Amicus Curiae Brief — Beckles v. United States (No. 15-8544)

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RECORD, ORE

a CTED COpy

gras

No. 15-8644

IN THE

Supreme Court of the Anited States

TRAVIS BECKLES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE FEDERAL PUBLIC AND

COMMUNITY DEFENDERS AND THE

NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS AS AMICI CURIAE

IN SUPPORT OF PETITTIONER

DONNA COLTHARP AMY BARON-EVANS

SARAH GANNETT Counsel of Record

DANIEL KAPLAN JENNIFER NILES COFFIN

Co Chairs FEDERAL DEFENDERS

BRETT SWEITZER NATIONAL SENTENCING

Member RESOURCE COUNSEL

Amicus Committee 51 Sleeper St., 5th Floor

NATIONAL ASSOCIATION OF Boston, MA 02210

FEDERAL DEFENDERS (617) 391-2253

abaronevans@gmail.com

en ee

Wi SON-EPES PRINTING Co..INC. — (202) 789-0086 — WasHiNGTON,D. C 20002

QUESTIONS PRESENTED

1. Whether the residual clause in U.S.S.G. § 4B1.2(aX2)

is void for vagueness in light of Johnson, thereby

rendering Petitioner’s challenge to his career offender

sentence cognizable under 28 U.S.C. § 2255(a).

2. Whether Johnson has retroactive effect in this

collateral proceeding.

3. Whether Petitioner’s conviction for unlawful

possession of a sawed-off shotgun, an offense listed as

a “crime of violence” only in the commentary to

U.S.S.G. § 4B1.2, qualifies as a “crime of violence”

after Johnson.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............................

TABLE OF AUTHORITIESG..................0.:::::cc00

IT.

The Career Offender Guideline Creates a

Particularly Severe Punishment That

Has Been Applied To An Overly Broad

Category of Defendants ............................

A. The Guideline Is Harsh.......................

1. Controlled Substance Offenses......

2. Crimes of Violence..........................

C. Prisoners Sentenced To Harsh Prison

Terms Based on Relatively Minor

Offenses Have Been Unable to Get

The Career Offender Guideline Has An

Unwarranted Adverse Impact on African

I a abunes

A. Many Career Offender Predicates

Reflect Disparate Policing Practices ....

B. The Career Offender Guideline Calls

for Punishment That Is Excessive to

Advance Any Purpose of Sentencing ..

Is ritadisinubedsiinttih cuts tacpendasiedicbabaanin

owmww w

TABLE OF CONTENTS—Continued

APPENDIX Page

APPENDIX A: Career Offender Data Analyses la

APPENDIX B: Federal Public

and Community

Defenders

TABLE OF AUTHORITIES

CASES Page(s)

Begay v. United States,

Se i OD odiinnticaveriscsssesnveseinesancti passim

Brown v. Caraway,

719 F.3d 583 (7th Cir. 2013)..................... 13

Buford v. United States,

Te SE EE OE ae er 3

Chambers v. United States,

Be ls IED ves ctvssnsonsarnssens 12, 13, 15, 17

Floyd v. City of New York,

959 F. Supp.2d 540 (S.D.N.Y. 2013)......... 22-23

Hawkins v. United States,

706 F.3d 820 (7th Cir. 2013)..................... 17

James v. United States,

a siseunabeabe 14

Johnson v. United States,

) 8s Sf. re passim

Kimbrough v. United States,

ns I cermameiononenene 5

Peugh v. United States,

Oe sos cococdenteusetstoudsins 6

Spears v. United States,

| 8 ERT Cena a 5,6

Spencer v. United States,

773 F.3d 1132 (11th Cir. 2014)................. 13, 17

Sun Bear v. United States,

611 F.3d 925 (8th Cir. 2010),

vacated on other grounds, 644 F.3d 700

Eg eR 12,17

TABLE OF AUTHORITIES—Continued

Page(s)

