Sentencing and Direct Appeal


United States v. Munez-Navarro, No. 14-10441 (5th Cir.)

  • Slip Opinion (Oct. 21, 2015) (“Although Munoz-Novarro’s plea agreement included a waiver of his right to appeal his sentence, the government has elected not to rely on waivers in ACCA cases in which ‘the defendant is, post Johnson, ineligible for the 15-year minimum sentence created by the [Act].’ Consistent with that policy, the government no longer relies on Munoz-Novarro’s appeal waiver here.”)
  • Vacating sentence and remanding for resentencing.

United States v. Chandler, No. 12-10331 (9th Cir.)


“Commentary” offenses at USSG § 4B1.2

Cases holding that without the residual clause, guideline commentary that lists offenses that do not qualify under the remaining two clauses has no independent legal force:

United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016) (No. 14-1216)

  • Slip opinion (“With § 4B1.2(a) stripped of its residual clause, the government’s position that we may rely on [the Commission’s listing of an offense in commentary that does not satisfy the force clause] to uphold Soto-Rivera’s designation as a Career Offender is hopeless.”)

United States v. Rollins, 836 F.3d 737 (7th Cir. 2016)  (No. 13-1731) (en banc)

  • Petition for Rehearing (Sept. 15, 2015)
  • Order Granting Panel Rehearing (Oct. 6, 2015)
  • En Banc Opinion (Aug. 29, 2016) (“[T]he application notes are interpretations of, not additions to, the Guidelines themselves; an application note has no independent force. [As an interpretation of the residual clause, Application Note 1 of 4B1.2] “has no legal force standing alone.  It follows, then, that because the residual clause in 4B1.2(a)(2) is unconstitutional, the application note’s list of qualifying crimes is inoperable and cannot be the basis for applying the career-offender enhancement.”).
  • Vacating and remanding for resentencing.

United States v. Bell, 840 F.3d 963 (8th Cir. 2016)

  • Agreeing with the First and Seventh Circuits that “[p]ost-Johnson[,]  § 4B1.2’s commentary, standing alone, cannot serve as an independent basis for a conviction to qualify as a crime of violence because ‘doing so would be inconsistent with the post-Johnson text of the Guideline itself'” (quoting Soto-Rivera, 811 F.3d at 60).

Pre-Beckles — Briefing, orders, and opinions in the courts of appeals regarding whether Johnson’s constitutional holding applies to the guidelines 

United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016)

United States v. Pagán-Soto, No. 13-2243 (1st Cir.)

  • Supplemental Brief for the United States (Aug. 11, 2015) (“The position of the United States is that Johnson’s constitutional holding regarding ACCA’s residual clause applies to the identically worded Guidelines residual clause.”)
  • Note that the government’s brief in Pagán-Soto was filed by the Criminal Division of the Appellate Section of the Department of Justice.

United States v. Welch, __ F. App’x __, 2016 WL 536656 (2d Cir. 2016)

United States v. Zhang, No. 13-3410 (2d Cir.)

United States v. Herring, No. 14-3194 (2d Cir.)

United States v. Townsend, No. 14-3652 (3d Cir.)

United States v. Calabretta, __ F.3d __, 2016 WL 3997215 (3d Cir. 2016) (14-3969)

  • Appellant’s Supplemental Brief (Oct. 27, 2015) (upon request of the Third Circuit, addressing whether, notwithstanding the government’s concession and considering the Eleventh Circuit’s decision in Matchett, Johnson applies to the career offender guideline at § 4B1.2).
  • Slip Opinion (holding that the residual clause in § 4B1.2 is unconstitutionally vague)

United States v. Estrada, No. 15-40264 (5th Cir.)

United States v. Pawlak, __ F.3d __, 2016 WL 2802723 (6th Cir. 2016)

United States v. Darden, 605 F. App’x 545 (6th Cir. 2015) (No. 14-5537)

United States v. Harbin, Nos. 14-3956/3964 (6th Cir. July 20, 2015)

United States v. Grayer, __ F. App’x __, 2015 WL 5472743 (6th Cir. Sept. 17, 2015) (No. 14-6294)

United States v. Chin, No. 15-5448 (6th Cir. Dec. 8, 2015)

  • Order (“[O]ffenders sentenced as career offenders under § 4B1.1 are subject to the same relief as those sentenced under the residual clause of the ACCA.  Because § [2K2.1] increases are based on § 4B1.2’s definition, our reasoning in Darden also extends to § [2K2.1] increases.” (internal citation omitted).  

United States v. Gillespie, No. 15-1686 (7th Cir.)

  • Brief of Defendant-Appellant (Aug. 15, 2015)
  • Brief of Plaintiff-Appellee (Sept. 14, 2015) (conceding that Johnson applies to guidelines on direct appeal, and stating that United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), which holds to the contrary, should be overruled)
  • Reply Brief of Defendant-Appellant (Sept. 28, 2015)
  • En Banc OpinionUnited States v. Hurlburt/Gillespie, __ F.3d __ (7th Cir. Aug. 29, 2016) (“Simply put, after Peugh we can no longer say, as we did in Tichenor, that because the Guidelines are ‘advice’ rather than ‘rules,’ they are immune from challenge on vagueness grounds.  Because Tichenor has lost its analytical foundation, we now overrule it.  Applying Johnson, we hold that the residual clause in 4B1.2(a)[(2)] is unconstitutionally vague.”)

