AuthorCoyle, Nicholas C.


The Armed Career Criminal Act (ACCA) imposes mandatory minimum sentences on individuals convicted of being a felon in possession of a firearm who have at least three prior convictions for "violent felon[ies]." (1) "Violent felon[ies]" include those crimes contemplated by the ACCA's "residual clause," (2) which sweeps in any crime that "involves conduct that presents a serious potential risk of physical injury to another." (3) The Supreme Court ruled that the residual clause was unconstitutional in Johnson v. United States in 2015. (4) As the decision in Johnson was retroactive, (5) individuals whose sentences were enhanced on the basis of the residual clause may seek relief under Johnson. (6)

In affording such relief, however, the circuits disagree as to what standard of proof should apply to the question of whether a sentence enhancement was in fact based on the residual clause. (7) Some circuits have held that a movant (8) must show only that his sentence enhancement "may have" been based on the residual clause in order to have the sentence vacated. (9) Other circuits, however, have held that a movant must meet the higher preponderance-of-the-evidence standard by showing that the judge more than likely relied on the residual clause in handing down the sentence. (10) In 2019, the Fifth Circuit in United States v. Clay chose sides in the circuit split by adopting the harsher preponderance-of-the-evidence standard. (11) This Note uses the Fifth Circuit's decision in Clay as a springboard for analyzing the consequences of the preponderance-of-the-evidence standard. (12)

Part I of this Note contains an overview of the ACCA and its history, the law governing collateral review of federal criminal sentences, and the reactions of other courts of appeals immediately following Johnson, as well as an analysis of the Fifth Circuit's decision in Clay. (13) Part II of this Note makes two main arguments for why Clay was wrongly decided. (14) The first is that the preponderance-of-the-evidence standard announced in Clay is grounded in a misunderstanding of the presumption of finality in collateral review, as claims for relief under Johnson represent precisely the type of scenario in which the presumption of finality should give way. (15) The second argument is that the preponderance-of-the-evidence standard is unfair because it leads to inconsistent results in which some unlucky movants who were sentenced under the residual clause must remain in prison to serve out unconstitutional sentences due to unclear sentencing records, a problem exacerbated by the Supreme Court's decisions prior to Johnson. (16)

To remedy the problems presented by the preponderance-of-the-evidence standard, this Note proposes a two-part solution in Part III. (17) First, the Supreme Court should weigh in on this issue in order to resolve the split among the circuits and clarify that the correct standard of proof on collateral review under Johnson is the lower may-have standard. (18) Second, in order to prevent similar injustices in the future, the Supreme Court should extend the principle first elucidated in Stromberg v. California (19) to situations such as the one presented in Clay (20)


    1. The Armed Career Criminal Act

      Under federal law, it is a crime for a person who has been convicted of a felony (21) to possess a firearm. (22) The ACCA imposes mandatory fifteen-year minimum sentences upon felons convicted of possessing a firearm who have three or more prior convictions for "a violent felony or a serious drug offense, or both." (23) The meaning of "violent felony"--both as defined in the statute and as interpreted by the courts--has undergone numerous revisions since the ACCA was first enacted in 1984. (24)

      Under the law's current formulation, there are three ways in which a conviction can qualify as a "violent felony" (or, in the language of the courts, a "predicate offense" (25)) under the ACCA. (26) First, under [section] 924(e)(2)(B)(i) (the "elements clause" (27)), crimes that have the use of force as an element (whether actual, threatened or attempted) are predicate offenses. (28) Second, subsection (ii) names specific crimes that are predicate offenses. (29) These enumerated offenses are burglary, arson, extortion, and any crime that "involves use of explosives." (30) Third, and finally, subsection (ii) also contains the ACCA's residual clause, which makes any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" a predicate offense. (31)