Sykes v. United States,

RY eo sescadindaaeameonions 14

Torres v. Lynch,

Bo rrnenciinasnsesonsdbades g

United States v. Alderman,

601 F.3d 949 (9th Cir. 2010).................0... 15

United States v. Almenas,

553 F.3d 27 (ist Cir. 2009) ....................... 15

United States v. Amos,

501 F.3d 524 (6th Cir. 2007)..................... 16-17

United States v. Archer,

531 F.3d 1347 (11th Cir. 2008)................. 13

United States v. Baker,

559 F.3d 443 (6th Cir. 2009)..................... 13

United States v. Barr,

132 F. Supp. 3d 290 (D.R.I. 2015)............ 7

United States v. Bellazerius,

24 F.3d 698 (5th Cir. 1994)..............00000.... 10

United States v. Booker,

ee cs ss ccsscteneniinpasecwenions 5

United States v. Bureau,

52 F.3d 584 (6th Cir. 1995)....................... 16

United States v. Cardosa,

606 F.3d 16 (ist Cir. 2010)................0000... 7

United States v. Carthorne,

726 F.3d 503 (4th Cir. 2013)..................... 12

United States v. Clay,

787 F.3d 328 (5th Cir. 2015)..................... 6

vii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Corner,

588 F.3d 1130 (7th Cir. 2009),

overruled on other grounds,

598 F.3d 411 (7th Cir. 2010)...........000000.... 5, 16

United States v. Delaney,

427 F.3d 1224 (9th Cir. 2005)................... ll

United States v. Ellis,

815 F.3d 419 (8th Cir. 2016)............0........ 15

United States v. Evans,

576 F.3d 766 (7th Cir. 2009)..................... 12

United States v. Fernandez,

436 F. Supp. 2d 983 (E.D. Wis. 2006) ...... 4

United States v. Fiore,

963 F.2d 1 (ist Cir. 1902)......................... 11

United States v. Flemming,

617 F.3d 252 (3d Cir. 2010).................... 7

United States v. Foote,

784 F.3d 931 (4th Cir. 2015)..............0000... 17

United States v. Ford,

560 F.3d 420 (6th Cir. 2009)............000.0.... 13

United States v. Funk, 534 F.3d 522

(6th Cir. 2008), vacated by 560 F.3d 619

I 5

United States v. Gavin,

2008 WL 4418932

(E.D. Ark. Sept. 29, 2008)......................... 4

United States v. Ghoston,

530 F. App’x 468 (6th Cir. 2013) .............. 16

viii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Giggey,

551 F.3d 27 (1st Cir. 2008) ....................... 12

United States v. Goodpasture,

595 F.3d 670 (7th Cir. 2010)..................... 13

United States v. Goodwin,

625 F. App’x 840 (10th Cir. 2015) ............ 16

United States v. Green,

436 F.3d 449 (4th Cir. 2006)..................... 5

United States v. Haste,

292 F. App’x 249 (4th Cir. 2008) .............. 17

United States v. Herrick,

545 F.3d 53 (1st Cir. 2008) ....................... 13

United States v. High,

576 F.3d 429 (7th Cir. 2009)..................... 13

United States v. Hollins,

514 F App’x 264 (3d Cir. 2013)................ 15

United States v. Hornyak,

805 F.3d 196 (5th Cir. 2015)..................... 16

United States v. Jarmon,

596 F.3d 228 (4th Cir. 2010)......... Ry ESS 15

United States v. Jenkins,

631 F.3d 680 (4th Cir. 2011)................... 15

United States v. Johnson,

587 F.3d 203 (3d Cir. 2009) ...................... 15

United States v. Johnson,

616 F.3d 85 (2d Cir. 2010)........................ 16

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Knox,

573 F.3d 441 (7th Cir. 2009)..................... i)

United States v. LaBonte,

a ceemubhosneionn 3

United States v. Martin,

753 F.3d 485 (4th Cir. 2014)..................... 12

United States v. Martinez,

602 F.3d 1166 (10th Cir. 2010)................. 16

United States v. Mayer,

560 F.3d 948 (9th Cir. 2009)..................... 16

United States v. McFalls,

592 F.3d 707 (6th Cir. 2010)..................... 12

United States v. McGee,

553 F.3d 225 (2d Cir. 2009) ...................... 7

United States v. McGill,

618 F.3d 1273 (11th Cir. 2010)................. 17

United States v. Mendoza-Figueroa,

28 F.3d 766 (8th Cir. 1994),

vacated, 65 F.3d 691 (8th Cir. 1995)........ 10

United States v. Michael,

576 F.3d 323 (6th Cir. 2009)..........00.00...... 5

United States v. Miller,

721 F.3d 435 (7th Cir. 2013)...........00000..... 16

United States v. Moore,

420 F.3d 1218 (10th Cir. 2005)................. 11, 12

United States v. Moore,

541 F.3d 1323 (11th Cir. 2008)................. 7

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Moreland,

437 F.3d 424 (4th Cir. 2006)..................... 5

United States v. Moreland,

568 F. Supp. 2d 674 (S.D. W. Va. 2008)... 9

United States v. Mosley,

575 F.3d 603 (6th Cir. 2009)..................... 13

United States v. Munn,

595 F.3d 183 (4th Cir. 2010)..................... 7

United States v. Newhouse,

919 F. Supp. 2d 955 (N.D. Iowa 2013) ..... 4

United States v. Parson,

955 F.2d 858 (3d Cir. 1992)...................... 11

United States v. Peterson,

629 F.3d 432 (4th Cir. 2011)..................... 13

United States v. Petite,

703 F.3d 1290 (11th Cir. 2013)................. 15

United States v. Posey,

294 F App’x 765 (4th Cir. 2008) .............. 5

United States v. Preacely,

628 F.3d 72 (2d Cir. 2010) ........................ 4

United States v. Price,

990 F.2d 1367 (D.C. Cir. 1993)................. 10

United States v. Rivera,

662 F.3d 166 (2d Cir. 2011)...................... 7

United States v. Rivers,

595 F.3d 558 (4th Cir. 2010)..................... 13

United States v. Rosas,

410 F.3d 332 (7th Cir. 2005)...............0..... 11

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Royal,

731 F.3d 333 (4th Cir. 2013)..................... 13

United States v. Schmidt,

623 F.3d 257 (5th Cir. 2010)..................... 15

United States v. Skipper,

552 F.3d 489 (6th Cir. 2009)..................... 15

United States v. Stinson,

592 F.3d 460 (3d Cir. 2010)...................... 15

United States v. Sun Bear,

307 F.3d 747 (8th Cir. 2002)..................... 11

United States v. Taylor,

696 F.3d 628 (6th Cir. 2012)..................... 15

United States v. Tiger,

538 F.3d 1297 (10th Cir. 2008)................. 12

United States v. Vazquez,

558 F.3d 1224 (11th Cir. 2009)................. 5-6

United States v. Welch,

683 F.3d 1304 (11th Cir. 2012)................. 15

United States v. Welton,

583 F.3d 494 (7th Cir. 2009)..................... 5

United States v. Wesson,

583 F.3d 728 (9th Cir. 2009)..................... 7

United States v. Whitson,

597 F.3d 1218 (11th Cir. 2010)................. 13

United States v. Williams,

456 F.3d 1353 (11th Cir. 2006)................. 5,6

xii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Williams,

537 F.3d 969 (8th Cir. 2008)..................... 12

United States v. Wilson,

562 F.3d 965 (8th Cir. 2009)..................... 13

Vazquez v. United States,

ET PEL INN GP iaiiacceccecessosesnssnnocesenses 6

STATUTES

i a I ccd ovadeiedsennadaseniodiosindenss 8,9

I cc ccnneiinschiieatinniienaenninoninnties 32

ee EE ER LEN pee il

18 U.S.C. § 924(eX2KAMi) & (ii)......... ee.

eh I sicinrnticisnticneencinnicsiabinndincinatalee

ERNE Rar PRES a eee ore

IE icciccsnsisiisuncentanscnteenmneroees

i inepnmatcemneciatbianeie

aetna

GEREN RFE mene ee Teme nee

I on i steadier

I sn rsseerssmsonicesenonoeiins

21 U.S.C. § 955 ....... Slab patiitiainiaensupetilidee sears

ee ID scien con cersanssusrnetopnsesennenntion 16

yO oe) es _.. passim

2B DBC. GODARD) ....1--00ccccrrccecccccccnseee 8

omowreowrweWvsntn @&Fee eo ®

xili

TABLE OF AUTHORITIES—Continued

Page(s)

28 U.S.C. § SB4(hM2NB) ................0ccecccesscees 8

eS ere 8

GUIDELINES

U.S.S.G. § 1B1.1, cmt. (n.1(A))................006- 7

eS | nD 28

Seer esa 28

I eikienel 28

lillian 28

U.S.S.G. § 4A1.3(b)3XA), p.s. ........000..ccccee 5

FEET enemies 6, 27

I. § GBB. Ma)AD) ..0.0000000000ccsccccsssceseeeesee 4

U.S.S.G. § 4B1.1, cmt. (backg’d)

4 EMERSON a ee ee ane 10

SERENE S RR rater Nee eee 11

U.S.S.G. § 4B1.2(a)(2) (Supp. 2016)............. 14,17

U.S.S.G. § 4B1.2(b) (Supp. 2016)............... ' 8

U.S.S.G. § 4B1.2, cmt. (n.1) (Nov. 1, 2004).. 16

U.S.S.G. § 4B1.2, cmt. (n.1) (Supp. 2016)...passim

U.S.S.G. § 4B1.2, cmt. (n.2) (2015) «00.0.0... il

U.S.S.G. § 4B1.2, cmt. (1.4)......ccccccccecseceeeeees 14

ee 27

U.S.S.G. app. C, amend. 528 (Nov. 1, 1995) .. 10

U.S.S.G. app. C, amend. 651

Pe SE Widccindhrsdioadaniosanpitiinisivovhesiiiiiannbica 5

x1V

TABLE OF AUTHORITIES—Continued

Page(s)

U.S.S.G. app. C, amend. 674 (Nov. 1, 2004) .. 16

OTHER AUTHORITIES

58 Fed. Reg. 67,522 (Dec. 21, 1993)............. 11

128 Cong. Rec. 26,517-18 (Sept. 30, 1982).. 11

All Things Considered, To Reduce Bias,

Some Police Departments Are Rethinking

Traffic Stops (NPR radio broadcast

July 25, 2016), transcript available at

http://www.npr.org/templates/transcript/

transcript.php?storyld=486945181.......... 25

Amy Baron-Evans & Kate Stith, Booker

Rules, 160 U. Pa. L. Rev. 1631 (2012)...... 18

Bureau of Justice Statistics, Arrest Data

Analysis Tool, available at http//www.bjs.

gov/index.cfm?ty=datool &surl=/arrests/

IE iilsiccsisiibediicesddaniesiinthieisdanintsces 19

Charles Epp & Steven Maynard-Moody,

Driving While Black, Wash. Monthly,

Be iit tckadchdnntclinsdiadteedeeaieaiiiiionibeswes 21, 24

Daniel S. Nagin, Deterrence in the Twenty-

First Century, 42 Crime & Justice 199

David A. Harris, The Stories, the Statistics,

and the Law: Why “Driving While Black”

Matters, 84 Minn. L. Rev. 265 (1999)....... 21, 24

David Kocieniewski, New Jersey Argues

That the U.S. Wrote the Book on Race

Profiling, N.Y. Times, Nov. 29, 2000 ....... 20-21

TABLE OF AUTHORITIES—Continued

Page(s)

Dep’t of Justice, Civil Rights Div., Jnves-

tigation of the Ferguson Police Depart-

I i

Emily Green, Huge Racial Disparities in

S.F. Arrest Citations, S.F Chron., Apr.

RERUNS SR GR aR cess lh nore

Frank R. Baumgartner et al., Targeting

Young Men of Color for Search and Arrest

during Traffic Stops: Evidence from

North Carolina, 2002-2013, Politics,

Groups, & Identities (2016), http://dx.doi.

org/10.1080/21565503.2016.1160413 .......

Gary Webb, Driving While Black: Tracking

Unspoken Law-Enforcement Racism,

Esquire, Jan. 29, 2007, www.esquire.com/

news-politics/a 1223/driving-while-black-

Ian Ayres & Jonathan Borowsky, A Study

of Racially Disparate Outcomes in the Los

Angeles Police Department (2008), avail-

able at http:/Aslandia.law.yale.edu/ayres

/Ayres%20LAPD%20Report. pdf...............

John F. Stinneford, Subsidiarity, Federalism

and Federal Prosecution of Street Crime,

2 J. Catholic Soc. Thought 495 (2005) .....

Katherine Beckett et al., Race, Drugs, and

Policing: Understanding Disparities in

Drug Delivery Arrests, 44 Criminology

Ia siti sudan scdingiaaeotscnnrademobntaeians

21, 24

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Matthew B. Ross et al., Inst. for Mun. &

Reg’! Policy, Cent. Conn. State Univ.,

State of Connecticut: Traffic Stop Data

Analysis and Findings (2016), available at

www.ccsu.edu/imrp/Publicatona/Files/May

%202016%20Connecticut%20Racial%20

Profiling%20Report.pdf .....................0..004. 24

Matthew R. Durose et al., Bureau of Justice

Statistics, Recidivism of Prisoners

Released in 30 States in 2005: Patterns

from 2005 to 2010 (2014) .............ccccccceeeeeee 30

Nat'l Research Council, The Growth of

Incarceration in the United States:

Exploring Causes and Consequences

(Jeremy Travis et al. eds., 2014) ............. passim

Office of the Public Advocate, City of New

York, Stop and Frisk and the Urgent

Need for Meaningful Reforms (2013),

available at http://archive.advocate.nyc.

IT icnicriniciicthindeuisnastibecsdcadienmienicius 23

Office of the San Francisco Dist. Att’y,

Report of the Blue Ribbon Panel on

Transparency, Accountability, & Fair-

ness in Law Enforcement (2016), available

at http://sfdistrictattorney.org/sites/

default/ files/Document/BRP_report.pdf.. 24

Paul J. Hofer, The Commission Defends an

Ailing Hypothesis: Does Judicial Discre-

tion Increase Demographic Disparity?, 25

Fed. Sent’g Rep. 311 (2013)...........0000.00... 18

xvii

TABLE OF AUTHORITIES—Continued

Page(s)

Paul J. Hofer & Mark H. Allenbaugh, The

Reason Behind the Rules: Finding and

Using the Philosophy of the Federal

Sentencing Guidelines, 40 Am. Crim. L.

a REA SE RC a as ee 28

Remarks for Public Meeting, Chief Judge

Patti B. Saris, Chair, U.S. Sent’g Comm’n

(Jan. 8, 2016), http://-www.ussc.gov/sites/

default/files/pdf/amendment-process/

public-hearings-and-meetings/20160108/

aiiciinicencieenssiiscinisnendnnnitabinecseiess 7-8

Rich Morin, Pew Research Center, The

Demographics and Politics of Gun-Own-

ing Households (July 15, 2014), www.

pewresearch.org/fact-tank/2014/07/15/the-

demographics-and-politics-of-gun-owning-

AERTS Aig LER ee eee 19

Robin Shepard Engel & Jennifer M. Calnon,

Examining the Influence of Drivers’

Characteristics during Traffic Stops with

Police: Results from a National Survey,

a Ne i i iccevecccncsscsccsseccscsncsnenes 21, 24

S. Rep. No. 98-225 (1983)..............-.sssssseseeee: 10

Sharon LaFraniere & Andrew W. Lehren,

The Disproportionate Risk of Driving

While Black, N.Y. Times, Oct. 25, 2015 ..passim

xvill

TABLE OF AUTHORITIES—Continued

Page(s)

Substance Abuse & Mental Health Servs.

