Ever since Scalia’s dissent in Sykes v. United States—where Scalia opined that the ACCA otherwise clause is unconstitutionally void for vagueness—defense attorneys have challenged this issue with renewed vigor and rejuvenated hopes that one day it might not fall on deaf ears. There has been speculation that one day appellate judges might get so frustrated with developing new tests for the ACCA otherwise clause that they will throw their hands up and just declare the otherwise clause void for vagueness. That day, in the Sixth Circuit at least, is not this day.
Today, in United States v. Fowler, the Sixth Circuit was confronted with the issue and spent the better part of a whole sentence analyzing the otherwise clause: “Finally, the ACCA’s residual clause is not unconstitutionally vague.”
Not an unexpected result, but it would be nice to see some analysis as opposed to decision by fiat. So keep challenging the ACCA otherwise clause, don’t lose hope, but don’t expect to spend much time on this issue at oral argument either.