I have some bad news and good news for all of you. Today, the Supreme Court decided Beckles vs. United States. The court was asked to consider whether its prior decision in Johnson v. United States, which declared the residual clause of the Armed Career Criminal Act unconstitutionally vague, should also apply to the advisory guidelines. In an opinion by Justice Thomas, the Court held that the ADVISORY sentencing guidelines are not subject to constitutional vagueness challenge. This means Johnson will not impact the ADVISORY sentencing guidelines and thus cannot form the basis of a constitutional challenge to one’s sentence.

Beckles was convicted in 2007 of possession of a firearm by a convicted felon, 922(g)(1). According to the presentence investigation report, the firearm was a sawed-off shotgun, and petitioner was therefore eligible for a sentencing enhancement as a “career offender” under the Sentencing Guidelines. Beckles filed a petition for certiorari contending that 4B1.2(a)’s “residual clause” is void for vagueness after the decision in Johnson vs. U.S. rendered the “Residual Clause” of the ACCA invalid for vagueness.

Justice Thomas wrote that “unlike the ACCA, however, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause.”

According to Justice Thomas, the guidelines are not amendable to a vagueness challenge because “the Guidelines remain “the starting point and the initial benchmark” for sentencing, a sentencing court may no longer rely exclusively on the Guidelines range; rather, the court ‘must make an individualized assessment based on the facts presented’ and the other statutory factors.”  Thomas went on to say that the “Guidelines do not implicate the twin concerns underlying the vagueness doctrine providing notice and preventing arbitrary enforcement.”

Sotomayor issued a concurring opinion indicating that the Court’s decision may leave an opening for those with Mandatory Guideline sentences (as in pre-Booker in 2005) to challenge their sentences.  It is also worth remembering that the United States Sentencing Commission removed the “residual clause” from the Sentencing guidelines in a 2016 amendment. That amendment, however, is not retroactive.

I am deeply disappointed by the Court’s ruling today, as I know many of you will be as well. There are a lot of things going on in the law and the possibilities of future relief. So even if this case hit you or your family members personally today, please do not lose hope and do not give up.

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