Johnson showing huge divides in the 11th Circuit

Just today, there were a bunch of orders with very different results and very passionate concurrences/opinions. Without getting into the weeds of the holdings, this post will point out some of the really powerful writing that's going on in the 11th Circuit. For example, here's Judge Rosenbaum citing one of the great all-time TV shows in In Re: Charles Clayton:

Imagine a sentencing guideline that read, “A defendant is a career offender if ‘[p]uddles do not ask for why not? It is cheese! Breath and wind. It is cheese.’” Boston Legal, “Word Salad Days” (2006), http://www.imdb.com/title/tt0770843 /quotes (last visited Apr. 28, 2016). Now imagine that based on the Guidelines range that that indecipherable language required, a district court sentenced a defendant to twice as much time as it otherwise would have. How could the sentencing court know that the guideline applied? How could the reviewing court know that the correct Guidelines calculation included an enhancement under that guideline? Surely doubling a defendant’s sentence based on nonsense would violate due process. But in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), we allowed defendants to continue to be sentenced to much more severe sentences than they would otherwise receive, based on the residual clause of the career-offender guideline, a guideline that the Supreme Court has found hardly more scrutable than the hypothetical one above.
No doubt criminal defendants do not have a due-process right to a sentence within a particular Sentencing Guidelines range. But Congress can, and essentially has, required courts to begin the sentencing process by correctly calculating the Guidelines range. The question here is whether, when the Supreme Court strikes language from a statute because it is unconstitutionally vague language and that same language also appears in a guideline, we are constitutionally able to continue to apply that language in the sentencing process that Congress has mandated. The answer, unlike the challenged part of the career-offender guideline, is clear: we are not.
I concur in all but Section I.A of Judge Martin’s well-reasoned concurrence. I agree that the Supreme Court’s decision in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), holding the Armed Career Criminal Act’s (“ACCA”) residual clause unconstitutionally vague renders the exact same language in the Sentencing Guidelines unconstitutional as well.

Denny Crane!

And here's Judge Martin, who has been at the front of criticizing the 11th Circuit for its post-Johnson rulings:

The Matchett panel gave no heed to these admonitions against “arbitrary enforcement.” Zero. Instead, the panel addressed only Johnson’s “notice” rationale, without ever mentioning the Court’s concern about “arbitrary enforcement by judges.” This matters because we have been instructed that the “arbitrary enforcement” concern is “the more important aspect of vagueness doctrine.” Kolendar v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858 (1983). Perhaps reflecting this lesson, every time Johnson told us why the residual clause is not lawful, it underscored the problem that the vague language of the clause led different judges to give similarly situated defendants widely varying sentences. But again, the panel made no effort to address this concern about arbitrariness, which the Supreme Court told us is “the more important aspect of vagueness doctrine.”

***

On the topic of this court’s singular approach, I add one more observation. Last month the Supreme Court granted certiorari in the case of a Texas prisoner named Duane Buck. See Buck v. Stephens, No. 15-8049, __ S. Ct. __, 2016 WL 531661 (U.S. June 6, 2016). The Court took the case even though the lower court ruled that Mr. Buck’s appeal was so meritless that he couldn’t even file it. Mr. Buck’s petition for certiorari asked: “did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard?” Our treatment of applications for successive § 2255 motions may be even more troubling than the issue raised in Buck. Unlike for the denial of a COA, AEDPA provides that “denial of an authorization . . . to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). This means no motion for reconsideration, no motion for en banc review, no appeal, and no petition for certiorari. The decisions we make in these cases are therefore, as a practical matter, not reviewable.
A month after AEDPA became law, the Supreme Court held that these “new restrictions on successive petitions . . . do not amount to a ‘suspension’ of the writ.” Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 2340 (1996). Three Justices filed a concurrence warning that “the question whether the statute exceeded Congress’s Exceptions Clause power” might need to be revisited “if the courts of appeals adopted divergent interpretations of the gatekeeper standard.” Id. at 667, 116 S. Ct. at 2342 (Souter, J., concurring). I hope someone better equipped than me will take this opportunity to look at whether the divergent views taken by this court require reexamination of this question asked by these Justices so soon after AEDPA was enacted. Twenty years later, I worry that our court’s harsh view of our § 2244(b) gatekeeping role brings us perilously close to a suspension of the writ.

 In another order, In Re William Hunt, we see some more concurrences with all three judges (Wilson, Rosenbaum, and Jill Pryor).  I like the concurrence by Judge Jill Pryor (joined by the other two judges), which ends this way:

When it comes to Matchett, we soon may be told we are wrong again. On the
last day of this year’s term, the Supreme Court accepted certiorari in Beckles v.
United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 2016). Beckles is yet
another Johnson case that originated in this Circuit. This time, the petitioner was
sentenced as a career offender under the advisory guidelines rather than under the
ACCA. So the Supreme Court, in deciding Beckles, will decide the very issue that
Matchett concerns.
If we simply asked whether, on our existing precedent, the applicant has made
a prima facie showing that his sentence was based on crimes that met the definition
of “violent felony” before Johnson but no longer do, we undoubtedly would be
granting authorization to file second or successive § 2255 motions in more cases.
At least then these many individuals who may be serving unconstitutional sentences
would have a shot at meaningful review, first in the district court and then in this
Court on appeal (and maybe even ultimately in the Supreme Court).
I recognize that the number of requests for authorization we have received in
the wake of Johnson has been extremely taxing on our Court. We have been
inundated with thousands of filings in addition to our regular court work. And I
understand that published orders from this Court that categorically foreclose relief to
whole groups of individuals, like Matchett and Griffin, may lessen that burden on
district courts, too. But such prudential concerns are not reasons to refuse to
remedy constitutional violations. As judges we are not sworn to shield district
courts; rather, we are sworn to uphold the Constitution and vindicate the individual
rights that the Constitution protects.
If the Supreme Court decides in Beckles that the residual clause in the career
offender guideline is void for vagueness, there may be new hope for the scores of
inmates who have tried to obtain relief since Johnson, only to be turned away by this
Court based upon Matchett. I hope next time around we will avoid the mistakes I
have identified. And I hope that, rather than being behind the march of justice, we,
as our nation’s designated guardians, will be at the front.

Most of the criticism from these judges, I believe, is directed at Judge Hull, who continues to issue orders, like this one, denying successive petitions.