The junior-varsity Congress[1] strikes back

[Questions about the post title should be directed to David Freund]

David: In Johnson v. United States, the Supreme Court found the residual clause of the Armed Career Criminal Act unconstitutionally vague. One issue not resolved by Johnson was whether the residual clause of the career offender guideline crime of violence definition (USSG § 4B1.2(a)(2)) would suffer the same fate. Melody previously pondered the fate of the residual clause of the career offender “crime of violence definition.” Last Friday, the United States Sentencing Commission proposed an emergency amendment to the guidelines definition of “crime of violence.” Rather than simply excising the residual clause, the proposed amendment actually expands the scope of the crime of violence definition. The proposed changes affect not only the career offender guideline, but also several guidelines that cross-reference to "crime of violence” such as 2K1.3 (explosives), 2K2.1 (firearms), and 2L1.2 (Illegal Reentry).

Melody: The proposed amendments replace the broad (read: vague, unconstitutionally so) residual clause in the §4B1.2 (a)(2) guideline with more enumerated offenses, but then broaden the scope of the offenses, open it to reckless conduct, and insert vague language within the enumerated crimes definitions. Consider burglary – as it stands, the guideline only includes burglary of a dwelling. The new guideline expands this to burglary of a structure, which will include businesses, garages, uninhabited houses, and so forth. This is not a helpful fix. Or a fix at all.

David: Several definitions of enumerated offenses in 4B1.2 Application Note 3 appear open to a vagueness challenge:

3(B)“Voluntary manslaughter” is (i) the unlawful killing of a human being without malice, upon a sudden quarrel or heat of passion; or (ii) causing the death of a human being through actions intended to cause serious physical injury to another human being.

3(C) “Kidnapping” “Kidnapping” is an offense that includes at least (i) an act of restraining, removing, or confining another; (ii) an unlawful means of accomplishing that act; and (iii) at least one or more of the following aggravating factors: (I) the offense was committed for a nefarious purpose; (II) the offense substantially interfered with the victim’s liberty; or (III) the offense exposed the victim to a substantial risk of bodily injury, sexual assault, or involuntary servitude.

3(F) “Robbery” is the misappropriation of property under circumstances involving immediate danger to the person of another.

Melody: We need to challenge the current language under §4B1.2 under Johnson, regardless of what happens with the Amendments. Remember Peugh – the erroneous application of the discretionary guidelines has constitutional dimension. And under Peugh, if the unfortunate amendments pass, they would apply only to the offenses committed after the amendments. Meanwhile, we can continue to fight the current guideline residual clause under Johnson.

[1] See Mistretta v. United States, 488 U.S. 361,427 (1989), Scalia dissenting.