27th Jun 2015
On June 26, the Supreme Court ruled that the residual clause of the Armed Career Criminal Act (the ACCA) was unconstitutionally vague.
What did the law say?
United States law prohibits certain persons, including convicted felons, from possessing firearms or ammunition (see 18 U.S.C. § 922(g)), and 18 U.S.C. § 924(a)(2) says that breaking this law carries a prison term of 10 years at most. However, the law also has a section called the Armed Career Criminal Act (ACCA, see § 924(e)) which provides that felons who possess firearms get a mandatory minimum sentence of 15 years if they have three prior convictions for:
1. A “serious drug offense,” defined as a state or federal crime involving illegal drugs and that carries a sentence that could be 10 years or more,
2. A “violent felony,” defined as a state or federal crime that
(a) “has as an element the use, attempted use, or threatened use of physical force against the person of another; or”
(b) “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another” (italics added).
The italicized “otherwise” phrase at the end is called the “residual clause” since it includes what (in a sense) is left over that isn’t covered by what preceded it. But that leaves everyone with a problem: what is left over? How does one figure out what crimes have enough “serious potential risk” to count as prior convictions for this law?
This residual clause in the ACCA is so vague that the Supreme Court has finally ruled that it is unconstitutional. Johnson’s case is the fifth case in the last seven years in which defendants argued that some prior conviction of theirs ought not to count under the residual clause (see this analysis for more on the background). The principle is that we can’t have laws so vague that no one knows when they’re broken or how to apply them consistently.
What cases does this ruling affect?
The case of you or your loved one may be affected by this ruling if:
- the sentence was the 15-year mandatory minimum prescribed by the ACCA, and
- one of the prior offenses qualified only under the residual clause.
That is, if a defendant had three prior offenses under the ACCA as quoted above, even without the italicized phrase, then this ruling will not help. For example, a person with convictions for two assaults and a burglary, or two burglaries and what’s defined as a “serious drug offense” above, is not affected.
If a defendant was sentenced as a career offender under the U.S. Sentencing Guidelines, not under the ACCA, then this ruling will not help.
I think this ruling affects my case. What do I do now?
What happens next depends on the status of your case.
If you have a conviction under Section 922(g), but have not been sentenced yet, this change will apply at your sentencing automatically. Your prior convictions should be reviewed as if the residual clause was not part of the law (because, as of June 26, it isn’t).
If you have been sentenced and have a pending appeal, you can raise this issue in your appeal. (If the briefs have already been filed in your appeal, you can file a document called a FRAP 28(j) letter to point out to the appeals court that the Supreme Court’s holding in Johnson applies to your case.) How effective this will be is hard to predict. If you raise an issue for the first time on appeal, not at the sentencing hearing, then the appellate court reviews your claim for plain error. In theory, the 15-year mandatory minimum vs. the 10-year maximum based on the interpretation of the residual clause sounds like a plain error, but in our practice, we have found that it is very difficult to convince the appellate court of a mistake that rises to the plain error standard. But if, at your sentencing hearing, your attorney objected that one of your three prior convictions was being included under the residual clause, then the appeals court will not be so strict, and your chances are better.
If your appeal has been settled and is no longer pending, you can try to take advantage of this ruling by filing a 2255 motion. You need to do so within a year after this ruling. Do not put it off until just before the deadline because such motions require a lot of preparation.
A 2255 motion is not certain to bring relief at this point. Technically, such a motion only brings relief if the Supreme Court’s decision is “made retroactively applicable to cases on collateral review” (“collateral review” is review caused by a 2255 motion). Someone is going to have to make a case that this ruling ought to be retroactively applicable. However, if someone does win their case that the ruling should retroactively apply to them, that would be a very positive sign. We have more information about 2255 motions here.
If you have any questions or want a free consultation, you can call us at (512) 693-9529 or email us. Just click on the “Contact Us” link here or at the top of the page, and we would be glad to talk to you about your matter.
by Viola Coulter