United States v. Taylor, No. 14-2635, __ F.3d __ (8th Cir. Oct. 9, 2015)

  • Slip opinion (holding that its 1990 decision in Wivell, which said the guidelines were not subject to vagueness challenges and was the forerunner of Tichenor, does not foreclose a Johnson claim; remanding to the district court to decide whether the guidelines’ residual clause is unconstitutional)

United States v. Talmore, No. 13-10650 (9th Cir.)

United States v. Lee, No. 13-10517 (9th Cir.)

United States v. Benavides, No. 14-10512 (9th Cir.)

United States v. Smith, No. 14-2216 (10th Cir.)

United States v. Goodwin, __ F. App’x __, 2015 WL 5167789 (10th Cir. Sept. 4, 2015) (No. 13-1466)

  • Supplemental Brief of United States (Aug. 21, 2015)
  • Order and Judgment (Sept. 4, 2015) (unpub.)
    • District court plainly erred in relying on § 4B1.2(a)(2)’s residual clause to enhance defendant’s sentence because it is “essentially identical” to the ACCA’s residual clause “declared void for vagueness in Johnson,” and noting that it “arguably [has] assumed that the vagueness doctrine applies . . . to the Guidelines” but declining to resolve in this case.  United States v. Goodwin, __ F. App’x __, 2015 WL 5167789, at *3 (10th Cir. Sept. 4, 2015).

United States v. Madrid, __ F.3d __ (10th Cir. Nov. 2, 2015) (No. 14-2159)

  • Supplemental Brief for the United States (Aug. 20, 2015)
  • Opinion (Nov. 2, 2015) (to be published) (“Given our reliance on the ACCA for guidance in interpreting § 4B1.2, it stretches credulity to say that we could apply the residual clause of the Guidelines in a way that is constitutional, when courts cannot do so in the context of the ACCA.”)

United States v. Matchett, __ F.3d __, 2015 WL 5515439 (11th Cir. Sept. 21, 2015) (No. 14-10396-EE)

  • Appellant’s Supplemental Brief (Sept. 2, 2015) (arguing that Johnson applies to the guidelines and taking apart decisions from other circuits that previously said or suggested that the guidelines are not susceptible to a vagueness challenge)
  • Addendum to Appellant’s Brief (containing government briefs conceding issue in other cases)
  • Government’s Supplemental Letter Brief (Aug. 27, 2015) (taking the “position of the United States [] that Johnson’s constitutional holding regarding the ACCA’s residual clause applies to the identically worded residual clause of the career offender guideline”)
  • 11th Circuit Opinion (Sept. 21, 2015)
    • Directing district courts to continue to apply the residual clause and to “still adhere” to decisions overruled by the Supreme Court in Johnson when calculating advisory guideline range.  United States v. Matchett, __ F.3d __, 2015 WL 5515439, at *8 (11th Cir. Sept. 21, 2015)
  • Appellant’s Petition for Rehearing En Banc (Oct. 13, 2015)
  • Brief of Amicus Curiae Law Professors (Oct. 15, 2015)

United States v. Sheffield, No. 12-3013, 2016 WL 4254995 (D.C. Cir. Aug. 12, 2016)

  • Slip Opinion (“The ‘grave uncertainty about how to estimate the risk posed by a crime’ and the ‘uncertainty about how much risk it akes for a crime to qualify as a violent felony’ brood just as heavily over the Guidelines’ application as they did over the statute.”) (internal citation omitted).
  • Declining to stay pending Beckles.

Pre-Beckles — Government concessions and district court rulings that Johnson’s constitutional holding applies to the guidelines

United States v. Williams, JSW-13-466 (N.D. Cal.) – § 2K2.1

United States v. Ware, CMC-14-806 (D.S.C.) – § 2K2.1

United States v. Lee, JA-DAB-14-00268 (M.D. Fla.) – Career offender

  • Sentencing transcript (July 15, 2015) (excerpt)
  • Judge stated he “does not consider” Lee’s fleeing or attempting to elude conviction “for purposes of the enhancements,” after defense counsel stated that “Johnson ruled that the residual clause of the ACC statute was unconstitutional” and “a lot of circuits have applied that because it’s the exact same language to the career offender guideline.”

United States v. Negrete, 14-cr-00266-LJO (E.D. Cal.) – § 2K2.1

United States v. Litzy, No. 3:15-cr-00021, __ F.3d __ (S.D. W. Va. Oct. 8, 2015)

United States v. Smith, No. 2:09-cr-20152 (W.D. Tenn.) — § 2K2.1

  • Government’s Sentencing Position (Nov. 6, 2015) (stating the “government’s view [] that Matchett [11th Cir., see above] was wrongly decided and that § 4B1.2’s residual clause should not be used to enhance a defendant’s sentence after Johnson)

18 U.S.C. § 16(b)

United States v. Gonzalez-Longoria, No. 15-40041 (5th Cir.)

