Protecting the Fifth Amendment: The Residual Clause in the Mandatory Guidelines is Void for Vagueness

St. John's Law Review Volume 92, Fall 2018, Number 3 Article 8 Protecting the Fifth Amendment: The Residual Clause in the Mandatory Guidelines is Void for Vagueness Olivia M. Tourgee Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Olivia M. Tourgee (2018) "Protecting the Fifth Amendment: The Residual Clause in the Mandatory Guidelines is Void for Vagueness," St. John's Law Review: Vol. 92 : No. 3 , Article 8. Available at: https://scholarship.law.stjohns.edu/lawreview/vol92/iss3/8 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . PROTECTING THE FIFTH AMENDMENT: THE RESIDUAL CLAUSE IN THE MANDATORY GUIDELINES IS VOID FOR VAGUENESS OLIVIA M. TOURGEE† INTRODUCTION Before 2005, federal judges were mandated to compute a criminal defendant’s sentence by following boilerplate, mandatory sentencing Guidelines (the “Mandatory Guidelines”) that often doubled or tripled the sentence once applied.1 For instance, a defendant’s sentence could increase from four and one half years to life,2 or from five years to 155 years.3 Judges had no discretion to decrease the length or gravity of the sentence based on ameliorating circumstances unique to the crime and defendant at hand.4 Resulting sentences were thus often unjust. The Mandatory Guidelines present constitutional concerns that disrupt the very foundation of the American legal system: They violate the Fifth Amendment’s Due Process Clause by failing to provide notice to individuals and encouraging abritrary enforcement by judges.5 Specifically, this Note focuses on defendants who were eligible for a sentencing enhancement as a career offender under the Mandatory Guidelines’ residual clause. Under United States Sentencing Guideline § 4B1.1, a presiding judge was mandated to apply a sentencing enhancement under the career offender guideline if a defendant’s instant offense was a crime of violence † Notes and Comments Editor, St. John’s Law Review; J.D. Candidate, 2019, St. John’s University School of Law; B.A., 2016, Fairfield University. With overwhelming gratitude to the St. John’s Law Review editors and staffers for their dedication and diligent efforts throughout the publication process. The author also thanks her parents and sister for their unwavering love and support. 1 See, e.g., United States v. Hammoud, 381 F.3d 316, 361–62 (4th Cir. 2004) (en banc) (Motz, J., dissenting); United States v. Rodriguez, 73 F.3d 161, 162–63 (7th Cir. 1996) (Posner, C.J., dissenting from denial of rehearing en banc). 2 Rodriguez, 73 F.3d at 162–63. 3 Hammoud, 381 F.3d at 361–62. 4 United States v. Booker, 543 U.S. 220, 233–34 (2005). 5 See infra Part III.A. 609 610 ST. JOHN’S LAW REVIEW [Vol. 92:609 and the defendant had at least two prior felony convictions that qualify as crimes of violence.6 A crime of violence is defined under United States Sentencing Guideline § 4B1.2(a)’s residual clause as any offense punishable by imprisonment for over a year that “otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .”7 The Federal Sentencing Guidelines have spurred much debate, which has resulted in constant litigation and attention from the federal courts. Independent of the judiciary, the United States Sentencing Commission (the “Commission”) “establish[es] sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.”8 The Commission derives this power from the Sentencing Reform Act of 1984 (the “Act”), which “provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation.”9 The Commission sets guideline ranges for criminal acts based on a collection of factors.10 The Act sought to effectuate a “fair sentencing system” through honesty and uniformity in sentencing.11 Appellate courts can review the trial courts’ sentencing decisions.12 6 Booker, 543 U.S. at 233–34 (Stevens, J., opinion of the Court). The career offender guideline applies if: (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence . . . ; and (3) the defendant has at least two prior felony convictions of . . . a crime of violence . . . . U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a) (U.S. SENTENCING COMM’N 2016). 7 U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (U.S. SENTENCING COMM’N 2009) (amended 2015). A crime of violence, in full, is defined as: any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. Id. 8 U.S. SENTENCING GUIDELINES MANUAL ch. 1, pt. A1.1, introductory cmt. (U.S. SENTENCING COMM’N 2016). 9 Id. ch. 1, pt. A1.2. 10 Id. 11 Id. ch. 1, pt. A1.3. In addition, the Commission adopted a “departure policy,” meaning that courts can depart from the guideline range, because “it is difficult to 2018] PROTECTING THE FIFTH AMENDMENT 611 There are four Supreme Court decisions that are of particular relevance to the discussion of Mandatory Guidelines. First, the Court held in United States v. Booker that the Mandatory Guidelines are unconstitutional, which rendered the Federal Sentencing Guidelines as only advisory (the “Advisory Guidelines”).13 Second, the Court in Johnson v. United States (“Johnson II”), held that the Armed Criminal Career Act’s (the “ACCA”) residual clause, which is identical to the residual clause of the Mandatory Guidelines, is void for vagueness.14 Third, the Court held in Beckles v. United States that the Advisory Guidelines were not vulnerable to vagueness challenges.15 A unique issue is now presented because there is no clear authority on whether defendant-appellants sentenced under the Mandatory Guidelines can bring a void-for-vagueness claim. In fact, “[w]hether the Mandatory Guidelines are amenable to vagueness challenges is an issue of first impression in [most] circuit[s], and one that is sure to recur in light of Johnson [II] and Beckles.”16 Fourth and finally, in Brown v. United States, the Supreme Court recently denied certiorari to defendantappellants seeking to challenge the constitutionality of their sentences imposed under the Mandatory Guidelines.17 Im (...truncated)