United States v. Andre L. Jones

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3719

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

A NDRE L. JONES,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 11-cr-30009-1—Richard Mills, Judge.

A RGUED JUNE 6, 2012—D ECIDED JULY 27, 2012

Before E ASTERBROOK, Chief Judge, and W OOD and

S YKES, Circuit Judges.

S YKES, Circuit Judge. Andre Jones was convicted of

unlawfully possessing a firearm as a felon and was sen-

tenced as an armed career criminal based in part on a

prior Illinois conviction for vehicular fleeing, which the

district judge counted as a third violent felony under

the residual clause of the Armed Career Criminal Act

(“ACCA”). See 18 U.S.C. § 924(e)(2)(B)(ii). This classifica-

tion triggered a mandatory minimum sentence of 15 years

2 No. 11-3719

and raised the statutory maximum to life. The judge

sentenced Jones to 184 months, just above the manda-

tory minimum.

Jones challenges only his sentence, raising a vagueness

challenge to the residual clause. More specifically, he

argues that the residual clause of the ACCA contains no

discernible standard to guide its application and there-

fore permits arbitrary enforcement in violation of the

Due Process Clause of the Fifth Amendment. This posi-

tion has at least one notable proponent. See Sykes v.

United States, 131 S. Ct. 2267, 2284 (2011) (Scalia, J., dis-

senting). But a majority of the Supreme Court has

rejected the argument, albeit only in response to dissents

by Justice Scalia, not in the more formal sense of deciding

an explicit void-for-vagueness challenge. See id. at 2277.

Perhaps Jones can persuade the Court to directly

consider the issue, but our hands are tied. We affirm

Jones’s sentence.

I. Background

On January 3, 2011, police officers in Springfield, Illinois,

initiated a traffic stop of a vehicle in which Jones was

riding as a passenger. As the officers began following the

car, Jones threw a handgun out the window. When the

driver pulled over, the officers obtained consent to

search from both Jones and the driver. Jones had an

empty handgun holster around his waist and 18 grams

of marijuana in his shoe. The officers then retraced

their route and retrieved the handgun from a driveway

a few blocks away where Jones had tossed it. Jones ad-

mitted the gun was his.

No. 11-3719 3

Jones was indicted on several drug and gun charges.

He eventually entered a guilty plea to one count of unlaw-

ful possession of a firearm by a felon in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2) and (e), and the government

dismissed the other charges. The felon-in-possession

offense normally carries a ten-year maximum and no

minimum penalty. See 18 U.S.C. § 924(a)(2). But if the

defendant has three prior convictions for “violent felo-

nies” as defined in the ACCA, he is subject to a

mandatory minimum sentence of 15 years in prison

and the maximum penalty is raised to life. See id.

§ 924(e)(1). Jones preserved his right to challenge the

application of the ACCA at sentencing.

Jones’s presentence report recommended that he be

sentenced as an armed career criminal based on

three qualifying violent felonies: Illinois convictions for

robbery, aggravated robbery, and aggravated vehicular

fleeing from a police officer. Jones conceded that the

first two convictions qualified as violent felonies under

§ 924(e)(2)(B)(i). That subsection defines the term “violent

felony” as any crime punishable by more than one year

in prison that “has as an element the use, attempted use,

or threatened use of physical force against the person

of another.” He also acknowledged that under our deci-

sion in Welch v. United States, 604 F.3d 408, 425 (7th Cir.

2010), his vehicular-fleeing conviction qualified as a

violent felony under the so-called “residual clause” of

§ 924(e)(2)(B)(ii). Under that provision a “violent felony”

includes any crime punishable by more than one year

in prison that “is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that

4 No. 11-3719

presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).

Jones argued that Welch notwithstanding, the residual

clause is unconstitutionally vague and thus unenforceable

under the Due Process Clause of the Fifth Amendment.

The judge rejected this argument as implicitly foreclosed

by the Supreme Court’s decision in Sykes and sen-

tenced Jones to 184 months in prison. This sentence fell

just below the advisory guidelines range of 188 to 235

months and just above the ACCA’s mandatory mini-

mum of 180 months.

