After this week’s Supreme Court decision in Welch v. United States, — S. Ct. –, slip op. (April 18, 2016) (No. 15-6418), which found that Johnson v. United States, 135 S. Ct. 2551 (2015) is retroactive to those serving Armed Career Criminal sentences, the next big question is whether the rule in Johnson will apply retroactively to career offender guidelines cases. (Quick reminder: Johnson struck down the “residual clause” in ACCA as void-for-vagueness. Identical or nearly-identical language to the residual clause pops up in many other sentencing statutes and guidelines). Welch gives some cause for hope. In an amicus brief filed yesterday in support of petitioner Alfrederick Jones for a writ of certiorari to the Supreme Court (Alfrederick Jones v. United States, No. 15-8629), the Federal Public and Community Defenders and the National Association of Federal Defenders laid out the case for why the Supreme Court should resolve the issue and find that the rule in Johnson is retroactive in the career offender context.
Briefly, Welch held that Johnson laid out a substantive rule under Teague v. Lane, 489 U.S. 288 (1989). Although it did not explicitly extend Johnson to career offender cases, it left the door open. As the amicus brief argues, Welch focuses on the nature of the rule, not the type of case in which the rule is invoked. Johnson announced a substantive rule – which applies equally to ACCA and career offender cases. Although the career offender guideline does not lay out a statutory maximum or minimum sentence like ACCA, the amicus argues that the career offender guideline “is uniquely statutory . . . .” This is because the Sentencing Commission “[established] the Career Offender Guideline pursuant to a congressional directive to ‘specify a sentence to a term of imprisonment at or near the maximum term authorized’ for defendants convicted for a least the third time of a felony that is a ‘crime of violence’ or a specified drug offense.”(citing, 28 U.S.C. § 994(h)). The career offender guideline is, therefore, tied to a statutory maximum. Further bolstering the near-mandatory effect of the guidelines, even after Booker, are the Supreme Court’s decisions in Gall v. United States, 552 U.S. 38, 49 (2007), and Peugh v. United States, 133 S. Ct. 2072 (2013), which make clear that the guidelines are the starting point for sentencing proceedings.