Reply Brief — Beckles v. United States (No. 15-8544)

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In The

Supreme Court of the Hnited States

TRAVIS BECKLES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari To The

United States Court Of

For The Eleventh Circuit

REPLY BRIEF FOR PETITIONER

MICHAEL CARUSO

Federal Public Defender

JANICE L. BERGMANN*

ANDREW L. ADLER

Assistant Federal

Public Defenders

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

One East Broward Boulevard

Suite 1100

Fort Lauderdale, FL 33301

(954) 356-7436

Janice_Bergmann@fd org

Counsel for Petitioner

*Counsel of Record

COCKLE LEGAL RRIPPR (800) 225-4084

WWW COCKLELEGAL BRIEFS COM

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIBG...........00000s0csccessvesseeses ii

THE RESIDUAL CLAUSE IN U.S.S.G. § 4B1.2(aX2)

IS VOID FOR VAGUENESG..............:.:+0+0+0000000000: 1

RETROACTIVITY POSES NO BAR TO RE-

| RETINA AIBTEIE, BS 6

PETITIONER’S SENTENCE VIOLATED DUE

PIED sc cciicnciniscnsnvitesbicaieiicuissbdigebieuananaan 19

APPENDIX

Re-Sentencings After JoAnaon. ..............cccccceeeeeees App. 1

TABLE OF AUTHORITIES

Page

CASES:

Ashton v. Kentucky, 384 U.S. 195 (1966)...................... 2

Beard v. Banks, 542 U.S. 406 (2004) ..00.0..0 ooo 9,18

Bell v. Cone, 543 U.S. 447 (2005)... ooo 23

Burgess v. United States, 553 U.S. 124 (2008)........... 20

Butler v. McKellar, 494 U.S. 407 (1990) ............cccccc00-. )

Carter v. Jury Comm'n of Greene Cnty., 396 U.S.

ESSEC 1

Caspari v. Bohlen, 510 U.S. 383 (1994) o.oo. 8

Chaidez v. United States,568U.S.__, 133 S. Ct.

EES EES )

Chapman v. United States, 500 U.S. 453 (1991)... 2

Chevron, U.S.A., Inc. v. Natural Res. Def. Coun-

ont, Tme., 467 UG. GBT (1BB4)..............<<ccecceccsees0-..... 24

Christensen v. Harris Cnty., 529 U.S. 576 (2000)....... 24

Christopher v. SmithKline Beecham Corp., 567

US. __., 182 S. Ct. 2156 (2012) oo... eecccccececceseeees 20

Cleveland Bd. of Educ. v. Loudermill, 470 US.

ESET SS 1

Cramp v. Bd. of Pub. Instruction of Orange Co.,

Pg Be CR UU CRIB A) case scccccccccescccosescccesccesececees 23

Crawford v. Washington, 541 U.S. 36 (2004).............. 13

Espinosa v. Florida, 505 U.S. 1079 (1992) ........... 17, 18

Gall v. United States, 552 U.S. 38 (2007)................... 15

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)... 2

ili

TABLE OF AUTHORITIES - Continued

Page

Gilmore v. Taylor, 508 U.S. 333 (1993)...................000+8 9

Gonzales v. Oregon, 546 U.S. 243 (2006) .................0 24

Graham v. Collins, 506 U.S. 461 (1993) ....................0+ ~

Gray v. Netherland, 518 U.S. 152 (1996)..................00 8

Grayned v. City of Rockford, 408 U.S. 104 (1972) ....... 23

Griffin v. Illinois, 351 U.S. 12 (1956)...............ccceeeeeeees 1

Irizarry v. United States, 553 U.S. 708 (2008) ............. 4

James v. United States, 550 U.S. 192 (2007).............. 23

Johnson v. United States, 576 U.S.__, 135 S. Ct.

EE passim

Jordan v. De George, 341 U.S. 223 (1951) ...............000 2

Kimbrough v. United States, 552 U.S. 85 (2007)........ 25

Lambrix v. Singletary, 520 U.S. 518 (1997) .....9, 17, 18

Linkletter v. Walker, 381 U.S. 618 (1965) ................... 19

Mackey v. United States, 401 U.S. 667 (1971).............. 6

Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455

I snsicsinsiicnadibinndcndieneetsmnaninniauitinimantamennetee 13, 16

Miller v. Florida, 482 U.S. 423 (1987) .............cc0ceeeees 17

Mistretta v. United States, 488 U.S. 361 (1989) ...21, 22

Molina-Martinez v. United States, 578 U.S. __.,

SE Gi, Fe Ge eccnreccnsnccnncnsennaseseseszssesesseess 3,12

Montgomery v. Louisiana, 577 US. __, 136

ee passim

O'Dell v. Netherland, 521 U.S. 151 (1997)................... 9

TABLE OF AUTHORITIES — Continued

Page

Papachristou v. City of Jacksonville, 405 U.S. 156

Soe aceicsinncinneniennnnideasteinstdhtnntnhinnaibanninedadeinetionmentins 3

Penry v. Lynaugh, 492 U.S. 302 (1989) ...0...........cccccc000 8

Peugh v. United States, 569 U.S. ___, 133 S. Ct.

SENSES SP aaa oe passim

Rita v. United States, 551 U.S. 338 (2007)................. 14

Saffle v. Parks, 494 U.S. 484 (1990)........................ 8,18

Sawyer v. Smith, 497 U.S. 227 (1990) .................... 9,10

Schriro v. Summerlin, 542 U.S. 348 (2004)............ 9,18

Stinson v. United States, 508 U.S. 36 (1993)....20, 21, 22

Stringer v. Black, 503 U.S. 222 (1992).................. 7, 8,9

Sykes v. United States, 564 U.S. 1 (2011)................... 23

Teague v. Lane, 489 U.S. 288 (1989)........... 6, 7, 8, 9, 10

Townsend v. Burke, 334 U.S. 736 (1948) .................0..+. 2

United States v. Batchelder, 442 U.S. 114 (1979)......... 2

United States v. Bell, __ F.3d ___, 2016 WL

6311084 (8th Cir. Oct. 28, 2016) ..............cccccecceeees 21

United States v. Booker, 543 U.S. 220 (2005) ....2, 4, 5, 14

United States v. Hurlburt, 835 F.3d 715 (7th Cir.

TT EGET EN Re Se a ee 4

United States v. LaBonte, 520 U.S. 751 (1997)........... 24

United States v. Martinez, 821 F.3d 984 (8th Cir.

EEN REEES I PER eR Se Ee a 16

TABLE OF AUTHORITIES — Continued

Page

United States v. Rollins, 836 F.3d 737 (7th Cir.

I ce a lia 20

United States v. Soto-Rivera, 811 F.3d 53 (1st

REDRESS ESSE AES HESSEO Ao eit a 20

United States v. Tucker, 404 U.S. 443 (1972) ............... 2

United States v. U.S. Coin & Currency, 401 U.S.

EE Aa ae RD 6, 7

Village of Hoffman Estates v. Flipside, Hoffman

Estates, 455 U.S. 489 (1982)................cccccccececeeseeeees 23

Welch v. United States, 578 U.S. ___, 136 S. Ct.

I ee ierntecriptenantiasncemaininmnnimbinsinesemnnies passim

Whorton v. Bockting, 549 U.S. 406 (2007) .............. 9,13

Williams v. New York, 337 U.S. 241 (1949) .................. 1

CONSTITUTIONAL PROVISIONS AND STATUTES:

8 ES eT eee 1,2

ES ae a ee 16

BN aS sn cant nssiarnnctnaaersmeeeninaimamasiel 5, 14

seinen 15

RE Sa ea Ee ee 15

ETE RES ee ean CeCe nse, 21

es i ctncriccincnncniimneneidiieipincaieninianninibinenienimatuiias 21

TABLE OF AUTHORITIES — Continued

Page

Armed Career Criminal Act, 18 U.S.C. § 924(e) ........ 10

Sentencing Reform Act of 1984, Pub. L. No. 98-

ee ly SE ED icinsiincintcteubimennentnastonniansnatens 14

UNITED STATES SENTENCING GUIDELINES:

RE RT EC ae ele 20

EEE STE PLEO KPO SRE Ro 5, 20

I passim

ERE EATERS RR Ie AD SOE se Da 20

EET ere eee ee ELD.” 20

ER EET Ree ee een Set! 20

ARETE ie ES Ae 20

U.S.S.G. app. C, amend. 498 (1993) ..................0....0000. 21

US.S.G. app. C, amend. 674 (2004) ...................... 21, 25

MISCELLANEOUS:

81 Fed. Reg. 4741 (Jam. 27, 2016) .............cccceceeeeseeeeeeees 5

Hon. Patti B. Saris, Chair, U.S. Sent’g Comm'n,

Remarks for Public Meeting (Jan. 8, 2016), http://

www. i

process/public-hearings-and-meetings/20 160 108/

Se etitcnitenectvnenscnsiecansnpsssetninasiiansiiaisesmncnseseed 6

Brief for the United States, Peugh v. United

States, 569 U.S. __., 133 S. Ct. 2072 (2013)

(No. 12-62), 3013 WL, BIGBBT .........cccccccccccccosccccscccceces 4

vii

TABLE OF AUTHORITIES — Continued

Page

Brief for the United States as Amicus Curiae,

Montgomery v. Louisiana, 136 S.Ct. 718

(2016) (No. 14-280), 2015 WL 4607683 .................. 19

Reply Brief for the United States, Welch v.

