Gregory T. Perry, Petitioner-Appellant,
United States of America, Respondent-Appellee.
October 24, 2017
from the United States District Court for the Northern
District of Illinois, Western Division. No. 15 cv 50220 -
Philip G. Reinhard, Judge.
Easterbrook, Rovner, and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
years into a lengthy prison term, petitioner Gregory T. Perry
sought to invalidate his 2007 sentence for a drug offense as
unconstitutional. Perry was sentenced as a career offender
under the Sentencing Guidelines. Until 2016, the career
offender guideline, U.S.S.G. § 4B1.2(a), used a
definition of a "crime of violence" that included a
"residual clause" that mirrored the "violent
felony" definition in the Armed Career Criminal Act of
1984, 18 U.S.C. § 924(e)(2)(B). In 2015, the Supreme
Court struck down the statutory residual clause as
unconstitutionally vague. Johnson v. United States,
135 S.Ct. 2551, 2563 (2015). That decision led Perry and
others to raise similar vagueness challenges to sentences
based on the residual clause in the guidelines.
Beckles v. United States, 137 S.Ct. 886 (2017),
however, the Supreme Court rejected those challenges to the
same definition in the now-advisory guidelines. Id.
at 890. Advice, the Court reasoned, lacks the force of law
necessary for unconstitutional vagueness. Perry recognizes
that he was sentenced at a time when the guidelines were
deemed advisory so that Beckles seems to foreclose
his vagueness challenge. He argues now, however, that the law
of this circuit did not make the guidelines
sufficiently advisory in 2007 when he was sentenced.
We reject this argument and affirm the district court's
denial of Perry's motion under 28 U.S.C. § 2255.
pled guilty to conspiracy to distribute crack cocaine. The
district court sentenced him to eighteen years in prison and
five years of supervised release. In calculating the
sentence, the judge found that Perry's prior convictions
for attempted murder and attempted armed robbery made him a
career offender under the guidelines. The judge imposed a
sentence within the applicable guideline range. Perry did not
appeal his conviction or sentence.
reader might be forgiven for thinking there is not much
question about whether attempted murder and attempted armed
robbery are violent crimes. Modern federal criminal law,
however, makes the problem considerably more complex. Both
the statutory and guideline definitions included
"elements clauses, " covering crimes that have
"as an element the use, attempted use, or threatened use
of physical force against the person of another." Both
definitions also covered burglary, arson, extortion, crimes
involving the use of explosives, and crimes that
"otherwise involve conduct that presents a serious
potential risk of physical injury to another" 18
U.S.C. § 924(e)(2)(B) (2012); U.S.S.G. §4B1.2(a)
(2006) (emphasis added). The italicized clause in both
statute and guideline is known as the residual clause. The
Supreme Court held in Taylor v. United States, 495
U.S. 575, 600 (1990), that the Armed Career Criminal Act
requires courts to use the "categorical approach"
in classifying a prior offense, meaning that the court looks
only at the legal definition of the crime and not the actual
conduct of the defendant in committing it. See
Johnson, 135 S.Ct. at 2557. Johnson
invalidated the statutory residual clause, explaining that
the Supreme Court's "repeated attempts and repeated
failures to craft a principled and objective standard out of
the residual clause confirm its hopeless indeterminacy."
135 S.Ct. at 2558.
residual clause in the Sentencing Guidelines, however,
survived a similar vagueness challenge in Beckles v.
United States, 137 S.Ct. 886 (2017). Despite the
identical language, the Court held that "the advisory
Guidelines are not subject to vagueness challenges under the
Due Process Clause." Id. at 890. After the
Court declared the guidelines advisory in United States
v. Booker, 543 U.S. 220 (2005), Beckles
explained, the guidelines "merely guide the district
courts' discretion." 137 S.Ct. at 894. District
judges must consider the advice from the guidelines, but they
are free to reject that advice based on the weight of
sentencing factors in 18 U.S.C. § 3553(a), which include
the needs to reflect the seriousness of the offense, promote
respect for the law, provide just punishment, provide
effective correctional treatment, afford adequate deterrence
to criminal conduct, and protect the public from further
crimes of the defendant. 18 U.S.C. § 3553(a)(2). Before
the guidelines took effect in 1987, these broad and sometimes
contradictory principles in the statute were nearly all that
guided sentencing judges, and the Court had "never
doubted the authority of a judge to exercise broad discretion
in imposing a sentence within a statutory range."
