Johnson v. U.S. and the End of the Residual Clause

Posted by Yancey Ellis | Feb 04, 2016 | 0 Comments

Samuel Johnson was being monitored by the Federal Bureau of Investigation related to his involvement with a white-supremacist organization. During the investigation, an undercover agent said Johnson talked about counterfeiting money, producing napalm and other explosives, and showed the agent an AK-47.

Johnson was already a multiple felon, which meant that possessing the gun alone was enough to get him arrested and sentenced to a maximum of 10 years in prison. However, because of two prior robbery convictions, and a third conviction for possession of a sawed-off shotgun, Johnson was sentenced to a minimum of 15 years in prison under the Armed Career Criminal Act (ACCA).

The ACCA imposes harsh mandatory minimum sentences on anyone in possession of a firearm if they had been convicted three or more times for serious drug offenses, or “violent felonies.” The problem with the law is that it is not always clear what kind of felonies are to be included. This often results in excessive, minimum 15 year sentences that are out of synch with the underlying violations, because it is up to the court to determine whether the felonies would qualify as “violent” under the statute.

The ACCA defines a “violent felony” as a felony 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. Code § 924(e)(2)(B).

Johnson's two robbery convictions counted as violent felonies; however, possession of a sawed-off shotgun does not so clearly fall within the definition of a violent felony. In this case, it was the judge who determined the shotgun counted as a violent felony, leading to the enhanced penalty.

According to the federal district judge, having the shotgun fell within the “residual clause” of the ACCA, the catch-all provision at the end of the “violent felony” definition which includes crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

Johnson twice appealed the decision, and lost both times. However, the Supreme Court eventually took up the case on the issue of whether the shotgun possession conviction qualified as a violent felony under the residual clause of the ACCA, and whether the residual clause was unconstitutionally vague.

Ultimately, the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment. The categorical approach required judges to imagine an “ordinary case” of the crime, rather than how the law defines the offense. It also led to judges guessing how much risk may be involved in an ordinary case of the criminal act to be considered a violent felony.

The judgment was reversed and remanded, likely to the relief of Johnson. However, this brought rise to a bigger question of what would happen to all the other individuals serving mandatory minimum sentences under the ACCA. What was the retroactive impact of Johnson on the estimated 600 people a year who have their sentences enhanced under the ACCA? That question may be answered soon as the Supreme Court hears the case of Welch v. United States.

About the Author

Yancey Ellis

Yancey is the managing partner at Carmichael Ellis & Brock, PLLC. He is critical to our firm-wide mission of service to the indigent, upholding the Constitution, and guiding our clients through the criminal justice system. As a Marine Corps JAG reservist, Yancey also assists military service members and veterans with their special legal needs.           


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