  • Opinion (Feb. 10, 2016) (holding that the residual clause in 18 U.S.C. § 16(b) is unconstitutional in light of Johnson)
  • Opinion vacated and rehearing en banc ordered (Feb. 26, 2016)
  • En banc court held that § 16(b) is not unconstitutionally vague on its face or as applied.  United States v. Gonzalez-Longoria, __ F.3d __ 2016 WL 4169127 (5th Cir. Aug. 5, 2016) (en banc).

Shuti v. Lynch, __ F.3d __, 2016 WL 3632539  (6th Cir. July 7, 2016)

  • Slip Opinion
  • “Like the Seventh and Ninth Circuits, we are convinced that Johnson is equally applicable to the INA’s residual definition of crime of violence. 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b).  The text of the immigration code at once compels a categorical approach to prior convictions and an imprecise analysis of possible risk. This “wide-ranging inquiry,” as with the similar statutory language in the ACCA and Sentencing Guidelines, ‘denies fair notice to defendants and invites arbitrary enforcement by judges.’ See Johnson, 135 S.Ct. at 2557. The consistent comingling of residual-clause precedents interpreting the INA, ACCA, and Guidelines shores up our conclusion. [] Imposing the penalty of deportation under this nebulous provision, we conclude, denies due process of law.” (Internal citation omitted).

United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) (No. 15-1770)

  • Opinion (holding that Johnson invalidates the identically worded residual clause in 18 U.S.C. § 16(b) (incorporated into the definition of “aggravated felony” for purposes of the increased statutory maximum at 8 U.S.C. § 1326(b)(2)), and remanding for resentencing because the defendant’s maximum sentence was increased to 20 years, even while the court imposed a sentence of 21 months).

Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (No. 11-71307)

  • Slip opinion (Oct. 19, 2015)
  • “Although the government can point to a couple of minor distinctions between the text of the residual clause and that of the INA’s definition of a crime of violence [at section 16(b)], none undermines the applicability of Johnson‘s fundamental holding to this case.  As with ACCA, section 16(b) (as incorporated in 8 U.S.C. §1101(a)(43)(F)) requires courts to 1) measure the risk by an indeterminate standard of a ‘judicially imagined “ordinary case,”‘ not by real world-facts or statutory elements and 2) determine by vague and uncertain standards when a risk is sufficiently substantial.  Together, under Johnson, these uncertainties render the INA provision unconstitutionally vague.”
  • Cert granted; will be decided by the Supreme Court by the end of June 2017.

Golicov v. Lynch, __ F.3d __,  2016 WL 4988012 (10th Cir. Sept. 19, 2016) (No. 16-9530)

  • Slip Opinion (Sept. 19, 2016)
  • “[W]e agree with the Sixth, Seventh, and Ninth Circuits that 18 U.S.C. § 16(b) is not meaningfully distinguishable from the ACCA’s residual clause and that, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(F), must be deemed unconstitutionally vague in light of Johnson.”
  • “We respectfully disagree with the Fifth Circuit and the government that [the textual differences between § 16(b) and the ACCA] are sufficient to meaningfully distinguish § 16(b) from the ACCA’s residual clause.”
  • “As for the fact that the risk standard employed in § 16(b) contains no list of enumerated crimes, we agree with the Sixth, Seventh and Ninth Circuits that this does not serve to meaningfully distinguish § 16(b) from the ACCA’s residual clause because the enumeration of specific crimes in the ACCA’s residual clause was not one of the ‘[t]wo features of the residual clause’—i.e., the determination of the ordinary case and the risk assessment of that ordinary case—that ‘conspire[d],’ in the Supreme Court’s view, ‘to make it unconstitutionally vague.'”

18 U.S.C. § 924(c)

Sample briefing

United States v. Edmundson, No. 8:13-cr-00015 (D. Md.) (Dec. 23, 2015)

  • Memorandum Opinion (ruling that the residual clause in § 924(c) is void for vagueness after Johnson and that conspiracy to commit Hobbs Act robbery does not qualify under the remaining force clause).

United States v. Baires-Reyes, No. 15-cr-00122-EMC-2 (N.D. Cal. June 7, 2016)

  • Order Granting Defendant’s Motion to Dismiss (ruling that the residual clause in § 924(c) is void for vagueness after Johnson and that conspiracy to commit Hobbs Act robbery does not qualify under the remaining force clause).

United States v. Waites, No. 2:15-cr-110 (E.D. Va.)

United States v. Wyche, No. 2:15-cr-97 (E.D. Va.)

United States v. Naughton ___ F. App’x ___, 2015 WL 5147399 (4th Cir.) (No. 13–4816)

  • Appellant’s Supplemental Brief (body only) – conspiracy to commit sex trafficking
  • Fourth Circuit did not reach the question, holding that the prior is not a crime of violence regardless whether Johnson applies.