Sunday, November 22, 2015

Into the Morass: Things Are Getting Weird

The residual clause of the Armed Career Criminal Act is unconstitutionally vague.

The residual clause of the Career Offender Guideline is unconstitutionally vague.

And the demise of these clauses continues to echo.

A federal defendant in Utah, for example, pled guilty to a robbery. He had two prior convictions for robbery. Bad news, right? As a (presumed) career offender, he was facing a guideline range of 151-188 months. To mitigate the damage, he worked out a binding plea to 96 months. Good result, or so it seemed.

But then the Supreme Court decided Johnson. And our Utah defendant moved to withdraw his plea, arguing that it was entered on a mistaken understanding that he was subject to the career-offender enhancement. Absent that enhancement, the defendant's guideline range appeared to be only 37-46 months. Withdrawing the plea would allow him to argue for a sentence within that range. The Court granted the motion, reasoning that "to the extent certain prior robbery convictions could be categorized as crimes of violence pursuant to § 4B1.2's residual clause, there now exists a compelling argument that any enhancement on this basis is unconstitutional."

In Johnson, the Supreme Court called the ACCA's residual clause "a judicial morass that defies systemic solution." We believe that the morass has only just begun to clear. Brooks, Descamps, and Johnson have created a sea change in the analysis of predicate convictions for federal sentencing purposes. This will be the first in a series of posts examining that change, and how to make the most of it for our clients. And yes, there will be a flowchart.

As we travel down this new road, let's make this our first rule of predicate convictions:

Question Everything.

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