Beckles, 137 S.Ct. at 893, quoting Booker,
543 U.S. at 233. If this "unfettered discretion"
posed no vagueness problem, then the more disciplined
discretion under the guidelines could withstand a vagueness
challenge. Beckles, 137 S.Ct. at 894.
understand how the Sentencing Guidelines guide district
judges' discretion, it helps to revisit briefly how
Booker changed sentencing practices for defendants
like Perry. In Booker, the Supreme Court declared
the guidelines "effectively advisory." 543 U.S. at
245. After Booker, district courts calculate a
sentencing range using the guidelines but are free to impose
sentences outside the applicable guideline range, and even
outside the broader system of the guidelines, based on the
statutory factors in § 3553(a). In making individual
sentencing decisions, a judge may disagree with the policy
choices of the Sentencing Commission that are reflected in
the guidelines if the purposes of § 3553(a) would be
better served by a harsher or more lenient sentence. See
Booker, 543 U.S. at 259-60, 264.
Booker, the Supreme Court has reinforced its
decision that the guidelines are advisory, often in response
to circuit court decisions that tried to constrain the
discretion of district courts to impose non-guideline
sentences. See, e.g., Kimbrough v. United States,
552 U.S. 85 (2007) (district judges permitted to disagree
with crack v. powder cocaine disparity); Gall v. United
States, 552 U.S. 38 (2007) (extraordinary circumstances
are not needed to justify non-guideline sentence; appellate
courts review sentences only for abuse of discretion).
avoid the effects of Booker and Beckles
here, Perry argues that two lines of this circuit's
precedent nullified Booker in practice, making the
career offender guideline effectively mandatory and thus
subject, in his view, to his vagueness challenge. We are not
persuaded. The argument mischaracterizes our precedents and
our relationship with the Supreme Court in our judicial
Perry argues that when he was sentenced in 2007, this circuit
applied an erroneous and rigid proportionality test that
discouraged district judges from sentencing outside the
guidelines. He suggests that Gall abrogated our
decision in United States v. Allan Johnson, 427 F.3d
423 (7th Cir. 2005). As support, Perry notes that
Gall reversed an Eighth Circuit decision that quoted
our decision in Allan Johnson. The quoted passage
said that a sentence outside the guideline range must be
"proportional to the extent of the difference between
the advisory range and the sentence imposed."
Gall, 552 U.S. at 45, quoting Allan
Johnson, 427 F.3d at 427. Gall forbade
appellate courts from applying any appellate rule "that
requires 'extraordinary' circumstances to justify a
sentence outside the Guidelines range" or use of "a
rigid mathematical formula, " or a presumption that a
non-guideline sentence is unreasonable. 552 U.S. at 47.
Gall instead required appellate courts to apply a
deferential abuse-of-discretion standard of review. See
id. at 51.
did not appreciably modify this circuit's approach.
Gall explained that an appellate court may
"apply a presumption of reasonableness" to
sentences within the guideline range and "may consider
the extent" of any deviation so long as it gives
"deference to the district court's decision"
that other factors "justify the extent of the
variance." Id. at 51. Furthermore, the quoted
passage from Allan Johnson fits comfortably with the
comment in Gall: "We find it uncontroversial
that a major departure should be supported by a more
significant justification than a minor one."
Id. at 50; see also United States v. Dean,414 F.3d 725, 729 (7th Cir. 2005) (imposing no formal
requirement on a district judge's explanation but stating
that "the farther the judge's sentence departs from
the guidelines ... the more compelling the
justification"). We do not find in the Allan