United States, 136 S. Ct. 1257 (2016) (No. 15-

6418), 2016 WL 1165972............ccccecceessecsseeeneee 14, 19

Supplemental Brief for the United States, John-

son v. United States, 135 S. Ct. 2551 (2015)

(No. 13-7120), 2015 WL 1284964... eee 22

I. THE RESIDUAL CLAUSE IN U.S.8.G.

§ 4B1.2(a)(2) IS VOID FOR VAGUENESS

Court-appointed amicus does not dispute that

U.S.S.G. § 4B1.2(a)(2)’s residual clause is vague follow-

ing Johnson v. United States, 576 U.S. ___, 135 S. Ct.

2551 (2015). Rather, he unpersuasively argues that the

Guidelines are wholly immune from the Due Process

Clause’s prohibition on vagueness.

1. Amicus’ “major premise” (Br. 19) is that inde-

terminate non-capital sentencing is constitutional.

Although the Guidelines are not constitutionally re-

quired, it does not follow that they are immune from

the Constitution once implemented. This Court has re-

jected that dangerous reasoning in other contexts. See,

e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

541 (1985) (procedural due process); Carter v. Jury

Comm’n of Greene Cnty., 396 U.S. 320, 330 (1970)

(grand and petit juries); Griffin v. Illinois, 351 U.S. 12,

18 (1956) (appellate review). Accepting it here “would

permit the Commission to promulgate Guidelines that

discriminated on the basis of a protected class, penal-

ized the exercise of constitutional rights, or bore no ra-

tional relationship to the goals of sentencing.” United

States v. Pawlak, 822 F.3d 902, 909 (6th Cir. 2016) (ci-

tation omitted).

Furthermore, amicus overlooks that even wholly

discretionary sentencing in the pre-Guidelines era was

“not ... immune from scrutiny under the due-process

clause.” Williams v. New York, 337 U.S. 241, 252 n.18

(1949). Due process has always prohibited sentencing

based not on informed discretion, but rather on a “ma-

terially false” foundation, Townsend v. Burke, 334 U.S.

736, 741 (1948); see United States v. Tucker, 404 U.S.

443, 447-48 (1972), or an “arbitrary distinction,” Chap-

man v. United States, 500 U.S. 453, 464-65 (1991). Im-

posing a sentence based on a provision utterly devoid

of meaning contravenes that constitutional proscrip-

tion.

2. Amicus argues (Br. 15, 20-22, 27) that the

Guidelines are immune from vagueness because they

do not “regulate private conduct.” But amicus cites no

case in which the Court has ever immunized a legal

provision from the prohibition on vagueness, let alone

on the amorphous basis he proposes. To the contrary,

“[vjague laws in any area suffer a constitutional infir-

mity,” Ashton v. Kentucky, 384 U.S. 195, 200 (1966), in-

cluding “vague sentencing provisions,” United States v.

Batchelder, 442 U.S. 114, 123 (1979). Consistent with

the text of the Due Process Clause, the Court has lib-

erally invoked the doctrine to scrutinize provisions,

however labeled, that “depriv[e] . . . [a] defendant of his

liberty.” Giaccio v. Pennsylvania, 382 U.S. 399, 402

(1966); see Jordan v. De George, 341 U.S. 223, 230-31

(1961).

As both “the framework for sentencing” and “in a

real sense the basis for the sentence,” the Guidelines ef-

fectuate such a deprivation. Peugh v. United States,

569 U.S. __, 133 S. Ct. 2072, 2083 (2013) (citation

omitted) (emphasis in original). Although amicus crit-

icizes the Court’s sentencing precedents following

United States v. Booker, 543 U.S. 220 (2005) (Br. 20-22,

31 n.10), they have cemented the Guidelines as the

single most important determinant of a defendant’s

sentence. See Peugh, 133 S. Ct. at 2083-85; Molina-

Martinez v. United States,578 U.S. __, 186 S. Ct. 1338,

1345-46, 1349 (2016). Uniquely immunizing them from

the fundamental prohibition on vagueness would

shackle due process and turn a blind eye to the reali-

ties of sentencing.

Amicus’ contrary argument (Br. 28-30), stripped to

its essence, is that the Guidelines merely guide a sen-

tencing court’s discretion and lack binding legal effect.

Peugh, however, squarely rejected that identical argu-

ment vis-a-vis the Ex Post Facto Clause, which, unlike

the Due Process Clause, contemplates a “law.” Peugh,

133 S. Ct. at 2085-88. Ignoring that dispositive aspect

of Peugh, amicus seeks to distinguish the ex post facto

doctrine as concerned with legislative targeting of dis-

favored groups (Br. 6, 9, 28-30). Yet vague previsions

facilitate the very same evil by the Judiciary and

Executive, “furnish[ing] a convenient tool for harsh

and discriminatory enforcement . . . against particular

groups deemed to merit [officials’] displeasure.” Papa-

christou v. City of Jacksonville, 405 U.S. 156, 170 (1972)

(citation omitted); see Johnson, 135 S. Ct. at 2257 (con-

demning “arbitrary enforcement by judges”). Amicus’

failed attempt to distinguish Peugh thus confirms

what this Court has long recognized: the two doctrines

are constitutional kin. See Pet. Br. 25-27 & n.6.'

' For the same reasons, Peugh also forecloses amicus’ asser-

tion (Br. 8-9, 12-13, 32-33) that subjecting the Guidelines to

3. The only post-Booker precedent upon which

amicus relies (Br. 7-8, 12, 24-27), rather than criticizes,

is Irizarry v. United States, 553 U.S. 708 (2008). Iri-

zarry unremarkably held only that, after Booker, de-

fendants lack a due-process expectation of a sentence

within the guideline range, and thus need not be noti-

fied that a court may vary from that range. 553 U.S.

at 713-14. Amicus contends that it follows therefrom

that a defendant has no due-process right to notice

of the guideline range at all. But that again reprises

an argument unsuccessfully advanced by the govern-

ment in Peugh. Brief for the United States 11, 41,

Peugh, 133 S. Ct. 2072 (2013) (No. 12-62), 2013 WL

315237. Furthermore, Jrizarry did not confront the vice

of arbitrary enforcement with which vagueness and

Johnson are principally concerned. See Peugh, 133

S. Ct. at 2085 (plurality); United States v. Hurlburt,

835 F.3d 715, 724 (7th Cir. 2016) (en banc). Because

courts are legally required to calculate the guideline

range and use it as the basis for sentencing, Peugh, 133

S. Ct. at 2083, due process requires that the Guidelines

be intelligible.

4. Amicus speculates that subjecting § 4B1.2(aX2)

to vagueness would jeopardize other guidelines (Br. 31-

32). But Johnson carefully limited its holding to provi-

sions combining the “serious potential risk” standard

with the “idealized ordinary case” analysis. 135 S. Ct.

at 2561. Section 4B1.2(a)X(2)’s residual clause is the

only guideline with that combination in its text; all

others analyze “real-world” conduct. See Hurlburt, 835

vagueness would jeopardize the Booker remedy. See 133 S. Ct. at

2087-88.

F.3d at 724-25. The same is true of the 18 U.S.C.

§ 3553(a) factors, which, unlike § 4B1.2(aX2), do not

require an objective legal determination. Revealingly,

amicus does not identify a single post-Johnson case

where the text of any other guideline or § 3553(a) fac-

tor has even been challenged as unconstitutionally

vague.

Furthermore, amicus conflates the role of the Com-

mission with that of the Judiciary by asserting that

vagueness challenges to the Guidelines “threaten|] the

work of the Commission” (Br. 33). The Commission is a

“policymaking” body, “not a court.” Booker, 543 U.S. at

243 (citation omitted). As a result, it may amend the

Guidelines as a “matter of policy,” as it did following

Johnson. 81 Fed. Reg. 4741, 4743 (Jan. 27, 2016). But

the Commission is not charged with interpreting

the Constitution. And, like other agencies, its policy-

making duties cannot shield its regulations from con-

stitutional examination by the Judiciary. See Pet. Br.

23-24.

Likewise, it is for the Court to decide, as a “consti-

tutional matter,” the retroactivity of new rules of con-

stitutional law. Montgomery v. Louisiana, 577 US. __.,

136 S. Ct. 718, 729 (2016). Despite amicus’ impertinent

suggestion (Br. 5, 11, 33-35), the Commission’s decision

not to make a guideline amendment retroactive on

policy grounds cannot usurp the Judiciary’s constitu-

tional role. Regardless, the Commission declined to

make its recent amendment to § 4B1.2(a) retroactive

not because it deemed that course unwise as a policy

matter, as amicus inaccurately states (Br. 34 & n.12),

but because “major data limitations” rendered “impos-

sible” a “meaningful and complete retroactivity analy-

sis.” Hon. Patti B. Saris, Chair, U.S. Sent’g Comm'n,

Remarks for Public Meeting 4 (Jan. 8, 2016).?

The Guidelines are not immune from the due-

process prohibition on vagueness. Accordingly,

§ 4B1.2(a)(2)’s residual clause is void for vagueness.

Il. RETROACTIVITY POSES NO BAR TO RE-

LIEF

1. The government acknowledges (Br. 29) that

the substantive rule in Johnson has retroactive effect

“to all defendants on collateral review.” See Welch v.

United States, 578 U.S. __, 136 S. Ct. 1257, 1268

(2016) (Johnson has “retroactive effect in cases on col-

lateral review”). That includes Petitioner. Nonetheless,

the government asserts (Br. 15, 18, 28), without sup-

porting authority, that the relevant rule for retroactiv-

ity purposes is not the one announced in Johnson,

see Pet. Br. 14 (articulating rule), but rather the rule

Petitioner purportedly “seeks” — i.e., that § 4B1.2(a)(2)’s

residual clause and its commentary are void. The gov-

ernment’s effort to re-characterize the rule is incom-

patible with the Court’s jurisprudence since Teague v.

