In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3494
GREGORY T. PERRY,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 15 cv 50220 — Philip G. Reinhard, Judge.
____________________
ARGUED OCTOBER 24, 2017 — DECIDED DECEMBER 14, 2017
____________________
Before EASTERBROOK, ROVNER, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Eight years into a lengthy prison
term, petitioner Gregory T. Perry sought to invalidate his 2007
sentence for a drug offense as unconstitutional. Perry was sen‐
tenced 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 “re‐
sidual clause” that mirrored the “violent felony” definition in
2 No. 15‐3494
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 sen‐
tences based on the residual clause in the guidelines.
In Beckles v. United States, 137 S. Ct. 886 (2017), however,
the Supreme Court rejected those challenges to the same def‐
inition in the now‐advisory guidelines. Id. at 890. Advice, the
Court reasoned, lacks the force of law necessary for unconsti‐
tutional 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 sen‐
tenced. We reject this argument and affirm the district court’s
denial of Perry’s motion under 28 U.S.C. § 2255.
Perry 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 sen‐
tence, the judge found that Perry’s prior convictions for at‐
tempted 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.
A 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 com‐
plex. Both the statutory and guideline definitions included
“elements clauses,” covering crimes that have “as an element
No. 15‐3494 3
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 explo‐
sives, 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 Tay‐
lor v. United States, 495 U.S. 575, 600 (1990), that the Armed
Career Criminal Act requires courts to use the “categorical ap‐
proach” in classifying a prior offense, meaning that the court
looks only at the legal definition of the crime and not the ac‐
tual 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 at‐
tempts and repeated failures to craft a principled and objec‐
tive standard out of the residual clause confirm its hopeless
indeterminacy.” 135 S. Ct. at 2558.1
The residual clause in the Sentencing Guidelines, how‐
ever, survived a similar vagueness challenge in Beckles v.
United States, 137 S. Ct. 886 (2017). Despite the identical lan‐
guage, 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 ad‐
visory in United States v. Booker, 543 U.S. 220 (2005), Beckles ex‐
plained, the guidelines “merely guide the district courts’ dis‐
cretion.” 137 S. Ct. at 894. District judges must consider the
1 In 2016, in the wake of Johnson, the Sentencing Commission issued
amendment 798 to eliminate the residual clause as part of a substantial
revision of the definition of “crime of violence” in U.S.S.G. § 4B1.2(a).
4 No. 15‐3494
advice from the guidelines, but they are free to reject that ad‐
vice 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 punish‐
ment, provide effective correctional treatment, afford ade‐
quate 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 dis‐
ciplined discretion under the guidelines could withstand a
vagueness challenge. Beckles, 137 S. Ct. at 894.
To understand how the Sentencing Guidelines guide dis‐
trict judges’ discretion, it helps to revisit briefly how Booker
changed sentencing practices for defendants like Perry. In
Booker, the Supreme Court declared the guidelines “effec‐
tively 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 sen‐
tencing 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.
No. 15‐3494 5
Since 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).
To 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 mischaracter‐
izes our precedents and our relationship with the Supreme
Court in our judicial system.
First, 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 appel‐
late 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 unreason‐
6 No. 15‐3494
able. 552 U.S. at 47. Gall instead required appellate courts to
apply a deferential abuse‐of‐discretion standard of review.
See id. at 51.
Gall did not appreciably modify this circuit’s approach.
Gall explained that an appellate court may “apply a presump‐
tion 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. Further‐
more, 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 guide‐
lines … the more compelling the justification”). We do not
find in the Allan Johnson and Dean line of cases any support
for Perry’s argument that he was sentenced under circuit law
that treated the guidelines as anything other than advisory
pursuant to Booker.
Next, Perry points to a separate line of our cases (decided
after he was sentenced) that he reads as having prohibited dis‐
trict courts from disagreeing with the policy behind the career
offender guideline. In United States v. Harris, 536 F.3d 798, 812–
13 (7th Cir. 2008), we said that the reasoning of Kimbrough v.
United States, 552 U.S. 85 (2007) (sentencing judges may exer‐
cise discretion regarding crack‐powder cocaine disparity in
guidelines despite statutory basis for disparity), would not
extend to the career offender guideline. At the same time, we
No. 15‐3494 7
warned in Harris against any suggestion that the career of‐
fender guideline “is any less advisory for a district judge than
the other sentencing guidelines.” Id. at 813. We went further
in United States v. Welton, 583 F.3d 494 (7th Cir. 2009), holding
that “a district court may not disagree specifically with the
statutory disparity embedded” in the career offender guide‐
line while still cautioning that the career offender guideline
remained advisory. Id. at 499. Just five months later, however,
we overruled Welton and this aspect of Harris in United States
v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (en banc), empha‐
sizing that judges were as “free to disagree” with the career
offender enhancement as with any other guideline. Id. at 416.
(In response, the Supreme Court quickly vacated the judg‐
ment in Welton and remanded for consideration in light of
Corner. Welton v. United States, 559 U.S. 1034 (2010).) Perry’s
argument based on this line of cases would have us reverse
time’s arrow by assuming that Harris and Welton applied to
him even though he was sentenced before those cases’ short‐
lived rule was announced.
Finally, we also conclude that Perry’s argument would fail
even if he had been sentenced under Welton. No mistaken cir‐
cuit court decision could alter the legal force of Booker. Once
the Supreme Court declared the guidelines advisory, they re‐
mained advisory notwithstanding some erroneous applica‐
tions in the district and circuit courts. Appellate courts cannot
change constitutional law established by the holdings of the
Supreme Court. Only the Court itself or Congress and the
States employing the Article V amendment process can do
that.
8 No. 15‐3494
If Perry thought the district judge erred by applying a
mandatory enhancement, the path of direct appeal was avail‐
able to him in 2007. The defendants in Harris, Welton, and Cor‐
ner pursued just this path to correct perceived legal errors in
sentencing. If Perry believed he was sentenced under a man‐
datory guidelines regime contrary to Booker, he could have ap‐
pealed like the defendant in Welton. If he met an appellate er‐
ror similar to Welton, he could have petitioned the court to
hear his case en banc like the defendant in Corner or sought a
writ of certiorari from the Supreme Court like the defendant
in Kimbrough.
Because the guidelines were and remained advisory at the
time of Perry’s sentencing, his vagueness challenge to the ca‐
reer offender guideline fails as applied at his sentencing. The
judgment of the district court is
AFFIRMED.