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ACCA’s Residual Clause Violates Due Process

While most of the country was (understandably) in the thrall of the Supreme Court holding that gays must be afforded the constitutional right to marry last week, those of us who practice federal criminal law were pondering the implications of Johnson v. United States.

Johnson asked the Court to consider the constitutionality of the Armed Career Criminal Act’s residual clause. ACCA is a United States federal criminal law that enhances sentences for felons possess firearms: ACCA specifically applies to felons who previously been convicted of three or more certain kinds of felonies. The definition these certain felonies is what was at issue for the Johnson court.

ACCA (at 18 USC 924(e)) works thusly: if a person violates 18 USC 922(g) – (effectively federal law’s felon in possession of a firearm statute, although 922(g) includes categories of people who may not be felons) – and the person has at least three prior felony convictions for many kinds of assaults or “burglary, arson, or extortion, [or a crime] involv[ing] use of explosives, or otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another,” then the person faces a mandatory minimum of 15 years in prison.

(So while the normal felon in possession statute involves a 0 to 10 year sentence, ACCA creates a floor of 15 years and up.)

The italicized portion of 924(e)(B)(ii) is called ACCA’s “residual clause” and is a catch-all description meant to cover crimes not delineated in the first part of 924(e)(B)(ii) and not covered by 924(e)(B)(i) which includes a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Confused yet? Welcome to federal sentencing, a Rube-Goldberg system that usually means one thing: decades in prison.

Enter Samuel Johnson, a white supremacist with a long criminal record who drew the attention of the FBI. During the investigation, agents learned that Johnson intended to attack the Mexican consulate in Minnesota, “progressive bookstores,” and liberals.

Johnson pleaded guilty to being a felon in possession of a firearm, after which the United States sought to enhance his sentence by designating him an Armed Career Criminal. Mr. Johnson was sentenced to 15 years under ACCA, while, had ACCA not applied, he could’ve only received a maximum sentence of 10 years.

In determining that Mr. Johnson was an Armed Career Criminal subject to enhanced punishments, the Federal District Court had to consider what to do with Mr. Johnson’s prior conviction for unlawful possession of a short barreled shotgun.

Possession of a short barreled shotgun clearly does not fall under 924(e)(B)(i) because it doesn’t have as an element the use, attempted use, or threatened used of physical force against another person. And possession of a short barreled shotgun is not among the delineated crimes under 924(e)(B)(ii).

The District Court, however, found that possession of a short barreled shotgun fell under the residual clause because it is “conduct that presents a serious potential risk of physical injury to another.”

Between 2007 and 2014, the Supreme Court had decided four cases trying to figure out what the residual clause meant. It determined that Florida’s crime of attempted burglary was covered by the residual clause and Indiana’s offense of fleeing from a law enforcement officer also was a predicate crime under the residual clause, but that New Mexico’s driving under the influence (drunk driving) and Illinois’ failure to report to a penal institution were not crimes covered by the residual clause.

Justice Scalia, writing for the Court, held that the residual clause is unconstitutional because it is vague and overbroad, thereby violating the Fifth Amendment’s due process clause:

In all events, although statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls within the provision’s grasp. For instance, we have deemed a law prohibiting grocers from charging an “unjust or unreasonable rate” void for vagueness—even though charging someone a thousand dollars for a pound of sugar would surely be unjust and unreasonable.



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