearing was a cursory proceeding, occupying
only six pages of transcript. Without offering any explanation, the court sentenced
Petitioner to 235 months’ imprisonment, the high end of the mandatory guideline
range, to be followed by five years of supervised release.
2.
Fifteen years later, and within one year of the decision in Johnson,
Petitioner filed an initial motion to correct his sentence, pursuant to 28 U.S.C.
§ 2255. He alleged that, in light of Johnson (and Welch), he was no longer a career
offender, and thus he had been illegally sentenced, in violation of the Due Process
Clause and in excess of the mandatory guideline range. He argued that Johnson
retroactively invalidated the then-mandatory residual clause of § 4B1.2(a)(2). And
he argued, inter alia, that the Florida burglary conviction used to support his
career-offender enhancement was not a “crime of violence” under the other
definitions in § 4B1.2(a).
The parties agreed to stay the litigation pending Beckles. After Beckles was
decided, they thoroughly briefed its impact on the mandatory Guidelines.
In
multiple pleadings, Petitioner repeatedly argued that: Beckles’ holding was
The enhancement also later rendered Petitioner ineligible for a two-level
reduction under Amendment 782, which retroactively reduced offense levels for
drug-trafficking offenses. U.S.S.G., app. C, amends. 782, 788 (Nov. 1 2014).
3
7
expressly limited to the advisory Guidelines; its reasoning, however, compelled the
opposite outcome for the mandatory Guidelines; and the pre-Beckles decision in In
re Griffin was not controlling, both because it was decided in the truncated context
of a successive application, and because it had been abrogated by Beckles’ reasoning.
The government responded that Petitioner’s § 2255 motion was foreclosed by In re
Griffin, which was binding precedent and remained so after Beckles.
The
government did not argue that the motion should be denied on any other ground.
The magistrate judge issued a report, recommending that the § 2255 motion
be “denied based on the preclusive effect of [In re] Griffin.” Petitioner objected,
renewing his contentions; the government responded, renewing its contentions. The
district court adopted the report’s recommendation.
App. 6a–9a.
In a written
opinion, it agreed that In re Griffin foreclosed Petitioner’s motion, because it held
that the mandatory Guidelines could not be unconstitutionally vague. See App. 6a–
8a.
The court concluded: “Accordingly, the career offender provisions of the
Sentencing Guidelines, even pre-Booker, do not suffer the constitutional[ ] infirmity
that the residual clause of the Armed Career Criminal Act did.”
App. 8a–9a.
Although the court denied Petitioner’s motion, it granted him a certificate of
appealability on “whether Johnson applies to the Sentencing Guidelines’ career
offender provisions when Movant was sentenced pre-Booker.” App. 9a.
3.
On appeal, Petitioner renewed his contentions yet again. Specifically,
he reiterated that: Beckles’s holding was expressly limited to the advisory
Guidelines; its reasoning compelled the conclusion that the mandatory Guidelines
8
fixed the permissible range of sentences, and thus, unlike the advisory Guidelines,
were subject to the prohibition on vagueness; and In re Griffin was not precedential
because it was decided in the context of a successive application, and, in any event,
it had been abrogated by the reasoning in Beckles. In response, the government
argued, inter alia, that In re Griffin was binding precedent, and that Beckles had
not abrogated it. At no time did the government dispute that, absent the residual
clause, Petitioner would not qualify as a career offender.
The court of appeals affirmed.
It concluded that In re Griffin “forecloses
Wilson’s argument that § 4B1.2(a) is unconstitutionally vague in light of Johnson.”
App. 3a. The court rejected Petitioner’s argument that In Griffin was not binding
precedent because it arose in the context of an application for leave to file a
successive § 2255 motion.
App. 3a & n.1.
And it rejected “his argument that
Beckles undermines In re Griffin to the point of abrogation . . . because, as he
admits, Beckles did not address whether the mandatory guidelines are subject to a
vagueness challenge.” App. 3a. The court reasoned that In re Griffin held that the
mandatory Guidelines were not subject to the vagueness doctrine, and that holding
remained binding precedent after Beckles.4 Notably, the court of appeals did not
affirm the denial of Petitioner’s § 2255 motion on any alternative ground. And, like
the parties, it did not dispute that Petitioner would not have qualified as a career
offender absent the residual clause.