Lane, 489 U.S. 288 (1989).°

? http://www.ussc.gov/sites/default/files/pdf/amendment-

process/public-hearings-and-meetings/20160108/remarks. pdf.

* Notwithstanding the government’s discussion (Br. 29-31),

Justice Harlan’s pre-Teague opinions in Mackey v. United States,

401 U.S. 667 (1971), and United States v. U.S. Coin & Currency,

Where, as here, a prisoner seeks collateral relief

based upon “a case decided after [his] conviction and

sentence became final,” a federal court must “answer

an initial question, and in some cases a second.”

Stringer v. Black, 503 U.S. 222, 227-28 (1992). “First,”

the court must “determine[]) whether the decision re-

lied upon announced a new rule,” because the rule was

not “dictated by precedent existing at the time the

judgment in question became final.” Jd. at 227-28. “If,

however, the decision did not announce a new rule, it

is necessary to inquire whether granting the relief

sought would create a new rule because the prior deci-

sion is applied in a novel setting, thereby extending the

precedent.” Jd. (emphasis added). This second step is

necessary in the latter scenario because “[t]he inter-

ests in finality, predictability, and comity underlying

our new rule jurisprudence may be undermined to an

equal degree by the invocation of a rule that was not

dictated by precedent as by the application of an old

rule in a manner that was not dictated by precedent.”

Id.

Here, the analysis ends at Stringer’s first step. Pe-

titioner relies on the rule announced in Johnson after

401 U.S. 715 (1971), do not support the proposition that one rule

may have retroactive effect in some collateral cases but not others.

Coin & Currency arose on direct (not collateral) review, which, in

Justice Harlan’s view, “suffice[d] without more” to support retro-

activity. 401 U.S. at 724 n.13. Indeed, the government does not

dispute that affording Johnson retroactive effect to some collat-

eral cases but not others would contravene Teague’s categorical

approach, several statutory provisions codifying that approach,

and Welch’s unqualified holding. See Pet. Br. 34-40.

his conviction became final. He concedes Johnson’s

rule is “new” as to him. Thus, the underlying interests

in finality and predictability are unquestionably impli-

cated, rendering Stringer’s second step unnecessary.

The only remaining issue is whether the new rule

announced in Johnson satisfies a Teague exception.

Stringer, 503 U.S. at 228. Because Welch held that

Johnson announced a substantive rule, the retroactiv-

ity inquiry here is complete.

The government would nonetheless have the

Court ask whether applying Johnson’s new rule to Pe-

titioner’s case would create another new rule that must

separately satisfy one of Teague’s exceptions. It would

thus require Stringer’s second step not only in cases

where the petitioner relies on an old rule in a new con-

text, but also those where the petitioner relies on a new

rule from the outset. Doing so would not only contra-

vene the plain language of Stringer, but conflict with

this Court’s retroactivity precedents.

Since Teague, the Court has only conducted

Stringer’s second step in cases where the petitioner re-

lied on a rule that was not already new.‘ The Court has

never asked whether applying a new rule to a peti-

tioner would create a second new rule. Rather, in every

* See Gray v. Netherland, 518 U.S. 152, 158, 167-70 (1996);

Caspari v. Bohlen, 510 U.S. 383, 390-97 (1994); Graham uv. Collins,

506 U.S. 461, 467-78 (1993); Saffle v. Parks, 494 U.S. 484, 488-95

(1990); Penry v. Lynaugh, 492 U.S. 302, 314-19 (1989); Teague, 489

US. at 299, 301, 311.

case where the petitioner relied on a decision announc-

ing a new rule, the Court has simply asked whether

that rule satisfied a Teague exception.®

The Court’s most recent retroactivity decisions

confirm that Stringer’s second step is inapplicable

where, as here, the petitioner relies on a new rule ra-

ther than seeks to extend an old one. In both Welch and

Montgomery, the petitioner relied on a new rule, and

the Court declared the rule substantive. In each case,

however, the Court expressly declined to opine on the

new rule’s application to the petitioner's case. See

Welch, 136 S. Ct. at 1268; Montgomery, 136 S. Ct. at

736. And it therefore did not inquire whether applying

the new rule to the petitioner would have created a sec-

ond new rule. Yet the Court would have been required

to conduct that inquiry if the government’s approach

here were correct. See also Sawyer, 497 U.S. at 233-34

(declaring it unnecessary to address whether applica-

tion of a new rule to petitioner “would itself involve a

new rule of law”).

Adopting the government’s approach would not

only be unprecedented, but would “destabilize” and un-

necessarily complicate the “established retroactivity

® See Welch, 136 S. Ct. at 1263-65, 1268; Montgomery, 136

S. Ct. 725-26, 732-37; Chaidez v. United States, 568 U.S.__, 133

S. Ct. 1103, 1107 & n.3 (2013); Whorton v. Bockting, 549 U.S. 406,

416-17 (2007); Beard v. Banks, 542 U.S. 406, 410 (2004); Schriro v.

Summerlin, 542 U.S. 348, 351-53 (2004); O’Dell v. Netherland, 521

U.S. 161, 169-68 (1997); Lambrix vu. Singletary, 5620 U.S. 518, 526-

39 (1997); Gilmore v. Taylor, 508 U.S. 333, 338-46 (1993); Sawyer

v. Smith, 497 U.S. 227, 229, 232-42 (1990); Butler v. McKellar, 494

US. 407, 408-09, 414-16 (1990).

framework.” U.S. Br. 33. Determining the retroactive

effect of a new rule would no longer involve a bright-

line inquiry focused on a rule of law. It would instead

turn on the infinitely-variable circumstances of each

particular case. The slightest difference between a de-

cision announcing a new rule and a petitioner's case

would require a new, additional layer of analysis. That

would render this Court’s retroactivity precedents

good for one case only and enmesh lower courts in end-

less retroactivity litigation.

Accordingly, the Court should decline the govern-

ment’s unsupported invitation to inquire whether ap-

plying Johnson’s new rule to Petitioner’s case would

create a second new rule. Of course, Petitioner must

establish that Johnson renders § 4B1.2(a\(2)’s residual

clause void in order to obtain the sentencing relief he

seeks. See Pet. Br. 37-38. But because he relies upon

Johnson's new rule, the only question relevant to the

threshold retroactivity inquiry is whether that rule

falls within a Teague exception. Welch answered that

question affirmatively. Therefore, the substantive rule

in Johnson has retroactive effect. It is part of the body

of law “available to petitioner as a ground upon which

he may seek relief.” Sawyer, 497 U.S. at 234.

2. Regardless, even if the relevant rule here

is Johnson's invalidation of § 4B1.2(a\2)’s residual

clause, that rule, too, is substantive.

Johnson announced a substantive rule because it

has “a substantive function” — that is, it “changed the

substantive reach of the Armed Career Criminal Act,”

18 U.S.C. § 924(e) (“ACCA”), “rather than the judicial

procedures by which [it] is applied,” Welch, 136 S. Ct.

at 1265-66. “Before Johnson, the Act applied to any

person who possessed a firearm after three violent fel-

ony convictions, even if one or more of those convictions

fell under only the residual clause.” Jd. at 1265. “After

Johnson, the same person engaging in the same con-

duct is no longer subject to the Act.” Jd. As a result,

Johnson “alter[ed] the range of conduct or the class of

persons that the [Act] punish[ed].” Jd. at 1264-65 (cita-

tion omitted).

Johnson’s invalidation of § 4B1.2(a\(2)’s residual

clause likewise “change([s} the substantive reach” of the

career-offender guideline. Jd. at 1265. Before Johnson,

defendants with three convictions for a “crime of vio-

lence” qualified as career offenders, “even if one or

more of those convictions fell under only the residual

clause.” Id. “After Johnson, the same person engaging

in the same conduct is no longer subject to” the en-

hancement. Jd. Accordingly, the rule “alters the range

of conduct or the class of persons that the [guideline]

punishes,” “rather than the judicial procedures by

which [it] is applied.” Jd. at 1264-65 (citation omitted).

It is therefore a substantive rule. See Pet. Br. 16-17, 41-

46.

Ignoring that argument, the government focuses

instead on the rule’s “practical effect” and “operation”

(Br. 11-12, 20, 23-24, 27). But that only confirms its

substantive function. The Court has expressly recog-

nized that increasing an advisory guideline range “cre-

ate[s) a significant risk of a higher sentence.” Peugh,

133 S. Ct. at 2088 (citation omitted); see id. at 2084 (cit-

ing “considerable empirical evidence” to that effect);

Molina-Martinez, 136 S. Ct. at 1345-46, 1349 (same).

The government (Br. 31, 44, 46) therefore acknowl-

edges that, “as a practical reality, the Guidelines exert

a significant effect on the sentences actually imposed

in most cases.” And the effect of the career-offender

guideline is clear. In 2014, the average non-career-

offender sentence was less than half of — and nearly

seven years shorter than — the average sentence im-

posed on career offenders. Fed. Pub. & Cmty. Def. &

NAFD (“Defenders”) Amicus Br. 6, 2a.