Admin., Results from the 2010 National

Survey on Drug Use and Health, avail-

able at http:/Awww.samhsa.gov/data/sites/

default/files)sNSDUHNationalFindingsRes

ults2010-web/2k10ResultsTables/NSDUH

Tables2010R/HTM/Sect 1 peTabs1to46.htm... 19

U.S. Census Bureau, Annual Estimates of

the Resident Population by Sex, Race, and

Hispanic Origin for the United States,

States, and Counties: April 1, 2010 to July

1, 2015, available at http/Aactfinder.census.

gov/faces/tableservices/jsf/pages/product

view.xhtm]?pid=PEP_2014_PEPSR6H&

aE SI AE RS, 8 NA 19

U.S. Sent’g Comm’n, 2014 Sourcebook

of Federal Sentencing Statistics (2014),

http://www.ussc.gov/research/2015-

sourcebook/archive/sourcebook-2014 ....... 10

U.S. Sent’g Comm’n, Fifteen Years of

Guidelines Sentencing: An Assessment

of How Well the Federal Criminal Justice

System Is Achieving the Goals of Sentenc-

ND I a ccichcecrnstinccctutevinnisinnadannaed passim

U.S. Sent’g Comm’n, Measuring

Recidivism: The Criminal History

Computation of the Federal Sentencing

EY TID Kciccndcsstrscnenccetnoneove 27, 28, 31-32

xix

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Sent’g Comm'n, Public Data Briefing:

“Crime of Violence” and Related Issues,

http://www.ussc.gov/sites/default/files/

pdf7amendment-process/public-hearings-

and-meetings/20151105/COV_briefing.pdf. 9

U.S. Sent’g Comm’n, Quick Facts — Career

Offender (2015), http:/Awww.ussc.gov/

sites/default/files/pdf/research-and-pub

lications/quick-facts/Quick_Facts_Career_

a , csccintdeinnpscenineniouneses 6

U.S. Sent’g. Comm'n, Recidivism Among

Federal Offenders: A Comprehensive

I ceeecieenieill 27-28

U.S. Sent’g Comm’n, Report to the

Congress: Career Offender Sentencing

Enhancements (2016)..............0.:cesesseseeeees passim

INTEREST OF AMICI CURIAE'

Amicus curiae, Federal Public and Community

Defenders in the United States (not including the

Defender representing the petitioner in this case),

have offices in 91 of the 94 federal judicial districts.

Amicus curiae, the National Association of Federal

Defenders, formed in 1995, is a nationwide, non-profit,

volunteer organization whose members are attorneys

who work for federal public and community defender

organizations authorized under the Criminal Justice

Act. Amici represent tens of thousands of individuals

in federal court each year, including many who were

previously sentenced under the residual clause of the

Career Offender Guideline. Amici have particular

expertise and interest in the issues presented in this

case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici write to place the issues in this case in

broader context by discussing the history of the Career

Offender Guideline, its impact on those to whom it has

been applied and who remain in prison, and the

implications of a ruling in Petitioner’s favor on them

and the federal criminal justice system.

Of the handful of most extreme punishments under

federal law, the Career Offender Guideline has been

applied most broadly. The courts have applied the

' The parties to the case, and amicus appointed by the Court,

have consented to the filing of this brief and copies of letters of

consent have been lodged with the Clerk of the Court. Sup. Ct.

R. 37.3(a). No counsel for a party authored any part of this brief,

and no person or entity other than amici curiae made a monetary

contribution to the preparation or submission of this brief. Sup.

Ct. R. 37.6.

guideline expansively to reach relatively minor

offenses under the vague language of the residual

clause. The Commission has defined its predicates to

reach conduct well beyond that specified or warranted

by the congressional directive upon which it is based.

For these reasons and others discussed below, the

Career Offender Guideline has a severe disproportion-

ate impact on African Americans, and fails to promote

any purpose of sentencing in most cases in which it has

been applied. At the same time, retroactive relief

under ameliorating guideline amendments and changes

in law has been foreclosed to many career offenders

serving harsh prison terms. As a result of the extreme

severity and sweeping breadth of the Career Offender

Guideline, and the unavailability of relief, career

offenders comprise over eleven percent of the federal

prison population even though they are only about

three percent of defendants sentenced each year.

For the persuasive reasons argued by Petitioner,

amici urge the Court to hold that the residual clause

in the Career Offender Guideline is void for vagueness

in light of Johnson v. United States, 135 S. Ct. 2551

(2015), that Johnson applies retroactively to Career

Offender Guidelines cases on collateral review, and

that offenses listed in the guideline’s commentary that

conflict with its text absent the residual clause are

invalid. Doing so will not unduly burden the courts.

Now that the statute of limitations has run and

motions have been filed, amici are able to estimate

that at most 6,000 prisoners who were sentenced

under the Career Offender Guideline are seeking

retroactive relief under Johnson.’

* App. at 9a-1la.

ARGUMENT

I. The Career Offender Guideline Creates a

Particularly Severe Punishment That Has

Been Applied To An Overly Broad

Category of Defendants.

The Career Offender Guideline creates a “category

of offender subject to particularly severe punishment.”

Buford v. United States, 532 U.S. 59, 60 (2001).

Because Congress mandated that the Sentencing

Commission specify a term of imprisonment at or near

the statutory maximum, 28 U.S.C. § 994(h), the

Commission’s one attempt to ameliorate the severity

of the guideline was held invalid. See United States v.

LaBonte, 520 U.S. 751, 757 (1997). At the same time,

the Commission has expanded the reach of the

guideline beyond that required or warranted by

§ 994(h)’s plain language, and the courts have applied

the guideline broadly under the vague language of

the residual clause. Career offenders sentenced to

harsh prison terms based on minor offenses have been

unable to get relief under ameliorating guideline

amendments or changes in law. While career

offenders are just over three percent of defendants

sentenced each year, they comprise over 11 percent of

the federal prison population.*

A. The Guideline Is Harsh.

Congress mandated that the Commission “specify

a sentence to a term of imprisonment at or near

the maximum term authorized” for “categories of

defendants” convicted for at least the third time of a

“felony that is” a “crime of violence” or “an offense

*U.S. Sent’'g Comm'n, Report to the Congress: Career Offender

Sentencing Enhancements 24 (2016).

described in” particular federal statutes prohibiting

drug trafficking. See 28 U.S.C. § 994(h). The Com-

mission implemented the level of punishment required

by the directive by tying the offense level to the

statutory maximum for the instant offense of

conviction and automatically placing the defendant in

Criminal History Category VI.‘

Several additional features make being categorized

as a career offender particularly harsh. Although the

guideline regularly applies to low-level federal offend-

ers with a criminal! history produced by addiction and

disadvantage,’ the offense level may not be reduced

for a minor or minimal role in the offense, and the

Commission limited “departures” to one criminal

history category for career offenders whose placement

in the highest criminal history category overstates the

*U.S.S.G. §4B1.1(a)(b).

* See, e.g., United States v. Preacely, 628 F.3d 72, 83-84 (2d Cir.

2010) (Lynch, J., concurring) (defendant's “sad, addicted life”

produced a “history of multiple (if mostly minor) criminal

convictions (almost exclusively tied to the possession and sale of

narcotics),” so that “the only ‘career’ he ever had seems to have

been selling drugs” and “earn[ing| an extraordinary sentence for

a relatively mundane offense”); United States v. Gavin, 2008 WL

4418932 (E.D. Ark. Sept. 29, 2008) (“[Djefendant’s criminal

history [consisting of two crimes of violence] reflects criminal

behavior consistent with a vagrant and substance abuser as

opposed to a violent offender.”); United States v. Fernandez, 436

F.Supp.2d 983, 990 (E.D. Wis. 2006) (“[T)he broad language

will often sweep within the career offender guideline defendants

with relatively minor records,” such as fleeing, walk-away escape

and car theft, “though they are likely not what Congress had in

mind.”); United States v. Newhouse, 919 F Supp.2d 955, 991 (N.D.

Iowa 2013) (defendant was “a long-term, chronic drug addict

whose entire criminal history is tied to her addiction,” whose

“height of [| involvement in the drug trade has been as a low-level

pill smurfer”).

seriousness of their criminal history or their likelihood

of re-offense.®

Moreover, the Career Offender Guideline not only

was mandatory for over seventeen years, it was

treated as mandatory long after United States v.

Booker, 543 U.S. 220 (2005), and even after

Kimbrough v. United States, 552 U.S. 85 (2007), and

Spears v. United States, 555 U.S. 261 (2009). Four

circuits expressly prohibited district courts from vary-

ing from the Career Offender range based on a policy

disagreement,’ and even in other circuits, some

* See U.S.S.G. §4A1.3(bX3)A), p.s.; id. app. C, amend. 651 (Oct.

27, 2003).

’ See United States v. Green, 436 F.3d 449, 459 (4th Cir. 2006)

(holding that district court was “not free to ignore” Congress's

policy judgment in § 994(h)); United States v. Moreland, 437 F.3d

424 (4th Cir. 2006) (“To the extent that the sentence imposed by

the district court rests on [an outright] rejection of congressional

policy with respect to repeat drug offenders, it is subject to

reversal on that basis alone.”); United States v. Posey, 294 F.

App’x 765 (4th Cir. 2008) (later recognizing district courts may

disagree with the career offender guideline); United States v.

Funk, 534 F.3d 522, 530 (6th Cir. 2008) (district court erred by

“impos{ing] his own policy determination [and] supplanting] that

of the Sentencing Commission (and Congress)”), vacated by 560

F.3d 619, 619-20 (6th Cir. 2009) (appeal voluntarily dismissed by

the government); United States v. Michael, 576 F.3d 323, 327-28

(6th Cir. 2009) (later holding that “district court may lawfully

conclude that the policies underlying the career-offender

provisions yield a sentence ‘greater than necessary to serve

the objectives of sentencing”); United States v. Welton, 583 F.3d

494 (7th Cir. 2009) (prohibiting disagreement with career

offender guideline), overruled by United States v. Corner, 598

F.3d 411, 415-16 (7th Cir. 2010) (em banc); United States v.

Williams, 456 F.3d 1353, 1369-70 (11th Cir. 2006) (holding

district court erred in mitigating a sentence based on its

disagreement with “Congress’s policy of targeting recidivist drug

offenders for more severe punishment”); United States v.

district courts failed to recognize that the guideline

was advisory for many years.®

For 46.3% of defendants sentenced as career

offenders in 2014, the Career Offender Guideline

increased the average guideline minimum by 260%

(from 70 to 188 months); for 32.6%, it increased the

average guideline minimum by 183% (from 92 to 168

months); for another 12.4%, it increased the average

guideline minimum by about 25%.° And the Career

Offender Guideline “exertled] controlling influence

on the sentence[s]” imposed.'° The average sentence

imposed on career offenders was 2.3 times that

imposed on non-career offenders convicted of the same

offense types.''

