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Third Circuit Voids Residual Clause of Sentencing Guidelines Section 4B1.2

Burton A. Rose, Esq. on 8/15/2016

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There is nothing more important in federal criminal practice than what happens at sentencing. With the United States Department of Justice reporting a 93 percent conviction rate, almost all federal prosecutions seem to end up in a sentencing hearing. Under the United States Sentencing Guidelines, if someone is determined to be a career offender, then the length of their sentence can be enormous. Therefore it becomes crucial to find out if your client has a criminal history that will warrant him or her being adjudicated as a career offender.

In United States v. Michael Calabretta, 2016 WL 3997215, July 26, 2016, docket number 14-3969, a panel of the United States Court of Appeals for the Third Circuit ruled that Sentencing Guideline Section 4B1.2, concerning career offender status, cannot survive the recent decision of Johnson v. United States, 135 S. Ct. 2551 (2015). In that case, the United States Supreme Court ruled that the residual clause of the Armed Career Criminal Act was too vague as it did not define with specificity what constitutes a violent crime.

In Calabretta, the appellant had a prior conviction for eluding the police. The United States District Court for the District of New Jersey held that this was a crime of violence under the residual clause of the applicable sentencing guideline. The defendant was determined to be a career offender and sentenced accordingly. There was no objection at the time of sentencing to the crime of eluding being considered as part of his career offender history.

The Third Circuit panel, in an opinion written by Judge Chagares and joined by Judge Jordan, ruled that under the Johnson decision, it was plain error for the District Court to consider that conviction as a crime of violence. The residual clause of Section 4B1.2 suffered from vagueness the same way that the residual violent felony definition in the Armed Career Criminal Act was condemned by the Johnson Court.

Judge Fisher dissented on the basis that this error was not plain since the District Court had carefully considered all of the appropriate sentencing factors in this case and the defendant's lawyer had not lodged an objection to the application of the residual clause. Judge Fisher was concerned that this ruling would improperly expand the scope of the doctrine of plain error which allows an appellate court to decide on the merits an issue that had not been properly advanced and preserved in the trial court.

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