The effect of § 4B1.2(aX2)’s residual clause in par-

ticular is striking. Post-Johnson re-sentencings illus-

trate that point. Comprehensively compiled in the

attached chart is every case known to Petitioner in-

volving a defendant who: (1) had her guideline range

enhanced pre~Johnson under § 4B1.2(aX2)’s residual

clause; (2) obtained relief under Johnson; and (3) has

since been re-sentenced without the enhancement.

App. 1-14. Of the 88 total cases identified, every de-

fendant but one received a sentence lower than the

sentence originally imposed, even though the govern-

ment urged re-imposition of the same (or higher) sen-

tence in approximately one-quarter of the cases.

Moreover, the average post-Johnson sentence imposed

was more than 3 years lower than the original sen-

tence. And, in many cases, it was substantially lower,

including in one case by 1717 years. Id. at 4. Thus, con-

trary to the government’s argument (Br. 12, 15-16, 28-

29), the rule here does far more than merely reduce the

guideline range; it effectively reduces the sentence it-

self, often substantially. That cannot be a procedural

function.

Unable to dispute the rule’s compelling impact,

the government argues (Br. 31-32) that this impact is

“not relevant to the retroactivity analysis.” It asserts

that this Court has previously deemed “procedural”

rules that “undoubtedly” affected the outcome. To the

contrary, the effect of the rules it cites could not be

demonstrated. See, e.g., Whorton, 549 U.S. at 418-20

(discussing uncertain effect of Crawford v. Washington,

541 U.S. 36 (2004)). Here, by contrast, the rule’s impact

is incontrovertible. And that impact reflects its sub-

stantive function: by narrowing the scope of a sentenc-

ing enhancement, the rule alters the range of conduct

and class of persons punished. It therefore comfortably

satisfies the “normal criteria for a substantive rule.”

Welch, 136 S. Ct. at 1267.

Resisting that “normal criteria,” the government

invents its own. It suggests (Br. 12-13) that a rule is

substantive only if it renders a defendant ineligible for

the same sentence. Montgomery and Welch, however,

refute that formulation. The Court acknowledged that

Montgomery remained eligible for the same life-

without-parole sentence regardless of the new, sub-

stantive rule in Miller v. Alabama, 567 U.S. ___, 132

S. Ct. 2455 (2012), if the court found him permanently

incorrigible. 136 S. Ct. at 734-37. And the Court simi-

larly acknowledged that Welch remained “eligible for

[the same] 15-year sentence regardless of Johnson” if

his robbery offense qualified as an ACCA predicate un-

der the elements clause. 136 S. Ct. at 1268.

The government next insists (Br. 12, 20, 24, 27-28,

31) that the rule here is procedural because it does not

change the statutory range and therefore does not “de-

limit the bounds of a lawful sentence.” If, however, al-

tering statutory boundaries were a sine qua non of

substantive sentencing rules, then the Court would

have resolved Welch on that basis. But Welch declined

to adopt that formulation, despite the government’s

urging. See Reply Brief for the United States 2, 9 & n.3,

12, 18, Welch, 136 S. Ct. 1257 (2016) (No. 15-6418), 2016

WL 1165972. And that was for good reason. The “bounds

of a lawful [federal] sentence” are delimited not only by

the statutory range, but also by the sentencing struc-

ture established by the Sentencing Reform Act of 1984,

Pub. L. No. 98-473, 98 Stat. 1837 (“SRA”), and Booker

and its progeny. That structure “impose([s] a series of

requirements on sentencing courts that cabin the ex-

ercise of [their] discretion.” Peugh, 133 S. Ct. at 2084.

In light of those requirements, it will be the rare

case where a court can lawfully impose a sentence

in the career-offender range if Johnson renders

the defendant ineligible for that enhancement. The

non-enhanced range incorporates the Commission’s

data and expertise, “reflect[ing] a rough approxima-

tion” of sentences that, in the “typical case,” achieve

the sentencing objectives mandated by Congress and

codified in § 3553(a). Rita v. United States, 551 U.S.

338, 348-50, 357 (2007). In contrast, the Commission

has found that the career-offender guideline range

generally does not reflect those objectives. See Defend-

ers Amicus Br. 27-28. Instead, it implements the con-

gressional mandate in 28 U.S.C. § 994(h), which is tied

to the statutory maximum. That distinction explains

the high rate of downward variances from the career-

offender range. Id. at 2a.

Furthermore, because the career-offender en-

hancement substantially increases the guideline range

in most cases, an upward variance to the enhanced

range would require a “sufficiently compelling” and

“significant justification,” Gall v. United States, 552

U.S. 38, 50 (2007), “stated with specificity,” 18 U.S.C.

§ 3553(cX2). Such a justification, however, will rarely

exist. Indeed, in the 88 post~Johnson re-sentencings

collected by Petitioner, not a single defendant received

a sentence as high as the low end of the original, en-

hanced range. See App. 1-14. This is not a fluke. In

2014, just 1.2% of non-career offenders received a

sentence as high as the guideline minimum for career

offenders convicted of the same type of offense. Defend-

ers Amicus Br. 6-7, 6a-8a. In short, courts can rarely

impose a career-offender sentence on someone who is

not a career offender.

Petitioner's case exemplifies this dynamic. Section

4B1.2(aX2)’s residual clause increased his guideline

range from 262-to-327 months to 360-months-to-life.

The district court acknowledged that, absent that en-

hancement, it would have been required to give him a

lower sentence. JA 149. It explained that, “although

the imposed 360-month sentence does not exceed the

statutory maximum, such a sentence could only be

re-imposed under the SRA if the Court had a separate

reason that could justify departing upward from the

correct range.” Jd. Unsurprisingly, no such justification

existed. Varying upward to re-impose a career-offender

sentence would be “invalid,” the court determined, be-

cause it would represent “a clear error of judgment .. .

in weighing the Section 3553 factors.” Jd. (citation and

footnote omitted). See also United States v. Martinez,

821 F.3d 984, 989-90 (8th Cir. 2016) (declaring “unsup-

ported by the law” alternative sentence varying up-

ward to non-applicable career-offender range); App. 5

(reflecting that, following Johnson re-sentencing on re-

mand, Martinez received a sentence well below the

career-offender range).

Therefore, Johnson does indeed affect the “bounds

of a lawful sentence” for defendants whose sentences

depended on § 4B1.2(aX2)’s residual clause. Courts

could have lawfully imposed a sentence within the

career-offender range before Johnson, but after John-

son they will be unable to do so except in the rare case.

In that regard, this case is analogous to Montgomery.

Just as re-sentencing courts post-Miller v. Alabama

can impose a sentence of life without parole only in the

“rare” case where they find “permanent incorrigibility,”

Montgomery, 136 S. Ct. at 734, re-sentencing courts

post-Johnson can impose a career-offender sentence

only in the rare case where they can justify an upward

variance from a guideline range typically reflecting an

appropriate sentence to one that almost never does.

The rule therefore “necessarily carries a significant

risk that a defendant .. . faces a punishment that the

law cannot impose upon him.” Jd. at 734 (citation omit-

ted). Montgomery thus confirms its substantive nature.

So too does Miller v. Florida, 482 U.S. 423 (1987).

In unanimously holding that a retrospective increase

to a presumptive sentencing guideline range violated

the Ex Post Facto Clause, the Court concluded that the

increase was substantive, not procedural. It reasoned

that increasing the defendant’s offense level “in no

[way] alter[ed] the method to be followed in determin-

ing the appropriate sentence; it simply insert[ed] a

larger number into the same equation,” which “in-

creas[ed] the quantum of punishment” and “directly

and adversely affect[ed] the sentence.” Jd. at 433-35

(citation omitted). This Court has similarly character-

ized the federal Guidelines as a “substantive formula.”

Peugh, 133 S. Ct. at 2088 (citation omitted). Moreover,

Miller rejected the argument that the guidelines there

were not substantive because they “operate[d] only as

a ‘procedural guidepost’ for the exercise of discretion

within the same statutorily imposed sentencing lim-

its.” 482 U.S. at 434-35; see id. at 428. Given that the

government advances a nearly identical argument

here, Miller is highly instructive. Cf Peugh, 133 S. Ct.

at 2082-84 (relying heavily on Miller).

Disregarding the similarities with Welch, Mont-

gomery, and Miller v. Florida, the government relies on

Lambrix (Br. 12, 24-26), which deemed procedural Es-

pinosa v. Florida, 505 U.S. 1079 (1992). But Espinosa

is not analogous to the rule here. The government mis-

characterizes Espinosa’s rule as prohibiting a capital

sentencer from considering a vague aggravating cir-

cumstance. That rule, however, was established in ear-

lier decisions, and Espinosa took it as a “given.”

Lambrix, 520 U.S. at 528 n.3; see Espinosa, 505 US. at

1081. Instead, Espinosa considered whether a Florida

trial judge’s review of a capital jury’s sentencing rec-

ommendation could “cure” the jury’s consideration of a

vague aggravator in the same way appellate review

does. See Lambrix, 520 U.S. at 526, 530-31, 533-38. It

answered that question negatively, concluding that the

judge and jury were effectively “co-sentencers.” Jd. at

528, 533; see Espinosa, 505 U.S. at 1081-82. Thus, con-

trary to the government’s characterization (Br. 24), the

rule in Espinosa did not involve “what considerations

a judge or jury may or may not take into account in

imposing sentence.” Rather, it “allocate[d] decisionmak-

ing authority between judge and jury” and was there-

fore procedural. Welch, 136 S.Ct. at 1265 (citation

omitted).

