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SCOTUS: Federal sentencing guidelines aren’t subject to vagueness challenges

Travis Beckless v. United States, USSC No. 15-8544, 2017 WL 855781 (March 6, 2017), affirming Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that provisions in the federal advisory sentencing guidelines are not subject to vagueness challenges under the Due Process Clause.

This case follows in the wake of the Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the so-called “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(B)(ii) (defining “violent felony”), was unconstitutionally vague, and Welch v. United States, 136 S.Ct. 1257 (2016), which held that Johnson announced a substantive rule that applied retroactively to cases on collateral review. (For more, see our posts on Johnson here and Welch here.) Beckles wasn’t sentenced under the ACCA, but he was subject to an identical residual cause in the career-offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2) (defining “crime of violence”). He argues that, given Johnson‘s holding about the vagueness of the identical language in the ACCA and Welch‘s retroactive application of Johnson, he should be able to challenge retroactively a sentence enhanced under the identical residual clause in the Guidelines. (Slip op. at 1-4). The Court rejects his claims.

A majority of the Court (six justices) holds that the Guidelines aren’t subject to vagueness challenges:

…[T]he Court has explained that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” [Kolendar v. Lawson, 461 U.S. 352, 357 (1983)]. For the latter, the Court has explained that “statutes fixing sentences,” Johnson, supra, at ___ (slip op., at 4) (citing United States v. Batchelder, 442 U. S. 114, 123 (1979)), must specify the range of available sentences with ‘sufficient clarity, id., at 123….

In Johnson, we applied the vagueness rule to a statute fixing permissible sentences. The ACCA’s residual clause, where applicable, required sentencing courts to increase a defendant’s prison term from a statutory maximum of 10 years to a minimum of 15 years. That requirement thus fixed—in an impermissibly vague way—a higher range of sentences for certain defendants. See Alleyne v. United States, 570 U. S. ___, ___ (2013) (describing the legally prescribed range of available sentences as the penalty fixed to a crime).

Unlike the ACCA, however, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in §4B1.2(a)(2) therefore is not void for vagueness. (Slip op. at 5).

Because Beckles can’t argue the Guideline is vague, he’s not entitled to resentencing.

Justice Ginsburg concurs in the judgement, but says it is unnecessary to decide whether the Guidelines are subject to vagueness challenges because at the time of Beckles’s sentencing, the official commentary to §4B1.2(a)(2) explicitly included the prior offense used to label him a career offender, and therefore the Guideline could not be vague as to him. (Ginsburg Concur. at 1-2). Justice Sotomayor agrees with that point, and so also concurs in the judgment, but writes at length as to why the majority is “deeply unsound.” Briefly:

The Guidelines anchor every sentence imposed in federal district courts. They are, “‘in a real sense[,] the basis for the sentence.'” Molina-Martinez v. United States, 578 U. S. ___, ___ (2016) (slip op., at 9) (quoting Peugh v. United States, 569 U. S. ___, ___ (2013) (slip op., at 11); emphasis deleted). The Due Process Clause requires that rules this weighty be drafted “with sufficient definiteness that ordinary people can understand” them, and “in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983). … I cannot agree with the majority’s conclusion to the contrary …. (Sotomayor concur. at 1-2).

While this decision has no bearing on guideline-free Wisconsin practice, federal practitioners take note: This decision effectively overrules United States v. Hurlburt, 835 F.3d 715, 721-25 (7th Cir. 2016) (en banc), which held that the Guidelines are subject to due process vagueness challenges. As it happens, Hurlburt overruled prior circuit precedent (United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)) that reached the same conclusion the Court now reaches in Beckles.

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