Moreover, it is exceedingly rare for a non-career

offender to receive a sentence as severe as a career

offender. Among career offender and non-career

offenders convicted of the same offense types in 2014,

Vazquez, 558 F.3d 1224, 1227-28 & n.2 (llth Cir. 2009)

(reaffirming Williams after Spears), vacated by Vazquez v. United

States, 558 U.S. 1144 (2010) (remanding for further consideration

in light of Solicitor General's position).

* At sentencing in 2014, the district court “refusled) to vary

downwardly because there was no ‘Fifth Circuit guidance’ related

to variances when a defendant is subject to the career-offender

provision.” United States v. Clay, 787 F.3d 328, 330 (5th Cir.

2015). The Fifth Circuit held for the first time in 2015 that the

“district court’s sentencing discretion is no more burdened when

a defendant is characterized as a career offender under §4B1.1

than it would be in other sentencing decisions.” Jd. at 331.

* See U.S. Sent’g Comm'n, Quick Facts — Career Offender

(2015), http://www.ussc.gov/sites/default/files/pdf/research-and-

publications/quick-facta/Quick_Facts_Career_Offender_FY14.pdf.

" Peugh v. United States, 133 S. Ct. 2072, 2085 (2013).

'' App. at 2a.

only 1.2 percent of non-career offenders received a

sentence as high as the guideline minimum for career

offenders.'* For firearms offenses, it was only 0.9

percent.'*

At the same time, retroactive relief is not available

for career offenders for a subsequent reduction in the

guideline range for the underlying offense, and the

Commission has prohibited retroactive relief even

when the court departed or varied based on that

range.'* The Commission’s prohibition overruled a

majority of the courts of appeals,'® and “closed the door

of lenity on anyone who qualified for the career

offender provision, regardless of how harsh the

result.”'"® And while the Commission recently made

ameliorating changes to the definition of “crime of

violence,” it did not make those changes retroactive

for reasons that would appear to preclude retroactivity

for any narrowing of career offender predicates. "’

'2 Id. at Ga.

"8 Id.

' See U.S.S.G. §1B1.1, comment. (n.1(A)).

'® See United States v. Cardosa, 606 F.3d 16, 21 (ist Cir. 2010);

United States v. Rivera, 662 F.3d 166, 174, 177 (2d Cir. 2011);

United States v. McGee, 553 F.3d 225, 227, 230 (2d Cir. 2009);

United States v. Flemming, 617 F.3d 252, 259-60, 260-64 (3d Cir.

2010); United States v. Munn, 595 F.3d 183, 189-95 (4th Cir.

2010); United States v. Wesson, 583 F.3d 728, 732 (9th Cir. 2009);

United States v. Moore, 541 F.3d 1323, 1329-30 (11th Cir. 2008).

'® United States v. Barr, 132 F. Supp.3d 290, 295 (D.R.I. 2015).

’ It was “difficult, if not impossible,” to estimate the impact

because Commission data does not include which criminal history

events were used as predicates or under which definition they

qualified. Remarks for Public Meeting, Chief Judge Patti

B. Saris, Chair, U.S. Sent’g Comm'n, at 4 (Jan. 8, 2016),

B. Its Reach Is Broad.

The Commission has unnecessarily broadened the

scope of the Career Offender Guideline, and the courts

have applied it expansively under the vague language

of the residual clause.

1. Controlled Substance Offenses

The Commission defined “controlled substance

offense” more broadly than required or warranted.

Congress directed the Commission to specify a term of

imprisonment at or near the maximum for “categories

of defendants” convicted of a “felony that is an offense

described in” 21 U.S.C. §§ 841, 952(a), 955, 959, and

46 U.S.C. § 70503, and who were previously convicted

of two or more prior “felonies, each of which is” one

of those same federal offenses.'* Nonetheless, the

Commission included state drug offenses and a

number of less serious federal drug offenses than those

specified.'? If Congress intended to include state drug

offenses, it knew how to say so, see, e.g., 18 U.S.C.

§ 924(eX 2AM) & (ii); 21 U.S.C. § 802(44); 8 U.S.C.

http://www.ussc.gov/sites/default/files/pdf/amendment-process/

public-hearings-and-meetings/20 160 108/remarks. pdf.

'* 28 U.S.C. § 994(hX 1B), (2B) (emphasis added).

'® The following state and federal offenses were added to the

drug offenses specified in § 994(h) from 1987 through 1997, and

remain today: any state offense punishable by more than one

year; aiding and abetting, attempt, conspiracy; “{u]nlawfully

possessing a listed chemical with intent to manufacture a con-

trolled substance,” 21 U.S.C. § 841(cX 1); “{ulnlawfully possessing

a prohibited flask or equipment with intent to manufacture a

controlled substance,” 21 U.S.C. § 843(aX6); “[mJaintaining any

place for the purpose of facilitating a controlled substance

offense,” 21 U.S.C. § 856; and “[ujsing a communications facility

in committing, causing or facilitating a drug offense,” 21 U.S.C.

§ 843(b). See U.S.S.G. §4B1.2(b) & comment. (n.1) (Supp. 2016).

§ 1101(a)(43),” and “the precision with which § 994(h)

includes certain [federal] drug offenses but excludes

others indicates that the omission of § 846 [conspiracy]

was no oversight.”*'

As a result of the Commission’s expansion on

Congress’s directive, the Career Offender Guideline

applies to a great many low-level drug sellers.”

Indeed, drug trafficking is the most frequent prior

conviction in career offender cases,” and is the instant

” The Court recently held that when 8 U.S.C. § 1101(aX43)

states that “[t]he term ‘aggravated felony’ means an offense

described in” a particular federal statute, it applies to violations

of state statutes with the same substantive elements because the

penultimat sentence of § 1101(aX43) expressly says so. See

Torres v. Lynch, 136 S. Ct. 1619, 1623 (2016). The career offender

directive says no such thing, and moreover, says that the

defendant must be convicted of a felony that “is an offense

described in” the specified drug statutes.

*' United States v. Knox, 573 F.3d 441, 448 (7th Cir. 2009).

2 See, e.g., United States v. Moreland, 568 F .Supp.2d 674, 687

(S.D. W. Va. 2008) (noting that distribution of one marijuana

cigarette in 1992 and 6.92 g. crack in 1996 “hardly constitute the

type and pattern of offenses that would indicate Mr. Moreland

has made a career out of drug trafficking,” and entire amount

distributed in his lifetime “would rattle around in a matchbox”).

23 While the Commission does not collect data regarding the

number or type of career offender predicates, a recent compilation

of “criminal history events” of any kind for a sample of career

offenders sentenced in 2014 showed that drug trafficking far

outnumbered offenses that could be a “crime of violence” under

any legal definition before or after Johnson or under the

Commission’s recently-amended definition. See U.S. Sent’g

Comm'n, Public Data Briefing: “Crime of Violence” and Related

Issues at slides 17, 19, http://www.ussc.govw/sites/default/files/

pdf/amendment-procesa/public-hearings-and-meetings/20 15 1 106/COV

_briefing.pdf.

offense in nearly three quarters of cases. In response

to decisions holding that it had impermissibly

exceeded the terms of § 994(h),”°> the Commission

amended the commentary to state that it had relied on

its general amendment authority to “modifly] this

definition in several respects to focus more precisely

on the class of recidivist offenders for whom a lengthy

term of imprisonment is appropriate and to avoid

‘unwarranted sentencing disparities.”** But the Com-

mission later found that the Career Offender Guide-

line is inappropriately severe and creates unwar-

ranted disparities for defendants who qualify based on

drug crimes.”’

2. Crimes of Violence

Congress had in mind for the Career Offender

Guideline “repeat violent offenders,” “a relatively

small number of repeat offenders [who] are responsi-

ble for the bulk of the violent crime on our streets,” i.e.,

** See U.S. Sent’g Comm'n, 2014 Sourcebook of Federal

Sentencing Statistics, tbl. 22 (instant offense was drug trafficking

for 73% of career offenders in 2014); Career Offender Report,

supra note 3, at 24 (instant offense was drug trafficking for

74.1%, and selling drugs in a protected location for 1.6%, of career

offenders in 2014).

* See United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993);

United States v. Bellazerius, 24 F.3d 698 (5th Cir. 1994), United

States v. Mendoza-Figueroa, 28 F.3d 766 (8th Cir. 1994), vacated,

65 F.3d 691 (8th Cir. 1995) (en banc).

* U.S.S.G. app. C, amend. 528 (Nov. 1, 1995); id. §4B1.1,

comment. (backg’d) (Nov. 1, 1995).

47 See U.S. Sent’g Comm'n, Fifteen Years of Guidelines

Sentencing: An Assessment of How Well the Federal Criminal

Justice System Is Achieving the Goals of Sentencing Reform 133-

34 (2004).

*®S. Rep. No. 98-225, at 175 (1983).

those “who stab, shoot, mug, and rob.” But given the

“hopeless indeterminacy” of the residual clause and

its dependence on a “judge-imagined abstraction,”

Johnson, 135 S. Ct. at 2557-58, the courts interpreted

the clause expansively. Contributing to the problem,

the Commission issued commentary removing the link

between the residual clause and the enumerated

offenses.” Thus, defendants were classified as career

offenders under the residual clause based on “crimes

of violence” that involved no injury or serious risk of

injury and no violent or aggressive conduct.*'

2 128 Cong. Rec. 26,517-18 (Sept. 30, 1982) (statement of Sen.

Kennedy).

*” From November 1, 1989 until August 1, 2016, the

commentary stated that “crime of violence” includes offenses in

which “the conduct set forth in the count of conviction by its

nature, presented a serious potential risk of physical injury to

another.” U.S.S.G. §4B1.2, comment. (n.2) (2015). Courts relied

on this commentary to hold that “conduct that presents a serious

potential risk of physical injury to another” need not be similar

in kind or degree of risk to the enumerated offenses. See, e.z.,

United States v. Parson, 955 F.2d 858, 874-75 (3d Cir. 1992).

When the problem was brought to the Commission's attention,

id., it acknowledged that the commentary had broadened the

definition, such that “crimes not traditionally considered crimes

of violence might qualify as a crime of violence under §4B1.2,

but would not qualify as a crime of violence under § 924(e),” and

proposed to fix it. See 58 Fed. Reg. 67,522, 67,533 (Dec. 21, 1993).

