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First Circuit: Sentencing Courts May Consider New Career Offender Guideline Amendment 798, Even Though Not Retroactive

by Dale Chappell

In a case where a defendant was sentenced when the career offender guideline still contained the so-called residual clause, the U.S. Court of Appeals for the First Circuit held that a sentencing court has the discretion to ignore the career offender penalty in light of the United States Sentencing Commission’s (“USSC”) amendment to the guideline that removed the residual clause, even though the amendment is not retroactive.

When David Frates was sentenced in 2016 in the U.S. District Court for the District of Massachusetts as a career offender based on his four prior Massachusetts unarmed robberies, the district court, relying on circuit precedent, determined that those prior convictions qualify under the career offender guideline’s residual clause. Frates was sentenced to 11 years in prison under the residual clause, and he appealed.

The U.S. Supreme Court declared in Johnson v. United States, 135 S. Ct. 2551 (2015), that the similar residual clause in the Armed Career Criminal Act (“ACCA”) is unconstitutional, sparking a wave of relief in the courts. Prompted by this monumental decision, the USSC adopted Amendment 798 to remove the similar residual clause in the career offender guideline, which went into effect November 1, 2016. 

However, the USSC did not make the Amendment retroactive to those sentenced under the guideline prior to the effective date. Four months after Amendment 798 took effect, the U.S. Supreme Court in Beckles v. United States, 137 S. Ct. 886 (2017), “rejected a void-for-vagueness challenge to the crime of violence definition’s residual clause,” explained the First Circuit. The Beckles Court distinguished Johnson by explaining that the ACCA “fix[ed] the permissible sentences for criminal offenses,” whereas the Guidelines “merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.” Therefore, because the Guidelines are discretionary, they aren’t “amendable to a vagueness challenge,” so “§ 4B1.2(a)’s residual clause is not void for vagueness.” Beckles.  

What happens to defendants, like Frates, who were sentenced after Johnson but before Amendment 798 when the career offender guideline contained the problematic residual clause?

The First Circuit called this “a peculiar moment in the history of the Sentencing Guidelines” and “a quirk for defendants.” First, the Court determined that the district court did not err by sentencing Frates as a career offender under the guideline in effect at the time of his sentencing. 

However, because the district court was not aware of Amendment 798, the First Circuit concluded that Frates’ sentence should be vacated to allow the district court to consider the USSC’s revised policy under the Amendment.

Several factors combined in this case to vacate Frates’ sentence, the Court said. The USSC adopted a substantive amendment to a relevant guideline, the amendment was adopted before Frates’ sentence became final on appeal, and the amendment would have lowered his sentence had it been in effect at the time of sentencing. 

The Court also pointed out that the Government had conceded that Frates’ priors qualified under the residual clause only. This was important because the district court may not recalculate or dig too deep under such a limited remand, the Court said. Instead, the sentencing should be “mechanistic” and not complex. The idea is to allow the district court to simply consider whether it would have imposed the career offender penalty on Frates had it known about Amendment 798.

“For these reasons, we think it prudent to allow the [district] court the opportunity to consider the Sentencing Commission’s updated views,” the Court concluded. Accordingly, the First Circuit vacated Frates’ career offender sentence and remanded for resentencing consistent with this opinion. See: United States v. Frates, 896 F.3d 93 (1st Cir. 2018). 

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Related legal case

United States v. Frates



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