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The impact of United States v. Johnson and the unconstitutionality of the “residual clause” continues as the United States Sentencing Commission (“USSC”) has now officially released the Supplement to the 2015 Guidelines Manual (“Manual”) that is effective today.  On the Sentencing Commission website page for the 2015 Manual it notes:

There is a Supplement to this Manual, available in PDF format below. The amended guidelines, as set forth in this document, supersede the versions set forth in the 2015 Guidelines Manual and, together with the rest of the 2015 Guidelines Manual, constitute the operative Guidelines Manual effective August 1, 2016. This supplement incorporates the amendment to §4B1.1 (Career Offender) and §4B1.2 (Definitions of Terms Used in Section 4B1.1).

In addition to the release of the Manual, the USSC has released an interactive e-learning tool.

The Supplement to the Manual only applies to cases committed after August 1, 2016, or to persons who are sentenced after August 1, 2016, if the Supplement is helpful to them.  If a person committed the offense prior to August 1, 2016, or if the Supplement increases an individual’s guideline range it does not apply.  It is important for people to make sure that the correct Manual is applied to their case.

The purpose of the Supplement is to address the fallout from the Johnson case.  Even though the Supreme Court has accepted Cert in Beckles, which will determine whether the Johnson decision applies to Career Offender cases, the USSC has taken the preemptive step of enacting these revised provisions.  The USSC summarizes the changes as:

The amendment eliminates the residual clause in the career offender guideline definition of “crime of violence.” In its place, the amendment revises the list of specific enumerated offenses that qualify as a “crime of violence.” While a few select definitions are provided, the list revised by the amendment continues to rely on long-existing case law for purposes of defining enumerated offenses. Although “burglary of a dwelling” is deleted as an enumerated offense, the amendment provides an upward departure provision in §4B1.2 to address certain cases in which the instant offense or a prior felony conviction was any burglary offense involving violence that did not otherwise qualify as a “crime of violence.”

The USSC has also revised the guideline by offering a potentially lower sentences if the predicate offenses are now classified as misdemeanors, saying:

In addition, the amendment adds a downward departure provision in §4B1.1 (Career Offender) for cases in which one or both of the defendant’s “two prior felony convictions” is based on an offense that is classified as a misdemeanor at the time of sentencing for the instant federal offense.

These are important changes that will impact many people moving forward.  Make sure that you and your attorney are up to speed on these issues.