The court of appeals has since confirmed that its published decisions issued on
successive applications are indeed binding precedent in all other contexts. United
States v. St. Hubert, 883 F.3d 1319, 1328–29 (11th Cir. 2018).
4
9
REASONS FOR GRANTING THE PETITION
I.
THE DECISION BELOW CONTRAVENES THIS COURT’S PRECEDENTS
In this case, the court of appeals relied exclusively on its pre-Beckles decision
in In re Griffin.
That decision’s pair of holdings—i.e., that the mandatory
Guidelines cannot be vague, and that the invalidation of § 4B1.2(a)(2)’s mandatory
residual clause would not have retroactive effect—contravene this Court’s recent
precedents in Beckles and Welch, respectively. Accordingly, they cannot stand.
1a.
In Beckles, this Court explained, to determine whether a legal
provision is subject to the constitutional prohibition on vague laws, the key
“inquiry” is “whether a law regulating private conduct by fixing permissible
sentences provides notices and avoids arbitrary enforcement by clearly specifying
the range of penalties available.” Id. at 895. The Court concluded that the advisory
Guidelines do not fit that description, because they do not “fix the permissible range
of sentences,” but instead merely guide the exercise of sentencing discretion under
18 U.S.C. § 3553(a). Id. at 892, 894.
Due to their advisory nature, the Court concluded that they do “not implicate
the twin concerns underlying vagueness doctrine—providing notice and preventing
arbitrary enforcement.”
Id. at 894.
It reasoned that “even perfectly clear
Guidelines could not provide notice to a person who seeks to regulate his conduct so
as to avoid particular penalties within the statutory range,” since the sentencing
court retained discretion to vary outside the advisory guideline range. Id. And
vague advisory Guidelines do not implicate the concern of arbitrary judicial
10
enforcement because, rather than “prescribe the sentences or sentencing range
available,” they merely “advise sentencing courts how to exercise their discretion
within the bounds established by Congress.” Id. at 894–95.
1b.
Beckles’ reasoning compels the exact opposite outcome for the
pre-Booker mandatory Guidelines. While the advisory Guidelines do not “fix the
permissible range of sentences,” id. at 892, the mandatory Guidelines did precisely
that, id. at 903 n.4 (Sotomayor, J., concurring in the judgment). Indeed, Beckles
itself distinguished the mandatory Guidelines from the advisory Guidelines,
recognizing that the former were “binding on district courts” and “constrain[ed]
[their] discretion.” Id. at 894. The landmark decision in Booker made that clear.
In Booker, the Court was forced to confront (rather than avoid) the Sixth
Amendment challenge to the Guidelines precisely because they could not “be read
as merely advisory provisions that recommended, rather than required, the
selection of particular sentences.” 543 U.S. at 233. It explained:
The Guidelines as written . . . are not advisory; they are mandatory
and binding on all judges. While subsection (a) of § 3553 of the
sentencing statute lists the Sentencing Guidelines as one factor to be
considered in imposing a sentence, subsection (b) directs that the court
“shall impose a sentence of the kind, and within the range” established
by the Guidelines, subject to departures in specific, limited cases.
(Emphasis added.) Because they are binding on judges, we have
consistently held that the Guidelines have the force and effect of laws.
Id. at 233–34 (footnotes and parallel citations omitted); see Mistretta v. United
States, 488 U.S. 361, 391 (1989) (“the Guidelines bind judges and courts in the
exercise of their uncontested responsibility to pass sentence in criminal cases”);
Stinson v. United States, 508 U.S. 36, 42 (1993) (reiterating that Guidelines are
11
“binding on federal courts”). As a result, the Court in Booker repeatedly recognized
that the Guidelines effectively prescribed the range of permissible sentences. See
543 U.S. at 226 (“binding rules in the Guidelines limited the severity of the sentence
that the judge could lawfully impose on the defendant”); id. at 227 (Guidelines
“mandated that the judge select a sentence” in the range); id. at 236 (guideline
range established “the maximum sentence” and “upper limits of sentencing”). Thus,
it equated the guideline maximum with the statutory maximum. Id. at 238.