II. Discussion

Under the ACCA a felon who unlawfully possesses

a firearm in violation of § 922(g)(1) is subject to steeply

enhanced penalties—a minimum sentence of 15 years

and a maximum of life—if he has three prior convictions

“for a violent felony or a serious drug offense.” 18 U.S.C.

§ 924(e)(1). The statute defines a “violent felony” as

any crime punishable by imprisonment for a term

exceeding one year . . . that—

(i) has as an element the use, attempted use, or

threatened use of physical force against the

person of another; or

(ii) is burglary, arson, or extortion, involves use

of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another.

No. 11-3719 5

Id. § 924(e)(2)(B). The final clause of this definition has

come to be known as the “residual clause.” Subsection (ii)

of the statute lists four specific but disparate crimes

followed by the catchall “residual clause” that sweeps

in any crime that “otherwise involves conduct that pres-

ents a serious potential risk of physical injury to another.”

The residual clause has eluded stable construction. The

Supreme Court has heard four ACCA residual-clause

cases in fairly rapid succession in an effort to clarify

the open-ended language of the clause and to establish

a framework for how to distinguish crimes that qualify

from crimes that do not. See Sykes, 131 S. Ct. at 2270

(“The instant case is another in a series in which the

Court is called upon to interpret § 924(e) . . . .”); Chambers

v. United States, 555 U.S. 122 (2009); Begay v. United

States, 553 U.S. 137 (2008); James v. United States, 550 U.S.

192 (2007). In Sykes, the latest in the series, the Court

held that to qualify as a violent felony under the

residual clause, a crime must “involve[] a potential risk

of physical injury similar to that presented by burglary,

extortion, arson, and crimes involving the use of explo-

sives.” 131 S. Ct. at 2277. In other words, the defendant

must have been convicted of an offense that carries a

risk of injury similar in kind and degree as the crimes

specifically mentioned in the statute. Id. at 2275 (“In

general, levels of risk divide crimes that qualify from

those that do not.”).

Applying this “similarity of risk” principle, the Court

held that the Indiana crime of vehicular fleeing qualifies

as a violent felony under the residual clause. Id. at 2277.

To reach this conclusion, the Court undertook what it

6 No. 11-3719

called a “commonsense” comparison of the risk of injury

posed by vehicular fleeing and by the other crimes speci-

fied in the residual clause. Id. at 2273-74. The Court also

looked to statistical data about the rate of injury from

police chases, which, though “not dispositive,” served

to “confirm the commonsense conclusion” that the

crime of vehicular fleeing poses a similar risk of injury

as the offenses listed in the statute. Id. at 2274-75.

Justice Scalia dissented, at length explaining his con-

clusion that the residual clause “fails to speak with the

clarity that criminal proscriptions require.” Id. at 2288

(Scalia, J., dissenting). The statute’s risk-of-injury require-

ment uses “the word ‘otherwise,’ ” but this connector

is “ ‘preceded by four confusing examples that have

little in common with respect to the supposedly defining

characteristic.’ ” Id. (quoting James, 550 U.S. at 230 n.7

(Scalia, J., dissenting)). He gave the following example

to illustrate the statute’s lack of clarity: “ ‘The phrase

“shades of red,” standing alone, does not generate con-

fusion or unpredictability; but the phrase “fire-engine

red, light pink, maroon, navy blue, or colors that

otherwise involve shades of red” assuredly does so.’ ” Id.

(quoting James, 550 U.S. at 230 n.7 (Scalia, J., dissenting)).

Justice Scalia then traced the Court’s earlier efforts

to discern a clear standard for deciding residual-

clause cases and noted that the formula kept shifting.1 Id.

1

Without belaboring the point, here is a shorthand version of

the decisional history: In James the Court held that a crime

(continued...)

