U.S. Supreme Court found residual clause in ACCA unconstitutionally vague
By Pat Murphy
The Daily Record Newswire
BOSTON - Sentence enhancements based on so-called "residual" clauses that broadly define what constitutes a violent offense are rapidly becoming a thing of the past, with the only real question being how many felony cases will be reopened in the commonwealth by defendants claiming entitlement to retroactive relief.
The course was set a year ago when the U.S. Supreme Court found the residual clause in the federal Armed Career Criminal Act to be unconstitutionally vague in Johnson v. U.S.
Late last month, the teachings in Johnson were directly applied in Massachusetts in two decisions that, coincidentally, were both handed down on May 24.
In Commonwealth v. Beal, the Supreme Judicial Court struck down the residual clause in the Massachusetts Armed Career Criminal Act.
And in U.S. v. Ramirez, U.S. District Court Judge William G. Young recognized that the residual clause in the U.S. Sentencing Guidelines must be deemed unconstitutional under Johnson.
Moreover, Young ruled that the invalidation of the guidelines' residual clause applied retroactively, adding impetus to the reexamination of hundreds of cases across the state for sentences called into question by Johnson and its progeny.
"There are a lot of people who have been sentenced as career offenders over the years," said Boston's Charles W. Rankin, who represented the defendant in Ramirez. "Many of those people were sentenced based on predicates that were deemed to be crimes of violence under the residual clause."
Criminal defense lawyer Peter T. Elikann of Charlestown applauded the end of the residual clause in sentencing.
"It's kind of a vague catchall that's amorphous and shapeless," he said. "We're just left with an endless series of interpretations and arguments as to what constitutes a violent crime."
Meanwhile, Federal Public Defender Miriam Conrad said she plans to cast a wide net in identifying viable grounds for post-conviction relief, saying that her office has already identified close to 200 cases with potential Johnson claims.
Void for vagueness
In Johnson, the defendant pleaded guilty to a federal charge of being a felon in possession of a firearm. Prosecutors sought an enhanced sentence under the ACCA, which imposes an increased prison term on a defendant with three prior convictions for a "violent felony."
The ACCA's residual clause defines a violent felony as including any felony that "involves conduct that presents a serious potential risk of physical injury to another."
Lower courts held a prior Minnesota conviction for unlawful possession of a short-barreled shotgun met that definition, subjecting the defendant to a 15-year sentence under the ACCA.
The Supreme Court had grappled with the meaning of the residual clause in a number of previous cases, but had rejected the argument that the definition violated the Constitution's prohibition of vague criminal laws.
However, the court in Johnson departed from its earlier precedent, declaring the ACCA's residual clause unconstitutional.
"By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates," Justice Antonin Scalia wrote for the 8-1 majority.
Conrad said that the problem with the residual clause was that it had judges trying to assess the likelihood that a particular crime presented a serious potential risk of physical injury to another.
"The problem with that is you had judges sitting there trying to decide what 'usually' happens in certain types of cases," Conrad said. "So there's an issue of fair notice to the defendant in terms of what the nature of the crime for which he or she was convicted is."
"The residual clause just really created a great deal of complexity and confusion where there needn't be," Elikann said. "That's why the Johnson decision was particularly helpful in eliminating any of that confusion and debate."
The language of the residual clause in the state ACCA is almost identical to that in the federal ACCA.
In Beal, the SJC followed the reasoning of Johnson to hold the state residual clause unconstitutional.
Jessica LaClair represented the defendant in Beal. The West Chesterfield, New Hampshire, attorney said that one of the key problems with the residual clauses is that prosecutors will hold the threat of a sentence enhancement over the head of a defendant during plea bargaining.
"At that stage, defense counsel doesn't know whether the judge will rule that [the offense] fits within the residual clause or not," she said. "So it gives the prosecutor this very broad leverage."
Elikann said he knows first-hand examples of the harsh consequences of the residual clause in the state's ACCA, citing the case of a client who had two minor misdemeanor assault cases in state court that had been continued without a finding.
"When it came time sentence him [for a drug offense], he suddenly qualified for the Armed Career Criminal Act where he was facing 15 years instead of four years because he had a couple of very minor misdemeanors where he didn't even touch anybody," Elikann said.
In Ramirez, the defendant ultimately received a 12-year sentence in U.S. District Court after pleading guilty to several drug-related offenses in 2011. Two months after Johnson, in August 2015, the defendant filed a motion to vacate his sentence under 28 U.S.C. §2255.
