United States v. Tony Hurlburt, 835 F.3d 715

Background

Tony Hurlburt and Joshua Gillespie pleaded guilty to being felons in possession of firearms; both had prior convictions the government argued qualified as "crimes of violence" under the Guidelines’ career-offender definition.
The career-offender Guideline, U.S.S.G. §4B1.2(a)(2), includes a residual clause that defines crimes that "otherwise involve[] conduct that presents a serious potential risk of physical injury to another."
The district courts counted prior offenses under that residual clause, which raised Hurlburt’s and Gillespie’s Guidelines ranges and led to their sentences (72 months and 84 months, respectively).
After the Supreme Court’s decision in Johnson (invalidating the ACCA residual clause as unconstitutionally vague), the defendants argued the identical residual clause in §4B1.2(a)(2) is likewise void for vagueness.
Seventh Circuit precedent (United States v. Tichenor) had held Guidelines are immune from vagueness challenges; the en banc court reconsidered that precedent in light of Johnson and Peugh.
The en banc Seventh Circuit overruled Tichenor, applied Johnson to §4B1.2(a)(2), held the residual clause unconstitutionally vague, vacated both sentences, and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson’s invalidation of the ACCA residual clause extends to the identical residual clause in the career-offender Guideline	Hurlburt/Gillespie: The Guideline clause is textually identical to ACCA’s clause; Johnson thus controls and renders §4B1.2(a)(2) unconstitutionally vague	Government: Agreed Johnson applies; but initially defended Tichenor; alternatively urged limited remand	Held: Johnson applies; the Guideline residual clause is unconstitutionally vague and invalid under the Due Process Clause
Whether vagueness challenges lie against the (advisory) Sentencing Guidelines given circuit precedent	Hurlburt/Gillespie: Tichenor is undermined by Johnson and Peugh and should be overruled	Government: Conceded Tichenor is undermined and joined in overruling; dissent argued Guidelines remain advisory and immune	Held: Overruled Tichenor; Peugh and Johnson demonstrate Guidelines are sufficiently law‑like to be subject to vagueness review
Remedy for sentencing error where Guidelines range was inflated by the residual-clause application	Defendants: Vacatur and full remand for resentencing because the incorrect range likely affected sentence	Government: Suggested limited remand (Paladino-style) to ask judge whether he would reimpose the same sentence	Held: Vacate and remand for full resentencing (Paladino limited remand rejected)
Standard of appellate review and prejudice when Guidelines miscalculated	Defendants: Plain-error review applies; miscalculation usually satisfies substantial-rights/prjudice showing	Government: (conceded error but urged limited remand)	Held: Under plain-error and Molina‑Martinez, incorrect Guidelines range usually establishes reasonable probability of different outcome; prejudice shown here

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
Peugh v. United States, 133 S. Ct. 2072 (2013) (post-Booker Guidelines have sufficient legal effect to implicate Ex Post Facto concerns)
United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012) (previously held Guidelines not subject to vagueness challenge; overruled)
United States v. Booker, 543 U.S. 220 (2005) (rendered Guidelines advisory)
United States v. Batchelder, 442 U.S. 114 (1979) (vagueness doctrine applies to sentencing provisions)
Molina‑Martinez v. United States, 136 S. Ct. 1338 (2016) (an incorrect Guidelines range can itself show a reasonable probability of a different outcome)
Gall v. United States, 552 U.S. 38 (2007) (procedural rules for sentencing and review; district courts must correctly calculate Guidelines range)
Irizarry v. United States, 553 U.S. 708 (2008) (Guidelines’ advisory status and limits on notice for above-Guidelines sentences)