De'Angelo Cross v. United States, No. 17-2282 (7th Cir. 2018)Annotate this Case
When the district court sentenced Cross (2000) and Davis (1992), the then-mandatory sentencing guidelines prescribed an elevated sentence for career offenders. A defendant qualified as a career offender upon his third felony conviction for either a crime of violence or a drug offense. The guidelines defined “crime of violence” in three ways: an elements approach, an enumerated offense approach, and the residual clause, which covered any offense that “involves conduct that presents a serious potential risk of physical injury to another.” Both Cross and Davis were sentenced under the residual clause. Neither objected at trial. The Supreme Court jettisoned the mandatory nature of the guidelines in 2005 (Booker). In its 2015 “Johnson” holding, the Supreme Court found identical residual language in the Armed Career Criminal Act, 18 U.S.C. 924(e), unconstitutionally vague; in 2017 the Court held (Beckles) that Johnson does not extend to the advisory guidelines, including the career-offender guideline. The Seventh Circuit granted Cross and Davis relief from their sentences under 28 U.S.C. 2255. Beckles applies only to advisory guidelines, not to mandatory sentencing rules. Under Johnson, the guidelines residual clause is unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants. Cross and Davis are entitled to be resentenced.