Equally unhelpful is the government’s in-passing

reliance on Saffle and Beard (Br. 26). The rule in Saffle

related to “how” a capital jury could consider mitigat-

ing evidence (i.e., without sympathy), and therefore

governed “the manner” of sentencing, 494 U.S. at 490-

91, a procedural function, Schriro, 542 U.S. at 353. So

too did the rule in Beard — prohibiting any require-

ment that capital juries disregard mitigating factors

not found unanimously — because it merely “govern(ed]

how the sentencer considers evidence.” 542 U.S. at 415-

16. Unlike the rule here, neither rule narrowed the

range of conduct or class of persons punished, changed

the bounds of lawful sentences, or altered the substan-

tive formula of sentencing.

Lacking supporting precedent, the government

(Br. 33-37) resorts to a hyperbolic account of the poten-

tial costs of retroactive application. But, as the govern-

ment itself recently recognized, these matters have no

legal relevance. See Welch, U.S. Reply Br. 19; Brief for

the United States as Amicus Curiae 22-23, Montgom-

ery, 136 S. Ct. 718 (2016) (No. 14-280), 2015 WL 4607689.

Put simply, “the retroactive application of substantive

rules does not implicate .. . interests in ensuring the

finality of convictions and sentences.” Montgomery,

136 S. Ct. at 732. The Court should decline the gov-

ernment’s invitation to conduct a freewheeling cost-

benefit analysis that would transform the Court into a

legislature and revive the failed regime of Linkletter v.

Walker, 381 U.S. 618 (1965).

In sum, whether the new rule is Johnson or its in-

validation of § 4B1.2(aX2)’s residual clause, that rule

is substantive and therefore has retroactive effect here.

Il, PETITIONER’S SENTENCE VIOLATED DUE

PROCESS

1. The government does not dispute that Peti-

tioner’s sentence violated due process if the former

commentary listing his firearms offense depended on

§ 4B1.2(a)(2)’s residual clause. Nor does it dispute that

the residual clause is the only definition of “crime of

violence” in the text of § 4B1.2(a) that this commentary

could have interpreted. With the residual clause now

void for vagueness, the government is thus forced to

assert (Br. 50-53 & n.6) that the commentary set forth

a definition of the term “crime of violence” that was “in

addition to,” and “independent([] of,” the definitions set

forth in § 4B1.2(a)’s text. However, on that under-

standing, the commentary would be “inconsistent”

with the text and therefore invalid under Stinson v.

United States, 508 U.S. 36, 38, 45 (1993).

That is so because former § 4B1.2(a)’s text set

forth three exclusive definitions of the term “crime of

violence.” It stated, “(t]he term ‘crime of violence’

means any offense” that: 1) falls within the elements

clause in § 4B1.2(a)(1); 2) is an offense enumerated in

§ 4B1.2(aX2); or 3) satisfies the residual clause (em-

phasis added). By using the word “means” rather than

“includes,” the text excluded any other definitions of

the term “crime of violence.” See Christopher v. Smith-

Kline Beecham Corp., 567 U.S. __, 182 S. Ct. 2156,

2170 (2012); Burgess v. United States, 553 U.S. 124, 130

(2008). Therefore, if the commentary was not inter-

preting one of these three exclusive definitions, “then

it [wa]s in effect adding to the definition. And that’s

necessarily inconsistent with the text of the guideline

itself.” United States v. Rollins, 836 F.3d 737, 742 (7th

Cir. 2016) (en banc) (unanimous); accord United States

v. Soto-Rivera, 811 F.3d 53, 59-62 (1st Cir. 2016);

* Notably, the Commission has used the word “includes” in the

text of other guidelines. See, e.g., U.S.S.G. §§ 4A1.1(d), 5E1.2(d),

5G1.3(a), 5H1.4, 6A1.2(b).

United States v. Bell, F.3d , 2016 WL 6311084,

at *3-4 (8th Cir. Oct. 28, 2016).

Accepting the government’s view, then, would

mean that the Commission flouted Stinson by includ-

ing an additional, independent definition of “crime of

violence” in the commentary. That is implausible. Al-

most immediately after Stinson, the Commission rec-

ognized that its commentary must interpret or explain

a guideline’s text. U.S.S.G. app. C, amend. 498 (1993).

And when the Commission amended § 4B1.2(a)’s com-

mentary over a decade later to include Petitioner's

firearms offense, it expressly relied on judicial deci-

sions interpreting the residual clause. U.S.S.G. app. C,

amend. 674 (2004) (Reason for Amendment). The Court

should presume that, by expressly connecting the com-

mentary to that textual definition, the Commission

sought to abide by Stinson’s established holding.

In any event, whatever the Commission’s intent,

the commentary was legally valid under Stinson — and

thus capable of increasing Petitioner’s sentence — only

as an interpretation of § 4B1.2(a\(2)’s residual clause.

Under the SRA, the Guidelines are promulgated pur-

suant to “an express congressional delegation for rule-

making,” Stinson, 508 U.S. at 44, see 28 U.S.C. § 994(x),

and must be approved by Congress, 28 U.S.C. § 994(p),

so as to ensure that “the Commission is fully account-

able to Congress,” Mistretta v. United States, 488 U.S.

361, 393 (1989). The commentary, by contrast, is nei-

ther subject to notice-and-comment rulemaking nor

“reviewed by Congress.” Stinson, 508 U.S. at 46. It is

for that reason that the commentary is valid only if it

“interprets” or “explains” a guideline’s text. See id. at

44-46. Affording the commentary legal force independ-

ent of the text would conflict with the SRA, permit

the Commission to make law without oversight, and

remove structural safeguards ensuring the Commis-

sion’s compliance with the separation of powers. Mis-

tretta, 488 U.S. at 393-94.

Consequently, the commentary’s validity depended

on § 4B1.2(aX2)’s vague residual clause. Relying on the

commentary to enhance Petitioner’s sentence there-

fore violated due process.

2. The government alternatively argues (Br.

55-57) that, even if the commentary depended on

§ 4B1.2(aX2)’s residual clause, that clause is not vague

“as applied” to Petitioner because the commentary

identified his offense. Johnson, however, jettisoned

that as-applied analysis over the strenuous objections

of the government and dissent. 135 S. Ct. at 2560-61;

see id. at 2580-82 (Alito, J., dissenting); Supplemental

Brief for the United States 11, 15-16, 18-19, 38, John-

son, 135 S. Ct. 2551 (2015) (No. 13-7120), 2015 WL

1284964. The Court explained: “although statements

in some of our opinions could be read to suggest other-

wise, our holdings squarely contradict the theory that

a vague provision is constitutional merely because

there is some conduct that clearly falls within the pro-

vision’s grasp.” Johnson, 135 S. Ct. at 2560-61. Accord-

ingly, the Court invalidated the ACCA’s residual clause

“in all its applications.” Jd. at 2561.

The government (Br. 14, 53-57) attempts to distin-

guish Johnson on the ground that, unlike § 4B1.2(a)(2),

the ACCA’s residual clause lacked an authoritative

clarifying construction. But that overlooks this Court’s

four pre~Johnson decisions seeking to do just that. See

id. at 2558-60. Like the commentary, those decisions

expressly identified specific offenses satisfying the

ACCA’s residual clause (or not), absolving the public

and lower courts from consulting the vague text in

those instances. E.g., Sykes v. United States, 564 U.S. 1

(2011) (Indiana vehicle flight); James v. United States,

550 U.S. 192 (2007) (Florida attempted burglary). Yet

Johnson did not exempt these offenses from its facial

holding. Despite the Court’s best efforts, there was no

construction of the residual clause capable of clarifying

its meaning. Just as the ACCA’s residual clause was

impossible to interpret, so too is § 4B1.2(a\2)’s identi-

cal residual clause.

Straying far from Johnson, the government cites

Village of Hoffman Estates v. Flipside, Hoffman Es-

tates, Inc., 455 U.S. 489 (1982), Grayned v. City of Rock-

ford, 408 U.S. 104 (1972), and Bell v. Cone, 543 U.S. 447

(2005), to argue that the Court must first consider clar-

ifying constructions before invalidating vague text on

its face. However, each of those cases involved clarify-

ing constructions of vague state-law provisions. Fed-

eral courts are conclusively bound in every instance by

a state-court or state-agency’s construction of state

law. See Hoffman Estates, 455 U.S. at 494 n.5; Cramp

v. Bd. of Pub. Instruction of Orange Co., Fla., 368 U.S.

278, 279-80 (1961). This case, of course, involves only

federal law.

Unaided by federalism, the government obliquely

hints (Br. 56) that, just as the Court sometimes defers

to agency interpretations, it should likewise “take

account of” the Commission’s interpretation of

§ 4B1.2(aX2)’s residual clause. But even if traditional

administrative-law principles applied with full force

to the Commission, a dubious proposition given its

sui generis status, no deference would be warranted

here. That is so because the commentary was not

interpreting the Commission’s own words; rather,

§ 4B1.2(aX2)’s residual clause merely “parrot[ed]” back

the identical language of the ACCA, Gonzales v. Ore-

gon, 546 U.S. 243, 256-58 (2006), a statute that Con-

gress did not “entrust (the Commission] to administer,”

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 844 (1984). Furthermore, § 4B1.2(aX2)’s

residual clause is not ambiguous (i.e., capable of

multiple, ascertainable meanings). See Christensen v.

Harris Cnty., 529 U.S. 576, 588 (2000). Rather, Johnson

declared the residual clause so “hopeless[ly] indeter-

mina(te]” that its meaning is impossible to ascertain.

135 S. Ct. at 2558. Because this Court could not derive

meaning from this text, neither could the Commission.

