Perry v. United States, No. 15-3494 (7th Cir. 2017)Annotate this Case
In 2007, Perry pled guilty to conspiracy to distribute crack cocaine and was sentenced to 18 years’ imprisonment as a career offender under the Sentencing Guidelines, based on his prior convictions for attempted murder and attempted armed robbery. 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, 18 U.S.C. 924(e)(2)(B). In 2015, the Supreme Court struck down the ACCA residual clause as unconstitutionally vague. Perry challenged his sentence under 28 U.S.C. 2255. In 2017, however, the Supreme Court rejected such challenges because the Guidelines are only advisory. The Seventh Circuit affirmed, rejecting Perry’s argument that the law of the Seventh Circuit did not make the Guidelines sufficiently advisory in 2007. Courts are free to reject the Guidelines based on sentencing factors in 18 U.S.C. 3553(a). Once the Supreme Court declared the Guidelines advisory, they remained advisory notwithstanding some erroneous applications in the district and circuit courts. Appellate courts cannot change constitutional law established by the holdings of the Supreme Court. If Perry believed he was sentenced under a mandatory guidelines regime contrary to Supreme Court precedent, he could have appealed.