Welch v. United States - Oral Argument - March 30, 2016

Welch v. United States

Media for Welch v. United States

Audio Transcription for Opinion Announcement - April 18, 2016 in Welch v. United States

Audio Transcription for Oral Argument - March 30, 2016 in Welch v. United States

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 15-6418, Welch v. United States. Mr. Ali.

Amir H. Ali:

Mr. Chief Justice, and may it please the Court: Johnson is retroactive because it is a rule of substantive criminal law, not a procedural rule that regulates only the manner of determining a defendant's culpability or sentence.

This Court applies a straightforward test for distinguishing between those rules that are procedural and those that are substantive. Assuming perfect trial or sentencing procedures, does the new rule change the authorized outcomes of the criminal process? If no, meaning that a court could have reached the same outcome had it applied perfect procedures, then we're dealing with a procedural rule.

Ruth Bader Ginsburg:

Well --

Amir H. Ali:

If --

Ruth Bader Ginsburg:

What do you do with the -- the argument that the -- the concern that motivated Johnson is all procedural? Fair notice to the defendant that checks against arbitrary enforcement, those are procedural concerns?

Amir H. Ali:

Your Honor, we think under this Court's decision in Bousley, it's clear that you don't look to the source of the rule and that that's not governing.

And what's relevant here, as it was in relevant -- in Bousley is that there was no valid act of Congress which authorized the punishment for a class of persons.

Here the class of persons who, absent the residual clause, would have two or fewer qualifying crimes under ACCA.

In Bousley, the class of persons were those who merely possessed firearms. But to answer your question more directly, Justice Ginsburg, as we explain on page 16, 17 of our reply brief, we think it's far from clear, even if that were the test, that vagueness sounds only in procedural due process.

In fact, it's qualitatively different, we think, from procedural due process in the sense that it does control or regulate which criminal prescriptions Congress can or cannot pass in a way that we don't think of when it comes to procedural due process. So Johnson didn't say, Government, if you provide notice to people or greater notice, you can still come after them under the residual clause.

What Johnson said was the residual clause is facially unconstitutional.

No person may be sentenced to 15 to life under the residual clause. So what we know now is that people, like Petitioner, are spending somewhere between an additional five years to the rest of their life in prison based on where there was no valid act of Congress which authorized that punishment.

And that, we believe, is very clearly a substantive rule under Bousley.

Samuel A. Alito, Jr.:

Well, before you get -- you continue too deeply into the substance of your argument, could I just ask a possibly irritating question about the facts of this particular case? The first question that you raise in the cert petition is whether the district court was in error when it denied relief on Petitioner's 2255 motion. And, I mean, I want to -- if you look at page 96A of the Joint Appendix, the first sentence of -- I'm sorry, the paragraph 8 on that page, can you tell me if you were a district court judge, would you have seen in that argument the argument that the residual clause of the Armed Career Criminal Act is unconstitutionally vague?

Amir H. Ali:

Your Honor, we believe that with liberal pro se pleading standards, that what's said on 96 and what's said on page 83 where Petitioner invokes his Fifth Amendment right to due process, combining that with the language here, that he does not mean -- meet Armed Career Criminal requirements because it's, quote, "ambiguous, vague, and without any violence," we think that would satisfy it.

But more importantly, we think that that --

Samuel A. Alito, Jr.:

Well, just -- and, I mean, this wasn't exactly the question I asked.

Particularly when I was on the court of appeals, and we reversed the district court judge, they would always complain that, you know, you're asking us to -- to -- you don't understand our situation. My -- my question is, if you were a district judge, would you have seen in this sentence, "Petitioner's robbery under Florida State statute Section 812, et cetera, is ambiguous, vague, and was without any violence and/or physical force," if you read that, as a district court judge, would you have seen in that the argument that the Court adopted in Johnson?

Amir H. Ali:

Your Honor, I think the answer is yes.

Again --

Samuel A. Alito, Jr.:

You would have --

Amir H. Ali:

-- when you read it with the sentence before -- and -- and but more fundamentally, I think the answer is that it doesn't matter because there's no question that Petitioner is entitled to the benefit of Johnson in this case.

Samuel A. Alito, Jr.:

How can it not matter? You're arguing that the district judge made a mistake. So your answer is you would have seen it there, and you would be a very prescient district judge.

That's the answer.

Amir H. Ali:

Well, Your Honor, my more complete answer is that the questions presented that were drafted in this case and granted about the Court were drafted by a pro se litigant. And I think that taking the two questions together, what those questions ask are: Did the court of appeals err in reversing -- or in denying a certificate of appealability? So the first question is referring to, did it err on the basis of the elements clause question.

And that raises merely the question of whether reasonable jurists could disagree as to whether Petitioner's conviction qualified under the elements clause. And the second prong goes to Johnson's retroactivity, which, again, raises the question of whether reasonable jurists could disagree as to whether Johnson is retroactive. So it may be the case that the first question presented as drafted by the pro se litigant when it was -- and granted by this Court suggests to you the question is that whether the district court erred. But I think the better reading of the question is whether the district -- sorry, whether the court of appeals was erroneous in reversing -- or in denying this certificate of appealability.

Ruth Bader Ginsburg:

You mention the elements clause.

That wasn't -- that wasn't passed on below, was it? The -- I think the court of appeals said it wasn't deciding it, that --

Amir H. Ali:

Your Honor, with respect to the elements clause, on direct appeal, the Petitioner challenged whether he qualified under either of the two clauses, the residual clause or the elements clause. And the Eleventh Circuit on direct appeal said it's arguable that the elements clause would not have -- have applied.