Johnson v. U.S. invalidated the residual clause of the Armed Career Criminal Act, a statute, as unconstitutionally vague. The advisory Guidelines has a synonymous residual clause. The question after Johnson, or one of the questions, is whether the courts will treat the Guideline residual clause in the same way -- that it is too vague to be relied on to increase either offense levels or criminal history. This implicates career offenders, under section 4B1.2, and any guideline that relies on that residual clause to define crimes of violence.
Last week, the Tenth Circuit spoke to this issue, albeit in an unpublished decision. In U.S. v. Goodwin, the defendant was convicted of felon-in-possession and his guideline was figured under section 2K2.1. His prior conviction for first degree criminal trespass counted as a crime of violence, as defined by the residual clause of section 4B1.2(a)(2) -- the conviction involved "conduct that present[ed] a serious risk of physical injury to another."
Goodwin ultimately decided that the Guideline residual clause must fall under Johnson. Goodwin was remanded for resentencing, with instructions that the criminal trespass prior conviction was not to factor as a crime of violence.
The Government "concede[d], in light of Johnson, that Mr. Goodwin’s criminal trespass conviction may no longer be deemed a crime of violence.” But because Goodwin had not objected at sentencing, the Government continued to press that the issue had been forfeited and was subject to plain error review. Goodwin did not, despite the Government concession or the intervening Supreme Court case in Johnson, file a reply brief. Still, the Court found that in light of the government concessions, "the stringency of the plain-error standard [was] of little moment," an incredibly welcome and forgiving posture on plain error, given other Tenth Circuit case law.
The fundamental legal question here is whether the constitutional vagueness doctrine applies to the advisory Guidelines. The Tenth, for the purposes of Goodwin, assumes it does without deciding the issue, as it has done in other cases (see fn. 2). It does note, however, a circuit split. But after Peugh v. US in 2012, the Supreme Court case that applied the constitutional doctrine of ex post facto to the Guidelines, it seems that the same should hold true here. So far, so good, at least in the Tenth Circuit.