United States District Court, C.D. Illinois, Springfield Division
CHARLES R. ROBINSON, IV, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RICHARD MILLS, UNITED STATES DISTRICT JUDGE
matter is before the Court following the Seventh
Circuit's Order granting the Petitioner's application
for a successive motion under 28 U.S.C. § 2255 and
authorizing this Court to consider the Petitioner's claim
under Johnson v. United States, ___ U.S. ___, 135
S.Ct. 2551 (2015).
Johnson, the United States Supreme Court held that
“imposing an increased sentence under the residual
clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process.”
Id. at 2563.
Seventh Circuit's authorization is based on the
possibility that the Petitioner was classified as a career
offender at sentencing and one of his qualifying convictions
was pursuant to the residual clause and, further, that
Johnson applies to the guidelines. In Beckles v.
United States, ___ U.S. ___, 137 S.Ct. 886 (2017), the
United States Supreme Court held that because the advisory
Guidelines are not subject to vagueness challenges under the
Due Process Clause, Johnson does not apply to the
guidelines. See id. at 890.
Petitioner was initially sentenced to life imprisonment. The
Government claimed the Petitioner's sentence was based on
the amount of drugs, not the career offender guideline. The
Petitioner was recently re-sentenced to 360 months
imprisonment. In authorizing the successive § 2255
motion, the Seventh Circuit noted it was not clear how that
sentence was calculated. Regardless of how his sentence was
calculated, the Court concludes that Petitioner is entitled
to no relief.
residual clause of the career-offender guideline, unlike the
residual clause of the Armed Career Criminal Act (ACCA), is
not susceptible to vagueness challenges. See
Beckles, 137 S.Ct. at 897. An important aspect of the
Court's reasoning was that the ACCA constituted
legislation that fixed the permissible range of sentences for
qualifying conduct. See id. at 892. The guidelines
now “merely guide the exercise of a court's
discretion in choosing an appropriate sentence within the
statutory range.” Id. Given that sentencing
judges have discretion under the guidelines, the
constitutional concerns present in Johnson-affording
notice to defendants of what conduct will subject them to
longer penalties under the ACCA and preventing arbitrary
application of the ACCA's standards-are not implicated by
the guidelines. See id.
worth noting that in her concurrence in Beckles,
Justice Sotomayor suggested that, based on the
“formalistic distinction between mandatory and advisory
rules, ” it is something of an open “question
whether defendants sentenced to terms of imprisonment”
prior to United States v. Booker, 543 U.S. 220
(2005)-at a time when the Guidelines fixed the permissible
range of sentences-may challenge their sentences based on
vagueness. See Beckles, 137 S.Ct. at 903 n.4
(Sotomayor, J., concurring in the judgment). Justice
Sotomayor did not express her view on the merits of any such
challenge. See id. (“That question is not
presented by this case and I, like the majority, take no
position on its appropriate resolution.”).
Petitioner was sentenced in 1999-several years before the
Supreme Court decided Booker. At the time, the
Guidelines were “mandatory and binding on all
judges.” See Booker, 543 U.S. at 233.
“Because they are binding on judges, we have
consistently held that the Guidelines have the force and
effect of laws.” Id. at 234. The Court
recognized the ability of sentencing judges to depart in
certain instances, but noted that judges in most cases were
required to impose a sentence within the Guideline range.
See id. In Booker, for example, the
sentencing judge would have been reversed if he did not
impose a sentence within the applicable range. See
id. at 235.
argument can be made that the mandatory guidelines should be
subject to vagueness challenges for the same reason as the
ACCA. Before Booker, the Guidelines had the
“full force and effect of laws” because judges
were directed under 18 U.S.C. § 3553(b) to “impose
a sentence of the kind, and within the range” set by
the Guidelines. See Booker, 543 U.S. at 234.
Departures were to be determined by considering “only
the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission.” 18 U.S.C.
§ 3553(b). The policy statements and commentary were
also binding. See Stinson v. United States, 508 U.S.
36, 42-43 (1993). While “the advisory guidelines do not
fix the permissible range of sentences, ” see
Beckles, 137 S.Ct. at 892, the ACCA did fix the
permissible range and the mandatory guidelines are analogous
in that respect. Accordingly, there is a plausible argument
for treating the mandatory career offender guideline's
residual clause like that of the ACCA and finding that it is
unconstitutionally vague, unlike the advisory career offender
Johnson was decided by the Supreme Court, the
Seventh Circuit held that neither the advisory nor the
mandatory guidelines were susceptible to vagueness
challenges. See United States v. Tichenor, 683 F.3d
358 (7th Cir. 2012); United States v.
Brierton, 165 F.3d 1133, 1138-39 (7th Cir. 1999).
Following the decision in Johnson, the Seventh
Circuit held in United States v. Hurlburt, 835 F.3d
715 (7th Cir. 2016) that vagueness challenges against the
guidelines were permissible. See id. at 725. The
Supreme Court then in Beckles overruled
Hurlburt. United States v. Cook, 850 F.3d
328, 333 (7th Cir. 2017) (“This week, the Supreme Court
overturned that decision, holding that ‘the Guidelines
are not subject to a vagueness challenge under the Due
Process Clause.'”). Based on the ruling in
Beckles, a case can be made that Tichenor
and Brierton are once again good law that precludes
the Court from granting any habeas relief.
also worth noting there is a distinction between a federal
statute such as the ACCA that alters the statutory sentencing
range and a mandatory guideline scheme. The top of a
guideline range is generally not the same as a legislatively
determined statutory maximum. See United States v.
Rodriguez, 553 U.S. 377, 390 (2008). “[G]uidelines
systems typically allow a sentencing judge to impose a
sentence that exceeds the top of the guidelines range under
appropriate circumstances.” Id.
under the old mandatory guideline scheme, courts had the
authority to depart from the prescribed range in exceptional
cases. See U.S.S.G. § 5K2.0; see also