Brown v. United States ( 2018 )

Cite as: 586 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
THILO BROWN v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17–9276. Decided October 15, 2018
The petition for a writ of certiorari is denied.
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from denial of certiorari.
Today this Court denies petitioners, and perhaps more
than 1,000 like them, a chance to challenge the constitu­
tionality of their sentences.1 They were sentenced under a
then-mandatory provision of the U. S. Sentencing Guide­
lines, the exact language of which we have recently identi­
fied as unconstitutionally vague in another legally binding
provision. These petitioners argue that their sentences,
too, are unconstitutional. This important question, which
has generated divergence among the lower courts, calls
out for an answer. Because this Court’s decision to deny
certiorari precludes petitioners from obtaining such an
answer, I respectfully dissent.
Petitioner Thilo Brown, like others whose petitions the
Court denies today, was sentenced as a “career offender”
under the U. S. Sentencing Guidelines. United States
Sentencing Commission, Guidelines Manual §4B1.1(a)
(Nov. 2004) (USSG). At the time, those Guidelines were
mandatory. They were “binding on judges” and carried
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1 In addition to Thilo Brown’s petition, this Court denies the petitions
of Gregory Molette, No. 17–8368; Bobby Jo Gipson and Keith Walker,
No. 17–8637; Carlos Wilson, No. 17–8746; Jason Greer, No. 17–8775;
Robert Homrich, No. 17–9045; Charles Chubb, No. 17–9379; Terrance
Smith, No. 17–9400; John Elwood Buckner, No. 17–9411; and Paul
Lewis, No. 17–9490. For the reasons expressed herein, I respectfully
dissent from denial of certiorari in their cases as well.
2 BROWN v. UNITED STATES
SOTOMAYOR, J., dissenting
“the force and effect of laws.” 2 United States v. Booker,
543 U.S. 220, 234 (2005).3 The Guidelines directed en­
hanced punishment for “career offender[s].” See USSG
§4B1.1(a). Defendants qualified as “career offender[s]” if
they had “at least two prior felony convictions of either a
crime of violence or a controlled substance offense.” Ibid.
There were different ways that a past conviction could
count as “a crime of violence,” but only one is at issue here:
A conviction counted as “a crime of violence” if it “in­
volve[d] conduct that presents a serious potential risk of
physical injury to another.” §4B1.2(a)(2) (Nov. 2002).
Because it supplied an amorphous catchall at the end of a
more definite list, that phrase has been known as the
“residual clause.” If the phrase sounds familiar, it may be
because in Johnson v. United States, 576 U. S. ___ (2015),
this Court considered the exact same language in another
provision where it was binding on judges and had the force
and effect of law: a statute called the Armed Career Crim­
inal Act (ACCA), 18 U.S. C. §924(e). Like the Guidelines,
——————
2 This Court accordingly ruled that the mandatory Guidelines vio-
lated the Sixth Amendment. See United States v. Booker, 543 U.S. 220,
226–227 (2005). The Court then rendered the Guidelines advisory by
striking down the provisions that had made them mandatory. See id.,
at 245.
3 Indeed, before Booker, this Court consistently held that the Sentenc­
ing Guidelines “b[ound] judges and courts in their uncontested respon­
sibility to pass sentence in criminal cases.” Mistretta v. United States,
488 U.S. 361, 391 (1989); see also Stinson v. United States, 508 U.S.
36, 42 (1993) (“The principle that the Guidelines Manual is binding on
federal courts applies as well to policy statements”). The lower courts
heeded that instruction. See United States v. Hendricks, 171 F.3d
1184, 1186 (CA8 1999) (“The sentencing guidelines are, of course,
binding on federal district courts”); accord, United States v. Lafayette,
337 F.3d 1043, 1051–1052 (CADC 2003); United States v. Stephens,
347 F.3d 427, 430 (CA2 2003); United States v. Barbosa¸271 F. 3d 438,
465 (CA3 2001); United States v. Bahe, 201 F.3d 1124, 1129, n. 5 (CA9
2000); United States v. Harriott, 976 F.2d 198, 202–203 (CA4 1992);
United States v. Lee, 957 F.2d 770, 772 (CA10 1992).