Indeed, when this Court determines a statute’s unam-

biguous meaning (or, here, lack thereof), the Commis-

sion may not offer a contrary one. See United States v.

LaBonte, 520 U.S. 751, 757-62 (1997).

That is particularly true here, because the Com-

mission “did not take account of empirical data and na-

tional experience” when interpreting § 4B1.2(aX2)’s

residual clause to include Petitioner’s firearms offense

in the commentary. Kimbrough v. United States, 552

U.S. 85, 109 (2007) (citation omitted). Quite the con-

trary, it merely looked to lower-court opinions inter-

preting the residual clause and the National Firearms

Act. U.S.S.G. app. C, amend. 674 (2004) (Reason for

Amendment); see Pet. Br. 50. Johnson declared that

sort of pure legal analysis impossible. And it did so

when considering the same firearms offense at issue

here, an offense for which “the residual clause yield[ed]

no answers.” Johnson, 135 S. Ct. at 2559.

Just as this Court could not save the ACCA’s re-

sidual clause from facial invalidation, the Commission

cannot save § 4B1.2(aX2)’s identical, derivative text

from that same fate. It too is void in its entirety.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

MICHAEL CARUSO

Federal Public Defender

JANICE L. BERGMANN*

ANDREW L. ADLER

Assistant Federal

Public Defenders

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

One East Broward Boulevard

Suite 1100

Fort Lauderdale, FL 33301

(954) 356-7436

Janice_Bergmann@fd.org

Counsel for Petitioner

*Counsel of Record

Date: November 21, 2016

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In the Supreme Court of the 7

TRAVIS BECKLES, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELBVENTH CIROUIT

REPLY BRIEF FOR THE UNITED STATES

i. gov

TABLE OF CONTENTS

A. A vague guideline violates due process because

an important sentencing factor is determined

B. A vague guideline injects potential arbitrariness into

the sentencing process in a manner that is not found

in purely discretionary sentencing .................-0000000 9

C. A vague guideline gives rise to fundamental

procedural unfairness even though it does not

D. Subjecting the Guidelines to vagueness scrutiny

will not impede the work of the Sentencing

CII sncennccnesessartssusstacusssnscesnssseevescnsesensteenenessescces 19

TABLE OF AUTHORITIES

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000)... 10

Buchanan v. Angelone, 522 U.S. 269 (1998)... 15

Burns v. United States, 287 U.S. 216 (1932)...................... 10

Coates v. City of Cincinnati, 402 U.S. 611 (1971).............. 21

Espinosa v. Florida, 506 U.S. 1079 (1992).............. 14, 15, 16

Furman v. Georgia, 408 U.S. 238 (1972)..........ccccecceeceneees 15

Gall v. United States, 552 U.S. 38 (2007).............. 3, 5, 12, 18

Hili v. Sciarrotta, 140 F.3d 210 (2d Cir. 1998) ...........0....... 11

Irizarry v. United States, 553 U.S. 708 (2008) .....................

Johnson v. United States, 135 S. Ct. 2551 (2015)...... passim

Koon v. United States, 518 U.S. 81 (1996) ...........0.ccccccceee 10

Langnes v. Green, 282 U.S. 681 (1981) ...........ccccceeceseeeeneens 10

Loving v. United States, 517 U.S. 748 (1996) ..............0000. 15

Mistretta v. United States, 488 U.S. 361 (1988)................. 12

Molina-Martinez v. United States, 136 S. Ct. 1338

TU icirsesitdncatipendaensipiisinteativemainicthnadaeamagabaninanehincnedesti 5, 7, 12, 13

Cases—Continued: Page

Peugh v. United States, 133 S. Ct. 2072 (2013)... 4, 6, 7, 8, 19

Rogers v. Tennessee, 532 U.S. 451 (2001).............ccccceccees 6, 18

United States v. Batchelder, 442 U.S. 114 (1979)............... 16

United States v. Booker, 543 U.S. 220 (20085) ............. 4, 6,18

United States v. Evans, 333 U.S. 483 (1948)................0c0000 16

United States v. Helmy, 951 F.2d 988 (9th Cir. 1991),

cert. denied, 504 U.S. 945 (1992) ........ccccsesssseeseesserseeeesnees 20

United States v. L. Cohen Grocery, 255 U.S. 81

EEE ES eee er a ae OO 21

United States v. Pellerito, 918 F.2d 999 (ist Cir.

EEE ee Cater ee ee ll

United States v. Reid, 911 F.2d 1456 (10th Cir. 1990),

cert. denied, 498 U.S. 1097 (1991) .......ccccccccscsseseseseneneeees 11

United States v. Williams, 553 U.S. 285 (2008) ................. 21

Welch v. United States, 136 S. Ct. 1257 (2016).................... 17

Williams v. New York, 337 U.S. 241 (1949) .0000......cccccccccees 10

Constitution, statutes and guidelines:

U.S. Const.:

Art. I, § 9, Cl. 3 (Ex Post Facto Clause) ................... 6, 19

Amend. V (Due Process Clause)................-.c00s00+0 6, 8, 18

pe ee ee ER 18

FS EE ea ee 14, 15

Armed Career Criminal Act of 1984, 18 U.S.C.

ERE A a 17

eens 4, 8, 22

Ea ee eS 12

United States Sentencing Guidelines:

EE aE ee ee ee 20, 21

a TTTITIT TIT iorsthiinsstiensniitesicanesisiehiepssiennianiiatieininagiantonil 20, 21

a alias 19, 20, 21

Ill

Miscellaneous: Page

1 Joel Prentiss Bishop, New Commentaries on the

Criminal Law (8th ed. 1892) ................cccsccsesssesesesssenesees

Bryan A. Garner, A Dictionary of Modern Legal

In the Supreme Court of the Anited States

No. 15-8544

TRAVIS BECKLES, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

Contrary to the arguments presented by the Court-

Appointed Amicus, the advisory Sentencing Guide-

lines are subject to “the Constitution’s prohibition of

vague criminal laws,” Johnson v. United States, 135

S. Ct. 2551, 2556 (2015). The calculation of the bench-

mark Guidelines range serves as the lodestar of the

sentencing process, including appellate review, and

exerts a substantial effect on the actual sentences

imposed in most cases. The federal sentencing system

gives the Guidelines range that role precisely because

the range is understood to reflect the considered

judgment of the expert Sentencing Commission, in-

formed by congressional policy, about the appropriate

range of punishment in light of a defendant’s offense

conduct and criminal history. But if a guideline is so

“shapeless” that it is impossible to “derive meaning”

from it, id. at 2560, the resulting range reflects noth-

ing more than the judge’s “guesswork” about what the

(1)

Commission recommended, ibid. (citation omitted).

Using such an arbitrarily derived numerical] range in

the sentencing process, with the substantial effect the

range typically exerts on the sentence imposed, denies

a defendant due process in his sentencing proceeding.

In arguing that the Guidelines are exempt from

vagueness scrutiny, amicus makes two main argu-

ments, but neither has merit. First, amicus argues

that because due process permits a purely discretion-

ary sentencing scheme, it must also permit a scheme

in which the judge’s discretion is anchored at the

outset to an arbitrarily determined benchmark range.

That does not follow. An inscrutably vague guideline

injects an element of arbitrariness into the sentencing

process that is not found in a discretionary sentencing

system that relies on individualized judicial judgment

exercised in light of particular facts. In the advisory

Guidelines system, a sentencing judge is legally com-

pelled to treat the Guidelines range as the view of the

expert Sentencing Commission, and to consider that

range in the sentencing process. When a fatally vague

guideline makes it impossible to know what the Sen-

tencing Commission recommended, that process be-

comes arbitrary. Just as it would violate due process

to choose the benchmark range by flipping a coin,

calculating that range on the basis of a legal text from

which it is impossible to “derive meaning” offends the

right to a procedurally fair sentencing proceeding.

Second, amicus argues that this Court has struck

down as vague only laws that “regulate private con-

duct” (Br. 12), by which he appears to mean laws that

define crimes. This Court held in Johnson, however,

that the vagueness doctrine applies equally to “stat-

utes fixing sentences,” 135 S. Ct. at 2557, so that dis-

tinction is incorrect. More importantly, this Court has

never considered the procedural problem presented

here: not that the statute fails to clearly define what

conduct is proscribed or what the statutorily author-

ized sentencing range is, but rather that a vague

guideline infects the sentencing process with a numer-

ical range that the judge must consider as the Com-

mission’s expert view although it is calculated based

on an incurably indeterminate legal provision. Amicus

never explains how a sentencing proceeding that un-

folds from such an arbitrarily determined starting

point—a starting point that in most cases exerts a

significant effect on the actual sentence imposed—can

satisfy due process.

A. A Vague Guideline Violates Due Process Because An Im-

portant Sentencing Factor Is Determined Arbitrarily

1. As the government has explained in its opening

brief (at 40-46), two intrinsic features of the advisory

Sentencing Guidelines give rise to the due process

problem with applying a vague guideline. First, the

calculation of the advisory Guidelines range anchors

and structures the sentencing process. The district

court must correctly calculate the range—a miscalcu-

lation is a “significant procedural error”—and the

parties’ arguments largely key off of the range. Gall

v. United States, 552 U.S. 38, 51 (2007). Because that

range is understood to reflect the Sentencing Com-

mission’s expert recommendation in light of the de-

fendant’s offense conduct and criminal history, a dis-

trict court must provide a greater justification for a

sentence imposed outside the range, and an appellate

court may presume that a within-Guidelines sentence

is reasonable. /bid. The Guidelines range thus “an-

chor{s] both the district court’s discretion and the

appellate review process.” Peugh v. United States,

133 S. Ct. 2072, 2087 (2013).

Second, calculating the Guidelines range does not

involve an exercise of traditional sentencing discretion

by the district court. The court does not at the

Guidelines-range-calculation stage determine an ap-

propriate sentence in light of all the relevant factors.

