Criminal Told to Seek Relief From High Court

     CHICAGO (CN) – An Illinois man who received a 15-year sentence under the Armed Career Criminal Act will have to convince the Supreme Court of the statute’s vagueness in order to vacate his sentence, the 7th Circuit ruled.
     In 2011, Andre Jones was a passenger in a car pulled over by Springfield, IL police officers. Jones threw a handgun out of the window while officers were following the car and was later found in possession of an empty handgun holster and 18 grams of marijuana in his shoe.
     Jones admitted the gun was his and later pleaded guilty to one count of unlawful possession of a firearm by a convicted felon, a crime which normally carries a 10-year maximum penalty.
     At sentencing, Jones’s convictions for robbery, aggravated robbery, and aggravated vehicular fleeing from a police officer resulted in a 15-year mandatory minimum sentence under ACCA.
     In Welch v. United States, the 7th Circuit had determined that vehicular fleeing qualifies as a violent felony under the “residual clause” of ACCA, which includes any crime punishable by more than one year in prison that “is burglary, arson, or extortion, involves the use of explosive, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
     Jones appealed his sentence, arguing that the residual clause violates the Fifth Amendment’s Due Process Clause because it contains “no discernible standard to guide its application” and leads to arbitrary enforcement.
     “This position has at least one notable proponent,” 7th Circuit Judge Diane Sykes noted, Justice Antonin Scalia.
     “The residual clause has eluded stable construction. The Supreme Court has heard four ACCA residual-clause cases in fairly rapid succession in an effort to clarify the open-ended language of the clause and to establish a framework for how to distinguish crimes that qualify from crimes that do not.”
     These four cases, Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); James v. United States, 550 U.S. 192 (2007); Sykes v. United States, 131 S. Ct. 2267, 2284 (2011), have not decided an explicit void-for-vagueness challenge.
     Most recently, in Sykes, Scalia penned a dissent concluding that the residual clause “fails to speak with the clarity that criminal proscriptions require.”
     Judges must evaluate whether a crime “otherwise involves conduct that presents a serious potential risk of physical injury to another” when classifying violent felonies under the statute. But the four preceding examples of violent crimes – “burglary, arson, or extortion… [or the use] of explosive[s]” – are confusing with regards to the supposedly defining characteristic, Scalia determined.
     Judge Sykes summarized, “He gave the following example to illustrate the statute’s lack of clarity: ‘The phrase “shades of red,” standing alone, does not generate confusion or unpredictability; but the phrase “fire-engine red, light pink, maroon, navy blue, or colors that otherwise involve shades of red” assuredly does so.'”
     Scalia says that the Court’s “repeated inability to craft a principled test out of the statutory text” proves the statute’s “incurable vagueness.”
     Though no direct answer has been given, the 7th Circuit declined to adopt Jones’s position.
     “Although the Supreme Court has not formally considered the issue… In James the Court said this: ‘While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice Scalia’s suggestion … that the residual provision is unconstitutionally vague,'” Judge Sykes wrote.
     “We are reluctant to treat the Court’s responsive statements as mere dicta. Indeed, they are not dicta in the traditional sense.”
     “For us to say that the residual clause is unconstitutionally vague — essentially, that it lacks a coherent, ascertainable standard — would be to say that the Supreme Court failed to ascertain and apply a standard in James, Begay, Chambers, and Sykes. Justice Scalia may be right, but attributing failure to the Supreme Court is not within our authority. Jones must seek relief from the high court,” Sykes concluded.

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