//  5/18/18  //  Commentary

I’ve written some already about the sentencing fallout from Sessions v. Dimaya and will likely write more in the future.  For now, I wanted to highlight one resentencing predicament caused by the Supreme Court’s (misguided, in my view) decision last term in Beckles v. United States.  For those of you who haven’t been following Johnson resentencing (and have thus been missing out), Beckles held that the currently “advisory” sentencing guidelines are not subject to vagueness challenges (that is, they cannot be unconstitutionally void for vagueness). Beckles meant that a Sentencing Guideline provision that is worded *the exact same way* as a federal statute would not be unconstitutionally void for vagueness, even though the federal statute would be.  Thus, even though Johnson v. United States held the Armed Career Criminal Act’s residual clause void for vagueness, Beckles held that the Sentencing Guideline’s residual clause (U.S.S.G. 4B1.2(a)(2)) was not.

The implications of Beckles were less significant because, before Beckles, the Sentencing Commission had amended the Sentencing Guidelines to *remove* the residual clause.  Thus, even before Beckles, it was already the case that no defendant would be sentenced under a guideline provision that was worded in such a way that the Supreme Court had declared it impossible to know what it means.  (There was, however, still the problem of those defendants who were sentenced under the provision, as well as the additional problem of those defendants who were sentenced under the provision when the guidelines were mandatory, rather than advisory, which Sam Jaffe and I wrote about here.)

That brings us back to Dimaya, and a similar problem (with one potentially important difference).  Dimaya declared section 16(b), the federal definition of “crime of violence,” unconstitutionally void for vagueness, including when the provision is incorporated into immigration statutes.  That much is straightforward.  But, it turns out, section 16(b) also appears in the advisory Guidelines too.  It just appears in the Guidelines in a slightly different way than was the case in Beckles.

In Beckles, the Court addressed a freestanding Sentencing Guideline provision that just happened to parrot (word for word) the statutory provision the Court invalidated as unconstitutionally vague in Johnson.  The Guidelines provision said: “The term  ‘crime  of  violence’  means  any  offense  under  federal  or  state  law, punishable by imprisonment for a term exceeding one year, that involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

That was provision 4B1.2(a)(2).  Section 4B1.1 then designated all such persons “category VI” in the criminal history category, which subjected them to higher recommended sentencing ranges.

But that’s not how the pertinent Sentencing Guideline provision in Dimaya-like cases works.  Rather, the Guidelines affected by DImaya *explicitly incorporate* by reference a statutory provision that itself *explicitly incorporates* by reference section 16(b). A representative example is Sentencing Guideline 2L1.1(a), which provides different base offense levels depending on whether a defendant was deported after a conviction for an aggravated felony.  If the defendant was convicted of an aggravated felony, the base offense level is 23; otherwise, it is 12.  (That difference leads to significant differences in sentencing ranges.)

The Guideline then offers this definition of “aggravated felony”:  “Aggravated felony” has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of conviction for the aggravated felony.”  And 8 U.S.C. § 1101(a)(43) includes, as a definition of “aggravated felony” “a crime of violence (as defined in section 16 of title 18).”  Section 16(b) of title 18 is the provision Dimaya invalidated.

In United States v. Godoy, the U.S. Court of Appeals for the Fifth Circuit (in an opinion by Judge Willett) held there were no constitutional problems with a Guideline provision that incorporated section 16(b) in that way.  I think that’s right, for the following reason.  Beckles held that advisory guidelines are not subject to vagueness challenges, so why would (or should) it matter whether a guideline provision recites the same language as what’s contained in section 16(b) versus incorporating that language by reference?  Justice Harlan’s opinion in Mackey v. United States (which formed the basis of the Court’s modern retroactivity doctrine) hypothesized that a rule could be retroactive in some contexts but not others:  For example, where an unconstitutional statutory provision was used to define a crime, the rule invalidating that provision would be retroactive, but where the provision established fines, a rule invalidating the provision would not be retroactive.  It’s hard to see how that same principle wouldn’t apply in due process challenges—a provision could violate the due process clause in some applications but not others. Indeed, the five Justices in the majority in DImaya contemplated that would be the case; the question in Dimaya was whether section 16(b), as incorporated into immigration statutes, was unconstitutionally vague; if they had answered no to that question, section 16(b) could still have been unconstitutionally vague where it was incorporated into provisions of federal criminal law.  Thus, it doesn’t seem that strange that section 16(b), as incorporated into the guidelines wouldn’t be unconstitutionally vague, even though section 16(b), in immigration statutes and federal criminal provisions, would be.  (The difference between a freestanding Guideline provision and one that explicitly incorporates a statute is tangentially related to Jonathan Mitchell’s forthcoming piece, The Writ-of-Erasure Fallacy, but that’s a tangent too long for this post.)

But it doesn’t follow, as Godoy concluded, that the defendant’s sentence should have been affirmed.  In an opinion written before Beckles, Judge Ikuta authored a dissent that explains why.  The Supreme Court’s sentencing cases require district courts to first accurately calculate a defendant’s Sentencing Guideline’s range.  (That’s required as part of the judicially created sentencing procedures that replaced the mandatory Guidelines regime and related appellate review that Booker v. United States invalidated.)  And on appeal, appellate court judges must determine whether the district court’s sentence was “procedurally reasonable” and “substantively unreasonable.”  And a sentence is procedurally reasonable if the district court failed to calculate (or inaccurately calculated) a defendant’s Guidelines range.

In her dissent in United States v. Lee, Judge Ikuta rejected the suggestion that advisory guidelines could be unconstitutionally vague.  But, and this is a big but, she maintained that relying on a vague guideline (that is, one whose language has been held unconstitutionally vague) would be procedurally unreasonable, perhaps because it would be impossible to determine if the guidelines range was correctly calculated.  For defendants on direct review, the consequences of Judge Ikuta’s rule and a decision invalidating the guideline as unconstitutionally vague would be similar.  But for defendants whose convictions had become final, they might not be (for reasons I briefly discussed in this essay co-written with Shakeer Rahman).

Godoy didn’t consider the possible resolution of the Guidelines predicament that Judge Ikuta floated.  Perhaps other courts will. And hopefully the Sentencing Commission will, as it did after Johnson, reconsider its reliance on language that the Supreme Court has determined is hopelessly unclear.




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