Rather, calculating the starting benchmark range

requires applying a legal text to particular facts.

Defendants with the same offense conduct and the

same criminal history are supposed to be assigned the

same benchmark range. In that respect, calculation of

the Guidelines range differs fundamentally from the

district court’s ultimate exercise of sentencing discre-

tion under 18 U.S.C. 3553(a), which sets out the full

array of general factors relevant to discretionary

sentencing.

In light of those two features of the sentencing

regime in place since United States v. Booker, 543

U.S. 220 (2005), a vague guideline violates a defend-

ant’s due process right to a procedurally fair sentenc-

ing proceeding. The reason that the range anchors

the sentencing process is that courts understand it to

reflect the considered judgment of the Sentencing

Commission, informed by congressional policies. But

when a guideline’s text is so indeterminate that it

cannot satisfy the criminal-law vagueness standard, it

is impossible for the court to determine what in fact

the Commission recommended—whether, for exam-

ple, the Commission intended a particular offense to

qualify as a “crime of violence.” As a result, a Guide-

lines range based on a vague guideline reflects lin-

guistic “guesswork,” not reasoned application of fac-

tors relevant to determining a just and reasonable

sentence. Johnson, 135 S. Ct. at 2560 (citation omit-

ted). And that procedural unfairness is magnified by

the substantial effect that the Guidelines range exerts

on the ultimate sentence imposed in most cases. See

Molina-Martinez v. United States, 136 S. Ct. 1338,

1346 (2016). For those reasons, anchoring the sen-

tencing proceeding to such an arbitrarily determined

factor offends due process.

2. Amicus seems to acknowledge (Br. 20-22) that

the Court’s established sentencing framework, under

which the Guidelines range is the “lodestar” of the

sentencing process and appellate review, Molina-

Martinez, 136 S. Ct. at 1346, gives rise to a significant

procedural problem when a vague guideline is used to

calculate the range. But his response to that problem

is to suggest that this Court’s “post-Booker structure”

has been ill-conceived, because “no particular se-

quence” is “prescribed by the statute or the Booker

remedial opinion” and “Booker placed no specific em-

phasis on the Guidelines over any other factor.” Ami-

cus Br. 21-22. Amicus questions whether “these re-

finements would exist had the vagueness argument

presented itself first,” and for that reason deems it

“remarkable” that the government relies on those

features of the established sentencing regime to show

why a vague guideline creates fundamental procedural

unfairness. Jd. at 22.

Amicus’s attack on this Court’s settled sentencing

framework should be rejected. For nearly a decade

this Court has held that the Guidelines range plays a

procedural role of overriding importance in the sen-

tencing process. See Gall, 552 U.S. at 49-50. That

recognition flows from the emphasis in Booker itself

on the role that the Commission’s expertise, and the

advisory Guidelines system, would play in achieving

Congress's objective of “avoid[ing] excessive sentenc-

ing disparities.” 543 U.S. at 264-265. Although ami-

cus sees the advisory range as no different from any

other factor that a sentencing judge considers, this

Court has reached the opposite conclusion, explaining

that “(t]he federal system adopts procedural measures

intended to make the Guidelines the lodestone of sen-

tencing.” Peugh, 133 S. Ct. at 2084. The Guidelines

serve that central role because they reflect the views

of the Sentencing Commission and congressional poli-

cy. But when a guideline’s text is so vague that the

Commission’s recommendation cannot be ascertained,

structuring the sentencing proceeding around a judge's

guess at the provision’s meaning creates an intolera-

ble risk that the sentence imposed is the product of

“unfair and arbitrary judicial action,” which the Due

Process Clause forbids. Rogers v. Tennessee, 532 U.S.

451, 466-467 (2001).

3. Amicus contends (Br. 28-30) that this Court’s

decision in Peugh lacks legal relevance here because

Peugh applied the “significant risk” standard devel-

oped in this Court’s Ex Post Facto Clause precedents.

Peugh, 133 S. Ct. at 2088. While it is true that Peugh

applied the “significant risk” standard, amicus misses

the broader import of the Court’s analysis. The Court

concluded that creating a “significant risk” of « h.gher

Guidelines sentence based on a retroactive provision

would violate basic notions of “fundamental justice,”

even though the Guidelines are merely advisory, and

even though the retroactive guideline could not

change the statutorily authorized range of punish-

ment. /d. at 2084, 2088 (citation omitted).

A similar analysis applies here. Like the bar on ex

post facto laws, the vagueness doctrine is founded on

“ordinary notions of fair play and the settled rules of

law.” Johnson, 135 S. Ct. at 2556-2557 (citation omit-

ted). The lesson of Peugh is that violating such fun-

damental legal norms in promulgating Guidelines

provisions, in a way that is likely to increase the typi-

cal defendant’s sentence, can be unconstitutional even

if the statutory range of punishment is not increased.

In this context, when a court applies a Guidelines

provision that is so vague that it would be declared

void on its face if it were a criminal statute, and that

application is likely to increase the sentences that

most defendants subject to it would otherwise receive,

the process offends “fundamental justice.”'

Amicus also seems to dispute (Br. 23) the proposi-

tion that the Guidelines range in fact exerts a signifi-

cant effect on actual sentences imposed, despite this

Court’s recognition just seven months ago of the “real

and pervasive effect” that the Guidelines have on sen-

tences. Molina-Martinez, 136 S. Ct. at 1346. He notes

that last year slightly fewer than half of federal sen-

tences fell within the Guidelines range. But that is not

the proper measure of the effect of the Guidelines on

sentencing. This is not only because the majority of

below-range sentences are government-sponsored and

thus authorized by the Guidelines; it is because the

' Although amicus contends (Br. 28-29) that Peugh rested on the

concern with legislative vindictiveness against disfavored groups,

that consideration was mentioned only by the plurality, which sug-

gested that it was not “directly implicated,” 133 S. Ct. at 2085,

while the majority relied on the interest in “fundamental justice,”

id. at 2088 (citation omitted).

range affects even out-of-range sentences. A judge

who believes that a defendant is atypical may choose

to impose a sentence outside the Guidelines range, but

the starting point still has substantial influence on the

ultimate sentence. As this Court has repeatedly ex-

plained, “when a Guidelines range moves up or down,

offenders’ sentences [tend to] move with it.” J/bid.

(brackets in original) (quoting Peugh, 133 S. Ct. at

2084). That direct relationship between the Guide-

lines range and the sentences actually imposed under-

scores the procedural unfairness of calculating the

range based on a provision that is so “shapeless” that

it cannot satisfy the criminal-law vagueness standard.

Johnson, 135 S. Ct. at 2560.

4. Amicus relies (Br. 24-26) on this Court’s holding

in Irizarry v. United States, 553 U.S. 708 (2008), that

the Due Process Clause does not entitle a defendant

to notice that the district court will vary from the

advisory Guidelines range. /d. at 713-714. But he

does not seriously address the government’s explana-

tion (U.S. Br. 47) of why the due process problem gen-

erated by a vague guideline differs from the notice is-

sue discussed in /rizarry.

The problem with a vague guideline is not that a

defendant lacks notice that he could be sentenced

anywhere within the statutorily authorized range of

punishment. After Booker, he clearly has such notice,

which is why /rizarry held that no further notice is

required. 553 U.S. at 713. A defendant always knows

to make arguments based on the particular facts of his

case in light of the Section 3553(a) factors because the

judge must always consider those factors. A vague

guideline, in contrast, hinders procedural fairness on

two levels. First, it makes it difficult or impossible to

frame logical arguments to influence the judge’s calcu-

lation of the range. And second, it skews the frame-

work for sentencing because it produces a starting

range that the judge will assume reflects the expert

views of the Sentencing Commission. But in reality,

the fatal indeterminacy of the guideline text means

that the range was calculated arbitrarily, based on the

judge’s guess at what the language means, or how it

applies to the case at hand, rather than on any consid-

eration of relevance to criminal sentencing. That kind

of procedural unfairness was not at issue in /rizarry.

No inconsistency exists in concluding that a defendant

has no due process right to case-specific notice that

the judge may vary from the Guidelines range, but

that he does have a due process right to have the

judge calculate the Guidelines range in a non-

arbitrary manner.

B. A Vague Guideline Injects Potential Arbitrariness In-

to The Sentencing Process In A Manner That Is Not

Found In Purely Discretionary Sentencing

Amicus contends (Br. 12-14) that because a system

of “pure discretionary sentencing is constitutional,”

due process permits a district court to anchor the sen-

tencing process around a range derived from a vague

guideline. That contention is incorrect.

1. In a traditional discretionary sentencing system,

the sentencing judge considers the full range of rele-

vant aggravating and mitigating facts and circum-

stances, as well as her view of proper sentencing poli-

cy, and then exercises sentencing discretion in light of

those relevant considerations. As a leading Nine-

teenth Century treatise explained, when “the punish-

ment is discretionary with the tribunal,” the sentencer

“listen[s] to the aggravating and mitigating facts, and

place[s] it where justice and sound policy for the par-

ticular instance dictate.” 1 Joel Prentiss Bishop, New

Commentaries on the Criminal Law § 601, at 371 (8th

ed. 1892) (cited in Apprendi v. New Jersey, 530 U.S.