Booker further explained that the mandatory Guidelines had the “force and
effect of laws” despite “[t]he availability of a departure in specified circumstances.”
Id. at 234.
Departures were determined by considering “only the sentencing
guidelines, policy statements, and official commentary of the Sentencing
Commission,” 18 U.S.C. § 3553(b) (emphasis added); see Burns v. United States, 501
U.S. 129, 133 (1991), which were themselves “binding,” Stinson, 508 U.S. at 42–43.
Courts were not permitted “to decide for themselves, by reference to the” goals of
§ 3553(a), “whether a given factor ever [could] be an appropriate sentencing
consideration.”
Koon v. United States, 518 U.S. 81, 108 (1996).
Thus, “the
guidelines were no different from statutes, which often specify exceptions.”
Hawkins v. United States, 706 F.3d 820, 822 (7th Cir. 2013); see, e.g., 18 U.S.C.
§ 3553(e) (substantial-assistance exception to statutory minimum); 18 U.S.C.
§ 3553(f) (safety-valve exception to statutory minimum).
Indeed, Booker expressly rejected the notion that “the ability of a district
judge to depart from the Guidelines means that she is bound only by the statutory”
12
range. 543 U.S. at 234. The Court emphasized that “departures are not available
in every case, and in fact are unavailable in most,” where, “as a matter of law, the
Commission will have adequately taken all relevant factors into account, and no
departure will be legally permissible. In those instances, the judge is bound to
impose a sentence within the Guideline range.” Id. Departing from that mandatory
guideline range was reversible error. Id. at 234–35. And nowhere was that true
more than in the career-offender context, where Congress uniquely directed the
Commission to promulgate a particular Guideline. 28 U.S.C. § 994(h).
Because the mandatory Guidelines prescribed the permissible range of
sentences, any lack of clarity therein would squarely implicate the twin concerns of
the vagueness doctrine. While “even perfectly clear [advisory] Guidelines could not
provide notice to a person who seeks to regulate his conduct so as to avoid
particular penalties,” Beckles, 137 S. Ct. at 894, the same was not true for the
mandatory Guidelines. Because the mandatory Guidelines constrained the court’s
sentencing discretion, they provided concrete notice to a defendant of the particular
penalties available. Indeed, Beckles expressly reiterated that “due process concerns
. . . require[d] notice in a world of mandatory Guidelines.” Id. (quoting Irizarry v.
United States, 553 U.S. 708, 714 (2008)); see also Burns, 501 U.S. at 138.
Applying a vague Guideline in the pre-Booker era would also invite arbitrary
judicial enforcement. Because the mandatory Guidelines did not merely provide the
sentencing court with advice, but rather mandated a specific range of permissible
sentences, a vague Guideline would permit the court, “without any legally fixed
13
standards,” to arbitrarily “prescribe the sentences or sentencing range available.”
Beckles, 137 S. Ct. at 894–95 (citation omitted).
That is precisely the sort of
arbitrary judicial enforcement that motivated Johnson. In this case, for example,
the sentencing court had no intelligible standard by which to determine whether
Petitioner’s prior offenses constituted “crimes of violence” under the residual clause.
Rather
than
guide
the
sentencing
court’s
discretion,
that
determination established the fixed range of permissible sentences.
standardless
Permitting
judges to set that range without any intelligible legal standard directly implicates
the vagueness doctrine’s concern with arbitrary enforcement.
In short, the pre-Booker Guidelines were called “mandatory” for a reason:
they bound the sentencing judge.
