United States District Court, District of Columbia
C. Lamberth, United States District Judge.
Derrek Arrington seeks a court order modifying his sentence
under 28 U.S.C. § 2255. He looks for relief in the
holding of Johnson v. United States, 135 S.Ct. 2551
(2015). The Johnson Court held that the residual
clause defining “violent felony” under the Armed
Career Criminal Act (ACCA) was unconstitutionally vague.
Arrington was sentenced pursuant to then-mandatory guidelines
that contained an identical residual clause defining
“crime of violence.” If the ACCA residual clause
is unconstitutionally vague, the logic goes, so too is the
residual clause under the mandatory sentencing guidelines.
The government objects to all this and more. It says that
Arrington’s claim is untimely and procedurally
defaulted, that Johnson did not apply to the
mandatory sentencing guidelines, that it cannot apply to the
guidelines retroactively anyways, and that in any event
Arrington’s sentence was still valid under other,
unchallenged clauses within the guidelines.
September of 2000, a jury convicted Arrington of assaulting a
federal officer with a dangerous weapon, in violation of 18
U.S.C. § 111(a) and (b), and unlawful possession of a
firearm by a convicted felon, in violation 18 U.S.C. §
922(g). Def.’s Suppl. Mot. Vacate 4, ECF No. 177.
Because Arrington had already been convicted of two separate
armed robbery offenses-one in Maryland and one in Washington,
D.C.-Judge Robertson sentenced him as a “career
offender” under the mandatory guidelines. Id.
at 5–6. The career offender designation raised the
sentencing guideline range, and Arrington received the
statutory maximums for his § 111 and § 922
convictions-twenty years in all. Id. at 7. He
appealed, but the D.C. Circuit affirmed. United States v.
Arrington, 309 F.3d 40 (D.C. Cir. 2002). He filed a
previous § 2255 motion, which was denied. Def.’s
Suppl. Mot. Vacate 8–9, ECF No. 177. In June of 2016,
he filed this second § 2255 motion. Emerg. Suppl. Mot.,
ECF No. 174.
motion relies on the Supreme Court’s 2015 holding in
Johnson. There, the Court considered whether one of
the clauses defining “violent felony” under the
ACCA was unconstitutionally vague. Johnson, 135
S.Ct. at 2555. The statute defined a violent felony as:
any crime punishable by imprisonment for a term exceeding one
year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added).
to the Court, the italicized residual clause was indeed void
for vagueness. Johnson, 135 S.Ct. at 2563.
“Two features of the residual clause conspire to make
it unconstitutionally vague.” Id. at 2557.
First, it “leaves grave uncertainty about how to
estimate the risk posed by a crime. It ties the judicial
assessment of risk to a judicially imagined ‘ordinary
case’ of a crime, not to real-world facts or statutory
elements.” Id. And second, it “leaves
uncertainty about how much risk it takes for a crime to
qualify as a violent felony. It is one thing to apply an
imprecise ‘serious potential risk’ standard to
real-world facts; it is quite another to apply it to a
judge-imagined abstraction.” Id. at 2558. In
other words, the clause invited unpredictable and arbitrary
years later, the Court expounded on Johnson in
Beckles v. United States, 137 S.Ct. 886 (2017). In
considering a vagueness challenge to the advisory
sentencing guidelines, the Court looked to “the twin
concerns underlying vagueness doctrine-providing notice and
preventing arbitrary enforcement” Id. at 894.
Unanimously, the Court distinguished the advisory
guidelines’ residual clause from its carbon copy struck
down in Johnson. Id. at 897. Advisory
sentencing guidelines, according to the Court, are
fundamentally different from the statute at issue in
Johnson and are not subject to due process vagueness
challenges. Id. The Court was satisfied that notice
is adequately provided by the statutory ranges that the
guidelines operate within. Id. at 894. Prohibited
conduct and its spectrum of associated punishment is already
publicized to would-be defendants-the guidelines merely
advise a judge within that spectrum. See Id . at 895
(“[T]he legally prescribed range is the
penalty affixed to the crime.” (citing Alleyne v.
United States, 570 U.S. 99, 112 (2013))). Arbitrary
enforcement concerns are likewise misplaced-the guidelines
are not regulations to be enforced at all, but rather
conventions to be consulted. Id. at 894.
the ACCA, the advisory guidelines do not “fix the
permissible sentences” for crimes. Id. at 892.
When Arrington was sentenced, however, the sentencing
guidelines were “mandatory and binding on all
judges.” United States v. Booker, 543 U.S.
220, 233 (2005). Departures were rarely available.
Id. at 234. In 2005, the Supreme Court in
Booker struck down the “mandatory”
portions of the sentencing statute, rendering the guidelines
merely advisory. Id. at 259. The clause at issue in
Beckles is the very same one Arrington now
confronts, the only difference being the mandatory force of
the guidelines during Arrington’s sentencing. While
Beckles foreclosed challenges to the clause under
the advisory regime, it did not decide whether its holding
extended to sentences imposed under the mandatory guidelines.
Concurring in Beckles, Justice Sotomayor pointed
The Court's adherence to the formalistic distinction
between mandatory and advisory rules at least leaves open
the question whether defendants sentenced to terms of
imprisonment before our decision in [Booker]-that
is, during the period in which the Guidelines did “fix
the permissible ...