Whether U.S.S.G. § 4B1.2(a)(2)'s residual clause is void for vagueness vis-a-vis defendants sentenced under the pre-Booker mandatory Guidelines

QUESTION PRESENTED In Johnson v. United States, 576 U.S. __, 185 S. Ct. 2551 (2015), this Court declared unconstitutionally vague the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii). In Welch v. United States, 578 U.S. _, 136 S. Ct. 1257 (2016), this Court held that Johnson announced a new, substantive rule of constitutional law that had retroactive effect in cases on collateral review. In Beckles v. United States, 580 U.S. __, 187 S. Ct. 886 (2017), this Court held that an identical residual clause contained in the Career Offender provision of the Sentencing Guidelines was not unconstitutionally vague. U.S.8.G. § 4B1.2(a)(2). The Court reasoned that the advisory Guidelines were not subject to the constitutional vagueness prohibition at all because, unlike the ACCA, they do not “fix the permissible range of sentences.” Beckles, 137 S. Ct. at 892. However, the Court in Beckles “le[ft] open the question whether defendants sentenced to terms of imprisonment before our decision in United States v. Booker, 543 U.S. 220 (2005)—that is, during the period in which the Guidelines did fix the permissible range of sentences—may mount vagueness attacks on their sentences.” Id. at 903 n.4 (Sotomayor, J., concurring in the judgment) (citations omitted). The questions presented are: 1. Whether U.S.S.G. § 4B1.2(a)(2)’s residual clause is void for vagueness vis-a-vis defendants sentenced under the pre-Booker mandatory Guidelines. 2. Whether the invalidation of § 4B1.2(a)(2)’s mandatory residual clause has retroactive effect in cases on collateral review. i