Sentencing Guidelines – Provisions of the Federal Sentencing Guidelines cannot be challenged for unconstitutional vagueness, and the Supreme Court’s rule in Johnson does not apply retroactively to sentences imposed under the career offender provision of the Guidelines, irrespective of whether the sentence was imposed under the advisory or mandatory version of the Guidelines.
In 2004, Stoney Lester was sentenced to 22 years in prison as a result of being qualified as a “career offender” under the then-mandatory Sentencing Guidelines. Lester’s status was based on his prior conviction for a “crime of violence” as defined under the residual clause of the career offender provision of the Guidelines.
In 2015, the Supreme Court struck down a similar residual clause in the ACCA defining “crime of violence,” holding that it was unconstitutionally vague. Lester appealed his sentence, arguing that Johnson rendered the career offender provision of the Guidelines similarly void-for-vagueness, and that he was entitled to relief under a new, retroactive rule.
The Court affirmed Lester’s sentence and denied his petition for a rehearing en banc, however, leaving in place a bright line rule that defendants cannot attack provisions of the Guidelines as unconstitutionally vague and that Johnson was not retroactive anyway, even if the defendant was sentenced under the pre-Booker, mandatory version of the Guidelines.
Writing with respect to the Court’s decision not to rehear the case, Judge W. Pryor described the legal landscape regarding vagueness challenges to the Guidelines, starting with Supreme Court and Eleventh Circuit precedent that prisoners sentenced as “career offenders” after the Guidelines became advisory cannot challenge the Guidelines as void-for-vagueness.
Subsequently, in In re Griffin, 823 F.3d 1350 (11th Cir. 2016), the Eleventh Circuit held that defendants sentenced as career offenders under the mandatory Guidelines also couldn’t challenge the Guidelines for vagueness. The Griffin court also held that, despite the Supreme Court making Johnson retroactive in Welch v. United States, Johnson did not create a retroactive rule allowing defendants to challenge their sentences under the Guidelines.
Judge Pryor argued that Johnson set forth a substantive rule providing collateral relief to prisoners sentenced under the ACCA’s residual clause because the Supreme Court had essentially held that the ACCA never legitimately authorized those enhanced sentences. In contrast, a rule providing an avenue for collateral relief to prisoners sentenced as career offenders under the then-mandatory Guidelines would not be substantive, since its application “would require only the procedural formality of a resentencing in which the district court would have the power to impose exactly the same sentence as before.”
While substantive rules are generally retroactive, Judge Pryor wrote, new “constitutional rules of criminal procedure” are rarely retroactive, and only when they are “watershed rules” implicating the “fundamental fairness and accuracy of the criminal proceeding.” Here, the Lester was proposing a procedural rule since every sentence imposed before or after Booker “falls within the statutory range of punishment prescribed by Congress.” Even if the court had relied on an “unacceptably unclear directive” in imposing the sentence, the sentence would have still been authorized by law.
Judge Pryor concluded that the district court had not substantively erred since it had not imposed an illegal sentence—it only procedurally erred by treating the Guidelines as mandatory, notwithstanding that at the time of Lester’s sentence the Guidelines were, in fact, mandatory.
Judge Martin dissented from the denial of en banc rehearing, arguing that In re Griffin was wrong in holding that the mandatory Guidelines are not subject to vagueness challenges and its holding that Johnson does not apply retroactively to mandatory Guidelines sentences based on unconstitutionally vague provisions.
Judge Martin stressed the mandatory Guidelines should be subject to vagueness challenges “because they had the force and effect of laws” and thus must give notice of what conduct is punishable. At the time of Lester’s sentencing, the sentencing court was bound by law to engage in the type of analysis later prohibited by Johnson and required to impose a sentence based on that analysis.
Judge Martin also wrote that the Griffin court erred in holding that Johnson does not apply retroactively to sentences imposed under the mandatory Guidelines. Judge Martin criticized the lack of legal support and inconsistency in allowing retroactive challenges to ACCA convictions but not mandatory career-offender sentences under the Guidelines. She emphasized that a rule allowing vagueness challenges to the latter type of sentences would be substantive by virtue that sentencing courts were bound by statute to impose higher sentences under the putatively vague but mandatory Guidelines provision.
Judge Rosenbaum also wrote respecting the denial of rehearing en banc, addressing Judge Pryor’s statement. She argued that Johnson should be retroactively applicable to prisoners sentenced under the pre-Booker Guidelines since they were being subjected to higher mandatory-minimum sentences than they otherwise would have been. She also criticized Judge Pryor’s statement that the Guidelines “were never really mandatory” as “judicial fiction” and emphasized the practical reality that the Guidelines operated as binding operative law before Booker.
Appeal from the Middle District of Georgia
Pryor, respecting denial of rehearing en banc
Martin, respecting denial of rehearing en banc, joined by Rosenbaum and J. Pryor
Rosenbaum, respecting the denial of rehearing en banc, joined by Martin and J. Pryor