We continue to contemplate the reach of US v. Johnson. Johnson, decided two weeks ago, invalidated the residual clause of the ACCA. First Johnson post here.
Some 6,000 defendants have been sentenced under the ACCA. Some of them will get quick relief because the error is indisputable. For others, the avenue may not be so clear.
Kirk: Look, I'm still just the accountant. But we should start by rethinking the generic burglary fit with the Kansas statute. And by we, I mean Carl. Can we analogize the Kansas statute to the licensed entry statutes found not to be generic burglary in United States v. Wilkinson, 589 F.Appx. 348 (9th Cir 2014)? Because that would be handy. Mel and I have reviewed the ACCA PSRs we already have, and the predicates are burglary, burglary, burglary.
Tom: The Kansas burglary statute may be broader than generic burglary in that it: (1) bars entry done under false pretenses, State v. Smith, 142 P.3d 739 (Kan.App. 2006); and (2) bars entry into public commercial spaces after the "burglar" has been notified that he has been barred from the premises, State v. Acevedo, 315 P.3d 261 (Kan.App. 2013).
Melody: If some burglaries can be knocked out as non-generic, what then? How does Johnson play into this? The overlap between (B)(i) violent felonies/enumerated felonies and the residual clause creates some light. When there was no challenge to the prior ACCA conviction, and no designation in the record about how it fit within ACCA, is the residual clause the default? Perhaps some assumption was applied (consciously or unconsciously) that a crime fits under (B)(i) or an enumerated crime when, upon closer scrutiny (or application of existing Circuit law), it did not. The argument: This felony fit nowhere but the residual clause (because, of course, the judge would never misapply the other categories, even if unidentified), and now Johnson takes that out. If we can defeat that initial presumed categorization, and it could only fit under the residual clause by default, then Johnson relief may be available. Burglary is not a great example, but this seems a plausible, if theoretical, argument.
Kirk: We are going to get less Johnson relief than most people because of Brooks. Fleeing and eluding sentences under Kansas law often expose clients to less than a year, so those defendants have already had their ACCA sentences vacated.
Melody: Johnson overruled Sykes. Fleeing and Eluding convictions are out, or should be. If those are in criminal history, PSRs, pending sentencing, or even on direct appeal, they should not be used for ACCA or any guideline crime of violence. ACCA residual clause reads almost the same as 4B1.2, and the Tenth Circuit has recognized as much.
Tom: Another thought -- could Johnson undermine the idea of using a "generic definition" of an enumerated offense? That is, the "generic definition" is just created ad hoc by the Court, after the commission of a crime, to determine whether the ACCA applies. Doesn't formulating this definition give rise to the same sort of vagueness problem as conjuring the "ordinary case" of a crime for analyzing the risk it entails, the first of the two vagueness issues identified in the majority opinion? The opinion asks "[h]ow does one go about deciding what kind of conduct the “ordinary case” of a crime involves?" This looks pretty similar to the generic-definition inquiry, which requires a court to identify "the generic sense in which the term is now used in the criminal codes of most States." I don't think it's a good response to say that the generic definition isn't vague because it's created by precedent -- the same thing have been said about the "ordinary case" for purposes of applying the residual clause.
Melody: From Johnson, neither James nor Sykes "evaluated the uncertainty introduced by the need to evaluate riskiness of an abstract ordinary case of a crime." Yes, Johnson took down the Sykes-type abstract risk assessment that used the most horrific, if unlikely, hypothetical to justify the potential risk finding. (Isn't there something wrong with the phrase "potential risk"? Isn't risk about potentiality?) Maybe that's the same flaw that caused the Commission to omit the "average participant" comparator to evaluate mitigating role. (3B1.2) Who the hell is an average participant? What the hell, Carl, is generic kidnapping?
Kirk: Tom is smart. Maybe the kind of smart where the courts will never follow him. But maybe they will. He should lead the Alamendarez-Torrez charge. I'm being a dick again, but I'm actually serious. This makes sense. Because figuring out the generic definition of a crime is such a difficult and uncertain enterprise that I can't reconcile the difference between determining the hypothetical risk that a crime poses and how the statutory elements of that crime reconcile with the standard elements of the Model Penal Code definition of that crime, modified by case law, and the crime as defined by a particular state. Tom should write this shit. What curse words can we say on this blog, anyway? In conclusion, good job, Tom.
Melody: You can say anything you want, as long as it doesn't offend me. So anything you want. And Alemendarez-Torres is mine. That case is going down.
Carl: Well, Kirk, here's one idea I have so far . . . .
Melody: I'm saving Carl's idea for the next post. It needs its own space.