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    The Lawletter Blog

    CRIMINAL LAW: Sentencing—New Rule in Johnson Was Substantive as Applied to Advisory Sentencing Guidelines

    Posted by Mark Rieber on Thu, Feb 2, 2017 @ 13:02 PM

    The Lawletter Vol 42 No 1

    Mark Rieber, Senior Attorney, National Legal Research Group

         In Johnson v. United States, 135 S. Ct. 2551 (2015), the U.S. Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), which defines a "violent felony" to include a felony that "involves conduct that presents a serious potential physical injury to another," 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The Supreme Court subsequently announced that the rule in Johnson was "a new substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

         In Carpio v. United States, No. C16-0647JLR, 2016 WL 6395192 (W.D. Wash. Oct. 28, 2016), the court applied the holdings in Johnson and Welch to the defendant's claim, in a 28 U.S.C. § 2255 petition challenging his U.S. Sentencing Guidelines sentence, that the identically worded residual clause in U.S.S.G. § 4B1.2(a), defining "crime of violence," used to enhance the defendant's sentence, was unconstitutionally vague. The court in Carpio held that the Johnson holding applied with equal force to the residual clause in § 4B1.2(a) of the Sentencing Guidelines and, therefore, it was unconstitutionally vague. The court further held that even though the Sentencing Guidelines are advisory, the new Johnson rule as applied to § 4B1.2(a) of the Guidelines was substantive rather than procedural and, therefore, it applied retroactively to the defendant's § 2255 petition. The court rejected the government's argument that even though the Johnson rule was substantive as applied in the ACCA context, it was procedural as applied in the Guidelines context. The court recognized that there was a split of authority on this issue, but joined the judges in its district who uniformly rejected the government's position.

    Topics: criminal law, advisory sentencing guidelines, Armed Career Criminal Act, residuary clause

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