No. 11-3719 7

at 2284-86 (Scalia, J., dissenting) (discussing James,

Begay, and Chambers). In his view the Court’s latest effort

in Sykes had produced only “a fourth ad hoc judgment

that will sow further confusion.” Id. at 2284 (Scalia, J.,

dissenting). The Court’s “repeated inability to craft a

principled test out of the statutory text” was proof posi-

tive of the statute’s “incurable vagueness.” Id. at 2287

(Scalia, J., dissenting). The time had come, he said, to

“admit that [the] ACCA’s residual provision is a

drafting failure and declare it void for vagueness.” Id. at

2284 (Scalia, J., dissenting); see also Derby v. United States,

131 S. Ct. 2858, 2860 (2011) (Scalia, J., dissenting from

denial of certiorari) (“I would grant certiorari, declare

ACCA’s residual provision to be unconstitutionally

1

(...continued)

will involve the required level of risk when “the risk posed

by [the crime in question] is comparable to that posed by its

closest analog among the enumerated offenses.” James v. United

States, 550 U.S. 192, 203 (2007). In Begay the Court held that to

qualify under the residual clause, the crime must be “purpose-

ful, violent, and aggressive.” Begay v. United States, 553 U.S. 137,

145 (2008). In Chambers the Court used a combination of these

approaches and also endorsed the use of statistics to prove

the required similarity of risk. Chambers v. United States, 555

U.S. 122, 129 (2009). In Sykes the Court recharacterized the

“purposeful, violent, and aggressive” formula as merely

descriptive of the result in Begay and retreated from the “closest

analog” approach of James in favor of what might best be

described as a “holistic” comparison of the risk posed by the

proposed ACCA predicate and the enumerated offenses.

See Sykes v. United States, 131 S. Ct. 2267, 2273-76 (2011).

8 No. 11-3719

vague, and ring down the curtain on the ACCA farce

playing in federal courts throughout the Nation.”).

Jones asks us to adopt Justice Scalia’s position and

declare the residual clause unconstitutionally vague

under the Due Process Clause of the Fifth Amendment.

“It is a fundamental tenet of due process that ‘[n]o one

may be required at peril of life, liberty or property to

speculate as to the meaning of penal statutes.’ ” United

States v. Batchelder, 442 U.S. 114, 123 (1979) (quoting

Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). A law “fails

to meet the requirements of the Due Process Clause if

it is so vague and standardless that it leaves the public

uncertain as to the conduct it prohibits.” Giaccio v. Pennsyl-

vania, 382 U.S. 399, 402-03 (1966).

Vagueness doctrine rests on concerns about fair

notice and arbitrary enforcement. “A conviction or pun-

ishment fails to comply with due process if the statute

or regulation under which it is obtained ‘fails to provide

a person of ordinary intelligence fair notice of what is

prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.’ ” FCC

v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012)

(quoting United States v. Williams, 553 U.S. 285, 304

(2008)); see also Skilling v. United States, 130 S. Ct. 2896,

2927-28 (2010) (“ ‘[A] penal statute [must] define the

criminal offense [1] with sufficient definiteness that

ordinary people can understand what conduct is prohib-

ited and [2] in a manner that does not encourage

arbitrary and discriminatory enforcement.’ ” (alterations

in original) (quoting Kolender v. Lawson, 461 U.S. 352,

No. 11-3719 9

357 (1983))). The concerns about notice and arbitrary en-

forcement arise not only in challenges to statutes de-

fining substantive criminal liability but also in chal-

lenges to penalty provisions like the ACCA. See, e.g.,

Batchelder, 442 U.S. at 123 (“[V]ague sentencing provisions

may pos[e] constitutional questions if they do not state

with sufficient clarity the consequences of violating a

given criminal statute.”); United States v. Evans, 333

U.S. 483, 486-87 (1948).

