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U.S. Supreme Court Takes Up Federal Sentencing Case

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The U.S. Supreme Court today took up for full briefing and argument the case of Welch v. United States, No. 15-6418

This case began in the Southern District of Florida, where the defendant filed a motion to vacate (28 U.S.C. ยง2255) his conviction and his sentence under the Armed Career Criminal Act.  The District Court denied the motion and denied a certificate of appealability (COA).  Welch sought a COA from the Court of Appeals, arguing that his plea was involuntary because the government "reneged" on his 10-year deal, and he got 15 to life instead.  He also claimed his Florida priors were invalid.

In a supplemental application, he asked for the case to be held for the Supreme Court's decision in Johnson v. United States, No. 13-7120.  The Eleventh Circuit did not hold it and denied Welch's application June 9, 2015.  The Supreme Court decided Johnson on June 26 and struck down the "residual clause" of the ACCA as unconstitutionally vague.

Curious that this is a grant for full briefing and argument and not a "vacate and remand for reconsideration in light of" Johnson.  The certiorari papers are not available online yet.

Does Johnson qualify for the "first Teague exception," making it retroactive on collateral review?  Yes, I think so.  The substantive statute was declared unconstitutional.  It is not a rule of procedure.

Update:  Lyle Denniston had this post yesterday at SCOTUSblog on another case presenting an issue of Johnson retroactivity, where the Solicitor General agreed that the Court should take the issue up.  If that is why the Court has taken Welch, then I can predict what will happen.  The Court will appoint an amicus to argue against retroactivity.  The amicus will get a footnote in the opinion praising his her efforts and a unanimous ruling against him her.

Update 2 (1/15):  Helgi C. Walker of Gibson Dunn has been "invited to brief and argue this case, as amicus curiae, in support of the judgment below."

9 Comments

I would predict unanimity too. But as a logical matter, I am not so sure that's the right answer. I could see some arguments that the "notice" problems aren't really as strong in the favor of the criminal since the criminal wasn't in a position where he had no notice as to what was unlawful and what was not. Also, there is a huge amount of artificiality in thinking about a "crime" as doing X while being some sort of habitual offender. What we're talking about are sentence enhancements based on conduct proven wrong beyond a reasonable doubt (or plea). Is that the sort of issue that merits the ripping open of settled judgments, particularly where there is a long reliance interest on the part of the government?

The criminal knew X was illegal when he did it. It seems a stretch to think he was entitled to future sentencing developments.

Interesting points, federalist, but in the context of Johnson isn't the issue really that ACCA defendants were unconstitutionally sentenced pursuant to a vague (and often arbitrarily applied) sentencing statute and they continue to suffer imprisonment based on that violation of their substantive due process right not to be imprisoned based on an unconstitutional sentence enhancement?

I understand your disinclination to "rip open" settled judgements when we are talking about retroactive application of a procedural rule that might not change the substantive outcome upon remand. But here, as Kent notes, we are talking about SCOTUS deciding (much too late, in my view) that part of a federal statute was unconstitutional because Congress wrote it awful. Though you may not agree with that substantive judgment, it would seem that the interest in an individual to be free from unconstitutionally wrongful imprisonment ought to trump the government's interest in preserving an unconstitutionally wrongful sentencing term.

Doug, we.already know that the sentences have turned out to be under a regime that is unconstitutional---so no the issue isn't that they were "unconstitutionally sentenced"--that's just the entry price. Last I checked, there isn't some unspecified right to have a criminal judgment opened long after appeals have been exhausted simply because the law changed. So unless you are positing that there should be such a right, your argument is long on pathos and short on law.

As for the merits, I noted above the attenuated interests. That won't likely persuade the Court, but I wouldn't vote to make this retroactive.

Actually, federalist, the norm at common law was for all criminal defendants to get the full retroactive benefit of any and all future rulings that would be to their benefit. The Supreme Court explained this traditional norm crisply more than 50 years ago in Linkletter v. Walker:


At common law there was no authority for the proposition that judicial decisions made law only for the future. Blackstone stated the rule that the duty of the court was not to "pronounce a new law, but to maintain and expound *623623 the old one." 1 Blackstone, Commentaries 69 (15th ed. 1809). This Court followed that rule in Norton v. Shelby County, 118 U.S. 425 (1886), holding that unconstitutional action "confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." At 442. The judge rather than being the creator of the law was but its discoverer. Gray, Nature and Sources of the Law 222 (1st ed. 1909). In the case of the overruled decision, ... it was thought to be only a failure at true discovery and was consequently never the law; while the overruling one ... was not "new law but an application of what is, and therefore had been, the true law." Shulman, Retroactive Legislation, 13 Encyclopedia of the Social Sciences 355, 356 (1934).


I do think defendants ought to have a right to claim the benefits of any and all beneficial changes in substantive constitutional (and statutory) law, though I understand and deem as reasonable in some circumstances the Supreme Court's creation of a limit on retroactivity for most purely procedural rules.

Also, vagueness doctrine is not just about notice, but also about arbitrary enforcement concerns.

Full retroactivity is necessarily bound up with the idea that courts do not make law but merely declare what the law has always been. That fiction was always strained, but in the Warren Court it became patently false. Neither Mapp v. Ohio nor Miranda v. Arizona could be said with a straight face to be a declaration of what the law had always been, and recognition of that is where we got the Linkletter/Stovall test.