Carrying the force and effect of law, they
prescribed the sentences that a court was permitted to impose and that a defendant
was eligible to receive. In stark contrast to the advisory Guidelines, they “fixed the
range of permissible sentences.” Beckles, 137 S. Ct. at 892. Thus, Beckles compels
the conclusion that the mandatory Guidelines under which Petitioner was
sentenced are subject to the constitutional prohibition on vagueness. And because
the mandatory residual clause in § 4B1.2(a)(2) is identical to the residual clause
invalidated in Johnson, it too must be declared void for vagueness.
1c.
The contrary reasoning and conclusion of In re Griffin cannot be
reconciled with Beckles. For starters, at no time did it conduct the key “inquiry”
that Beckles now requires—i.e., whether the mandatory Guidelines fixed or
prescribed the range of permissible sentences. Id. at 892, 894–95. Instead, In re
14
Griffin adopted an incompatibly narrow understanding of the vagueness doctrine,
concluding that the mandatory Guidelines cannot be unconstitutionally vague
because “they do not establish the illegality of any conduct.” 823 F.3d at 1354; see
id. (repeating same).
But Beckles re-affirmed what Johnson had already made
clear: the vagueness doctrine applies not only to “laws that define criminal
offenses,” but to “laws that fix the permissible sentences for criminal offenses.”
Beckles, 137 S. Ct. at 892 (emphasis omitted); see Johnson, 135 S. Ct. at 2557.
The court of appeals also failed to ask, as Beckles now requires, whether the
mandatory Guidelines “implicate[d] the twin concerns” of notice and arbitrary
enforcement underlying the vagueness doctrine. Beckles, 137 S. Ct. at 894. As for
the latter, In re Griffin said absolutely nothing at all, a glaring analytical omission.
As for the former, it reasoned that “[d]ue process does not mandate notice of where,
within the statutory range, the guidelines sentence will fall.” 823 F.3d at 1354.
That may be so, but Beckles made clear that due process does mandate notice of the
permissible “range” of sentences.
And while that does not include the range
established by advisory Guidelines (since they merely guide the exercise of
discretion), it does include the range established by mandatory Guidelines (since
they fixed the range of permissible sentences). By fixing the range of permissible
sentences, the mandatory Guidelines communicated the available sentences to a
defendant. See Beckles, 137 S. Ct. 894. Indeed, Beckles specifically contrasted the
mandatory Guidelines from the advisory Guidelines with regard to due process
15
notice principles. See id. (“the due process concerns that . . . require notice in a
world of mandatory Guidelines no longer apply’” post-Booker) (citations omitted)).
In re Griffin also reasoned that due process is satisfied whenever the PSI
notifies the defendant of the career-offender enhancement. 823 F.3d at 1355. But
Beckles made clear that the relevant notice question is not whether the defendant
receives notice of a potential sentence after having already committed the offense
and been convicted. Rather, it is whether the Guidelines supply notice ex ante to a
“person who seeks to regulate his conduct so as to avoid particular penalties.”
Beckles, 137 S. Ct. at 894.
In that regard, In re Griffin’s reasoning is also
irreconcilable with Johnson: in the ACCA context, probation officers routinely
notified defendants, after conviction but before sentencing, that they might receive
an enhanced sentence based on the residual clause. But that notice did not cure the
constitutional infirmity.
The remainder of In re Griffin’s analysis continues to overlook the key
distinction between advisory and mandatory Guidelines.
For example, in
concluding that the Guidelines, “whether mandatory or advisory,” cannot be
unconstitutionally vague, it reasoned that they were “designed to assist and limit
the discretion of the sentencing judge.” 823 F.3d at 1354 (emphasis added). That
conflates the key distinction—emphasized in Beckles—between advisory Guidelines
that “assist” (i.e., guide) sentencing discretion and mandatory Guidelines that
“limit” (i.e., constrain) such discretion. Beckles, 137 S. Ct. at 892, 894.
16
Continuing to treat the advisory and mandatory Guidelines as one and the
same, In re Griffin also reasoned that the Guidelines could not be vague because the
Constitution permitted completely indeterminate sentencing.