With no explanation, it didn’t.

™' See, e.g., United States v. Moore, 420 F.3d 1218, 1220-22

(10th Cir. 2005) (driving under the influence); Parson, 955 F.2d

at 870-71 (reckless endangerment); United States v. Fiore, 983

F.2d 1, 4-5 (1st Cir. 1992) (conspiracy to break and enter a non-

dwelling); United States v. Rosas, 410 F.3d 332, 334 (7th Cir.

2005) (fleeing and eluding); United States v. Delaney, 427 F.3d

1224 (9th Cir. 2005) (possession of short-barreled shotgun);

United States v. Sun Bear, 307 F.3d 747, 752 (8th Cir. 2002)

(attempted vehicle theft).

In Begay, the Court narrowed the breadth of the

residual clause when it held that driving under the

influence is not a “violent felony” because it does not

involve the “purposeful, violent, and aggressive con-

duct” that the enumerated offenses “typically involve,”

Begay v. United States, 553 U.S. 137, 144-45 (2008).

The Court then concluded in Chambers that an escape

conviction based on a failure to report for service of

sentence did not satisfy the ACCA’s residual clause as

interpreted by Begay, relying on a Commission report

finding no failure to report cases involving violence.

Chambers v. United States, 555 U.S. 122, 128-29

(2009).

Courts thereafter applied Begay to both the ACCA

and the Career Offender Guideline to hold that many

offenses previously held to be “crimes of violence” were

not—including driving while intoxicated,*? auto theft

and auto tampering,®* attempted vehicle theft, non-

residential burglary,” negligent burglary,* reckless

assault without actual force,*” spitting on a police

officer® or a pregnant woman,” assault defined to

include “unlawful touching, whether violent or

“ United States v. Tiger, 538 F.3d 1297 (10th Cir. 2008),

overruling United States v. Moore, 420 F.3d 1218 (10th Cir. 2005).

United States v. Williams, 537 F.3d 969 (8th Cir. 2008).

“ Sun Bear v. United States, 611 F.3d 925, 928 (8th Cir. 2010),

vacated on other grounds, 644 F.3d 700 (8th Cir. 2011) (en banc).

“ United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc).

“ United States v. Martin, 753 F.3d 485, 493 (4th Cir. 2014).

United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010).

United States v. Carthorne, 726 F.3d 503, 508 (4th Cir. 2013).

’ United States v. Evans, 576 F.3d 766 (7th Cir. 2009).

nonviolent and no matter how slight” and encompass-

ing reckless conduct,* failing to stop for a blue light,*’

statutory rape involving two teenagers,** sexual mis-

conduct that may be committed by one teenager

“kissing or fondling” another teenager,“ starting a fire

without intent to set fire to, burn, or damage prop-

erty,“ child endangerment under a statute allowing

conviction for such passive behavior as leaving

children unattended near an unfenced pond or with a

physically abusive spouse,** involuntary manslaugh-

ter involving an accidental shooting of a close friend,“

negligent vehicular homicide,*’ walkaway escape,“

carrying a concealed weapon,‘ non-overt act conspir-

acy,” reckless endangerment,"' and opposing or obstruct-

ing a police officer.

But Begay and Chambers could not cure the intrac-

table vagueness of the residual clause. Courts were

still required to imagine in the abstract the degree of

“© United States v. Royal, 731 F.3d 333, 342 (4th Cir. 2013).

*! United States v. Rivers, 595 F.3d 558 (4th Cir. 2010).

*? Spencer v. United States, 773 F.3d 1132, 1136 (11th Cir.

2014) (en banc).

“ United States v. Goodpasture, 595 F.3d 670 (7th Cir. 2010).

“ Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013).

“ United States v. Wilson, 562 F.3d 965, 967 (8th Cir. 2009).

“© United States v. Peterson, 629 F.3d 432, 434 (4th Cir. 2011).

*’ United States v. Herrick, 545 F.3d 53, 60 (1st Cir. 2008).

“* E.g., United States v. Ford, 560 F.3d 420 (6th Cir. 2009).

“ United States v. Archer, 531 F.3d 1347 (11th Cir. 2008).

™ United States v. Whitson, 597 F.3d 1218 (11th Cir. 2010).

"! United States v. High, 576 F.3d 429, 430 (7th Cir. 2009),

United States v. Baker, 559 F.3d 443, 454 (6th Cir. 2009).

" United States v. Mosley, 575 F.3d 603 (6th Cir. 2009).

risk posed by the “ordinary case,” Johnson, 135 S. Ct.

at 2559, and in doing so also followed the “ad hoc

test[s]” from James and Sykes, id. at 2558—tests that

themselves undermined any hope of tenable results.

In James, the Court held that attempted burglary is

a violent felony under the ACCA because, it said, the

risk posed by attempted burglary “is comparable” to

the risk posed by completed burglary, its “closest

analog” of the enumerated offenses. 550 U.S. 192, 203-

04 (2007). The Court supported its conclusion with

suppositions regarding the typical risk posed and with

the assumption—mistaken, it turns out—that the

Commission included attempt crimes in the Career

Offender Guideline “based on [its] review of empirical

sentencing data.” Jd. at 206 (citing §4B1.2, comment.

(n.1)).*

In Sykes, the Court relied on “commonsense” that

vehicular flight is a violent felony under the ACCA’s

residual clause, 564 U.S. 1, 10 (2011), even though the

statute “covered everything from provoking a high-

speed car chase to failing to stop immediately after

seeing a police officer.” Johnson, 135 S. Ct. at 2558-

59. In the process, the Court suggested that courts

had been overreading Begay’s “purposeful, violent and

aggressive” test, Sykes, 564 U.S. at 12-13, which

precipitated backtracking in some courts.

™’ The Commission has now deleted “burglary of a dwelling”

from the career offender guideline based on extensive empirical

evidence demonstrating that “burglary offenses rarely result in

physical violence.” U.S.S.G. §4B1.2(aX2) (Supp. 2016) (Reason

for Amendment). Going forward, a prior burglary conviction may

be used solely as a reason for upward departure, and even then

only in the unusual case in which it involved physical injury. Jd.

§4B1.2 comment. (n.4).

The result was “pervasive disagreement about the

nature of the inquiry [the court] is supposed to conduct

and the kinds of factors [the court] is supposed to

consider,” id. at 2560, with courts free to guide their

imaginations by mistaken assumptions, non-record

statistics, Google searches, or “gut instinct,” id. at

2557-58. Offenses that continued to qualify as “crimes

of violence” after Begay and Chambers include pick-

pocketing, attempted larceny from a person,” theft of

a firearm,” purse-snatching,”’ simple assault,” resist-

ing arrest,®® misdemeanor resisting arrest,” resisting

arrest by fleeing,®' simple vehicular flight encompass-

ing failure to stop with no high speed,” trespass of

habitation by stealth or deception,® trespass of a

“4 United States v. Jarmon, 596 F.3d 228 (4th Cir. 2010)

(statute criminalizing theft of over $5 in money or goods from

another person).

55 United States v. Taylor, 696 F.3d 628, 631 (6th Cir. 2012);

see also United States v. Alderman, 601 F.3d 949, 953 (9th Cir.

2010) (theft from a person).

United States v. Schmidt, 623 F.3d 257, 264 (5th Cir. 2010).

5’ United States v. Hollins, 514 F. App’x 264 (3d Cir. 2013); see

also United States v. Welch, 683 F.3d 1304, 1313 (11th Cir. 2012)

(robbery by sudden snatching).

8 United States v. Johnson, 587 F.3d 203 (3d Cir. 2009).

5° United States v. Jenkins, 631 F.3d 680 (4th Cir. 2011).

States v. Almenas, 553 F.3d 27, 34-35 (1st Cir. 2009).

*' United States v. Ellis, 815 F.3d 419 (8th Cir. 2016).

*2 United States v. Petite, 703 F.3d 1290 (11th Cir. 2013).

® United States v. Skipper, 552 F.3d 489, 492-93 (6th Cir.

2009).

dwelling,” attempted burglary encompassing posses-

sion of burglary tools,“ attempted burglary encom-

passing attempt to remove an air conditioner,™

criminal trespass,® entering a public telephone booth

to steal change from coin boxes,™ organizing, taking

part in, or inciting a hunger strike or other organized

disobedience,® and fleeing by vehicle, including a

bicycle, while obeying all traffic laws.”

Meanwhile, conflict reigned, as demonstrated by the

disarray regarding whether mere possession of a

firearm described in 26 U.S.C. § 5845(a) poses the

requisite risk. In 2004, the Commission amended the

guideline commentary to except unlawful possession

of a firearm described in 26 U.S.C. § 5845(a) from the

firearm-possession exclusion, because a number of

courts at the time had held that possession of such a

firearm satisfied the residual clause.”' Thereafter, a

number of courts of appeals held that it did not satisfy

the identical residual clause in the ACCA. See United

States v. Miller, 721 F.3d 435, 440 (7th Cir. 2013);

United States v. Amos, 501 F.3d 524, 529 (6th Cir.

“ United States v. Corner, 588 F.3d 1130, 1134 (7th Cir. 2009),

overruled on other grounds, 598 F.3d 411 (7th Cir. 2010) (en

banc).

** United States v. Martinez, 602 F.3d 1166 (10th Cir. 2010).

“ United States v. Ghoston, 530 F. App’x 468 (6th Cir. 2013)

(relying on United States v. Bureau, 52 F.3d 584 (6th Cir. 1995).

*’ United States v. Goodwin, 625 F. App’x 840 (10th Cir. 2015).

* United States v. Mayer, 560 F.3d 948, 952 (9th Cir. 2009)

(Kozinski, C.J., dissenting from denial of rehearing en banc).

* United States v. Johnson, 616 F.3d 85, 88 (2d Cir. 2010).

™” United States v. Hornyak, 805 F.3d 196, 198 (5th Cir. 2015).

" U.S.S.G. app. C, amend. 674 (Nov. 1, 2004); id. §4B1.2,

comment. (n.1) (Nov. 1, 2004).