      When determining whether a given crime is a predicate offense, courts use a "categorical approach," meaning that courts do not consider the facts of the particular instance of the crime giving rise to the conviction; instead, courts consider only the elements of the offense in the abstract. (32) Thus, whether a felony was actually accomplished in a violent manner is irrelevant to residual clause analysis. (33) What matters instead is whether an "idealized ordinary case" of the crime, as determined by analyzing the text of the statute in a vacuum, (34) "involves conduct that presents a serious potential risk of physical injury to another." (35) Due to uncertainty created by a reliance upon this "judicially imagined 'ordinary case'" of a crime, as well as a lack of a satisfying standard for how risky a crime must be to qualify as a "violent crime," in 2015 the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague in Johnson v. United States. (36)

    2. Collateral Attacks in Federal Criminal Cases

      While all of the Supreme Court's decisions creating new rules apply automatically to criminal cases that are still pending on direct appeal, only some decisions--namely, substantive rules of law and certain "watershed" procedural rules--apply retroactively to cases in which judgements are final. (37) Under 28 U.S.C. [section] 2255--the modern codification of the writ of habeas corpus for federal prisoners (38)--a federal prisoner may file a motion to have his sentence vacated, set aside, or corrected if it was "imposed in violation of the Constitution or laws of the United States." (39) As such, a Supreme Court decision announcing a new rule of law can afford retroactive relief even in a case that is already final, as long as the new rule of law is deemed to be substantive or, if procedural, a "watershed" decision. (40)

      While [section] 2255 creates a path to collateral relief, that path is beset by judicial and legislative hurdles. The law governing collateral relief is undergirded by a "presumption of finality and legality" that attaches to a criminal conviction once direct appeals have been completed, and, as such, movants face a high burden on collateral attack. (41) This presumption was further strengthened by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (42) AEDPA, for example, imposes a "strict statute of limitations" that time-bars movants' claims for relief, which courts may invoke sua sponte even when the government has failed to raise the timeliness issue. (43) The presumption of finality, especially in light of AEDPA, animates much of the law of collateral review today. (44)

    3. Post-Johnson Collateral Attacks on Sentences Based upon the Residual Clause

      While the Court's decision in Johnson striking down the residual clause of the ACCA as unconstitutional applied automatically to cases that were still pending on direct appeal, it was unclear whether the ruling would apply retroactively as a substantive rule of law. (45) A year after its decision in Johnson, the Court resolved the question in Welch v. United States, holding that the decision in Johnson created a substantive rule of law that applied retroactively on collateral attack. (46) Accordingly, individuals who received enhanced sentences because of the ACCA's residual clause are entitled to relief under Johnson, even if they have exhausted their direct appeals. (47)

      When movants began bringing Johnson challenges to ACCA sentence enhancements, courts disagreed as to the standard of proof a movant must meet in asserting that his sentence was enhanced on the basis of the now-unconstitutional residual clause. (48) Some circuits, namely the Third, Fourth, and Ninth, have held that a movant is entitled to relief if he can demonstrate that the sentencing court "may have" relied on the residual clause. (49) These circuits rested their holdings on appeals to fairness and equal application of the law, reasoning that movants who may have been sentenced unconstitutionally should be entitled to review of whether they were in fact sentenced unconstitutionally. (50)

      Other circuits, including the First, Fifth, Eighth, Tenth, and Eleventh, have required instead that movants demonstrate by a preponderance of the evidence that the sentencing court relied upon the residual clause in handing down the ACCA sentence enhancement. (51) These circuits justified this higher standard of proof by invoking movants' high burden in habeas proceedings and by referencing the general principle of finality, as manifested in the harshness of AEDPA. (52) The Supreme Court has refused to address the split, (53) and as such, different circuits are deciding cases seeking post-Johnson relief under both the may-have and the preponderance-of-the-evidence standards. (54)

    4. The Fifth Circuit's Decision in United States v. Clay

      Prior to April 2019, the Fifth Circuit had equivocated with respect to choosing a standard of proof on post-Johnson claims. (55) In United States v. Taylor, decided in 2017, the Fifth Circuit described the competing arguments at length before concluding that it need not choose a standard because the movant's claims had satisfied both. (56) In the next relevant case to come before the Fifth Circuit, United States v. Wiese, the court again declined to choose a standard, but this time for the opposite reason: the movant's claims in that...

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