Federal Defenders of New York Blog
Serving the Second Circuit and the Eastern and Southern Districts of New York
Today, the Fourth Circuit held that Johnson is substantive and retroactive as applied to the Guidelines. You can read the decision in Hubbard here.…
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 …
In last year’s Johnson v. United States, the Supreme Court held the residual clause of the Armed Career Criminal Act (ACCA) void for vagueness.
In today’s Welch v. United States, the Supreme Court held Johnson applies retroactively. Only Justice Thomas dissented.
This means defendants serving final sentences — meaning ones previously affirmed on appeal — are now eligible for relief if they were sentenced under ACCA’s residual clause. This is true even if they’re arguably subject to ACCA’s force/elements clause: though the government’s position was that Mr. Welch merits no relief because his prior conviction for Florida robbery falls under that clause, the Court said that’s debatable and remanded the case for further proceedings.
The question lurking in the shadows here, which Welch didn’t address, is whether Johnson also has the effect of retroactively invalidating the residual clauses of the Career Offender Guideline, 18 U.S.C. § 16, 18 …
United States v. Diaz, No. 10-317 (2d Cir. December 15, 2010) (Cabranes, Pooler, Wesley, CJJ) (per curiam)
In October, the court issued a non-precedential summary order holding that the Fair Sentencing Act (the “FSA”) is not retroactive. See “Summary Summary” posted October 27, 2010. This per curiam is a published opinion to the same effect, at least where the defendant was “convicted and sentenced before the FSA was enacted.”
Nominally, at least, the door is still open for FSA retroactivity arguments for defendants whose conduct occurred before the FSA, but whose conviction and sentences took place afterwards.…