2007); United States v. McGill, 618 F.3d 1273, 1279

(11th Cir. 2010); United States v. Haste, 292 F App’x

249, 250 (4th Cir. 2008). Others, such as the lower

court in Johnson, disagreed.

C. Prisoners Sentenced To Harsh Prison

Terms Based on Relatively Minor

Offenses Have Been Unable to Get

Relief.

The many people sentenced as career offenders

based on minor crimes even after Begay and Chambers

had no prospect of relief. Relief was foreclosed to many

who would not have been sentenced as career

offenders had they been sentenced after Begay and

Chambers.” And many would not be career offenders

under the Commission’s new definition, which deletes

the residual clause, eliminates “burglary of a dwell-

ing,” and narrows the definition of statutory rape and

child sex abuse,” but the Commission did not make

those changes retroactive.

II. The Career Offender Guideline Has An

Unwarranted Adverse Impact on African

Americans.

In the late 1980s, a wide gap opened up between

the sentences of black defendants and those of other

™ Non-constitutional errors have been held not to present a

cognizable miscarriage of justice in advisory guidelines cases, see

United States v. Foote, 784 F.3d 931, 937-39 (4th Cir. 2015);

Spencer v. United States, 773 F.3d 1132, 1144 (11th Cir. 2014);

Hawkins v. United States, 706 F.3d 820, 822-24 (7th Cir. 2013),

and in one circuit even in mandatory guidelines cases, Sun Bear

v. United States, 644 F.3d 700, 704-06 (8th Cir. 2011) (en banc).

But see Narvaez v. United States, 674 F.3d 621, 627-30 (7th Cir.

2011); United States v. Doe, 810 F.3d 132, 159-60 (3d Cir. 2015).

™ U.S.S.G. §4B1.2(a2) & comment. (n.1) (Supp. 2016).

races.’* The gap resulted from new statutes and guide-

lines, including the Career Offender Guideline, “that

have a disproportionate impact on” black defendants

but “serve no clear sentencing purpose.”” As the

Commission itself has said, “if a sentencing rule has a

significant adverse impact and there is insufficient

evidence that the rule is needed to achieve a statutory

purpose of sentencing, then the rule might be

considered unfair toward the affected group.”

From 1992 through 2014, black defendants com-

prised 32.7 percent of defendants convicted of the eight

most common instant offense types eligible for career

offender status, but they were 61.6 percent of such

defendants sentenced as career offenders, and they are

65.8 percent of those defendants who likely remain in

prison.”” This severe disparity is unnecessary and

unfair. It arises in large part from police practices that

put African Americans at greater risk of conviction

than similarly situated whites, and it promotes no

relevant sentencing purpose even for convictions that

do not result from unequal law enforcement.

A. Many Career Offender Predicates Reflect

Disparate Policing Practices.

Though African Americans have been convicted of

more career offender predicates than whites, this is

not explained by racial differences in the commission

’ Paul J. Hofer, The Commission Defends an Ailing

Hypothesis: Does Judicial Discretion Increase Demographic

Disparity?, 25 Fed. Sent’g Rep. 311, 313 fig.1 (2013).

" Fifteen Year Review, supra note 27, at 131; see also Amy

Baron-Evans & Kate Stith, Booker Rules, 160 U. Pa. L. Rev. 1631,

1686-87 (2012).

™ Fifteen Year Review, supra note, 27 at 114.

” App. at 9a.

of such offenses. Blacks comprised about 13% of the

U.S. population in 2010." They reported using an

illicit drug in the past year at about the same rate

as whites (16.8% and 15.3%, respectively”), and “there

is also little evidence, when all drug types are

considered, that blacks sell drugs more often than

whites.” Blacks are about half as likely as whites to

have a firearm in their homes.*' Nonetheless, African

Americans accounted for 39% of drug sale arrests and

41% of weapon possession arrests in 2010.

The Career Offender Guideline’s disproportionate

impact on black defendants arises in large part from

disparate state and local policing practices that result

in black defendants having prior convictions for drug

* U.S. Census Bureau, Annual Estimates of the Resident

Population by Sex, Race, and Hispanic Origin for the United

States, States, and Counties: April 1, 2010 to July 1, 2015,

available at http://factfinder.census.gov/faces/tableservices/jsf/

pages/productview xhtm]l?pid=PEP_2014 PEPSR6H&prodType

=table.

Substance Abuse & Mental Health Servs. Admin., Results

from the 2010 National Survey on Drug Use and Health, tbl.

1.19B, available at http://www.samhsa .gov/data/sites/defau!t/

files/NSDUHNationalFindingsResults20 10-web/2k 10Results

Tables/NSDUHTables2010R/HTM/Sect | peT abs 1to46.htm.

™ Nat'l Research Council, The Growth of Incarceration in the

United States: Exploring Causes and Consequences 60 (Jeremy

Travis et al. eds., 2014).

*' Rich Morin, Pew Research Center, The Demographics

and Politics of Gun-Owning Households (July 15, 2014),

www.pewresearch.org/fact-tank/20 14/07/15/the-demographics-

and-politics-of-gun-owning-households.

" Arrest rates for 2010 were obtained from the Bureau

of Justice Statistics, Arrest Data Analysis Tool, available at

http://www.bjs.gov/index.cfm ?ty=datool&surl=/arresta/index.cfm

trafficking and many “crimes of violence” that they

would otherwise not have, and that they would

not have if they were white. This is also true of

instant federal offenses, as many federal prosecutions

originate with arrests by state and local police.”

According to the National Research Council, extreme

racial disparities in imprisonment have been “partly

caused and substantially exacerbated” by police arrest

practices associated with the “war on drugs,” including

racial profiling, and harsh sentencing laws and

guidelines that apply disproportionately to black

people, including three-strikes laws.™

Research from across the country shows that black

drivers and pedestrians are stopped, frisked, searched

and arrested far in excess of their portion of the

population or their share of criminality. The use of

racial profiling to stop, question and search black and

brown drivers in an effort to find drugs, guns and cash

originated in 1984 with “Operation Pipeline,” a key

initiative of the “war on drugs.” Endorsed and

financed by the Drug Enforcement Administration,

thousands of state and local police officers were

trained in its methods.” The practice became institu-

tionalized in police departments across the country,

“ John F. Stinneford, Subsidiarity, Federalism and Federal

Prosecution of Street Crime, 2 J. Catholic Soc. Thought 495, 507-

09 (2005).

™ Nat'l Research Council, supra note 80, at 70-71, 73, 91, 102-

129.

“ See Gary Webb, Driving While Black: Tracking Unspoken

Law-Enforcement Racism, Esquire, Jan. 29, 2007, www.esquire.com/

litica/a1223/drivi hile-black-0499 (original blished

as DWB, Esquire, Apr. 1999, at 118-127); see also David

Kocieniewski, New Jersey Argues That the U.S. Wrote the Book

on Race Profiling, N.Y. Times, Nov. 29, 2000, at Al.

and was adopted in some cities to stop and frisk

pedestrians.”

The practice of targeting minorities for investiga-

tory stops has been defended as an effective and

efficient policing strategy on the theory that minori-

ties are more likely to commit crime.*’ But this theory

has been tested and disproved in studies across the

nation. These studies, which analyze data recorded

by police officers“ and control for crime rates and

other variables, consistently find that minorities are

stopped, frisked, searched and arrested at dispro-

portionately high rates, but that drugs, weapons and

other contraband are found at significantly lower rates

in frisks and searches of minorities than of whites.

For example, in Los Angeles, analysis of field data

reports on pedestrian and motor vehicle stops from

July 2003 through June 2004 revealed that the black

stop rate per 10,000 residents was 3,400 stops higher

® See, e.g., Charles Epp & Steven Maynard-Moody, Driving

While Black, Wash. Monthly, Jan. 1, 2014, at 14.

*’ See Robin Shepard Engel & Jennifer M. Calnon, Examining

the Influence of Drivers’ Characteristics during Traffic Stops with

Police: Results from a National Survey, 21 Just. Q. 49, 50 (2004);

David A. Harris, The Stories, the Statistics, and the Law: Why

“Driving While Black” Matters, 84 Minn. L. Rev. 265, 294 (1999).

“ In response to public attention and lawsuits, police in some

jurisdictions are required to record the details of traffic and

(sometimes) pedestrian stops, including the reason for the stop,

the race of the person stopped, and (in some jurisdictions) the

outcome. See Frank R. Baumgartner et al., Targeting Young Men

of Color for Search and Arrest during Traffic Stops: Evidence

from North Carolina, 2002-2013 at 5, Politics, Groups, &

Identities (2016), http//dx.doi.org/10.1080/21565503.2016.

1160413; Sharon LaFraniere & Andrew W. Lehren, The

Disproportionate Risk of Driving While Black, N.Y. Times, Oct.

25, 2015, at Al.

than the white stop rate, after controlling for crime

rates in the reporting districts and a range of other

variables.*® Stopped blac':s were 127% more likely to

be frisked, 76% more likely to be searched, and 29%

more likely to be arrested than stopped whites.” But

frisked blacks were 42% less likely than frisked whites

to be found with weapons, 25% less likely to be found

with drugs, and 33% less likely to be found with other

contraband. Searched blacks were 37% less likely

than searched whites to be found with weapons, 24%

less likely to be found with drugs, and 25% less likely

to be found with other contraband.*' The researchers

concluded that it was thus “implausible that higher

frisk and search rates are justified by higher minority

criminality,”” and that if the same level of justification

were used to search minorities and whites, fewer

minorities would be searched, or proportionately more

whites would be searched.”

Similar results are found in New York City. Based

on analysis of 4.4 million documented pedestrian stops

in New York City from 2004 through 2012, the court

in Floyd v. City of New York, 959 F.Supp.2d 540

(S.D.N.Y. 2013) found that 52 percent of those stopped

were black, 31 percent were Hispanic, and 10 percent

were white, while the population was 23 percent black,

“ Ian Ayres & Jonathan Borowsky, A Study of Racially

Disparate Outcomes in the Los Angeles Police Department 5-6

(2008), available at http://Aslandia.law.yale.edu/ayres/Ayres®

20LAPD%20Report.pdf.

™ Td. at 27.

*' Id. at 7-8. Similar, but less extreme, results were found for

Hispanics.

