On January 8, 2016 the U.S. Sentencing Commission ("Commission") voted to change what constitutes a "crime of violence" under the U.S. Sentencing Guidelines. Federal judges are required to consider the sentencing guidelines in fashioning sentences for federal crimes.
The vote comes on the heels of the Supreme Court's recent decision in Johnson v. United States which declared the residual clause of the Armed Career Criminal Act ("ACCA") unconstitutionally vague.
Similar to the ACCA, the sentencing guidelines provide for increased punishment for individuals who are "career offenders." The wording of the ACCA and the guideline career offender provisions is nearly identical. As such, the Supreme Court's Johnson decision called into question the constitutionality of the career offender Guideline's "residual clause."
The Commission's amendment will take effect August 1, 2016, unless Congress takes action to disprove it. Congress has disapproved an amendment to the sentencing guidelines only once in 38 years.
Below is a list of Frequently Asked Question that explain this otherwise complex legal issue is simpler terms. The Commission's amendment is significant because it has the potential to reduce penalties for federal offenders who are sentenced after August 1, 2016.
Q. What did the "crime of violence" amendment change?
A. The amendment alters the definition of "crime of violence" in section 4B1.2(a)(2) of the Guidelines. Prior to the amendment, a crime of violence under 4B1.2(a)(2) was considered:
". . . murder, voluntary manslaughter, kidnapping, aggravated assault, a forceable sex offense, robbery, burglary of a dwelling, arson, or extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive materials as defined in 18 U.S.C. 841(c) involves use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another."
After the amendment, "burglary of a dwelling" and the "residual clause" of the 4B1.2(a)(2) has been removed. The residual clause is the language "involves use of explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another."
Consequently, the amended 4B1.2(a)(2) now reads:
". . . murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive materials as defined in 18 U.S.C. 841(c)."
Q. Is the "crime of violence" amendment retroactive?
A. No. The Commission was urged to make the amendment retroactive, but there was concern that retroactive application would be "too difficult" to apply. This means the amendment would only affect individuals who have not yet been sentenced when it takes effect on August 1, 2016.
Q. I have heard that some people are charging to apply for relief based on the amendment. What should I do?
A. First and foremost, this amendment is not law yet. You cannot apply for relief based on something that is not the law. Second, once the amendment becomes law, it cannot be applied retroactively until the Commission designates it as retroactive. Don't get scammed by people who tell you or claim otherwise.
Q. Are there other ways to get the benefit of the amendment without the U.S. Sentencing Commission making it retroactive?
A. Not based on the amendment, and not through a motion under 18 U.S.C. § 3582. However, the Commission's decision to pass the amendment was prompted by the Supreme Court's decision in Johnson v. United States which declared the "residual clause" of the Armed Career Criminal Act unconstitutionally vague. Attorneys are presently arguing cases about the applicability of Johnson to Guideline career offender enhancements that are based on the Guideline "residual clause."
The U.S. Department of Justice opposes the applicability of Johnson to Guideline residual clause challenges, asserting that they are different than ACCA "residual clause" claims. Be that as it may, this kind of argument is very different than merely seeking relief based on the "crime of violence" amendment. When considering this issue, keep in mind that you can only seek relief based on the amendment if the Commission declares the amendment retroactive.
Q. If the amendment is not retroactive, does that mean that I will not be able to undo my career offender enhancement that is based on a burglary of a dwelling?
A. That is correct. Unless the Commission makes the amendment retroactive, you will not be able to take advantage of the removal of burglary of a dwelling from the definition of "crime of violence."
Q. Is there still hope that the U.S. Sentencing Commission will make the amendment retroactive?
A. Yes. There is considerable support in the prisoners' rights movement to make this amendment retroactive. That battle is not yet over. Prisology is currently on the front lines of this fight.
Q. Does the U.S. Sentencing Commission's amendment affect Armed Career Criminal Act ("ACCA") cases?
A. No. The Commission only has authority over the Guidelines. The ACCA is a statutory enhancement created by Congress. Only Congress can change the ACCA. Nothing the Commission does affects the ACCA.
(This article is co-authored with federal criminal defense attorney Jeremy Gordon and Brandon Sample, Executive Director of Prisology and juris doctorate candidate at Vermont Law School. More can be learned about the co-authors by visiting www.gordondefense.com and www.prisology.org)