A threshold difficulty for Jones’s vagueness claim is

that at the time of his offense, we had already held that

the Illinois crime of aggravated vehicular fleeing

qualifies as a violent felony under the residual clause of

the ACCA. See Welch, 604 F.3d at 425 (“[W]e stand with

the majority of circuits that have held that intentional

vehicular fleeing is a violent felony within the meaning

of the ACCA.”). Our decision in Welch thus gave Jones

“a reasonable opportunity to know” of his career-

offender status under the residual clause, and also

served to “prevent arbitrary and discriminatory enforce-

ment” of the statute—at least in prosecutions for

conduct, like Jones’s, committed after the decision was

issued. United States v. Plummer, 581 F.3d 484, 488 (7th

Cir. 2009) (quotation marks omitted).

Jones acknowledges Welch but argues that his chal-

lenge must be evaluated by reference to the statutory

text alone, not judicial precedent interpreting and

applying it. To be sure, the focus of any due-process

vagueness challenge is statutory clarity. See Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972) (“[A]n enactment

10 No. 11-3719

is void for vagueness if its prohibitions are not clearly

defined.”); United States v. L. Cohen Grocery Co., 255 U.S.

81, 89 (1921); Todd v. United States, 158 U.S. 278, 282

(1895) (“[B]efore a man can be punished, his case must

be plainly and unmistakably within the statute.” (emphasis

added) (quotation marks omitted)). But it is well-estab-

lished that “clarity at the requisite level may be

supplied by judicial gloss on an otherwise uncertain

statute.” United States v. Lanier, 520 U.S. 259, 266 (1997); see

also Skilling, 130 S. Ct. at 2931 n.43 (“[C]ases ‘paring

down’ federal statutes to avoid constitutional shoals

are legion.”). Stated differently, a vague statute may be

saved by a “reasonable narrowing interpretation,” Skilling,

130 S. Ct. at 2931 n.43, provided that the limiting inter-

pretation is “fairly possible,” Boos v. Barry, 485 U.S. 312,

331 (1988), and not “plainly contrary to the intent of

Congress,” Edward J. DeBartolo Corp. v. Fla. Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

Still, “there are limits beyond which we cannot go in

finding what Congress has not put into so many words

or in making certain what it has left undefined or too

vague for reasonable assurance of its meaning.” Evans,

333 U.S. at 486. This principle is a necessary feature of

the separation of powers, and in this context, it reinforces

the rule that there are no common-law crimes. “In our

system, so far at least as concerns the federal powers,

defining crimes and fixing penalties are legislative, not

judicial, functions.” Id.; see also Lanier, 520 U.S. at 267 n.6

(“Federal crimes are defined by Congress, not the

courts . . . .”). But “the margin between the necessary

and proper judicial function of construing statutes and

No. 11-3719 11

that of filling gaps so large that doing so becomes es-

sentially legislative, is necessarily one of degree.”

Evans, 333 U.S. at 486-87.

What’s important for our purposes, however, is that

Welch settled the question whether the Illinois crime of

vehicular fleeing is a violent felony under the ACCA

before Jones was caught with a gun. “The root of the

vagueness doctrine is a rough idea of fairness,” Colten v.

Kentucky, 407 U.S. 104, 110 (1972), and one who violates

a “settled interpretation[]” of a statute is “ ‘certainly . . . in

no position to say that [he] had no adequate advance

notice that [he] would be visited with punishment,’ ”

Lanier, 520 U.S. at 267 (quoting Screws v. United States,

325 U.S. 91, 105 (1945)).

That alone might be enough to resolve the matter.

Vagueness challenges are normally evaluated in light of

the particular facts of the case, not in general. See Holder

v. Humanitarian Law Project, 130 S. Ct. 2705, 2718-19

(2010); Chapman v. United States, 500 U.S. 453, 467 (1991);

Maynard v. Cartwright, 486 U.S. 356, 361 (1988); Village

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 495 (1982); United States v. Powell, 423 U.S. 87,

92 (1975); Parker v. Levy, 417 U.S. 733, 757 (1974). “Ob-

jections to vagueness under the Due Process Clause rest

on the lack of notice, and hence may be overcome in

any specific case where reasonable persons would know

that their conduct is at risk.” Maynard, 486 U.S. at 361.

