Welch v. United States, 15–6418.

Citation136 S.Ct. 1257,194 L.Ed.2d 387
Decision Date18 April 2016
Docket NumberNo. 15–6418.,15–6418.
Parties Gregory WELCH, Petitioner v. UNITED STATES.
CourtUnited States Supreme Court

Amir H. Ali, Washington, DC, for Petitioner.

Michael R. Dreeben, Washington, DC, for the respondent in support of vacatur and remand.

Lindsay C. Harrison, Matthew E. Price, Amir H. Ali, R. Trent McCotter, Joshua M. Parker, Benjamin M. Eidelson, Jenner & Block LLP, Washington, DC, for Petitioner.

Helgi C. Walker, Washington, DC, as amicus curiae, appointed by this Court, in support of the judgment below.

Donald B. Verrilli, Jr., Solicitor General, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Ann O'Connell, Assistant to the Solicitor General, Michael A. Rotker, Gwendolyn A. Stamper, Attorneys, Department of Justice, Washington, DC, for the United States.


delivered the opinion of the Court.

Last Term, this Court decided Johnson v. United States, 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

. Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii)

. The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.


Federal law prohibits any felon—meaning a person who has been convicted of a crime punishable by more than a year in prison—from possessing a firearm. 18 U.S.C. § 922(g)

. A person who violates that restriction can be sentenced to prison for up to 10 years. § 924(a)(2). For some felons, however, the Armed Career Criminal Act imposes a much more severe penalty. Under the Act, a person who possesses a firearm after three or more convictions for a "serious drug offense" or a "violent felony" is subject to a minimum sentence of 15 years and a maximum sentence of life in prison. § 924(e)(1). Because the ordinary maximum sentence for a felon in possession of a firearm is 10 years, while the minimum sentence under the Armed Career Criminal Act is 15 years, a person sentenced under the Act will receive a prison term at least five years longer than the law otherwise would allow.

The Act defines "violent felony" as

"any crime punishable by imprisonment for a term exceeding one year ... that—
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B)


Subsection (i) of this definition is known as the elements clause. The end of subsection (ii)"or otherwise involves conduct that presents a serious potential risk of physical injury to another"—is known as the residual clause. See Johnson, supra, at ––––, 135 S.Ct., at 2555–2556

. It is the residual clause that Johnson held to be vague and invalid.

The text of the residual clause provides little guidance on how to determine whether a given offense "involves conduct that presents a serious potential risk of physical injury." This Court sought for a number of years to develop the boundaries of the residual clause in a more precise fashion by applying the statute to particular cases. See James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)

(residual clause covers Florida offense of attempted burglary); Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (residual clause does not cover New Mexico offense of driving under the influence of alcohol); Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (residual clause does not cover Illinois offense of failure to report to a penal institution); Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (residual clause covers Indiana offense of vehicular flight from a law-enforcement officer). In Johnson, a majority of this Court concluded that those decisions did not bring sufficient clarity to the scope of the residual clause, noting that the federal courts remained mired in "pervasive disagreement" over how the clause should be interpreted. Johnson, 576 U.S., at ––––, 135 S.Ct., at 2560.

The Johnson Court held the residual clause unconstitutional under the void-for-vagueness doctrine, a doctrine that is mandated by the Due Process Clauses of the Fifth Amendment (with respect to the Federal Government) and the Fourteenth Amendment (with respect to the States). The void-for-vagueness doctrine prohibits the government from imposing sanctions "under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Id., at ––––, 135 S.Ct., at 2556

. Johnson determined that the residual clause could not be reconciled with that prohibition.

The vagueness of the residual clause rests in large part on its operation under the categorical approach. The categorical approach is the framework the Court has applied in deciding whether an offense qualifies as a violent felony under the Armed Career Criminal Act. See id., at ––––, 135 S.Ct., at 2556–2557

. Under the categorical approach, "a court assesses whether a crime qualifies as a violent felony ‘in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.’ " Ibid. (quoting Begay, supra, at 141, 128 S.Ct. 1581 ). For purposes of the residual clause, then, courts were to determine whether a crime involved a "serious potential risk of physical injury" by considering not the defendant's actual conduct but an "idealized ordinary case of the crime." 576 U.S., at ––––, 135 S.Ct., at 2561.

The Court's analysis in Johnson thus cast no doubt on the many laws that "require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion ." Ibid. The residual clause failed not because it adopted a "serious potential risk" standard but because applying that standard under the categorical approach required courts to assess the hypothetical risk posed by an abstract generic version of the offense. In the Johnson Court's view, the "indeterminacy of the wide-ranging inquiry" made the residual clause more unpredictable and arbitrary in its application than the Constitution allows. Id., at ––––, 135 S.Ct., at 2557

. "Invoking so shapeless a provision to condemn someone to prison for 15 years to life," the Court held, "does not comport with the Constitution's guarantee of due process." Id., at ––––, 135 S.Ct., at 2560.


Petitioner Gregory Welch is one of the many offenders sentenced under the Armed Career Criminal Act before Johnson was decided. Welch pleaded guilty in 2010 to one count of being a felon in possession of a firearm. The Probation Office prepared a presentence report finding that Welch had three prior violent felony convictions, including a Florida conviction for a February 1996 "strong-arm robbery." The relevant Florida statute prohibits taking property from the person or custody of another with "the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1) (1994)

. The charging document from the 1996 Florida case tracked that statutory language. App. 187a. The 2010 federal presentence report provides more detail. It states that, according to the robbery victim, Welch punched the victim in the mouth and grabbed a gold bracelet from his wrist while another attacker grabbed a gold chain from his neck.

Welch objected to the presentence report, arguing (as relevant here) that this conviction was not a violent felony conviction under the Armed Career Criminal Act. The District Court overruled the objection. It concluded that the Florida offense of strong-arm robbery qualified as a violent felony both under the elements clause, 18 U.S.C. § 924(e)(2)(B)(i)

, and the residual clause, § 924(e)(2)(B)(ii). The District Court proceeded to sentence Welch to the Act's mandatory minimum sentence of 15 years in prison.

The Court of Appeals for the Eleventh Circuit affirmed. That court did not decide whether the conviction at issue could qualify as a violent felony under the elements clause. Instead, it held only that the conviction qualified under the residual clause. This Court denied certiorari, see Welch v. United States, 568 U.S. ––––, 133 S.Ct. 913, 184 L.Ed.2d 702 (2013)

, and Welch's conviction became final.

In December 2013, Welch appeared pro se before the District Court and filed a collateral challenge to his conviction and sentence through a motion under 28 U.S.C. § 2255

. He argued, among other points, that his strong-arm robbery conviction itself was "vague" and that his counsel was ineffective for allowing him to be sentenced as an armed career criminal. The District Court denied the motion and denied a certificate of appealability.

Still proceeding pro se, Welch applied to the Court of Appeals for a certificate of appealability. His application noted that Johnson was pending before this Court. Welch argued, in part, that his "armed career offender status is unconstitutional and violate[s] [his] Fifth Amendment right to notice of the state priors." App. 20a. Two months later, Welch filed a motion asking the Court of Appeals to hold his case in abeyance until Johnson could be decided, "based on the fact he was sentenced under the [residual clause]." App. 15a.

In June 2015, the Court of Appeals entered a brief single-judge order denying the motion for a certificate of appealability. Less than three weeks later, this Court issued its decision in Johnson holding, as already noted, that the residual clause is void for vagueness. Welch filed a motion asking the Court of Appeals for additional time to seek reconsideration of its decision in light of Johnson, but the court returned that motion unfiled because Welch's time to seek reconsideration already had expired.

Welch then filed a pro...

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