Category Archives: U.S. Sentencing Guidelines

Due Process Clause Prohibits Vague Language in Defining a “Violent Felony”

Published By Stephen Preziosi

Johnson v. United States

13-7120

Supreme Court of the United States

Decided: June 26, 2015

ISSUE

Whether an increased sentence under the Armed Career Criminal Act’s (ACCA) residual clause violates the Constitution’s guarantee of due process where the language used in the statute is ambiguous and leaves too much room for interpretation. 

HOLDING

The Court held that the imposition of an increased sentence under the ACCA’s residual clause violates due process because the language used to define a “violent felony” is too vague to be properly enforced. The Act states, “…or otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B).  The statute’s ambiguity brings into question how risk can be estimated and how much risk is takes for a crime to qualify as a violent felony. 

FACTS OF THE CASE

Samuel Johnson has a long history of criminal behavior.  Before pleading guilty to being a felon in possession of a firearm, the FBI began to monitor Johnson’s involvement in a white-supremacist organization that they believed was planning to commit acts of terrorism.  During the investigation, Johnson revealed his plans of attack to an undercover agent and disclosed that he manufactured explosives which he planned to use in the attacks.  He proceeded to showing the agents his AK-47 rifle, serval semiautomatic firearms and over 1,000 rounds of ammunition.       

After Johnson was eventually arrested, the Government attempted to enhance petitioner Johnson’s sentencing under the ACCA.  Under the ACCA, an increased prison sentence is given to a defendant with three or more prior convictions for a “violent felony.” The District Court determined that three of Johnson’s prior offenses, including the unlawful possession of a short-barreled shotgun, qualified as violent felonies under the ACCA and subsequently sentenced him to a 15-years in prison. The Circuit Court affirmed and the Supreme Court later granted certiorari in order to determine whether Minnesota’s offense of unlawful possession of a short-barreled shotgun ranks as a violent felony under the residual clause of the ACCA.  

COURT’S ANALYSIS

The Court held that the imposition of an increased sentence under the ACCA’s residual clause violates due process because the language used to define a “violent felony” is too vague to be properly enforced.  The Fifth Amendment states, “no person shall . . . be deprived of life, liberty, or property, without due process of law.”  In this case the Supreme Court found that the Government is in violation of the Due Process Clause of the Fifth Amendment under a criminal law so vague that it does not give “ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 – 358, 103 S.Ct 1855, 75 L.Ed.2d 903 (1983).  The prohibition of vagueness in criminal statutes is a principle applied not only to statutes defining crime but also to statutes determining sentencing; it is a “well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law…” Connally v. General Costr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (926).

The residual clause says that any prior conviction can count as a violent felony, even if it does not require violence or attempted violence as an element, if the offense nevertheless “involves conduct that presents a serious potential risk of physical injury to another.”  Thus, non-violent offenses that still have a “serious potential risk” of violence can count. The problem with the clause is that federal judges cannot agree as to what non-violent offenses should “categorically” fit this general definition. 

In Taylor v. U.S., it was held that the ACCA required courts to use a categorical approach when deciding whether an offense “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  Under this approach, a court determines if a crime qualifies as a violent felony “in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay, supra, at 141, 128 S.Ct. 1581.

Given this definition, the Court is required to picture the kind of conduct that the crime involves in “the ordinary case” and to judge whether that abstraction presents a serious potential risk of physical injury.  Since the residual clause asks whether the crime “involves conduct” that presents too much risk of physical injury rather than whether the crime “has as an element the use… of physical force,” as part of the definition of a violent felony does, the court must go beyond its task of deciding whether creation of risk is an element of the crime.  Moreover, the inclusion of burglary and extortion preceding the residual clause further confirms the court’s duty to evaluate beyond the chance that the crime will injure someone based on the physical acts that make it up.  The act of extortion or breaking and entering in one’s dwelling does not, in and of itself, normally result in physical injury.  Rather, the extortionist might engage in violence after their demands were made or the burglar might confront a resident of the home after the crime of breaking and entering has already occurred. 

Two Features within the Residual Clause that Make it Unconstitutionally Vague

There are two main features within the residual clause that make it unconstitutionally vague: (I) the uncertainty of how to estimate the risk (II) the uncertainty of how much risk it takes for a crime to qualify as a violent felony. 

With regard to “how to estimate the risk,” courts are challenged by the statute to imagine an “ordinary case” of a crime rather than assess real-world facts or statutory elements.  However, the question of how one goes about deciding what conduct the “ordinary case” of a crime involves is risen.  As United States v. Mayer, 560 F.3d 948 asks are the courts to rely on “ . . . a statistical analysis of the state reporter?  A survey?  Expert evidence?  Google?  Gut instinct?”   The Court presents the example of witness tampering.  In an “ordinary case” would the person tampering with the witness offer a bribe or threaten a witness with violence?  It is inevitable that forcing the courts to imagine an ordinary case would be met with some form of conflict.  The use of “ordinary case” in the statute is not definitive enough to be used as a basis as the use of “asportation” in larceny laws around the country.     