823 F.3d at 1355.
While Beckles did embrace that point, its reasoning applies only to the advisory
Guidelines.
Specifically, Beckles reasoned that, because a purely discretionary
sentencing regime was constitutional, there could be no vagueness problem with
Guidelines that sought only to guide that discretion. 137 S. Ct. at 892–94. At the
same time, however, Beckles made clear that the vagueness doctrine does apply to
laws prescribing the range of authorized penalties.
See id. at 892 (laws “must
specify the range of available sentences with sufficient clarity”) (citation omitted);
id. at 893 (re affirming that sentencing laws must “specif[y] the ‘penalties available’
and define[ ] the ‘punishment authorized’”) (quoting United States v. Batchelder,
442 U.S. 114, 123 (1979)). Again, the mandatory Guidelines did just that.
In sum, at no time did In re Griffin acknowledge the binding nature of the
mandatory Guidelines, let alone ask whether they fixed the range of permissible
sentences, the key “inquiry” under Beckles. Instead, it focused on the fact that the
Guidelines did not define illegal conduct, which is not relevant under Beckles. It
repeatedly overlooked or conflated the key distinction between advisory and
mandatory Guidelines, a distinction that Beckles re-affirmed and emphasized. And
it did not properly analyze whether the mandatory Guidelines implicated the notice
and arbitrary enforcement concerns underlying the vagueness doctrine.
17
2a.
In re Griffin’s retroactivity holding fares no better.
In Welch, this
Court explained: “By striking down the residual clause as void for vagueness,
Johnson changed the substantive reach of the Armed Career Criminal Act, altering
the range of conduct or the class of persons that the Act punishes.” 136 S. Ct.
at 1265 (citation omitted).
“Before Johnson, the Act applied to any person who
possessed a firearm after three violent felony convictions, even if one or more of
those convictions fell only under the residual clause.” Id. However, after Johnson,
the “same person engaged in the same conduct is no longer subject” to the
enhancement. Id. Thus, it announced a “substantive” rule with retroactive effect.
“By the same logic,” the Court added, “Johnson is not a procedural decision,”
because it “had nothing to do with the range of permissible methods a court might
use to determine whether a defendant should be sentenced under the Armed Career
Criminal Act.”
Id.
It did not, for example, “allocate decisionmaking authority
between judge and jury, or regulate the evidence that the court could consider in
making its decision.” Id. (citation omitted). Rather, “Johnson affected the reach of
the underlying statute rather than the judicial procedures by which the statute is
applied.” Id. Its function was therefore substantive, not procedural.
2b.
Welch’s reasoning applies with full force here. Just as with Johnson,
any decision invalidating § 4B1.2(a)(2)’s mandatory residual clause would “change[ ]
the substantive reach of the [career offender Guideline], altering the range of
conduct or the class of persons that the [Guideline] punishes.”
Id. (internal
quotation marks omitted). Before that invalidation, the career offender Guideline
18
applied to any person who, inter alia, was convicted of a crime of violence after two
prior convictions for a crime of violence, “even if one or more of those convictions fell
under only the residual clause.” Id. But after the invalidation, “some crimes will no
longer fit the Sentencing Guidelines’ definition of a crime of violence and will
therefore be incapable of resulting in a career-offender sentencing enhancement.”
In re Hubbard, 825 F.3d 225, 234 (4th Cir. 2016). Thus, the very same person who
qualified as a career offender based on § 4B1.2(a)(2)’s mandatory residual clause
before its invalidation would no longer be subject to the enhancement after the
invalidation.
It therefore affects the substantive reach of the career offender
Guideline and, in turn, the class of persons eligible for its enhanced penalty.
2c.
Ignoring Welch’s core reasoning, In re Griffin held that the invalidation
of § 4B1.2(a)(2)’s mandatory residual clause would be procedural rather than
substantive. Attempting to distinguish Welch, it reasoned that any such ruling
would not be substantive, because it “would not alter the statutory boundaries for
sentencing,” and thus would not “produce a sentence that exceeds the statutory
maximum.” In re Griffin, 823 F.3d at 1355. Rather, it reasoned, that ruling would
be procedural because it “would establish only that the defendant’s guidelines range
had been incorrectly calculated,” which “would produce changes in how the
sentencing procedural process is to be conducted.” Id.
