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“Residual Clause” Removed from Sentencing Guidelines

Effective August 1, 2016, the United States Sentencing Guidelines have been amended to conform with the United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551, 2555 (2015). In Johnson, the Court struck down the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”). Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony,” which is defined as any crime 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; (2) is burglary, arson, or extortion, involves the use of explosives; or (3) “otherwise involve[s] conduct that presents a serious potential risk of physical injury to another.” Id. at 2555-2556. This third definition is what is known as the “residual clause.” The Supreme Court determined in Johnson that this definition is unconstitutionally vague, and contrary to the Constitution’s guarantee of due process. As a result, the residual clause can no longer be used to determine whether a prior offense is considered a “crime of violence.”

For years, the United States Sentencing Guidelines have defined the term “crime of violence” using identical definitions to the ACCA, including the ACCA’s now-unconstitutional residual clause. Under the Guidelines, a defendant who commits a crime of violence or a drug offense, and who has two prior felony convictions that consist of a crime of violence or drug offense, is considered a “career offender.” U.S.S.G. § 4B1.1. Career offenders face longer prison terms.

The United States Sentencing Commission, which issues the Sentencing Guidelines, has amended the Guidelines to align with the Supreme Court’s ruling in Johnson. Among other changes, the Sentencing Commission has deleted the residual clause from § 4B1.2(a)(2), which is the guideline that defines “crime of violence.” The amendment went into effect August 1, 2016. The full text can be found here: http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20160121_RF.pdf. The effect of the amendment is that criminal defendants can no longer be designated as a career offender based upon one or more prior convictions that involved “conduct presenting a serious potential risk of physical injury to another.”

In related news, the Supreme Court has accepted discretionary review in Beckles v. United States. In Beckles, the Court has been asked to decide decide whether Johnson applies retroactively to collateral cases (such as § 2255 motions for postconviction relief) which challenge federal sentences that were enhanced prior to the August 2016 amendment under the residual clause of U.S.S.G. § 4B1.2(a)(2). A future blog post will provide an update once the Court decides Beckles.

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