Pertaining to “how much risk it takes for a crime to qualify as a violent felony,” the courts are not being asked to apply a general “serious potential risk” standard to real-world facts; instead they are being asked to apply such a standard to a theory imagined by the judge.  In asking whether the crime “otherwise involves conduct that presents a serious potential risk,” the residual clause further forces the courts to interpret “serious potential risk” considering the four given crimes of burglary, arson, extortion and crimes involving the use of explosives.  These offenses are “far from clear in respect to the degree of risk each poses.” Begay, 553 U.S., at 143, 128 S.Ct. 1581.  For example, does the typical burglar invade an occupied home at night or an unoccupied home during the day?  Does an ordinary extortionist threaten his victim with bodily harm or simply blackmail them with embarrassing personal information? 

Instances of the Residual Clause’s Hopeless Indeterminacy

A combination of the ambiguity from “how to estimate the risk” and “how much risk it takes for a crime to qualify as a violent felony” results in more unpredictability and arbitrariness than the Due Process Clause can handle.  The Court has acknowledged that the failure of “persistent efforts… to establish a standard” provides sufficient evidence of vagueness. United States v. L. Cohen Grocery Co., 255 U.S. 81, 91, 41 S.Ct. 298, 65 L.Ed. 516 (1921).  All four previous cases brought about a different question confirming the residual clause’s hopeless indeterminacy. 

In James, the Court asked whether “the risk posed by attempted burglary is comparable to that posed by its closest analogy among the enumerated offenses” for which they determined it was which serves only to help with attempted burglary.  The dissent posed the argument: “Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion or a crime involving explosives?” Id., at 215, 127 S. Ct. 1586 (Scalia, J., dissenting). 

In Chambers, the Court focused on whether an offender who fails to report to prison is more likely to attack, or physically resist, an arrest which relied heavily on statistical reports prepared by the Sentencing Commission in order to conclude that an offender who fails to report to prison is “significantly more likely than others to attack, or physically resist, an apprehender, thereby producing a ‘serious potential risk of physical injury.”  555 U.S., at 128 – 129, 129 S. Ct. 687.  This took care of a failure to report to prison but what about the many crimes with no comparable reports in existence?  The dissent argued that even statistical studies in existence run the risk of suffering “methodological flaws, be skewed toward rarer forms of the crime, or paint widely divergent pictures of the riskiness of the conduct that the crime involves.”  Sykes, 564 U.S. at ____ _ ____, 131 S.Ct., at 2285 – 2287 (Scalia, J., dissenting).

In Sykes, the Court focused on whether Indiana’s vehicular flight crime constitutes a violent felony which, again, relied heavily on statistics to “confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Id., at ___, 131 S. Ct., at 2274 (majority opinion).  The Indiana statute includes everything from a high-speed car chase a simple failure to stop the car immediately after seeing a police signal.  As the dissent pointed out, common sense is an ineffective tool in determining where along the spectrum an “ordinary case” of vehicular flight would fall.  After all, common sense has not even been able to provide for a consistent standard of the degree of risk the four enumerated crimes possess, and it is unreasonable to expect it to perform any better concerning the many unenumerated crimes.

All three cases failed to create a universal standard to help avoid the risk comparison required by the residual clause from developing into supposition and speculation.  Unlike the aforementioned, in Begay, the Court needed to determine whether drunk driving is qualified as a violent felony under the residual clause.  It found that it is not because it does not “resemble the enumerated offenses ‘in kind as well as in degree of risk posed.’” 553 U.S., at 143, 128 S. Ct. 1581.  Typically, drunk driving does not involve “purposeful, violent and aggressive conduct” Id., at 144 – 145, 128 S. Ct. 1581 as the enumerated crimes do.  Begay, unfortunately, did not help to bring clarity to the meaning of the residual clause; it did not, nor could it, eliminate the need for imagination.  The concept of “aggressive conduct” in far from clear; it ranges from risking an accident by driving recklessly and actually killing people by driving recklessly.

Void for Vagueness (Arguing the Dissent)

The Government and the dissent argued that despite the vagueness in the residual clause there will be straightforward cases because “some crimes clearly pose a serious potential risk of physical injury to another.” post, at 2562 – 2563 (opinion of Alito, J.).  Contrary to their argument, the courts have found that many of the cases deemed easy were in fact more complicated than they seemed.

