Two years ago, in Johnson v. United States, the Supreme Court held that the so-called “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Last spring, the Court made this rule retroactive in Welch v. United States. Then in June, the Court granted certiorari in Beckles v. United States to resolve two questions that have split lower courts in the wake of Johnson and Welch: (1) whether an identically worded “residual clause” in a U.S. Sentencing Guideline—known as the career offender Guideline—is unconstitutionally void for vagueness; and (2) if so, whether the rule invalidating the Guideline’s residual clause applies retroactively. The questions on which the Court granted certiorari in Beckles turn on how similar the ACCA and the Sentencing Guidelines are. Both the ACCA and the Sentencing Guidelines impose additional punishment on defendants with previous convictions for violent felonies, and both the ACCA and the Sentencing Guidelines define “violent felonies” to include any crime that “involves conduct that presents a serious potential risk of physical injury to another.” Those thirteen words are called the “residual clause,” in both the ACCA and the Sentencing Guidelines, and courts have interpreted this identical language the same way.
Litman, Leah and Luke C. Beasley. "How the Sentencing Commission Does and Does Not Matter in Beckles v. United States." University of Pennsylvania Law Review Online 165 (2016): 33-46.
Work published prior to Prof. Litman joining the MLaw faculty.