Johnson Can Help Your Guy Even If He’s Out.

November 3, 2015
By Hanging Out with Carl Gunn


  • The recent Supreme Court opinion holding the Armed Career Criminal Act residual clause unconstitutional – United States v. Johnson – can be used to help even clients who have completed serving their prison sentences.
  • Both guidelines commentary and Ninth Circuit case law suggest a showing the defendant wrongfully served excess time in custody can be used as a basis for modifying or terminating the term of supervised release.
  • Such a showing could also be used to argue for a lower custody term for revocation of supervised release after a violation.



You may recall (I hope you do) the great case of United States v. Johnson, 135 S. Ct. 2551 (2015) that I put up a post about a few months back (see “More than a Residual Victory” in the June 2015 link at the right).  It held the residual clause in the Armed Career Criminal Act (and, by analogy, the career offender guideline) unconstitutional.  This invalidated a number of sentences which were enhanced based on convictions that qualified as “violent felonies” or “crimes of violence” only under the residual clause.

There’s been a lot of talk about applying Johnson retroactively to help our clients who are still serving sentences that now should be shorter.  But some of our clients have already completed their unconstitutionally long sentences and you can’t give time back to someone who’s already lost it.

Well, yes and no.  I thought I’d post today about an idea a colleague of mine recently came up with about how to use Johnson to help even a client who’s already been released.  If the client’s still on supervised release, we can use Johnson in two potential ways.

Initially, there’s both case law and sentencing guideline commentary that suggests a judge can take excess time wrongfully served into custody in considering whether to terminate or reduce the term of supervised release.  The sentencing guideline commentary is Application Note 7(B) to § 1B1.10, which is the guideline implementing 18 U.S.C. § 3582(c)(2)’s provision for reducing sentences based on retroactive guideline amendments.  In discussing a subsection of § 1B1.10 that bars a court from reducing the term of imprisonment below what the defendant has already served, the application note suggests “the court may consider any such reduction that it was unable to grant in connection with any motion for early termination of supervised release under 18 U.S.C. 3582(e)(1).”  U.S.S.G. § 1B1.10, comment. (7(B)).

There’s also case law suggesting courts have this power.  In a line of cases holding that a sentencing appeal is not moot simply because the defendant has already finished serving the sentence he is appealing, the Ninth Circuit has given as its reason that a judge could take the excess time served into account in considering a modification of the supervised release term.  See Mujahid v. Daniels, 413 F.3d 991, 994-95 (9th Cir. 2005) and cases cited therein.  And the court suggested in the first of these cases that this was not only permissible but affirmatively appropriate.  It stated:

If the district court decides to shorten the extent of the [upward] departure, the extra time [the defendant] spent in jail should, in fairness, be counted towards the year of supervised release.  Incarceration, after all, is surely even a severer punishment than supervised release.

United States v. Montenegro-Rojo, 908 F.2d 425, 431 n.8 (9th Cir. 1990).

The government may respond – as it did in my colleague’s case – with language from cases that say things like a court “err[s] in treating [a defendant’s] time in prison as interchangeable with his term of supervised release,” United States v. Johnson, 529 U.S. 53, 60 (2000), that a court “cannot credit [the defendant’s] supervised release term with the ‘extra’ time he served in custody,” United States v. Figuroa-Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007), and that “a prisoner who wrongfully serves excess prison time is not entitled to an automatic reduction in his term of supervised release,” Mujahid v. Daniels, 413 F.3d at 994.  The response is that we’re not arguing for “credit” or arguing that our clients are “entitled” to an “automatic” reduction but just arguing for an exercise of discretion.  And the same Ninth Circuit cases quoted above expressly recognize a court has discretion to grant a reduction or termination of supervised release based on excess time wrongfully served in custody.  See Figuroa-Ocampo, 494 F.3d at 1216 (quoting United States v. Allen, 434 F.3d 1166, 1170 (9th Cir. 2006) for proposition that “the district court could resentence [the defendant] to a shorter term of supervised release in light of [the fact that defendant should have been sentenced to] a shorter term of imprisonment”); Mujahid, 413 F.3d at 995 (recognizing “the ‘possibility’ that the sentencing court would use its discretion to reduce a term of supervised release” (emphasis added)).

There is language in the Supreme Court opinion cited above – also pointed out by the government in my colleague’s case – explaining its statement that prison time isn’t interchangeable with supervised release, including that (1) “Congress intended supervised release to assist individuals in their transition to community life”; (2) “[s]upervised release fulfills rehabilitative ends, distinct from those served by incarceration”; and (3) “supervised release, unlike incarceration, provides individuals with postconfinement assistance.”  Johnson, 529 U.S. at 59-60.  But this can’t be read to deprive district courts of discretion for two reasons.  First, the Ninth Circuit opinions cited in the preceding paragraph were written after this Supreme Court opinion, so they clearly don’t read it the way the government wants.  See Mujahid, 413 F.3d at 994 (responding that “our post-Johnson precedent does not support construing Johnson in the manner advocated by the government”).  Second, just frame your argument with these comments from the Supreme Court in mind, by arguing that your client’s already made the “transition to community life,” is already rehabilitated, and either no longer needs “postconfinement assistance” or isn’t getting it from supervised release.

There’s also another, perhaps even better, way to use your client’s excess time wrongfully served in custody that completely avoids this language in the Supreme Court opinion.  Consider a case where the client’s violated the terms of his supervised release and the only question is how much time he’s going to spend in custody for the violation.  Where a court is planning to terminate supervised release and simply impose a term in custody, the purposes of supervised release articulated in the Supreme Court opinion are no longer implicated.  Certainly at that point, it’s appropriate to give some consideration to prior undue harshness.  As support for this, you can analogize to commentary to the revocation guideline which suggests an upward departure is appropriate for the violation sentence “[w]here the original sentence was the result of a downward departure . . . or a charge reduction that resulted in a sentence below the guideline range.”  U.S.S.G. § 7B1.4, comment. (n.4).  If prior undue leniency justifies an upward departure, prior undue harshness ought to justify a downward departure.

So don’t think your clients who are already out can’t benefit from Johnson‘s holding that the residual clause is unconstitutional.  A court may not be required to give them its benefit, but it certainly can if it wants to.