Perry v. United States
877 F.3d 751
7th Cir.2017Background
- Gregory T. Perry pleaded guilty (2007) to conspiracy to distribute crack cocaine and was sentenced to 18 years and five years supervised release.
- The district court applied the Sentencing Guidelines’ career-offender enhancement based on prior convictions for attempted murder and attempted armed robbery. Perry did not appeal his sentence at the time.
- The career-offender enhancement relied on U.S.S.G. § 4B1.2(a)’s definition of “crime of violence,” which included a residual clause mirroring the ACCA residual clause.
- The Supreme Court in Johnson v. United States (2015) held the ACCA residual clause unconstitutionally vague, prompting challenges to the identical guideline residual clause.
- In Beckles v. United States (2017), the Supreme Court held the Sentencing Guidelines (advisory post-Booker) are not subject to vagueness challenges, preserving the guideline residual clause from Johnson-style attack.
- Perry argued the Seventh Circuit’s pre-Booker practice made the guidelines effectively mandatory in 2007, so Beckles should not foreclose his vagueness claim; the Seventh Circuit rejected that argument and affirmed the denial of his § 2255 motion.
Issues
| Issue | Perry's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the guideline residual clause is subject to vagueness challenge as applied to Perry | The circuit’s sentencing practice in 2007 made the Guidelines effectively mandatory, so Beckles does not bar his vagueness claim | Guidelines were advisory after Booker; Beckles controls and forecloses vagueness challenges to advisory guidelines | Court held the guidelines were advisory at the time and Beckles forecloses Perry’s vagueness challenge; claim fails |
| Whether Seventh Circuit precedent had nullified Booker in practice by 2007 | Allan Johnson/Dean line imposed a rigid proportionality test that discouraged variances | Those cases do not convert the guidelines into mandatory law and fit within Booker/Gall principles | Court found no support that those precedents made guidelines mandatory |
| Whether later Seventh Circuit decisions (Harris, Welton) made career-offender guideline effectively mandatory | Perry contends those lines show judges were prohibited from disagreeing with career-offender policy | Even if such cases briefly constrained discretion, they could not overturn Supreme Court holdings; Booker remained controlling | Court rejected retroactive application of those later, short-lived interpretations and reiterated Booker’s supremacy |
| Whether a mistaken circuit interpretation could alter Supreme Court law | Perry argues circuit practice effectively changed the law for his sentencing era | Circuit cannot override Supreme Court holdings; proper remedy was direct appeal at the time | Court held only Supreme Court or Congress can alter Booker; Perry’s § 2255 relief fails |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (Supreme Court 2015) (ACCA residual clause held unconstitutionally vague)
- Beckles v. United States, 137 S. Ct. 886 (Supreme Court 2017) (advisory Sentencing Guidelines not subject to vagueness challenges)
- United States v. Booker, 543 U.S. 220 (Supreme Court 2005) (held the federal Sentencing Guidelines advisory)
- Kimbrough v. United States, 552 U.S. 85 (Supreme Court 2007) (district courts may disagree with guidelines’ policy disparities)
- Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (appellate review for abuse of discretion; no rigid requirement for variances)
- Taylor v. United States, 495 U.S. 575 (Supreme Court 1990) (categorical approach for prior-offense classification)
- United States v. Allan Johnson, 427 F.3d 423 (7th Cir. 2005) (discussed proportionality in variances)
- United States v. Dean, 414 F.3d 725 (7th Cir. 2005) (noting greater departures require stronger justification)
- United States v. Harris, 536 F.3d 798 (7th Cir. 2008) (addressed disagreement with career-offender policy but cautioned guideline’s advisory nature)
- United States v. Welton, 583 F.3d 494 (7th Cir. 2009) (briefly constrained disagreement with career-offender policy)
- United States v. Comer, 598 F.3d 411 (7th Cir. en banc 2010) (overruled Welton and reaffirmed judges’ freedom to disagree with career-offender policy)