This principle is often stated in language describing

the form of the claim. For example, the Supreme Court

has said that when a statute is challenged on vague-

12 No. 11-3719

ness grounds, “the statute is judged on an as-applied

basis.” Id.; see also Humanitarian Law Project, 130 S. Ct. at

2718-19 (“We consider whether a statute is vague as

applied to the particular facts at issue . . . .”); Chapman, 500

U.S. at 467 (A vagueness claim “must be evaluated as

the statute is applied to the facts of th[e] case.”); Plummer,

581 F.3d at 488 (vagueness challenges “are analyzed as-

applied”). On the strength of this line of cases, the gov-

ernment maintains that because Welch gave Jones fair

notice that the residual clause would apply to him, his

vagueness challenge fails “as applied” and he cannot

bring a “facial” challenge to the statute.

This makes sense as a matter of the form and structure

of the claim. A due-process claim usually challenges

executive enforcement action. See Nicholas Quinn

Rosenkranz, The Objects of the Constitution, 63 S TAN. L.

R EV. 1005, 1041-43 (2011). “As a matter of grammar

and structure, the Due Process Clause is not an absolute

restriction on legislative power, like the First Amendment;

it is, at least at its core, a conditional check on execu-

tive power . . . .” Id. at 1042-43 (emphases added). Cf.

Nathan S. Chapman & Michael W. McConnell, Due

Process as Separation of Powers, 121 Y ALE L.J. 1672, 1722

(2012) (explaining that “the Due Process Clause was

originally understood to apply to legislative as well as

executive and judicial acts”). In a vagueness claim, the

challenger contends that a legislative enactment is too

vague and standardless to be enforced as law; applying

the vague statute to him deprives him of his liberty or

property without due process of law. Thus, the Supreme

Court has held that “[o]ne to whose conduct a statute

No. 11-3719 13

clearly applies may not successfully challenge it for

vagueness.” Parker, 417 U.S. at 756. Putting the point

slightly differently, a person “ ‘who engages in some

conduct that is clearly proscribed cannot complain of

the vagueness of the law as applied to the conduct of

others.’ ” Humanitarian Law Project, 130 S. Ct. at 2719

(quoting Hoffman Estates, 455 U.S. at 495).

And yet the Supreme Court regularly decides due-

process vagueness claims without regard to the facts of

the case. See, e.g., Skilling, 130 S. Ct. at 2925-34; City of

Chicago v. Morales, 527 U.S. 41, 55-64 (1999); Kolender,

461 U.S. at 357-62; Smith v. Goguen, 415 U.S. 566, 572-78

(1974); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971);

L. Cohen Grocery Co., 255 U.S. at 89-91. These cases are

hard to reconcile with the rule that vagueness chal-

lenges must be evaluated “as applied” and that “facial”

vagueness challenges are improper. The key point in

this line of cases seems to be that a criminal statute

that “simply has no core” and lacks “any ascertainable

standard for inclusion and exclusion” is impermissibly

vague regardless of the application facts in the case.

Goguen, 415 U.S. at 578. Such a statute is vague “not in

the sense that it requires a person to conform his

conduct to an imprecise but comprehensible normative

standard, but rather in the sense that no standard of

conduct is specified at all.” Coates, 402 U.S. at 614.

This raises a substantive point about the nature of the

claim. The Due Process Clause “is essentially a separa-

tion of powers provision.” Rosenkranz, The Objects of

the Constitution, 63 S TAN. L. R EV. at 1043. “The clause

14 No. 11-3719

protects individual rights by assigning and channeling

federal power.” Id. On this understanding, due-process

vagueness doctrine guards against impermissible delega-

tions of lawmaking authority. See Chapman & McConnell,

Due Process as Separation of Powers, 121 Y ALE L.J. at 1806

(“Vague statutes have the effect of delegating lawmaking

authority to the executive.”); L. Cohen Grocery Co.,

255 U.S. at 86-87 (a vague statute “amount[s] to a delega-

tion by Congress of legislative power to courts and

juries to determine what acts should be held to be

criminal and punishable”). Seen in this light, Jones’s

vagueness challenge does not depend on the particular

facts of his case. The residual clause, he asserts, is so

vague and standardless that Congress has impermissibly

delegated the legislative power to “defin[e] crimes and

fix[] penalties.” Evans, 333 U.S. at 486. With no ascer-

tainable legislative standard, judicial decisions about

which crimes count as violent felonies and which do

not—including our decision in Welch—are essentially

ad hoc and arbitrary.