Citing Johnson, the defendant argued that his sentence was invalid because it was based on an enhancement under the residual clause of the U.S. Sentencing Guidelines.
The guidelines authorize an increased sentencing range for those classified "career offenders" as a result of having "at least two prior felony convictions of either a crime of violence or a controlled substance offense."
Like the ACCA's residual clause, the guidelines' definition for "crime of violence" includes "conduct that presents a serious potential risk of physical injury to another."
The government ultimately conceded that the guidelines' residual clause is void for vagueness in Ramirez.
According to Rankin, the government has taken the position across the country that, going forward, the residual clause in the guidelines is not to be given effect.
Despite the government's concession, Young said he felt compelled to address the constitutional argument given that the 1st U.S. Circuit Court of Appeals had not addressed the issue. The judge concluded that there was no good reason to distinguish between the Supreme Court's treatment of the ACCA's residual clause in Johnson and the guidelines' residual clause at issue in Ramirez.
Young wrote that the guidelines' "continued role as 'basis' for a defendant's ultimate sentence preserves his due process expectation that his sentence-enhancing classification as a career offender will not be subject to the 'unavoidable uncertainty and arbitrariness of adjudication under the residual clause.'"
Rankin agreed that the guidelines' residual clause is unconstitutionally vague.
"The predicate in [my client's] case was a Florida burglary, which could be breaking into a vehicle," Rankin said. "How is someone supposed to know that's a crime of violence?"
Retroactive application
While the federal government conceded the constitutional issue in Ramirez, it did argue against the retroactive application of the court's invalidation of the guidelines' residual clause.
According to Rankin, the government's stance in Ramirez runs counter to the concerns expressed about the problem of over-incarceration in the U.S. by both current Attorney General Loretta E. Lynch and her predecessor, Eric Holder.
"If the government was concerned about that, they would not be fighting the retroactivity of this ruling," Rankin said.
Elikann agreed.
"This issue of retroactivity certainly has a profound impact on the number of people incarcerated or the number of people who are able to be released from prison," he said.
The government was represented by Assistant U.S. Attorney Christopher J. Pohl. The U.S. Attorney's Office did not respond to a request for comment prior to deadline.
In Ramirez, Young decided that the invalidation of the guidelines' residual clause constituted a "substantive rule that must apply retroactively."
"The Supreme Court has said that if a decision is substantive, then it falls into an exception to the normal bar against retroactivity set [in 1989] in Teague v. Lane," Rankin said.
Confirming an interim order issued by the court in February, Young granted the defendant's motion to vacate his sentence, which had mandated his immediate release.
Earlier this year, the Supreme Court confirmed the retroactivity of Johnson as applied to the ACCA in Welch v. U.S. On the other hand, the SJC did not reach the retroactivity issue in Beal.
LaClair speculated that the SJC would be persuaded by Welch on the issue of retroactivity and, therefore, "open the door" to defendants for collateral review.
"The Massachusetts courts have really followed the federal interpretation of the federal Armed Career Criminal Act in interpreting the Massachusetts Armed Career Criminal Act," she said. "I think there's a very strong chance that, after the Welch decision, the SJC decision applies retroactively."
Screening cases
Last October, the U.S. District Court bench in Massachusetts appointed the Federal Public Defender's Office to screen the cases of defendants to determine whether they may qualify for federal habeas relief in light of Johnson. The order applies to indigent defendants or those otherwise entitled to appointed counsel.
Conrad said her office has reviewed 500 cases district-wide thus far, with the latest numbers showing close to 200 cases with "viable" Johnson claims.
The office's point person for Johnson-related matters is Supervising Assistant Federal Public Defender J. Martin Richey. According to Richey, the office has been successful in obtaining the release of close to a dozen defendants sentenced as career criminals but found to be entitled to relief under Johnson.
In addition to looking at cases involving those sentenced as career offenders and under the ACCA, Conrad said her office will raise Johnson-related arguments in certain gun cases that do not fall within the ACCA in which the defendant received a heightened sentencing guideline as a result of having a conviction for a "crime of violence."
In addition, Conrad expects her office to pursue Johnson claims in cases involving defendants convicted of using a firearm in furtherance of a crime of violence under 18 U.S.C. §924(c).
Published: Wed, Jun 08, 2016