* Id. at 27.

™ Id. at 23-24.

29 percent Hispanic, and 33 percent white.“ A

weapon was seized in one of every 71 stops of whites,

100 stops of blacks, and 91 stops of Hispanics; other

contraband, including illegal drugs and _ stolen

property, was seized in one of every 43 stops of whites,

56 stops of blacks, and 59 stops of Hispanics.” When

the total number of stops declined by 22 percent in

2012, the disparity in “hit rates” was even more

pronounced: a weapon was found in one of every 49

stops of whites, while it took 93 stops of blacks and 71

stops of Hispanics to find a weapon.” The court found

that blacks and Hispanics were more likely to be

stopped above and beyond the crime rate in a given

area,” and that “blacks are likely targeted for stops

based on a lesser degree of objectively founded suspi-

cion than whites.”

™ Floyd vu. City of New York, 959 F .Supp.2d 540, 559 (S.D.N_Y.

2013).

* Id.

* Office of the Public Advocate, City of New York, Stop and

Frisk and the Urgent Need for Meaningful Reforms 1 (2013),

available at http://archive.advocate.nyc.gov/stop-frisk.

” Floyd, 959 F.Supp.2d at 560.

% Td.

Data from North Carolina,” Kansas City,'”

Connecticut,'*' Illinois,’ San Francisco,'“ and a

national survey,'“ point to the same conclusion:

Blacks, and to a lesser extent Hispanics, are dispro-

portionately stopped, frisked, searched and arrested,

but are found with contraband significantly less often

than whites. Because police find contraband where

they look for it, blacks are arrested and convicted

in disproportionate numbers relative to similarly situ-

ated whites,'” and “[pJolice profiling results in many

more arrests of black people than would otherwise

occur.” While some police departments are

beginning to institute reforms,'” even in “most of the

states that monitor traffic stops most closely, officials

” Baumgartner et a/., supra note 88.

'” Epp & Maynard-Moody, supra note 86, at 14.

'°' Matthew B. Rosas et al., Inst. for Mun. & Reg’ Policy, Cent.

Conn. State Univ., State of Connecticut: Traffic Stop Data

Analysis and Findings iv, 73, 95, 108, 134, 161, 175 (2016),

available at www.ccsu.eduAmrp/Publicatons/Files/May%2020 16%

20Connecticut%20Racial®20Profiling%20Report. pdf.

' LaFraniere & Lehren, supra note 88.

'S Office of the San Francisco Dist. Att’y, Report of the Blue

Ribbon Panel on Transparency, Accountability, & Fairness in

Law Enforcement 29-31 (2016), available at http://sfdistrictattorney.

org/sites/default/files/Document/BRP_report. pdf.

'* Engel & Calnon, supra note 87.

' Harris, supra note 87, at 297, 301-02.

'* Nat'l Research Council, supra note 80, at 91 n.16.

'\T See All Things Considered: To Reduce Bias, Some Police

Departments Are Rethinking Traffic Stops (NPR radio broadcast

July 25, 2016), transcript available at http//www _.npr.org/templates/

transcript/transcript.php?storyld=486945 18 1.

acknowledge that this close attention has not had a

discernible effect.”'

Another contributing factor is that in poor urban

areas, the purchase and consumption of illegal drugs,

and incidents like drunkenness and domestic disturb-

ances are more likely to take place in public, whereas

in suburban and more affluent urban areas, these

activities are more likely to take place in private.'’®

Residents of poor urban areas are thus “more exposed

to police scrutiny and are more likely to be arrested

than people residing in the suburbs or in wealthier

urban neighborhoods.”''® However, there is evidence

that police overlook criminality by whites when they

see it. A study of indoor and outdoor drug markets in

Seattle found that blacks were overrepresented in

both outdoor and indoor arrests, with arrests of

suspected black dealers outnumbering arrests of

suspected white dealers by nearly two to one, and that

significant outdoor drug activity that overwhelmingly

involved whites appeared to be “largely invisible” to

the police."

The upshot is that African Americans appear in

federal court with career offender predicates that they

would likely not have if they were white. And it is

reasonable to assume that many offenses that were

* LaFraniere & Lehren, supra note 88.

8 Nat'l Research Council, supra note 80, at 128.

' TId.; see also Fifteen Year Review, supra note 27, at 134

(noting the “relative ease of detecting and prosecuting offenses

that take place in open-air drug markets, which are most often

found in impoverished minority neighborhoods”).

'" Katherine Beckett et al., Race, Drugs, and Policing:

Understanding Disparities in Drug Delivery Arrests, 44 Criminol-

ogy 105, 119, 122, 129-30 (2006).

“crimes of violence” only under the residual clause,

such as resisting arrest,''? carrying a concealed

weapon, possessing certain kinds of weapons, driving

under the influence, vehicular flight, and failure to

stop for a blue light, also have resulted from greater

scrutiny and more frequent contact with police.

B. The Career Offender Guideline Calls

for Punishment That Is Excessive to

Advance Any Purpose of Sentencing.

The only purposes of sentencing that the Career

Offender Guideline might have been thought to

promote are deterrence and incapacitation. But it is

now well-established that increasing the severity of

punishment does little, if anything, to deter crime.'"®

' Studies show that blacks are arrested for the sole charge of

resisting arrest significantly more often than whites. See Dep't

of Justice, Civil Rights Div., Investigation of the Ferguson

Police Department 65 (2015) (finding that the sole reason for 14

arrests following a traffic stop was resisting arrest and that the

person arrested in each instance was black); id. at 67 (African

Americans comprise 67% of Ferguson's population, but account

for 92% of charges for resisting arrest); LaFraniere & Lehren,

supra note 88 (traffic stop data from Greensboro, North Carolina,

showed that more than four times as many blacks as whites were

arrested on the sole charge of “resisting, obstructing or delaying

an officer”); Emily Green, Huge Racial Disparities in S.F Arrest

Citations, S.F. Chron., Apr. 29, 2015, at Metro Al (“African

Americans in San Francisco are cited for resisting arrest at a rate

eight times greater than whites even when serious crimes are not

involved, according to statistics drawn from court records.”).

''S See Nat'l Research Council, supra note 80 at 134-40, 337

(examining empirical studies and concluding that because the

marginal deterrent effect of long sentences, if any, is so small and

so far outweighed by the increased costs of incarceration, long

sentences are “not an effective deterrent”); Daniel S. Nagin,

Deterrence in the Twenty-First Century, 42 Crime & Justice 199,

As to the need for incapacitation, the Commission has

consistently found that the ordinary criminal history

rules are a good measure of the risk of recidivism,''*

but that the Career Offender Guideline is not.

In its initial evaluation of the predictive accuracy of

the criminal! history rules, the Commission found that

each increase in the criminal history category (CHC)

was associated with a statistically significant increase

in the risk of recidivism, except the increase from CHC

V to CHC VI. This was because “offenders sentenced

under the career offender guideline (§4B1.1) and the

armed career criminal guideline (§4B1.4) can be

assigned to criminal history category VI, even if they

have fewer than 13 criminal history points.”""* When

recidivism was measured against criminal history

points alone, all categories were significantly different

from one another.''® In a more recent evaluation, the

Commission found that the rates of re-arrest and

reconviction for career offenders and armed career

criminals together were significantly lower than those

rates for offenders in CHCs IV, V, and VI.'"’

202 (2013) (“[Llengthy prison sentences cannot be justified on a

deterrence-based, crime prevention basis.”).

4 See U.S. Sent’g Comm'n, Measuring Recidivism: The

Criminal History Computation of the Federal Sentencing

Guidelines 8 (2004); U.S. Sent’g. Comm'n, Recidivism Among

Federal Offenders: A Comprehensive Overview 18 (2016); Career

Offender Report, supra note 3, at 6.

'® Measuring Recidivism, supra note 114, at 9.

116 Id.

''? See Comprehensive Overview, supra note 114, at app. A-1,

Rearrest Rates Across Selected Variables (Mar. 2016) (69.5%

rearrest rate for “Career Offender/Armed Career Criminal,”

74.7% for Criminal History Category IV, 77.8% for Criminal

History Category V. and 80.1% for Criminal History Category V1)

The Commission has thus concluded that the

automatic assignment of offenders to CHC VI under

the Career Offender Guideline is not justified by their

recidivism risk.’ This makes sense, given the

blanket, dramatic increases required by the Career

Offender Guideline for prior offenses that meet its

expansive definitions. The ordinary criminal history

rules treat prior offenses more incrementally, and

account for relevant differences among prior offenses,

such as sentence duration, recency, and other

details.''®

Moreover, most career offenders not only are

assigned to the highest criminal history category, but

receive an increase in offense level tied to the statutory

maximum. Because the offense level prior to this

adjustment is designed tw reflect the seriousness of the

instant offense,'” this increase can be justified only for

the purpose of incapacitation. Yet, the Commission

has found “no apparent relationship” between offense

levels and recidivism risk.'*!

To date, the Commission has focused on how the

inclusion of drug offenses as career offender predicates

id. app. A-2, Reconviction Rates Across Selected Variables,

(47.6% reconviction rate for “Career Offender/Armed Career

Criminal,” 51.6% for Criminal History Category IV, 56.6% for

Criminal History Category V, and 59.3% for Criminal History

Category V1).

'* Measuring Recidivism, supra note 114, at 9.

' See, e.g., U.'S.S.G. §§4A1.1(a)(c), 4A1.2(c)-(e).

'” Paul J. Hofer & Mark H. Allenbaugh, The Reason Behind

the Rules: Finding and Using the Philosophy of the Federal

Sentencing Guidelines, 40 Am. Crim. L. Rev. 19, 62-67 (2003).

