Protecting the Fifth Amendment: The Residual Clause in the Mandatory Guidelines is Void for Vagueness

Authors

Olivia M. Tourgee

Document Type

Note

Abstract

(Excerpt)

The first part of this Note will address the specific problem the Mandatory Guidelines present. First, the Mandatory Guidelines will be defined, and the mandatory and binding nature of these Mandatory Guidelines will be explored in depth. Second, this Note will explain the significance of the Supreme Court’s opinion in Booker that declared the Mandatory Guidelines unconstitutional. Third, this Note will evaluate Beckles, where the Supreme Court held that the Advisory Guidelines were not subject to vagueness challenges. Thus, the first part of this Note will set the stage for the problem that the Mandatory Guidelines present.

The second part of this Note will discuss and provide a solution to the constitutional issues presented by the Mandatory Guidelines. First, defendant-appellants sentenced under the Mandatory Guidelines should not be left without a path to challenge the unconstitutionality of their sentences. Instead, criminal defendants sentenced under the Mandatory Guidelines should be able to challenge their sentences. In support of this argument, this Note focuses on Johnson II, where the Supreme Court held that the ACCA’s residual clause is void for vagueness. The ACCA is not the same authority as the Mandatory Guidelines; however, this Note argues that the Mandatory Guidelines should be treated the same way as the ACCA was in Johnson II because the residual clauses of each authority have identical language.

Second, allowing vagueness challenges to the Mandatory Guidelines is a workable and constitutional solution to the grave issue presented. Here, the Note will rely upon Welch v. United States, where the Supreme Court held that Johnson II announced a substantive rule that applies retroactively to cases on collateral review. Following the first argument of this section, defendant-appellants sentenced under the Mandatory Guidelines should be able to raise their constitutional challenge under Welch because the circumstances surrounding their sentences are identical to those in the ACCA’s residual clause.

The third part of this Note comprises the four arguments in favor of allowing vagueness challenges to the Mandatory Guidelines. First, the Mandatory Guidelines implicate vagueness due process concerns. Second, Johnson II and Beckles permit vagueness challenges to the Mandatory Guidelines. Third, the ACCA and the Mandatory Guidelines should be treated identically because of their similar residual clauses. Fourth, the Supreme Court has recognized a new rule applicable to the Mandatory Guidelines. Accordingly, defendant-appellants sentenced under the residual clause of the Mandatory Guidelines should be able to challenge their sentences as void for vagueness.