The Authorities Forfeit Forfeiture

LawIn this instance, the First Circuit reviewed a sentencing court’s conclusion, in an example of a federal crime that needed a federal crimes defense attorney, that Mr. Rivera qualified as a Career Offender. U.S.S.G. 4B1.1(a).

A lot more unbelievable, however, was that on appeal, the Government never understood  failure to object during sentencing. However, the Government never claimed for plain error review. The truth is, the Government said at oral argument the problem needs to be reviewed de novo. Therefore, the First Circuit held: “in accordance with our precedent as well as the government’s own request, we shall review the matter as though it’d been correctly maintained.”

The Authorities initially claimed that the felon in possession conviction constituted a “crime of violence” pursuant to the remaining clause of U.S.S.G. 4B1.2(a). The underlined part is what’s generally described as the “remaining clause.”

Yet, following the parties had finished briefing in  case, the United States Supreme Court determined Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson affected a null-for-vagueness challenge to the federal Armed Career Criminal Act (“ACCA”), which, such as the Guidelines, provides for more drawn-out terms for particular defendants according to their criminal histories. In this respect, a remaining clause which is virtually identical to the one within the Guidelines is contained by the ACCA. The Johnson Court finally held the ACCA’s remaining clause is void for vagueness and that “[i]ncreasing a defendant’s sentence below the clause denies due process of law.”

The First Circuit invited the parties in Rivera to submit supplemental briefing. Unsurprisingly, Mr. Rivera claimed that even though the Supreme Court’s conclusion in Johnson coped with the ACCA, it applied equally to “remaining clause” Career Offender cases. The Government granted that based on Johnson, “it offends due process to work with the Guidelines’s remaining clause to classify a defendant as a Career Offender and thus impose an extended term.” Given the concession of the Government, th Court declined to determine what could happen to be an issue of first impression in the First Circuit: whether Johnson delivers the remaining clause in the Guidelines unconstitutional.

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