'*! Measuring Recidivism, supra note 114, at 13.

fails to identify defendants most in need of incapac-

itation. The Fifteen Year Review found that the

recidivism rate for drug defendants who qualified for

career offender status based on prior drug convictions

was lower than other defendants in CHC VI.'?? Simi-

larly, the Commission’s most recent report concludes

that the recidivism rate of career offenders qualifying

based on drug offenses was similar to non-career

offenders. '**

The Commission has not addressed the rates or

kinds of recidivism for offenses that qualify as “crimes

of violence” under the residual clause. Its most recent

study included all federal offenders who were released

from prison or placed on probation in 2005, and 1,998

career offenders who were released from prison from

2004 through 2006. Based on the “instant offense” (for

which they had served the federal prison sentence)

and “prior arrests” (prior to the instant offense), career

offenders were divided into three “pathways”: (1) “drug

trafficking only” if the instant offense was drug

trafficking and they had two or more prior arrests for

drug trafficking and no prior arrests for “violent

offenses,” (2) “mixed” if they had at least one “violent”

and one drug trafficking event as either the instant

offense or a prior arrest, or (3) “violent only” if the

instant offense was “violent” and they had two or more

prior arrests for “violent offenses” and no prior arrests

for drug trafficking.'* “Prior arrests,” and “re-arrests”

over an eight-year post-release follow-up period, were

obtained from FBI RAP sheets.

'2 Fifteen Year Review, supra note 27, at 134.

'23 Career Offender Report, supra note 3, at 40.

'% Td. at 38-39.

These “pathways,” however, were not based on any

legal definition of “crime of violence,” after Begay, after

Johnson, or under the Commission’s post~Johnson

definition. Instead, an instant offense or arrest was

counted as “violent” based on the Bureau of Justice

Statistics’ “violent offense” category,'* which includes

both first degree murder and vehicular manslaughter,

forcible rape and statutory rape, robbery by force and

purse snatching, aggravated assault and simple

assault, and a variety of “other” offenses including

illegal abortion and cruelty towards a child or wife.'*

As a result, the “mixed” and “violent only” categories

include people who have never been arrested for

a “crime of violence” as defined after Begay, after

Johnson, or under the Commission’s post-~Johnson

definition.

Notably, a number of offenses that have at some

point been “crimes of violence” under the residual

clause, such as escape, burglary, pickpocketing, motor

vehicle theft, DUI, and unlawful possession of a

weapon, were not counted as “violent.”’””’ Thus, the

“drug trafficking only” category-with the lowest re-

arrest rate'“—includes people who have been arrested

for offenses that were “crimes of violence” under the

residual clause. Because the Bureau of Justice Statis-

tics does not categorize weapons possession as violent,

offenders like Mr. Beckles who were part of the study

% Td. at 39.

"6 Matthew R. Durose et al., Bureau of Justice Statistics,

Recidivism of Prisoners Released in 30 States in 2005: Patterns

from 2005 to 2010, at 22 (2014) (providing BJS definitions of

“violent offenses”).

'27 Id. at 22-23.

'* Career Offender Report, supra note 3, at 40.

were “drug trafficking only” offenders, with the lowest

recidivism rate.

Other aspects of the report are worth noting. The

Commission used a broad definition of recidivism,

defined as any re-arrest, including for alleged vio-

lations of probation or supervised release, and regard-

less of whether offenders were convicted of any

crime.’ Strikingly, the Commission did not report

how many career offenders were in any of the three

pathways, or the number or types of events for

which they were arrested.'® It did report that assault

(including simple assault) was the “most frequent”

“most serious” post-release event for both career

offenders (24.9% of all recidivating events) and non-

career offenders (23.3%).'*' In a previous study, the

Commission found that violation of probation or

supervised release conditions (38.3%) was the most

common reason for re-arrest among offenders in CHC

VI, followed by larceny (14.9%)."* Re-arrest for a

“serious violent felony"—homicide, kidnapping, rob-

bery, sexual assault, aggravated assault, domestic

' Jd. at 39.

'™ The assertion in the “Current Sentencing Practices” part of

the report, id. at 27-37, that 73.3% of career offenders sentenced

in 2014 had at least one “violent offense” (60.6% “mixed,” 12.7%

“violent only”), id. at 28, is misleading. The Commission divided

a sample of 449 defendants sentenced in 2014 into its three

“pathw 3” based on all “criminal history events” listed in

presentence reports, and counted them as “violent” based on a

different list including many offenses that would not be “crimes

of violence” under any past or present legal definition. Jd. at 27

& n.39, 28 n.41. If legal definitions had been used, the “mixed”

category would shrink significantly and the “drugs only” category

would grow accordingly.

' Id. at 39-40.

'"® Measuring Recidivism, supra note 114, at 32 Ex.13.

violence, and weapons offenses—was relatively rare

(12.5% of all recidivating events, committed by 7% of

all CHC VI offenders).'* Further, other Commission

reports provide data on both re-arrest and re-

conviction, and it makes a big difference. For example,

the rate of re-arrest for those with 12 criminal history

points like Mr. Beckles was 48.7%, but the rate of re-

conviction was 14.0%.'™

CONCLUSION

Mr. Beckles was deemed a career offender based on

his offense of unlawful possession of a firearm in

violation of 18 U.S.C. § 922(g), an unloaded sawed-off

shotgun, and two prior state convictions for possession

with intent to distribute cocaine. His case is in many

ways typical of those subject to the harsh punishment

delivered by the Career Offender Guideline. He was

abandoned by his parents at age five, began using

drugs and having legal problems at a young age, and

was unable to read or write at the time of sentencing

at age 24. J.A. 21. His prior record consisted of five

state convictions for low-level possession with intent

to sell cocaine, marijuana possession offenses for

which adjudication was withheld, and a conviction for

burglary of an unoccupied structure. Jd. His instant

offense arose from being approached by a Miami police

detective who had no suspicion that he had committed

a crime. The detective simply saw Mr. Beckles, a

young black man, outside of a public housing project,

decided to question him about where he lived, and

exited his vehicle. Trial Tr. at 16, 25-26. Mr. Beckles

fled to his girlfriend’s apartment, with the detective in

™ Td. at 21 Ex.2 (55.2% were re-arrested); id. at 32 Ex.13

(12.5% were for “serious violent offenses”).

™ Td. at 23 Ex.4.

pursuit. /d. 17. After removing Mr. Beckles from the

apartment and placing him in his police car, the

detective asked the girlfriend if there were any drugs

or guns in the apartment. /d. at 18-19. She said there

was a gun, but the detective was unable to find it, so

he brought Mr. Beckles back into the apartment,

whereupon Mr. Beckles showed him the gun hidden

beneath the mattress. Jd. at 20. The gun was

unloaded, and there was no ammunition in the

apartment. /d. at 33.

The only career Mr. Beckles had was selling and

using drugs. Like many others still in prison, he is

serving a sentence under the Career Offender Guide-

line that the judge “would not” have imposed “but for

the minimum offense levels assigned by the Sentenc-

ing Commission.” J.A. 149. Their only hope of relief

from its disproportionate and needless severity is for

the Court to hold that Johnson applies retroactively to

Career Offender Guideline cases.

Respectfully submitted,

DONNA COLTHARP AMY BARON-EVANS

SARAH GANNETT Counsel of Record

DANIEL KAPLAN JENNIFER NILES COFFIN

Co Chairs FEDERAL DEFENDERS

BRETT SWEITZER NATIONAL SENTENCING

Member RESOURCE COUNSEL

Amicus Committee 51 Sleeper St., 5th Floor

NATIONAL ASSOCIATION OF Boston, MA 02210

FEDERAL DEFENDERS (617) 391-2253

abaronevans@gmai!.com

APPENDIX

APPENDIX A

CAREER OFFENDER DATA ANALYSES

Data Source and Methodology

The data used for these analyses were extracted

from the U.S. Sentencing Commission’s Fiscal Year

2014 Individual Offender Datafiles by Dr. Paul J.

Hofer, Policy Analyst, Sentencing Resource Counsel

Project, Federal Public and Community Defenders,

and former Special Projects Director, U.S. Sentencing

Commission.' Although these particular analyses

have not been performed or published by the

Commission, the underlying data are the same as the

data used in the Commission’s annual Sourcebook of

Federal Sentencing Statistics. The data are publicly

available at the Commission’s website. Using

standard statistical software, such as SAS or SPSS,

the Individual Offender Monitoring Datafiles can be

used to perform a wide variety of analyses and

generate tables and graphs beyond those published by

the Commission.

Percentages are rounded to the nearest percent, or

to the nearest tenth in cases of one percent or less.

' For a description of the Datafiles, see U.S. Sent’g Comm'n,

Fifteen Years of Guideline Sentencing: An Assessment of How

Well the Federal Criminal Justice System is Achieving the Goals

of Sentencing Reform app. D at 1 (2004).

? See Commission Datafiles, http://www.ussc.gov/research-

and-publications/com mission-datafiles.

I. Guideline Minimum, Average Sentence Imposed,

Outside-Guideline Rates for Non-Career

Offenders and Career Offenders By Instant

Offense of Conviction®

For ease of reference, the results described below are

collected in the following chart:

ro All Majer C rtenes of Vietenee

O@leme Ofteune Types

Type

‘areer | New Carver Carver —

Average =| 54 “ a ee wT

Gettiie | months | months months | months months reorths feonths months

Mintewe

o—— iw a 314 +7]

Seagrass monchs months months worth months months months

lopneed

Above ae. ae, Tr 1 i, _ a

Range

i ¥, 6 a 7, ¥. ae. Ta

us Os us as as as as as

Pua ww. ”. +s 3*. are ae 1s

NOS NOS NOS NGS NOS NUS NGS NGS

: Ms ». 24%, poo | 23s Me 2”.

GS: Government-apomsored = NCS Non-goveramem sponsored

A. The Eight Major Offense Types

Considering only the 2,186 career offenders and

28,770 non-career offenders convicted of the eight

major offense types found among career offenders

(murder, sexual abuse, assault, robbery, arson, drug

trafficking, firearms, racketeering/extortion‘), the

average guideline minimum was 205 months for

career offenders, and 82 months for non-career

offenders.

* The Commission Datafiles contain no information regarding

the types of prior convictions upon which career offender status

was based.

* See U.S. Sent’g Comm'n, 2014 Sourcebook of Federal

Sentencing Statistics, tb].22.

The average sentence imposed was 149 months for

career offenders, and 66 months for non-career

offenders.

Sentences above the guideline range were imposed

on 0.8 percent of career offenders, and on 2 percent of

non-career offenders.

Sentences below the guideline range were imposed

on 73 percent of career offenders (46 percent govern-

ment sponsored and 26 percent not), and on 62 percent

of non-career offenders (38 percent government