Whether here in Atlanta or other places, Carl and I represent a lot of folks who eventually face a sentencing hearing at the end of a federal criminal case. Anyone whose spare time has brought them here knows that we chat about federal sentencing a lot, whether to analyze or to criticize how it is applied. But whether we are analysts or critics, we always recognize that the topic remains one of the hottest subjects in the United States Supreme Court. Yet another case this term, Beckles v. US, exemplifies this point.
OK, first the background. The infamous “Armed Career Criminal Act” (or “ACCA”), part of the 1986 criminal law re-work that led to the mass-incarceration we are only now digging out from, yields a 15-year mandatory minimum sentence for anyone foolish enough to have anything to do with a firearm after having 3 or more prior convictions for drug dealing or a “violent felony”. As always, the devil is in the details, and the question of what is a “violent felony” has bedeviled federal judges for the past 3 decades. The issue was made even more difficult when the brains in Congress included as a violent felony any crime that “involves conduct that presents serious potential risk of physical injury to another.” We call this latter phrase the “residual clause” of the ACCA. After 25 years of trying to figure out what this squishy definition might mean, the late Justice Antonin Scalia (may he rest in peace) convinced his brethren to invalidate the entire clause as being unconstitutionally vague. That case was Johnson v. United States.
Readers also remember that on occasion your impassioned writer goes on and on about the other set of rules that impacts a federal criminal sentence: the United States Sentencing Guidelines. These Guidelines also have aspects similar and occasionally identical to the residual clause. One such area using language identical to the residual clause is the part of the Guidelines that applies to “career offenders.” Lots of cases have approached the issue of whether Johnson also invalidated the identical language in the career offender Guideline (answer: the majority of courts says that Johnson does apply and invalidates the Guideline definition).
Still more cases wrangled with the issue of what to do with the thousands of people imprisoned by a law that years later was found unconstitutional, but the time for those prisoners to file any direct appeal elapsed long ago. Collateral attacks are now greatly restricted, unless a “new rule” is expressly made retroactive by the Supreme Court. The question for these Defendants is whether their attack on their sentences years later is “cognizable” under the strict rules governing what are called “collateral attacks” on old cases.
This is where Beckles comes into play (I can hear some of you saying; “Finally he gets to the point!”). Beckles comes out of the Eleventh Circuit, where we have handled hundreds of appeals. This is a federal appellate court that, to be charitable, does not have a reputation of being friendly to criminal defendants. The Eleventh Circuit has a whole bunch of decisions all over the place, but basically says that a prisoner cannot raise a Johnson style attack even if the person’s sentence was enhanced by the impermissibly vague career offender Guideline.
The Supreme Court accepted Beckles for review, and it will likely be argued soon or in the New Year. The really fun part is that even prosecutors recognize how far off the reservation the Eleventh Circuit has been, for the Government partially confessed error and agreed with the Defendant. The Supreme Court had to appoint a lawyer to make the unenviable argument that even the Government is wrong. When this happens it makes for an interesting three-way argument.
The case is being handled by some of our friends down from the Federal Public Defender in Miami, they always do a great job. We look forward to seeing how the 4-4 split on the Supreme Court impacts this matter.