That attempt to distinguish Welch is wholly unpersuasive, because it neglects
that the mandatory Guidelines had “the force and effect of laws.” Booker, 543 U.S.
at 234. As explained at length above, under the pre-Booker regime, the sentencing
19
court was legally bound to sentence defendants in accordance with the Guidelines.
The Guidelines were thus the functional equivalent of what the statutory range is
today.
As a result, the career-offender enhancement, just like the ACCA
enhancement, subjected defendants to increased sentences that they could not
otherwise lawfully receive. Whether the sentence exceeded the correct statutory
maximum (Johnson) or the correctly-calculated high-end of the mandatory guideline
range (here), the result is the same: the defendant’s sentence was not “authorized
by law.”
Welch, 136 S. Ct. at 1266.
Therefore, invalidating § 4B1.2(a)(2)’s
mandatory residual clause would not “produce changes in the sentencing procedural
process” any more than Johnson did. In re Griffin, 823 F.3d at 1355.
That conclusion is not affected by the limited availability of departures from
mandatory guideline range. Again, there are exceptions to the statutory range, yet
they did not render Johnson any less substantive. Moreover, this Court has already
determined, in a related context, that changing a “presumptive” guideline range—
one more liberally permitting departures based on any clear and convincing
reason—was substantive, not procedural, in nature. Miller v. Florida, 482 U.S. 423
(1987). Surely then, narrowing the reach of a mandatory guideline range, subject to
only limited departures in exceptional cases, must be substantive as well. At the
very least, there were no grounds for a 12-year upward departure in Petitioner’s
case. Thus, the court could not have imposed the same sentence absent the careeroffender enhancement, and he therefore received a sentence unauthorized by law.
In short, there is no sound basis to distinguish Welch’s retroactivity holding.
20
II.
THE QUESTIONS PRESENTED ARE OF GREAT PUBLIC IMPORTANCE
REQUIRING URGENT RESOLUTION BY THIS COURT
If Petitioner’s arguments above are correct, then numerous federal prisoners
are currently serving unlawful sentences. Accordingly to one recent estimate, there
are approximately five thousand federal prisoners who were sentenced as career
offenders pre-Booker and who remain in prison. See Raybon v. United States, 867
F.3d 625, Amicus Br. of Sixth Circuit Fed. & Cmty. Def., App. 2a (6th Cir. No. 162522) (Oct. 18, 2017).
That high number reflects the severe operation of the
enhancement. See, e.g., Beckles, 137 S. Ct. 886, Am. Br. of Fed. Pub. & Cmty. Def.
& NAFD 6, App. 2a (U.S. No. 15-8544) (Aug. 18, 2016) (observing that, in on year,
“[t]he average sentence imposed on career offenders was 2.3 times that imposed on
non-career offenders convicted of the same offense types”) (emphasis omitted).
Moreover, it is estimated that over 1,100 of those 5,000 prisoners were
sentenced in the Eleventh Circuit. That is more than any other circuit. Indeed,
only the Fourth Circuit comes close to the thousand mark; no other circuit
surpasses 500 prisoners.
See Raybon, FPD Amicus Br. App. 3a–6a.
Yet, as
explained above, binding Eleventh Circuit precludes any of those thousand
prisoners from obtaining relief under Johnson, Welch, and Beckles. To be sure,
some fraction of them will ultimately not be entitled to relief; some will have drug
offenses as predicates, and others will have crimes of violence that remain so even
without the residual clause. Nonetheless, as this case illustrates, some will have
meritorious claims. Yet In re Griffin categorically bars such meritorious claims
from even being evaluated by a court.
21
The same dynamic is now also true in the Fourth, Sixth, and Tenth Circuits,
which have dismissed treated similar mandatory Guidelines claims as untimely.