Take the Government’s example of Connecticut’s offense of “rioting at a correctional institution.”  United States v. Johnson, 616 F.3d 85 (C.A.2 2010). It seems like it would be a violent felony until it is brought to light that Connecticut defines this offense to include taking part in “any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations” of prison. Conn. Gen.Stat. §53a-179b(a) (2012).  Courts, again, are forced to imagine which the ordinary disorder most closely resembles: is it a full-fledged riot? A food-fight in the prison cafeteria?  Disregarding an order given by a guard? Johnson, 616 F.3d, at 96 (Parker, J., dissenting).

While it may seem like the Court’s opinions suggest that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp, the holding squarely contradict this.  Take L. Cohen Grocery Co. for example.  A law prohibiting grocers from charging an “unjust or unreasonable rate” was deemed void for vagueness, although charging someone a thousand dollars for a pound of sugar would definitely be considered unjust and unreasonable. L. Cohen Grocery Co,, 255 U.S., at 89, 41 S.Ct. 298.  Similarly, in Coates, a law prohibiting people on sidewalks from “conducting themselves in a manner annoying to persons passing by” was deemed void for vagueness despite the fact that spitting in someone’s face would surely be annoying.  Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971).        

U.S. Sentencing Guidelines and The Modified Categorical Approach: Sentencing Enhancements and Prior Offenses

Published By Stephen Preziosi

United States v. Mohamed, 920 F.3d 94 (1st Cir. Apr. 3,
2019).

Federal Sentencing Enhancement: First Circuit Court of Appeals and the Modified Categorical Approach

On the government’s appeal, the First Circuit vacated and remanded the defendant’s 37-month sentence for being a felon in possession of a firearm, holding that the district court erred in finding that his prior state conviction in Maine for trafficking 5.7 grams of cocaine base did not qualify as a “controlled substance offense” for purposes of assigning the base offense level at §2K2.1. The court held that that the intent element was not stripped away by Maine’s statutory permissible inference of drug trafficking based the quantity of drugs involved. It noted that there was no evidence that the defendant’s conviction “rested on anything other than his intentional distribution plea.”

Predicate Offense for Federal Sentencing Enhancement

Whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.1 is a question of law that the First Circuit reviewed de novo.

For 18 U.S.C. § 922(g) and other statutes, the Sentencing Guidelines establish enhanced Base Offense Levels (BOLs) for particular aggravating factors, including when a defendant has been convicted of a prior “controlled substance offense.” U.S.S.G. § 2K2.1(a). A “controlled substance offense” under § 2K2.1(a) “has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2,” id. § 2K2.1 cmt. 1: an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance … with intent to manufacture, import, export, distribute, or dispense.

The Modified Categorical Approach

The Supreme Court has held that a sentencing court should use a categorical or modified categorical approach when considering sentencing enhancements based on prior offenses. See, e.g., Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016); Taylor v. United States 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical or modified categorical approach “applies not just to jury verdicts, but also to plea agreements.” Descamps v. United States, 570 U.S. 254, 262-63, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). 

When taking the modified categorical approach, “a sentencing court looks to a limited class of documents … to determine what crime, with what elements, a defendant was convicted of.”  These are known as Shepard documents (Shepard v. U.S. , 125 S.Ct. 1254) the documents establish that Mohamed’s Maine conviction rested on intentional distribution, to which he pled. The elements of the statute at issue — when taking into account the definitions of “traffick” relevant here, see Me. Stat. tit. 17–A, § 1101(17)(C)-(D) — include intent to distribute. This element is not swept away by the existence of a permissible inference. Again, the statutory elements here closely track the “controlled substance offense” definition in the Guidelines, and include “the indictment, jury instructions, or plea agreement and colloquy.” The First Circuit concluded from these permissible documents that Mohamed’s Maine conviction falls under a provision requiring intent to distribute as an element.

Sentencing Enhancement And The Categorical Approach from Taylor

Author’s Note: In the Guidelines Manual, the Commission lists “crimes of violence” and “controlled substance offenses” as the types of prior convictions that increase the sentencing range for career offenders. Sentencing and appellate courts have interpreted these terms through application of the “categorical approach” mandated by the Supreme Court in Taylor v. United States.  Under the categorical approach, courts must look to the statutory elements of an offense, rather than the defendant’s conduct, when determining the nature of a prior conviction. This form of analysis permits a federal sentencing court to examine only the statute under which the defendant sustained a conviction (and, in certain cases, judicial documents surrounding that conviction) in determining whether the prior conviction fits within a federal predicate definition.

