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Residual Clause

By: Derek Hawkins//September 6, 2016//

Residual Clause

By: Derek Hawkins//September 6, 2016//

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7th Circuit Court of Appeals

Case Name: United States of America v. Tony A. Hurlburt; United States of America v. Joshua Gillespie

Case No.: 14-3611; 15-1686

Officials: WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.

Focus: Residual Clause

United States v. Tichenor is overruled; the residual clause in §4b1.2(a)(2) is unconstitutionally vague.

Tony Hurlburt and Joshua Gillespie pleaded guilty in separate cases to unlawfully possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). Their appeals raise the same legal issue, so we’ve consolidated them for decision. To calculate the Sentencing Guidelines range in each case, the district court began with U.S.S.G. § 2K2.1(a), which assigns progressively higher offense levels if the defendant has one or more prior convictions for a “crime of violence.” The term “crime of violence” is defined in the career-offender guideline and includes “any offense … that … is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2) (2014) (emphasis added). The highlighted text is known as the “residual clause.” The residual clause in § 4B1.2(a)(2) mirrors the residual clause in the Armed Career Criminal Act (“ACCA”), which steeply increases the minimum and maximum penalties for § 922(g) violations. 18 U.S.C. § 924(e)(2)(B). One year ago the Supreme Court invalidated the ACCA’s residual clause as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). The question here is whether Johnson’s holding applies to the parallel residual clause in the career offender guideline. An emerging consensus of the circuits holds that it does. See infra pp. 17–18. In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit precedent—namely, United States v. Tichenor 683 F.3d 358, 364–65 (7th Cir. 2012)—holds that the Guidelines are not susceptible to challenge on vagueness grounds. But Tichenor was decided before Johnson and Peugh v. United States, 133 S. Ct. 2072 (2013), which have fatally undermined its reasoning. Accordingly, we now overrule Tichenor. Applying Johnson, we join the increasing majority of our sister circuits in holding that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

Vacated and remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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