See United States v. Greer, 881 F.3d 1241 (10th Cir. 2018); Brown v. United States,
868 F.3d 297 (4th Cir. 2017); Raybon v. United States, 867 F.3d 625 (6th Cir. 2017).5
In those circuits, there are another estimated 1,600 pre-Booker career offenders who
remain in prison, and they too are unable to obtain relief. Adding that figure to the
1,100 career offenders in the Eleventh Circuit means that, just in those four circuits
alone, there are approximately 2,700 federal prisoners who, under this Court’s
precedents, may be serving unlawful sentences.
This situation requires prompt resolution.
Indeed, because all of these
prisoners were sentenced before Booker, they have already been serving their
potentially-unlawful sentences for more than a dozen years. Confronted with a
similar dire situation, the federal courts—including this Court in Welch—have
moved expeditiously after Johnson in order to remedy illegal ACCA sentences. The
same haste is required here, lest this significant swath of illegal sentences go unremedied. Federal prisoners should not be required to serve an illegal sentence for
a single day, let alone many years. Cf. Glover v. United States, 531 U.S. 198, 203
(2001) (observing that even “a minimal amount of additional time in prison” is
prejudicial).
Absent prompt intervention by this Court, however, numerous
prisoners will be forced to continue serving lengthy, illegal sentences without
recourse. This Court should not permit these miscarriages of justice to persist.
5
Petitions for a writ of certiorari are forthcoming in Brown and Raybon.
22
III.
1.
THIS IS AN EXCELLENT VEHICLE
The merits question presented here was extensively litigated below. In
the district court, Petitioner repeatedly pressed his contention that the mandatory
Guidelines were subject to the vagueness prohibition, and therefore § 4B1.2(a)(2)’s
then-mandatory residual clause was unconstitutionally vague.
He did so in his
§ 2255 motion, motion to stay pending Beckles, post-Beckles pleadings, and objection
to the magistrate’s report. The government repeatedly argued the opposite, relying
on In re Griffin’s holding to the contrary. And the district court expressly agreed,
concluding that In re Griffin foreclosed Petitioner’s § 2255 motion. App. 6a–9a.
Having received a COA on whether Johnson applies to the mandatory
Guidelines, App. 9a, Petitioner reiterated his contentions on appeal, setting forth
his arguments in even greater detail. See Pet. C.A. Br. 11–38; Pet. C.A. Reply Br.
1–15. The government did the same. See U.S. C.A. Br. 12, 15–26. The court of
appeals squarely held that In re Griffin remained binding circuit precedent even
after Beckles, and therefore its holding—that the mandatory Guidelines could not
be unconstitutionally vague—“foreclose[d]” Petitioner’s § 2255 motion. App. 2a–4a.
The court of appeals rested its decision solely on that basis.
Accordingly, the
question expressly left open in Beckles is squarely presented for decision here.
2.
The retroactivity question is also presented for decision here. In In re
Griffin, the Eleventh Circuit held not only that the mandatory Guidelines were
immune from vagueness, but also that the invalidation of § 4B1.2(a)(2)’s mandatory
residual clause would not have retroactive effect in cases on collateral review. 823
23
F.3d at 1355.
That decision considered, yet sought to distinguish, this Court’s
decision in Welch. And while the court of appeals did not expressly reiterate that
retroactivity holding here, it did so implicitly by making clear that In re Griffin
constitutes binding circuit precedent.
App. 3a–4a & n.1.
Circuit has already resolved the retroactivity question.
Thus, the Eleventh
Given In re Griffin’s
precedential status, remanding for resolution of that question here would be futile.
And resolving the retroactivity question is necessary to provide critical guidance to
the lower courts about whether: a favorable ruling on the merits here would create
a “new” rule of constitutional law distinct from the substantive rule announced in
Johnson; and, if so, whether that new rule would also be entitled to retroactive
effect, thereby triggering a new statute of limitations under § 2255(f)(3), and
satisfying the gatekeeping requirements for successive motions in § 2255(h)(2).