Cite as: 586 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
the ACCA also required enhanced punishments for career
offenders. And, like the Guidelines, the ACCA included its
own residual clause. In fact, the ACCA’s residual clause
was identical to the Guidelines’ residual clause. See
§924(e)(2)(B)(ii) (“ . . . involves conduct that presents a
serious potential risk of physical injury to another”).
Johnson struck down the ACCA’s residual clause as
unconstitutionally vague. 576 U. S., at ___ (slip op., at 3).
You might think that if a sequence of words that increases
a person’s time in prison is unconstitutionally vague in
one legally binding provision, that same sequence is un­
constitutionally vague if it serves the same purpose in
another legally binding provision. Indeed, after Johnson,
the Sentencing Commission deleted the residual clause
from the Guidelines. See USSG §4B1.2(a)(2) (Nov. 2016).
But for petitioners like Brown, who were sentenced long
before Johnson, this Court has thus far left the validity of
their sentences an open question. See Beckles v. United
States, 580 U. S. ___, ___, ___–___ (2017) (slip op., at 5, 9–
10); id., at ___, n. 4 (slip op., at 10, n. 4) (SOTOMAYOR, J.,
concurring). The Court’s decision today all but ensures
that the question will never be answered.
In these petitions, that question largely overlaps with a
related, timeliness question: whether Brown and his
fellow petitioners may rely on the right announced in
Johnson, in the ACCA context, to attack collaterally their
mandatory-Guidelines sentences. Federal law imposes on
prisoners seeking to mount collateral attacks on final
sentences “[a] 1-year period of limitation . . . from the
latest of ” several events. See 28 U.S. C. §2255(f ). One
event that can reopen this window is this Court “newly
recogniz[ing]” a right and making that right “retroactively
applicable to cases on collateral review.” §2255(f )(3). The
right recognized in the ACCA context in Johnson, we have
held, is retroactive on collateral review. Welch v. United
States, 578 U. S. ___, ___ (2016) (slip op., at 9).
4 BROWN v. UNITED STATES
SOTOMAYOR, J., dissenting
The question for a petitioner like Brown, then, is whether
he may rely on the right recognized in Johnson to chal­
lenge identical language in the mandatory Guidelines.
Three Courts of Appeals have said no. See 868 F.3d 297
(CA4 2017) (case below); Raybon v. United States, 867
F.3d 625 (CA6 2017); United States v. Greer, 881 F.3d
1241 (CA10 2018). One Court of Appeals has said yes.
See Cross v. United States, 892 F.3d 288 (CA7 2018).
Another has strongly hinted yes in a different posture,
after which point the Government dismissed at least one
appeal that would have allowed the court to answer the
question directly. See Moore v. United States, 871 F.3d
72, 80–84 (CA1 2017); see also United States v. Roy, 282
F. Supp. 3d 421 (Mass. 2017); United States v. Roy, With­
drawal of Appeal in No. 17–2169 (CA1). One other court
has concluded that the mandatory Guidelines themselves
cannot be challenged for vagueness. See In re Griffin, 823
F.3d 1350, 1354 (CA11 2016).
Regardless of where one stands on the merits of how far
Johnson extends, this case presents an important question
of federal law that has divided the courts of appeals and in
theory could determine the liberty of over 1,000 people.4
That sounds like the kind of case we ought to hear. See
this Court’s Rules 10(a), (c).5 Because the Court neverthe­
less declines to do so, I respectfully dissent.
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4 See
Brief for Eight Federal Public Defender Offices as Amici Curiae
in No. 16–7056 (CA4), pp. 1a–5a (estimating 1,187 cases pending
nationwide).
5 Rule 10 sets forth situations that can weigh in favor of certiorari,
although they are “neither controlling nor fully measuring the Court’s
discretion.” Rule 10(a) points to a situation in which “a United States
court of appeals has entered a decision in conflict with the decision of
another United States court of appeals on the same important matter.”
Rule 10(c) points to a situation in which “a United States court of
appeals has decided an important question of federal law that has not
been, but should be, settled by this Court.”