How the Sentencing Commission Does and Does Not Matter in Beckles v. United States
Two years ago, in Johnson v. United States, the Supreme Court held that the so‐called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual clause applies retroactively. The questions on which the Court granted certiorari in Beckles turn on how similar the ACCA and the Sentencing Guidelines are. Both the ACCA and the Sentencing Guidelines impose additional punishment on defendants with previous convictions for violent felonies, and both the ACCA and the Sentencing Guidelines define “violent felonies” to include any crime that “involves conduct that presents a serious potential risk of physical injury to another.” Those thirteen words are called the “residual clause,” in both the ACCA and the Sentencing Guidelines, and courts have interpreted this identical language the same way.
This short Essay considers how significant the differences between the ACCA and the Guidelines are, and how important the Sentencing Commission should be to Beckles’s resolution of the retroactivity question. Some of the differences between the ACCA and the Guidelines also may be relevant to whether the career offender Guideline’s residual clause, like the ACCA’s residual clause, is unconstitutional. But this Essay focuses on whether the differences between the ACCA and the Guidelines matter to the second question the Court is poised to address in Beckles—namely whether a rule invalidating the Guideline’s residual clause applies retroactively, rather than whether the Guideline’s residual clause should be invalidated.
Previous EssayReframing the Confirmation Debate
Craig Konnoth & Seth Kreimer