More than a Residual Victory

June 30, 2015
By Hanging Out with Carl Gunn


  • The Supreme Court has just held the residual clause of the Armed Career Criminal Act unconstitutionally vague – in Johnson v. United States.
  • This invalidates a host of court of appeals decisions holding various convictions to be for “violent felonies” under the residual clause, including convictions for burglary under overbroad burglary statutes; kidnapping and false imprisonment under statutes that include seizing and/or confinement by fraud; theft from the person; eluding an officer; weapons possession offenses; and non-forcible sex offenses.
  • Johnson also reiterates and reaffirms the reasons for using a categorical approach in evaluating a prior conviction rather than inquiring into the underlying conduct.



Today’s post is about our recent, wonderful Supreme Court victory (well, technically the Minnesota Federal Public Defender’s victory in which we’re all vicariously sharing) in Johnson v. United States, No. 13-7120, 2015 WL 2473450 (U.S. June 26, 2015).  For those of you who don’t already know, Johnson held that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague.  That’s the catch-all part of the definition of “violent felony” that sweeps in any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”  18 U.S.C. § 924(e)(2)(ii).  And the same residual clause is also included in the sentencing guidelines “crime of violence” definition that’s used in the career offender guideline and firearms guideline.  See U.S.S.G. § 4B1.2(a)(2); U.S.S.G. § 2K2.1, comment. (n.1).

After Johnson, the government can’t use this residual clause at all.  To categorize a prior conviction as a conviction for a “violent felony” under the Armed Career Criminal Act – or, it would seem, a “crime of violence” under the career offender guideline or firearms guideline – the government will have to show it comes within one of the other parts of the definition.  That means showing the offense of conviction either (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2(a)(1), meaning what the Supreme Court in another Johnson case – Johnson v. United States, 559 U.S. 133 (2010) – called “violent force – that is, force capable of causing physical pain or injury to another person,” id. at 140 (emphasis in original), or (2) is one of the specific enumerated offenses of “burglary [or in the case of the guidelines, burglary of a dwelling], arson, or extortion,” 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2), in its generic form as established by Supreme Court or circuit case law, see Taylor v. United States, 495 U.S. 575, 598 (1990) (adopting generic definition of burglary); United States v. Velasquez-Reyes, 427 F.3d 1227, 1230 (9th Cir. 2005) (adopting generic definition of arson adopted by Second Circuit in United States v. Hathaway, 949 F.2d 609, 610 (2d Cir. 1991)); United States v. Anderson, 989 F.2d 316 (9th Cir. 1993) (adopting generic definition of extortion).

This means revisiting a host of adverse Ninth Circuit holdings (and those of other circuits, of course) that were based on the residual clause.  Those include, but are by no means limited to:

1. Overbroad versions of the enumerated offenses – or other offenses – which the court saved by turning to the residual clause.  Perhaps the most frequently occurring examples are convictions under the California, Arizona, and Oregon burglary statutes, which are all broader than generic burglary but nonetheless were found to qualify as “violent felonies” or “crimes of violence” under the residual clause.  See United States v. Park, 649 F.3d 1175 (9th Cir. 2011); United States v. Terrell, 593 F.3d 1084, 1093-95 (9th Cir. 2010); United States v. Mayer, 560 F.3d 948, 958-63 (9th Cir. 2009).  See also United States v. Crews, 621 F.3d 849 (9th Cir. 2010) (using residual clause to bring overbroad assault statute within “violent felony” definition).

2. Kidnapping – and false imprisonment and other such offenses – that include seizing and/or confinement by deception or fraud in addition to force.  See, e.g., United States v. Chandler, 743 F.3d 648, 655-57 (9th Cir. 2014).

3. Theft from the person.  See United States v. Wofford, 122 F.3d 787, 793-94 (9th Cir. 1997).

4. Eluding an officer.  See United States v. Sykes, 564 U.S. 1 (2011).

5. Possession of an unregistered firearm.  United States v. Hayes, 7 F.3d 144, 145 (9th Cir. 1993).

6. Possession of a deadly weapon in prison.  United States v. Young, 990 F.2d 469, 472 (9th Cir. 1993).

7. Non-forcible sex offenses against a minor (which has produced so many cases all over the map that I won’t even try to cite an example).

These and every other Ninth Circuit case finding a prior conviction to be a “violent felony” based on the residual clause – or, presumably, a “crime of violence” under the guidelines – are now out the window.

This new Supreme Court Johnson opinion also reiterates and reinforces the reasons courts must use the categorical approach in evaluating a prior conviction rather than inquiring into the facts of the defendant’s actual conduct.  In rejecting a suggestion that it save the residual clause by interpreting it to refer to the risk posed by the defendant’s actual conduct – which the Court noted would “jettison” the categorical approach – the Court reaffirmed its original adoption of the categorical approach:

Taylor [v. United States, 495 U.S. 575 (1990)] had good reasons to adopt the categorical approach, reasons that apply no less to the residual clause than to the enumerated crimes.  Taylor explained that the relevant part of the Armed Career Criminal Act “refers to ‘a person who . . . has three previous convictions’ for – not a person who has committed – three previous violent felonies or drug offenses.  495 U.S., at 600.  This emphasis on convictions indicates that “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.”  Ibid.  Taylor also pointed out the utter impracticability of requiring a sentencing court to reconstruct, long after the original conviction, the conduct underlying that conviction.  For example, if the original conviction rested on a guilty plea, no record of the underlying facts may be available.

Johnson, 2015 WL 2473450, at *9.

So we have two things in this new opinion.  First, and most important, the residual clause – and all of the cases relying upon it – are out the window.  Second, we have reiteration and reinforcement of the rationales for the categorical approach.