The Sentencing Guidelines' Residual Clause is Unconstitutionally Vague

The Sixth Circuit has (finally) issued a published opinion holding that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act, applies with equal force to the career offender definition found in U.S.S.G. § 4B1.2 and used in many other Guideline provisions. In United States v. Pawlak, No. 15-3566 (6th Cir. May 13, 2016), the Sixth Circuit invalidated the identical residual clause used in the Guidelines because it is likewise unconstitutionally vague. The Court held that the Sentencing Guidelines are subject to constitutional vagueness challenges, explaining that its prior precedent stating otherwise was fatally undermined by intervening Supreme Court decisions.

Citing Peugh v. United States, 133 S. Ct. 2072 (2013), Judges Boggs, Gibbons, and Griffin reasoned that the Guidelines are subject to vagueness challenges because of the procedures district courts must follow when imposing a sentence; even though judges have the discretion to impose sentences outside the guideline range, the guideline range is the mandatory starting point and a sentence may be reversed if the Guidelines are not correctly applied. Thus, even advisory guidelines may raise concerns about fair notice and arbitrary enforcement under the Due Process Clause.

Importantly, the opinion handily discredits the Eleventh Circuit’s opinion in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which found the Sentencing Guidelines immune from vagueness challenges and refused to apply Johnson to the Guidelines. The Court explained that Matchett relied solely on a limited universe of cases that have been overruled by Peugh and Johnson, and thus it is unpersuasive.

Pawlak will be extremely helpful to defendants challenging their career offender or other residual clause-enhanced sentences in all contexts. The opinion contains great language and analysis that closes the door on nearly all of the arguments the government has been relying on to assert that Johnson does not impact the Sentencing Guidelines. Hopefully, a clear decision on Johnson's retroactivity in the Guideline context will soon follow this opinion.