Lost in the excitement over the Supreme Court’s blockbuster decisions last week was a significant, albeit technical, case dealing with federal sentencing under the Armed Career Criminal Act (ACCA). The ruling should help a significant number of federal defendants who are serving harsh mandatory sentences. These people may be entitled to substantial sentence reductions.
In Johnson v. United States __ U.S.__, 2015 WL 2473450 (July 26, 2015), an 8 to 1 decision authored by Justice Scalia, the Court found that the residual clause under the ACCA (18 U.S.C. 924(e)(2)(B)(ii)) (prior offense “otherwise involves conduct that presents a serious potential risk of physical injury to another”) is constitutionally void for vagueness.
The ACCA statute counts as predicates (1) violent felonies and (2) serious drug offenses. A defendant who has three of these priors, and who is charged in federal court with certain gun offenses, faces a mandatory 15-year sentence. These sentences are often so harsh that is it not unusual for federal judges, when imposing ACCA sentences, to bemoan the fact that they do not agree with the sentence but their hands are tied. In the past, the Government has used the “residual clause” – the clause that the Supreme Court now says is unconstitutional – to expand the list of offenses that qualify as ACCA predicates. In other words, even if the prior conviction was not technically a crime of violence, Courts could still still count it as a predicate if it presented “a serious potential risk of physical injury to another.”
Here is a list of those offenses that came in under the “residual clause”:
Federal: Hobbs Act robbery
Maryland: Resisting Arrest; Murder, first and second degree (Yes, that’s right. Although it has element of injury, it does not require violent force. It can be done by poisoning.); Manslaughter, voluntary and involuntary; Assault, first and second degree; Assault with intent to disable; Assault with intent to prevent lawful apprehension; Burglary, all degrees, Second degree rape, Sexual offense in the third degree (some subsections); Escape, first and second degree; Carrying a dangerous weapon with intent to injure; Child abuse; Child sexual abuse; Robbery (argument to be made, but conflicting case law on whether it has element of violent force)
District of Columbia: Robbery; Assault with a dangerous weapon, Child abuse
Virginia: Eluding law enforcement; Larceny from a Person; Statutory burglary
North Carolina: Assault with a dangerous weapon
Although we still do not know how the lower courts will interpret Johnson, it is possible this ruling will have a broad application. Not only will it apply to the ACCA, but it should apply to the career offender designation under the U.S. Sentencing Guidelines. It is also likely that it can give rise to a claim under 28 U.S.C. § 2255.
This is highly technical and anyone to whom this applies should contact their attorney for more specifics. In the state of Maryland, the Federal Defender’s office is reviewing cases and will reach out to inmates who may be affected by this.