But Justice Harlan, after originally going along, recognized that Linkletter/Stovall was also untenable. Though he was a lone dissenter at the time, his view, with some modifications, was eventually accepted in Griffith v. Kentucky (1987) and Teague v. Lane (1989).

If anyone on the defense side of the aisle wants to argue for a return to full retroactivity in the Blackstone mode, that would be fine with me as long as the other side of coin comes with it -- i.e., that decisions such as Mapp, Miranda, and the entire body of Eighth Amendment capital sentencing procedure cases are illegal and void, retroactively. I'm not expecting any takers on that.

The current law on retroactivity is probably better than any available alternative. The law is, in essence, full retroactivity on direct review, full retroactivity on collateral review for substantive rules, and no retroactivity on collateral review for procedural rules. (The "second exception" to Teague is dead, and I wish the Court would go ahead and officially sign the death certificate.)

I have long denounced judges who twist the law when they don't like the results, as the Ninth Circuit did with the substantive/procedural distinction in Summerlin v. Stewart, reversed by the Supreme Court in Schriro v. Summerlin. I'm not about to do the same thing just because I don't like the result. Johnson is substantive, regardless of whether it is correct, and it is retroactive.

For the record, Kent, I would probably take your proposed deal. But I say that as one who has never been much of a fan of the exclusionary rule or Miranda or some of the procedural rules SCOTUS has found in the Eighth Amendment to limit the death penalty (most of which, like a limit on some mandatory sentencing, I think make much more sense as Due Process protections and should apply outside just the capital context).

This point aside, Kent, I share your eagerness to clean up existing Teague doctrine (which I also think logically ought to focus on primarily on the accuracy of prior determinations and ought to apply differently when only a sentence and not a conviction is being challenged). And I appreciate you deep knowledge in this arena. Here is hoping the gaggle of new Justices might be inclined to try to seriously clean up some of the messiness that the prior generation created in this setting.

Doug, there is a fair bit of carelessness in your use of the word "[a]ctually", unless you meant to say: "Actually, federalist, you are right, there is [note the tense here] no such right." But I doubt that's what you meant to say---rather, it appears you meant to cover up a glaring legal error, i.e., "the issue [is] really that ACCA defendants were unconstitutionally sentenced . . . ." Um no. and nothing you've written says otherwise.

I also cannot help but point out the disingenuousness of the "accuracy" of sentences gambit. To speak in terms of "accuracy" when it comes to sentencing (unless we're talking about a formulaic sentencing scheme where input X equals a range of Y) is fundamentally inaccurate. Furthermore, the idea that decades after a crime a sentencing decision (where often one side will not have the motivation or resources to put forth its best case) will necessarily be more accurate is the kind of argument that makes lay people rightfully roll their eyes.

Please explain, federalist, why you think it wrong to speak of a sentence being inaccurate. If a past sentence was based on a factual mistake --- e.g., the PSR informed the judge that the defendant had 10 prior convictions when in fact he is a first offender --- I would be inclined to describe the resulting sentence as inaccurate when we learned the reality years later. What would you call the sentence in such a case?

As a result of Johnson, we have a situation in which SCOTUS has now concluded that some past ACCA sentences were based on a constitutional/legal mistake Congress made in drafting ACCA. I am likewise inclined to describe the sentences based on this mistake as inaccurate even though it is year later. What do you want to call the sentences?

In addition, I think it problematic to use the term settled judgment in this context when a defendant is still enduring severe and active burdens based on this judgment through continued incarceration. I think your view of the balance of the equities might make sense if we are considering cases involving short sentences long ago served and a defendant is now eager to correct a long ago past record simply for bookkeeping purposes. But for the person still serving prison time that would now be illegal to impose, the judgment surely does not feel settled.

As for whether there is a right, I think the Due Process Clause and the Eighth Amendment could and should be interpreted to confer a right to be released from continued imprisonment that is now based on a judgment that is now duly considered to be unconstitutional. I suspect you would not read the constitution this way, but the history of habeas jurisprudence would suggest my interpretation is at least plausible.

Doug, were you a basketball player in your previous life--you can pivot with the best of them.

First of all, you don't have to recap what's going on in Johnson. Everyone gets it--people got sentenced under a regime that was later declared unconstitutional.

Second, you talk about "accuracy" as if I didn't mention situations where there was a mechanical application of sentencing law (like the PSR hypo). I assumed that you got what I was getting at--Montgomery, since you apparently believe that "accuracy" is an issue there too. But whatever, you argue points that I "pre-acknowledged" in my post.

Third, you really should have acknowledged the accuracy of my post on the state of the law---you were careless with the word "actually"--you know it, and so do I, so why do you just ignore that?

Fourth, with respect to "settled judgment"--well, what do you want me to call it? Appeals are done. By the by, that case you cited earlier said that the Constitution doesn't cut either way on the retroactivity.

Fifth, I don't know why it took so many posts back and forth--I posited an argument that the particular criminal really didn't have a claim to a huge injustice. I could have added that the particular criminal probably didn't get maxed out (so to speak)--so it's possible (maybe even likely) that he/she would have gotten the same sentence had the sentencing regime been correct to start with. Maybe we don't make decisions on that basis, but some of these criminals might be getting a windfall.

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