The Shepard documents establish that Mohamed’s Maine conviction rested on intentional distribution, to which he pled. The elements of the statute at issue — when taking into account the definitions of “traffick” relevant here, see Me. Stat. tit. 17–A, § 1101(17)(C)-(D) — include intent to distribute. This element is not swept away by the existence of a permissible inference. Again, the statutory elements here closely track the “controlled substance offense” definition in the Guidelines.

government breached plea agreement

U.S. Sentencing Guidelines: The Categorical Approach and The Crime of Violence Enhancement

Published By Stephen Preziosi

United States v. McCants, 920 F.3d 169 (3d Cir. Apr. 5,
2019).

The Third Circuit affirmed the defendant’s 120-month career offender sentence for being a felon in possession of a firearm and possession with intent to distribute heroin. The court held that the defendant’s two prior state convictions in New Jersey for second-degree robbery qualify as crimes of violence under §4B1.2. It stated that they are predicate offenses under both the elements clause of §4B1.2, because the state definition of “bodily injury” falls within the definition of crime of violence, and under the enumerated offenses clause, because the state statute requires the threat of bodily injury.

The Guidelines define a “crime of violence” as any felony offense under state or federal law that:(1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements” clause], or(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [the “enumerated offense” clause].Guidelines § 4B1.2(a).

The Categorical Approach: Determining Whether An Enhancement Is Applicable.

The Third Circuit uses the categorical approach to determine whether a prior conviction is a predicate offense for a crime-of-violence sentencing enhancement. United States v. Ramos, 892 F.3d 599, 606 (3d Cir. 2018). In doing so, we compare the elements of the statute under which the defendant was convicted to the Guidelines’ definition of crime of violence. (quoting United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018)).10McCants’s designation as a career offender was based on two convictions under New Jersey STAT. ANN. § 2C:15-1, which provides:a. Robbery defined. A person is guilty of robbery if, in the course of committing a theft, he:(1) Inflicts bodily injury or uses force upon another; or(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or (3) Commits or threatens immediately to commit any crime of the first or second degree.

The sentencing court must look beyond the elements of the statute for this comparison only if it is “divisible” and lists “elements in the alternative, and thereby define[s] multiple crimes.” Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). The statute in this case was phrased disjunctively, using “or” to offset subsections (a)(1) through (a)(3). Such a statute is divisible if it lists “elements” of the offense and not “means” of committing that offense. Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain a conviction. Means,” on the other hand, are “various factual ways of committing” a single element.

The Third Circuit Court of Appeals found that subsections (a)(1)–(3) are elements because each requires different proof beyond a reasonable doubt to sustain a second-degree robbery conviction. Under (a)(1),  the prosecutor must prove that the defendant inflicts injury or uses force upon another person. However, the defendant need only threaten or place another person in fear of immediate bodily injury under (a)(2), or threaten to commit another first- or second-degree crime under (a)(3).

Because New Jersey STAT. ANN. § 2C:15-1 lays out alternative elements upon which prosecutors can sustain a second-degree robbery conviction, we hold that the statute is divisible and, therefore, the crime of violence sentencing enhancement is applicable.

Firearms: One Altered Serial Number Is Enough.

Published By Stephen Preziosi

United States v. Jones, 927 F.3d 895 (5th Cir. June 21,
2019).

The Fifth Circuit affirmed the defendant’s 84-month sentence for being a felon in possession of a firearm, holding that the §2K2.1(b)(4) enhancement for an altered or obliterated serial number was warranted where the metal plate reflecting the serial number had been removed from the firearm’s frame but it had a legible serial number on its slide. Joining the First, Eighth, and Eleventh Circuits the court held that §2K2.1 requires that only one serial number be altered or obliterated even if others are clearly legible, and that a serial number is “altered or obliterated” when it is “materially changed in a way that makes accurate information less accessible.

Guideline § 2K2.1(b)(4) applies a four-level enhancement to a defendant’s base offense level “[i]f any firearm … had an altered or obliterated serial number.  In United States v. Perez, 585 F.3d 880 (5th Cir. 2009) the Fifth Circuit addressed the meaning of “altered or obliterated” and adopted the Ninth Circuit’s holding in United States v. Carter, 421 F.3d 909 (9th Cir. 2005) that “a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible. The Fifth Circuit held in Perez that an attempt to scratch the serial number off of a firearm made accurate information less accessible, even though the serial number was “actually readable.

The First Circuit noted that the guideline requires “only ‘an altered or obliterated serial number. U.S. v. Serrano-Mercado, 784 F.3d 838 (1st Cir. 2015) and reasoned that[a]pplying an enhancement for firearms that have a single totally obscured serial number may serve as a deterrent to tampering, even when incomplete. And, relatedly, the single-obliteration rule could facilitate tracking each component that bears a serial number, given that various parts of firearms may be severable.

The Fifth Circuit joined the First, Eighth, and Eleventh Circuits in holding that the applicable guideline “requires only that one serial number be altered or obliterated, even if others are clearly legible.