The doctrine surrounding the “facial” and “as applied”

forms of judicial review is “currently a subject of hot

debate, both in the Supreme Court and among commenta-

tors.” Richard H. Fallon, Jr., Fact and Fiction About Facial

Challenges, 99 C ALIF . L. R EV. 915, 917 (2011). See also Doe

v. Reed, 130 S. Ct. 2811, 2817 (2010); Nicholas Quinn

Rosenkranz, The Subjects of the Constitution, 62 S TAN. L.

R EV. 1209, 1227-35 (2010); Luke Meier, Facial Challenges

and Separation of Powers, 85 IND. L. J. 1557 (2010); Gillian E.

Metzger, Facial and As-Applied Challenges Under the

Roberts Court, 36 F ORDHAM U RB. L.J. 773 (2009); David L.

No. 11-3719 15

Franklin, Looking Through Both Ends of the Telescope:

Facial Challenges and the Roberts Court, 36 H ASTINGS

C ONST. L.Q. 689 (2009). See generally Symposium, The

Roberts Court: Distinguishing As-Applied Versus Facial

Challenges, 36 H ASTINGS C ONST. L.Q. 563 (2009). We do not

need to weigh in on the debate here. Even if we set Welch

to one side, as an intermediate appellate court in the

judicial hierarchy, we cannot sustain Jones’s vagueness

challenge to the residual clause.

Although the Supreme Court has not formally consid-

ered the issue, it has twice responded to Justice Scalia’s

argument that the residual clause is unconstitutionally

vague. In James the Court said this:

While ACCA requires judges to make sometimes

difficult evaluations of the risks posed by different

offenses, we are not persuaded by Justice Scalia’s

suggestion—which was not pressed by James or his

amici—that the residual provision is unconstitutionally

vague. See post, at 230 [(Scalia, J., dissenting)]. The

statutory requirement that an unenumerated crime

“otherwise involv[e] conduct that presents a serious

potential risk of physical injury to another” is not

so indefinite as to prevent an ordinary person

from understanding what conduct it prohibits. See

Kolender v. Lawson, 461 U.S. 352, 357 (1983).

550 U.S. at 210 n.6. And just last year, in Sykes, the Court

said that although the residual clause may sometimes be

“difficult for courts to implement,” it nonetheless “states

an intelligible principle,” “provides guidance that allows

a person to ‘conform his or her conduct to the law,’ ” and

16 No. 11-3719

“is within congressional power to enact.” 131 S. Ct. at 2277

(quoting Morales, 527 U.S. at 58 (plurality opinion)).

Jones points out that the Supreme Court has never

received briefing on the vagueness issue. True, but the

Court’s statements in James and Sykes are direct, and

because Justice Scalia so thoroughly developed the argu-

ment, we are reluctant to treat the Court’s responsive

statements as mere dicta. Indeed, they are not dicta in

the traditional sense. The question presented in James

and Sykes required the Court to decide both the kind

and degree of risk necessary for a conviction to fall

within the scope of the residual clause. A possible

answer in both cases was that the residual clause is an

irreparable drafting failure and too vague to be enforced.

See id. at 2284 (Scalia, J., dissenting); James, 550 U.S. at 230

(Scalia, J., dissenting). For us to say that the residual

clause is unconstitutionally vague—essentially, that it

lacks a coherent, ascertainable standard—would be to

say that the Supreme Court failed to ascertain and

apply a standard in James, Begay, Chambers, and Sykes.

Justice Scalia may be right, but attributing failure to the

Supreme Court is not within our authority. Jones must

seek relief from the high court.

A FFIRMED.

7-27-12