How the Sentencing Commission Does and Does Not Matter in Beckles v. United States

ESSAY HOW THE SENTENCING COMMISSION DOES AND DOES NOT MATTER IN BECKLES V. UNITED STATES LEAH M. LITMAN† & LUKE C. BEASLEY‡ INTRODUCTION Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.1 Last spring, the Court made this rule retroactive in Welch v. United States.2 Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual clause applies retroactively.3 The questions on which the Court granted certiorari in Beckles turn on how similar the ACCA and the Sentencing Guidelines are. Both the ACCA and the Sentencing Guidelines impose additional punishment on defendants with previous convictions for violent felonies,4 and both the ACCA and the Sentencing Guidelines define “violent felonies” to include any crime that “involves conduct that presents a serious potential risk of physical injury to another.”5 Those thirteen words are called the “residual clause,” in both the † Assistant Professor of Law, University of California, Irvine School of Law. ‡ J.D. Candidate, Harvard Law School. Thanks to Erwin Chemerinsky and Song Richardson for helpful comments. 1 135 S. Ct. 2551, 2555-63 (2015). 2 136 S. Ct. 1257, 1263-68 (2016). 3 136 S. Ct. 2510 (2016) (mem.). 4 18 U.S.C. § 924(e)(1) (2012); U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (U.S. SENTENCING COMM’N 2014). 5 18 U.S.C. § 924(e)(2)(B)(ii); U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2). (33) 34 University of Pennsylvania Law Review Online [Vol. 165: 33 ACCA and the Sentencing Guidelines, and courts have interpreted this identical language the same way.6 But the ACCA and the Guidelines trigger different kinds of penalties. The ACCA is a federal statute—enacted by Congress—that subjects defendants to mandatory minimum sentences and increases defendants’ statutory maximum sentences. With the ACCA’s residual clause, the statutory minimum sentence is fifteen years; without it, the statutory maximum sentence is ten years.7 Accordingly, Johnson meant that prisoners whose sentences depended on the ACCA’s residual clause received sentences that were greater than the maximum sentence provided for by statute. In contrast, the Sentencing Guidelines are rules promulgated by the United States Sentencing Commission.8 Under the career offender Guideline, a defendant who has committed two prior violent felonies is subject to an offense-level enhancement, meaning a correspondingly higher sentencing range.9 The sentencing range, however, does not change a defendant’s statutory minimum or maximum sentence. While judges must sentence defendants within the sentencing range that is established by statute, judges are not required to sentence defendants within the sentencing range that is established by the Guidelines. Judges retain discretion to deviate from the sentencing range provided for by the Guidelines.10 Therefore, if Beckles invalidates the identically worded “residual clause” in the Sentencing Guidelines, prisoners whose sentences depended on the Guidelines’ residual clause could still receive the same sentence at resentencing. However, while judges are not required to sentence a defendant within the sentencing range established by the Guidelines, the Guidelines’ range has a significant impact on a defendant’s ultimate sentence.11 6 Leah M. Litman, Residual Impact: Resentencing Implications of Johnson’s Potential Ruling on ACCA’s Constitutionality, 115 COLUM. L. REV. SIDEBAR 55, 64 & n.46 (2015). 7 Compare 18 U.S.C. § 924(e)(1) (mandating the fifteen-year minimum for those previously convicted of violent felonies), with id. § 924(a)(2) (fixing the maximum prison sentence at ten years). 8 See Stinson v. United States, 508 U.S. 36, 45 (1993) (noting that the Sentencing Commission drafts the sentencing guidelines and “the guidelines are the equivalent of legislative rules adopted by federal agencies”). 9 See U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (setting the requirements for career offenders—including the conviction of previous violent felonies—and fixing corresponding criminal history categories). 10 See Dillon v. United States, 560 U.S. 817, 820 (2010) (noting that United States v. Booker, 543 U.S. 220, 259 (2005), “rendered the [Sentencing] Guidelines advisory”); U.S. SENTENCING GUIDELINES MANUAL § 5G1.1(c)(1) (stating that a court may not impose a sentence “greater than the statutorily authorized maximum sentence”); id. § 5G1.1(c)(2) (stating that a court may not impose a sentence that is “less than any statutorily required minimum sentence”). 11 See Brief Amicus Curiae of Scholars of Criminal Law, Federal Courts, and Sentencing in Support of Petitioner at 12, Beckles v. United States, No. 15-8544 (U.S. Aug. 18, 2016) (“Although the Guidelines are no longer mandatory, they have considerable influence on sentencing determinations because of the procedures courts must follow in imposing sentence.”). 2016] How the Sentencing Commission Does and Does Not Matter 35 This short Essay considers how significant the differences between the ACCA and the Guidelines are, and how important the Sentencing Commission should be to Beckles’s resolution of the retroactivity question. Some of the differences between the ACCA and the Guidelines also may be relevant to whether the career offender Guideline’s residual clause, like the ACCA’s residual clause, is unconstitutional.12 But this Essay focuses on whether the differences between the ACCA and the Guidelines matter to the second question the Court is poised to address in Beckles—namely whether a rule invalidating the Guideline’s residual clause applies retroactively, rather than whether the Guideline’s residual clause should be invalidated. There are two ways in which the Sentencing Commission might affect the retroactivity question. One way would be if the Guidelines promulgated by the Commission frequently affect defendants’ sentences. An important difference between the ACCA and the Guidelines is that judges are required to sentence defendants within the range established by the ACCA, but they are not required to sentence defendants within the range established by the Guidelines. But that difference should not matter much if judges routinely sentence defendants within the range established by the Guidelines. As it happens, there is good evidence that a defendant’s sentence changes dramatically depending on whether a court is allowed to impose a sentence by relying on the Guideline’s residual clause. Every court of appeals, except for the Eleventh Circuit, has either held that the Guideline’s residual clause is invalid or assumed that (...truncated)