The Mandatory Guidelines Predicament
It’s Johnson resentencing time on Take Care again! Both the courts of appeal and the Supreme Court are currently deciding whether provisions that are worded differently than the Armed Career Criminal Act’s (ACCA) residual clause, such as section 924(c) or section 16(b), might be unconstitutionally void for vagueness. But one of the more pressing questions in the wake of Johnson concerns a group of prisoners who were sentenced under a provision of the Sentencing Guidelines that contains the exact same wording as ACCA’s unconstitutionally vague residual clause.
In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness. ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions. ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.” The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively.
Last term, in Beckles v. United States, the Court addressed a provision in the Sentencing Guidelines with identical wording to ACCA’s unconstitutional residual clause. The Sentencing Guidelines are rules promulgated by the Sentencing Commission; they offer sentencing ranges for defendants based on defendants’ conduct and criminal histories. While judges are not currently required to sentence defendants within the Guidelines range (more on that later), most of them do, perhaps because they are required to begin sentencing by accurately calculating the Guidelines and explaining any departures from them. As Justice Sotomayor wrote in Beckles, the Guidelines, while formally not mandatory, are the “lodestar” of federal sentencing. Last year, 48.6% of federal sentences fell within the Guidelines range.
The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.
The Sentencing Guidelines, however, weren’t always advisory. In 2004, United States v. Booker invalidated the provisions that made the Guidelines mandatory. Prior to Booker, in Blakely v. Washington, the Supreme Court had held that the Sixth Amendment required a jury to find facts that, by law, subjected a defendant to a higher sentence. Booker addressed a provision of the Sentencing Reform Act that effectively required courts to impose a sentence that fell within the range provided for by the Guidelines. In Booker, five justices held that the provision resulted in a Sixth Amendment violation where the Guideline allowed judges to enhance sentences using facts not reviewed by juries. To remedy that violation, a separate 5-4 opinion made the Guidelines advisory, rather than mandatory, by invalidating the statutory provisions that effectively required judges to impose Guideline sentences.
The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences. Nevertheless, there are still differences between the pre-Booker Guidelines and statutes. Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA. The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.
Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines. For example, the U.S. Court of Appeals for the Eleventh Circuit applied its earlier decision in United States v. Matchett, which held that Johnson did not invalidate the advisory Guidelines, to hold that Johnson did not invalidate the Mandatory Guidelines either. (The case is In re Griffin.) The court reasoned that the Guidelines “cannot be unconstitutionally vague because they do not establish the illegality of any conduct.” (Neither did ACCA’s residual clause, which the Court held unconstitutionally vague in Johnson.) The court also reasoned that “because there is no constitutional right to sentencing only under guidelines, the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague … Even vague guidelines cabin discretion more than no guidelines at all.” But there is also no constitutional right to sentencing that’s specified with particularity in statutes—Congress could have specified that felons in possession can receive up to life imprisonment. ACCA cabined discretion more than entirely indeterminate sentencing, but the Court still held ACCA’s residual clause unconstitutionally vague. The court also observed that the presentencing report gave the defendant notice of the career offender increase. But so what? Defendants also receive notice that they will be sentenced under ACCA; that doesn’t make the provision any less vague.
Griffin was a second or successive motion—that is, the court denied the petitioner authorization to file a second or successive resentencing motion that challenged the mandatory Guidelines. The U.S. Court of Appeals for the Sixth Circuit has also ruled against a prisoner sentenced under the mandatory Guidelines, but in a different procedural posture, and on slightly different grounds. The petitioner in Raybon v. United States attempted to file an initial resentencing motion challenging the mandatory guidelines in light of Johnson. Whereas second or successive petitioners have to show that their petitions rely on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” petitioners filing initial resentencing motions only have to show that they are relying on a new rule of constitutional law that is retroactive. (Leah and Lark Turner discussed some of the differences between initial and successive resentencing motions here. A pair of decisions has put would-be successive petitioners between something of a rock and a hard place. Dodd v. United States recognized that a one year statute of limitations runs from the date on which a new right is recognized, rather than the date that the Supreme Court holds that the decision applies retroactively. And Tyler v. Cain held that a would-be successive petitioner must show not only that the new right is retroactive, but that the Supreme Court has made it retroactive. Thus, would-be-successive petitioners have to show that the Supreme Court recognized a right, and made that right retroactive, all within one year.)
In Raybon, the court ruled that the petitioner’s resentencing motion was untimely. The petitioner’s conviction had become final almost a decade earlier, and petitioners generally have only one year from the date their convictions become final to file a resentencing motion under section 2255. But section 2255(f) restarts the one-year statute of limitations period on “the date on which the right asserted was initially recognized by the Supreme Court.” And, the petitioner in Raybon argued, Johnson recognized the right not to be sentenced under the vague language of the residual clause.
The Sixth Circuit disagreed. It reasoned that “whether [Johnson] applies to the mandatory guidelines … is an open question.” In Beckles, after all, Justice Sotomayor’s concurrence stated that the Court had left open the possibility that defendants sentenced under the mandatory Guidelines could challenge the Guidelines as vague. Thus, the Court concluded, the “right” not to be sentenced under the mandatory Guidelines’ residual clause had not yet been recognized: “Because it is an open question, it is not a right that has been newly recognized.”
There is a logic to the Sixth Circuit’s conclusion. Had the Court concluded that Johnson had recognized the right not be sentenced under the mandatory Guidelines’ residual clause, then the one-year time window to file a resentencing motion has already expired, even though some courts of appeals have held that petitioners *cannot* challenge mandatory Guideline sentences. Thus, it might be the case that the time to file a resentencing motion challenging a mandatory Guidelines sentence would have already expired if the Supreme Court were, in the future, to take a mandatory Guidelines case and confirm that the mandatory Guidelines are invalid, and that the rule invalidating them applied retroactively. (There’s a possibility that intervening decision could restart the statute of limitations, or that a petitioner in those circumstances could have the statute of limitations tolled, but that is not entirely clear.)
Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague. It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested. AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions. AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization. The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.
That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions. The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.
The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit. If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem: In Raybon, the Sixth Circuit held, in the alternative, that the petitioner’s request for resentencing failed on the merits because he could have been designated as a career offender under the still valid elements-clause of the Guidelines, not solely based on the (hypothetically) invalid residual clause. While that makes Raybon an imperfect vehicle, it’s not clear how many other opportunities the Court would get to address the validity of the mandatory Guidelines, unless it wants to consider petitions for original writs of habeas corpus. And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.