3.
The circumstances of this case also make it an attractive vehicle. Most
notably, at no point in the litigation has the government, or any judge, disputed
Petitioner’s contention that, absent the residual clause in § 4B1.2(a)(2), he would
not have qualified as a career offender. As explained in his § 2255 motion, his
predicate conviction for Florida burglary does not constitute generic “burglary of a
dwelling,” an enumerated “crime of violence” in § 4B1.2(a)(2), because it
categorically includes the curtilage of the home. And Eleventh Circuit precedent
24
now confirms that argument.
United States v. Garcia-Martinez, 845 F.3d 1126
(11th Cir. 2017); see also United States v. Esprit, 841 F.3d 1235 (11th Cir. 2016).6
Furthermore, the mandatory residual clause in § 4B1.2(a)(2) had a
remarkable practical impact on Petitioner’s guideline range. The career-offender
enhancement increased his range from 70–87 months to 188–235 months. Because
the guideline range was mandatory, the court’s career-offender sentence of 235
months was more than 12 years longer the 87-month sentence he could have
otherwise lawfully received. And, while the Guidelines would be advisory if he were
re-sentenced today, there is no reason to believe that the court could legally impose
a 12-year upward variance to arrive at the same sentence.
Significantly too, if
re-sentenced today, the court would be legally obligated to reduce Petitioner’s term
of supervised release by a minimum of 2 years.7
Thus, Petitioner would be
guaranteed meaningful sentencing relief were he to prevail on his § 2255 motion.
4.
Finally, this case is one of a limited number of vehicles that will viably
present the mandatory Guidelines questions. All federal prisoners subject to the
mandatory Guidelines were sentenced over a decade ago. In the interim, the vast
Notably too, in addition to prospectively eliminating § 4B1.2(a)(2)’s residual
clause after Johnson, the Commission also prospectively removed “burglary of a
dwelling” as an enumerated offense. U.S.S.G. app. C, amend. 798 (Aug. 1, 2016).
6
The Fair Sentencing Act of 2010 reduced the statutory maximum term of
imprisonment for Petitioner's offense from 40 to 20 years.
See 21 U.S.C.
§ 841(b)(1)(B)(iii) (2001) (40 years for 5 grams or more of crack); 21 U.S.C.
§ 841(b)(1)(C) (2010) (20 years for less than 28 grams of crack). That, in turn,
reduced the statutory maximum term of supervised release from 5 to 3 years. See
18 U.S.C. §§ 3583(b)(2), 3559(a)(3). Thus, at the re-sentencing hearing that
Petitioner now seeks via his § 2255 motion, the district court would be statutorily
required to reduce his 5-year term of supervised release by at least 2 years.
7
25
majority of them have filed a § 2255 motion. That places them in the successive
posture, obligating them to obtain authorization from the court of appeals before
filing another one. 28 U.S.C. § 2255(h). The problem is that, while there have been
many decisions from the courts of appeals denying successive applications in those
cases, prisoners are statutorily barred from seeking certiorari review of them. 28
U.S.C. § 2244(b)(3)(E). That is precisely why certiorari was never sought in In re
Griffin. And, of course, there are no longer any mandatory Guidelines cases still on
direct appeal. Thus, with the exception of an original habeas petition, the only way
for this Court to decide the mandatory Guidelines issue left open in Beckles is to do
so by granting certiorari from the denial of an initial § 2255 motion like this one.
And, again, that question is perfectly preserved and squarely presented here, and
its resolution would be dispositive of Petitioner’s § 2255 motion.
CONCLUSION
The Court should grant this petition for a writ of certiorari.
Respectfully submitted,
MICHAEL CARUSO
FEDERAL PUBLIC DEFENDER
/s/ Andrew L. Adler
ANDREW L. ADLER
Counsel of Record
ASS’T FED. PUBLIC DEFENDER
150 W. Flagler St., Suite 1500
Miami, FL 33130-1555
(305) 536-5900
Andrew_Adler@fd.org
Counsel for Petitioner
26
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.