Saturday, August 06, 2016

Johnson’s holding that ACCA’s residual clause is void for vagueness applies to the residual clause of the career offender guideline, U.S.S.G. § 4B1.2

In United States v. Calabretta,14-3969, http://www2.ca3.uscourts.gov/opinarch/143969p1.pdf, 2016 WL 3997215 (3d Cir. July 26, 2016), the Third Circuit held that the residual clause of the career offender guideline, U.S.S.G. § 4B1.2, was unconstitutionally vague. The Court looked to prior case law that interpreted the crime of violence definition in the Guidelines identically to the violent felony definition in ACCA and applied the Supreme Court’s reasoning in Johnson v. United States (2015) which had invalidated the residual clause of ACCA as unconstitutionally vague.

(The predicate crime of violence here was second-degree eluding contrary to N.J.S.A. 2C:29-2(b), which the parties agreed was only a crime of violence under the residual clause).
The Court applied the vagueness doctrine to the guidelines relying on caselaw that the guidelines are sufficiently law-like to be subject to constitutional limitations. The Court noted that the guidelines are the beginning of all sentencing determinations, calling them a “starting point” and “framework for anchoring sentencing decisions” so that a miscalculation led to due process concerns of fair notice and arbitrary enforcement.

The Court specifically declined to consider two issues: (1) whether its ruling applied to residual clauses other than 4B1.2. It noted that the language in 4B1.2 was identical to ACCA and also included the list of four enumerated offenses like ACCA (burglary, arson, extortion, and crimes involving the use of explosives) that might have contributed to the clause’s arbitrariness and unpredictability; and (2) whether its ruling on 4B1.2 was retroactive.
Next, the Court found the case should be remanded under plain error review.

First, the Court found the error affected Calabretta's substantial rights. The career offender guideline range was 188 to 235 months. The non-career offender guideline range was 108 to 135 months. If the drugs minus two amendment had been applied, the guideline range would have been 87 to 108 months. Even though the sentencing court granted a variance to 120 months, the Third Circuit ruled that the sentence was not made irrespective of the incorrectly calculated guideline range. The Third Circuit heavily quoted a recent Supreme Court case, Molina-Martinez v. United States, 136 S.Ct. 1338 (2016) to state that “when a defendant is sentenced under in incorrect guideline range – whether or not the defendant’s ultimate sentence falls within the correct range – the error can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” In the ordinary case, a defendant can satisfy his burden on prong three. The Court emphasized the sheer magnitude of the error here (87 or 108 months being the low end of the guidelines without the error, as compared to 188 months), as contributing to its conclusion.

The Court found prong four, an error that seriously affects the fairness, integrity, or public reputation of the judicial proceedings, would be met if it were to affirm a sentenced “imposed against the backdrop of a legally incorrect career offender designation and a significantly higher Guidelines range.” Given that the sentencing court had varied downward from the guideline, it was possible the court would impose a sentence below the guidelines if they were properly calculated, and “uncertainty weighs in favor of resentencing, not affirmance.” (quoting Molina-Martinez, 136 S.Ct. at 1347). A sentencing judge’s statement that it was imposing the “minimum sentence sufficient” could not shield it from plain or harmless error review. Judge Fisher dissented on prong four, finding that evidence in the record overwhelmingly supported the 120-month sentence.

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