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June 20, 2018 Articles

Career Offender Guidelines: Court Rejects Vagueness Challenge

Walking like a duck and quacking like a duck are not good enough for career offender challenges.

By Thad Davis – June 20, 2018

The Fourth Circuit recently examined, and ultimately foreclosed, an argument that could have called the career offender guidelines within the federal sentencing guidelines into question.

Background of Guidelines
The U.S. Sentencing Commission promulgated the career offender guidelines in response to a directive from Congress in the Sentencing Reform Act of 1984. A defendant is classified as a “career offender” under the guidelines if he (1) commits a felony that is a “controlled substance offense” or a “crime of violence” when he is at least 18 years old and (2) has at least two “prior felony convictions” of either a “controlled substance offense” or a “crime of violence.” U.S. Sentencing Comm’n, Guidelines Manual 2016 § 4B1.1 (Nov. 1, 2016). Crime of violence is defined as a prior felony that (1) involved “the use, attempted use, or threatened use of physical force against the person of another” (force clause); (2) is a burglary of a dwelling, arson, or extortion or involves use of explosives (enumerated offenses); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (residual clause). Id. § 4B1.2 amend.

The sentencing guidelines automatically assign all career offenders to Criminal History Category VI, with offense levels based on the statutory maximum penalty allowed. In fiscal year 2016, 1,796 of the 67,742 cases reported to the Sentencing Commission involved career offenders. In 91.9 percent of those cases, the career offender status increased the guidelines range. Additionally, the career offender enhancements deem career offenders ineligible for any reduction in sentence based on the retroactive amendments to the crack guideline.

The Case of Thilo Brown, Career Offender
In United States v. Brown, 868 F.3d 297 (4th Cir. 2017), petitioner Thilo Brown pleaded guilty to possession with intent to distribute 50 grams or more of crack cocaine and carrying a firearm during the commission of a drug crime. At sentencing, the district court designated Brown as a career offender because he had a prior felony conviction that qualified as a controlled-substance offense and a prior resisting-arrest / assault conviction that qualified as a crime-of-violence offense.

In 2016, Brown filed a motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, arguing that his earlier designation as a career offender was unjustified because his prior resisting-arrest / assault conviction could no longer serve as a predicate crime of violence.

Looking Back: Prior Cases Impacting the Sentencing Guidelines
To understand his argument, it’s important to understand the evolution of a series of constitutional challenges mounted against the sentencing guidelines.

Booker changed sentences from mandatory to advisory. Before 2005, the sentencing guidelines imposed mandatory minimum sentences. In 2005, the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), held that the guidelines were subject to the jury trial requirements of the Sixth Amendment and struck down the provisions of the federal sentencing statute that required federal judges to impose a sentence within the sentencing guidelines range. This decision converted the mandatory sentencing regime that had been in place since 1984 to an advisory one.

Johnson’s ruling on the ACCA implicated the sentencing guidelines.  In 2015, the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), on another statute—the Armed Career Criminals Act (ACCA)—seemed to hint that the career offender guidelines were unconstitutional. In Johnson, the government sought an enhanced sentence under the ACCA after the petitioner pleaded guilty to being a felon in possession of a firearm. The ACCA imposed an increased prison term upon a defendant with three convictions for a “violent felony.” The definition of violent felony—stemming from a residual clause to include any felony that “involves conduct that presents a serious potential risk of physical injury to another”—was functionally identical to the residual clause for the definition of crime of violence under the career offender guidelines. The Court ultimately held that imposing an increased sentence under the ACCA’s residual clause violated the Due Process Clause because the residual clause was unconstitutionally vague.

The Beckles Court ruled against vagueness challenges. Shortly after the Johnson decision, the Supreme Court examined the connection between Johnson and the sentencing guidelines in Beckles v. United States, 137 S. Ct. 886 (2017). The Court ultimately held that the sentencing guidelines, including section 4B1.2(a)’s residual clause, were not subject to the vagueness challenge under the Due Process Clause. The Court reasoned that because, after Booker, the previously mandatory sentencing guidelines were rendered “effectively advisory” in that they guide district courts in exercising their discretion but do not constrain that discretion, the sentencing guidelines are not amenable to vagueness challenges. The notice requirement is met because the applicable statutory range, which establishes the permissible bounds of the court’s sentencing discretion, provides all the notice that is required. Similarly, the sentencing guidelines do not invite arbitrary enforcement because they do not permit the sentencing court to prohibit behavior or to prescribe the sentencing ranges available.

Arguments in Brown: Basis in Past Cases
Brown attempted to utilize the Johnson ruling in his § 2255 motion in two respects. First, Brown argued that under Johnson, his prior resisting-arrest / assault conviction could no longer serve as a predicate crime of violence, and therefore his earlier designation as a career offender was unjustified. Second, Brown argued that his motion was timely under 28 U.S.C. § 2255(f)(3), which allows a petitioner to file within a one-year window running from “the date on which the right asserted was initially recognized by the Supreme Court”—an exception to the general rule that § 2255 motions must be filed within one year of the date that the judgment of conviction becomes final. Brown, 868 F.3d at 301.

In essence, Brown asked the court to create a right by combining Johnson’s reasoning with that of Booker and Beckles. First, Booker recognized a constitutional distinction between mandatory sentencing guidelines and advisory sentencing guidelines. Second, the mandatory sentencing guidelines raise the same concerns of fair notice and arbitrary enforcement by judges in the Johnson decision in that they limit a judge’s discretion. Finally, Brown pointed out that the Beckles Court limited its holding to the advisory sentencing guidelines and left open the question of whether defendants could challenge sentences imposed under the mandatory sentencing guidelines as void for vagueness.

Ultimately, the court found Brown’s motion to be untimely. The court noted that Brown’s argument was self-defeating: “If the Supreme Court [in Beckles] left open the question of whether Petitioner’s asserted right exists, the Supreme Court has not ‘recognized’ that right.” Brown, 868 F.3d at 302. Additionally, although the residual clause in the career offender guidelines mirrors the residual clause at issue in Johnson, the Beckles Court made clear that the right announced in Johnson did not automatically apply to all similarly worded residual clauses. In other words, “quacking like the ACCA is not enough to bring a challenge within the purview of the right recognized by Johnson.” Id. at 303.

A Look Toward the Future
The court did, however, acknowledge that, at some point in the future, the Supreme Court may recognize the right urged by Brown: “In a future case, the Supreme Court may agree with an argument similar to Petitioner’s that because the challenged residual clause looks like ACCA and operates like ACCA, it is void for vagueness like ACCA.” Id. at 303. That future case may come as soon as next year if Brown chooses to petition for a writ of certiorari to the Supreme Court. The Supreme Court will not be unfamiliar with this issue as it recently decided in Sessions v. Dimaya, 2018 WL 1800371 (U.S. Apr. 17, 2018), that the residual clause of the federal criminal code’s definition of crime of violence, as incorporated into the Immigration and Nationality Act’s definition of aggravated felony, was impermissibly vague in violation of due process based on a straightforward application of Johnson.


Thad A. Davis is a partner at Gibson, Dunn & Crutcher LLP in San Francisco, California.