Brown v. United States

Counsel

The petition for a writ of certiorari is denied., Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences.1 They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision. These petitioners argue that their sentences, too, are unconstitutional. This important question, which has generated divergence among the lower courts, calls out for an answer. Because this Court's decision to deny certiorari precludes petitioners from obtaining such an answer, I respectfully dissent., *15The Guidelines directed enhanced punishment for "career offender[s]." See USSG § 4B1.1(a). Defendants qualified as "career offender [s]" if they had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." Ibid. There were different ways that a past conviction could count as "a crime of violence," but only one is at issue here: A conviction counted as "a crime of violence" if it "involve[d] conduct that presents a serious potential risk of physical injury to another." § 4B1.2(a)(2) (Nov. 2002). Because it supplied an amorphous catchall at the end of a more definite list, that phrase has been known as the "residual clause." If the phrase sounds familiar, it may be because in Johnson v. United States , 576 U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), this Court considered the exact same language in another provision where it was binding on judges and had the force and effect of law: a statute called the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Like the Guidelines, the ACCA also required enhanced punishments for career offenders. And, like the Guidelines, the ACCA included its own residual clause. In fact, the ACCA's residual clause was identical to the Guidelines' residual clause. See § 924(e)(2)(B)(ii) ( "... involves conduct that presents a serious potential risk of physical injury to another")., Johnson struck down the ACCA's residual clause as unconstitutionally vague. 576 U.S., at ----, 135 S.Ct., at 2556. You might think that if a sequence of words that increases a person's time in prison is unconstitutionally vague in one legally binding provision, that same sequence is unconstitutionally vague if it serves the same purpose in another legally binding provision. Indeed, after Johnson , the Sentencing Commission deleted the residual clause from the Guidelines. See USSG § 4B1.2(a)(2) (Nov. 2016). But for petitioners like Brown, who were sentenced long before Johnson , this Court has thus far left the validity of their sentences an open question. See Beckles v. United States , 580 U.S. ----, ----, ---- - ----, 137 S.Ct. 886, 900-901, 901-903, 197 L.Ed.2d 145 (2017) ; id., at ----, n. 4, 137 S.Ct., at 903, n. 4 (SOTOMAYOR, J., concurring). The Court's decision today all but ensures that the question will never be answered., The question for a petitioner like Brown, then, is whether he may rely on the right recognized in Johnson to challenge identical language in the mandatory Guidelines. Three Courts of Appeals have said no. See 868 F.3d 297 (C.A.4 2017) (case below);, *16Raybon v. United States , 867 F.3d 625 (C.A.6 2017) ; United States v. Greer , 881 F.3d 1241 (C.A.10 2018). One Court of Appeals has said yes. See Cross v. United States , 892 F.3d 288 (C.A.7 2018). Another has strongly hinted yes in a different posture, after which point the Government dismissed at least one appeal that would have allowed the court to answer the question directly. See Moore v. United States , 871 F.3d 72, 80-84 (C.A.1 2017) ; see also United States v. Roy , 282 F.Supp.3d 421 (D.Mass. 2017) ; United States v. Roy , Withdrawal of Appeal in No. 17-2169 (CA1). One other court has concluded that the mandatory Guidelines themselves cannot be challenged for vagueness. See In re Griffin , 823 F.3d 1350, 1354 (C.A.11 2016).