466, 519 (2000) (Thomas, J., concurring)). That sys-

tem draws on individualized judicial judgment to de-

termine the appropriate sentence in light of particular

facts, reflecting the unique considerations that bear

on the sentence in each case. See Koon v. United

States, 518 U.S. 81, 113 (1996) (“It has been uniform

and constant in the federal judicial tradition for the

sentencing judge to consider every convicted person

as an individual and every case as a unique study in

the human failings that sometimes mitigate, some-

times magnify, the crime and the punishment to en-

sue.”). Courts have exercised that sort of individual-

ized judgment for centuries, Apprendi, 530 U.S. at 481

(citing Williams v. New York, 337 U.S. 241, 246

(1949)), and the reliance on judicial judgment to frame

reasoned sentences within broad ranges has never

been thought to reflect the sort of arbitrariness that

violates due process.’

An inscrutably vague advisory guideline, however,

injects arbitrariness into the sentencing process that

* Arbitrary action is action “with no purpose or objective.” Bry-

an A. Garner, A Dictionary of Modern Legal Usage 73 (1995). An

individualized diseretionary sentencing, by contrast, relies on

“conscientious judgment, not arbitrary action,” and is conducted in

accord with “familiar principles governing the exercise of judicial

discretion.” Burns v. United States, 287 1).S. 216, 222-223 (1922)

(discussing discretionary probation revocation) The judge “takes

account of the law and the particular circumstances of the case and

is ‘directed by the reason and conscience of the judge to a just

result.” /d. at 223 (quoting Langnes vy. Green, 282 U.S, B31, 54)

(1931)).

is not found in the exercise of unguided discretion in a

traditional sentencing system. Lower courts have

consistently recognized, for example, that a court’s

reliance on material factual misinformation at sen-

tencing may violate due process.* Reliance on an

arbitrarily calculated range raises similar concerns. A

vague guideline requires the sentencing judge to take

into account an erroneous consideration: namely, that

the expert Sentencing Commission recommended a

particular range for the defendant based on his of-

fense characteristics and criminal history, even

though no one knows what the Commission recom-

mended. The district judge must nevertheless treat

the range as reflecting the considered views of the

Commission; indeed, the judge would commit proce-

dural error by failing to take into account that range

in her sentencing determination or by failing to offer a

sufficiently detailed explanation for varying from it.

And likewise, if the defendant appeals a within-

Guidelines sentence, the appellate court must also

deem the sentence consistent with the recommenda-

tion of the Sentencing Commission and may for that

reason apply a presumption of reasonableness even

though, in reality, the Commission’s views cannot be

discerned.

That violates due process. To require a sentencing

judge and an appellate court to treat a numerical

range as the recommendation of an expert commis-

* See, e.g., Hili v. Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998) (“It

is well established that a defendant has a due process right not to

be sentenced on the basis of information that is materially false.”);

United States v. Pellerito, 918 F.2d 999, 1002 (ist Cir. 1990)

(same); United States v. Reid, 911 F.2d 1456, 1463-1464 (10th Cir.

1990) (same), cert. denied, 498 U.S. 1097 (1991).

sion, when the text of the provision renders it impos-

sible to know what the commission actually concluded,

infringes “ordinary notions of fair play,” Johnson, 135

S. Ct. at 2556-2557 (citation omitted). The result is

that the sentencing process will be skewed by misin-

formation about the Commission’s views on the ap-

propriate sentence, because the judge must calculate

and consider the range based on a legal text from

which it is impossible to “derive meaning.” /d. at

2560.

A sentence imposed under a purely discretionary

sentencing system does not produce that type of arbi-

trariness. The system is simply individualized. For

generations, legislatures have relied on individual

judicial judgment to balance case-specific equities in

order to impose a fair sentence. That system will not

generate uniformity, see Mistretta v. United States,

488 U.S. 361, 365-366 (1988) (noting “[sJerious dispari-

ties” in the discretionary system), but vesting judges

with responsibility to fix sentences based on unique

facts is not arbitrary. In contrast, it is arbitrary to

require judges to guess about the meaning of text that

amounts to a linguistic “black hole,” Johnson, 135

S. Ct. at 2562 (citation omitted), and then calculate a

numerical range derived from that guess as the “lode-

star” of sentencing, Molina-Martinez, 136 S. Ct. at

1346; see also 18 U.S.C. 3553(a)(6) (directing judges to

consider “the need to avoid unwarranted sentence dis-

parities among defendants with similar records who

have been found guilty of similar conduct”); Gall 552

U.S. at 54 (consideration of the advisory range helps

to “avoid unwarranted disparities”). Such a legal

regime is arbitrary because the court is forced to

employ a sentencing benchmark that cannot rationally

be determined because the text that governs it is

hopelessly vague.

2. A hypothetical example illustrates the point.

Suppose that a sentencing judge were required to flip

a coin to determine a starting benchmark range—a

range that shapes the ensuing sentencing process by

“inform[ing] and instruct[ing] the district court’s

determination of an appropriate sentence,” Molina-

Martinez, 136 S. Ct. at 1346, and that would entitle

any sentence within that range to a “presumption of

reasonableness” on appellate review, Gall, 552 U.S. at

51. Heads would produce a starting range of 262 to

327 months, tails a range of 360 months to life. Cf.

Pet. Br. 6. Such a sentencing regime would produce

arbitrary and unfair results that do not exist in a

purely discretionary system that relies on good-faith

judicial judgment informed by the relevant facts.

When a coin flip dictates radical differences in the

starting point and initial benchmark for sentencing,

the sentencing process and likely outcome would be

determined entirely by chance.

Applying a fatally vague guideline is not as arbi-

trary as a coin flip, but its effect on the sentencing

process is similar. Johnson held that the language at

issue here is “a black hole of confusion and uncertain-

ty” and described how lower courts had reached wide-

ly divergent rulings about particular categories of

predicate offenses based on “pervasive disagreement

about the nature of the inquiry one is supposed to

conduct and the kinds of factors one is supposed to

consider.” 135 S. Ct. at 2560, 2562 (citation omitted).

Such “unavoidable uncertainty and arbitrariness of

adjudication” id. at 2562, means that in many cases,

the starting benchmark for a defendant’s sentencing

proceeding will be determined based on a judge’s

“guesswork and intuition,” id. at 2559, about the ap-

plicability of an indeterminate phrase. For example,

enhanced sentencing ranges for violent recidivists

may be wrongly or randomly assigned to defendants

who should not bear that treatment in the Commis-

sion’s judgment. Judges will of course struggle in

good faith to apply vague language. But when the

language reaches the level of inscrutability for crimi-

nal vagueness, they cannot avoid arbitrary results.

Amicus is therefore wrong that a vague guideline

“does not make things worse” (Br. 14) than purely

discretionary sentencing. Discretionary sentencing is

individualized, not arbitrary. In contrast, a vague

guideline requires judges to treat a numerical range

that was derived through conjecture about the mean-

ing of a critical phrase as reflecting the considered

views of the Sentencing Commission, and to accord

that benchmark a central role in the sentencing pro-

cess.

3. In its opening brief, the government explained

(at 43-44) that, in the Eighth Amendment context, this

Court has recognized that a jury’s consideration of a

vague aggravating factor is unconstitutional, even if

the jury’s role is only to recommend a sentence to the

judge and the judge does not directly consider the

vague factor but merely gives weight to the jury’s

recommendation. Espinosa v. Florida, 505 U.S. 1079,

1082 (1992) (per curiam). That holding is relevant

here because it illustrates the “potential for arbitrari-

ness,” ibid., when a vague standard informs one con-

sideration that the sentencer must take into account.

Amicus states (Br. 19-20 & n.2) that the opening

brief “lifted” Espinosa out of context because “pure

discretionary sentencing” is not permitted in the

capital-sentencing context, so Espinosa’s invalidation

of a vague indirect factor is not relevant to non-capital

sentencing, where discretionary sentencing is permis-

sible. That argument reflects a misunderstanding of

Eighth Amendment doctrine. It is true that at the

first, “eligibility” phase of capital sentencing, “a capi-

tal sentencing scheme must genuinely narrow the

class of persons eligible for the death penalty.” Lov-

ing v. United States, 517 U.S. 748, 755 (1996) (cita-

tions and internal quotation marks omitted). But once

it is determined that the defendant falls within a nar-

rower category of offenders (either through aggravat-

ing elements of the offense or an eligibility-phase

sentencing proceeding, see ibid.), the sentencer then

may consider the full range of relevant considerations

during the “selection” phase. See Buchanan v. Ange-

lone, 522 U.S. 269, 275-276 (1998). The Constitution

thus permits the jury to have “unbridled discretion” to

consider relevant evidence at that phase. /bid.

Espinosa concerned the second, “selection” phase

of capital sentencing. See 505 U.S. at 1083 (Scalia, J.,

dissenting) (“Since the Florida courts found several

constitutionally sound aggravating factors in this case,

Espinosa’s death sentence unquestionably comports

with the ‘narrowing’ requirement of Furman v. Geor-

gia, 408 U.S. 238 (1972).”). The Court held that the

invalid aggravating factor had, through the jury’s non-

binding recommendation to the judge, skewed the

judge’s “weighing [of] aggravating and mitigating

circumstances.” Jd. at 1081-1082. The Court ex-

plained that the weighing of a factor that that “is so

vague” that it does not provide “sufficient guidance

for determining the presence or absence of the factor”

creates a fatal “potential for arbitrariness,” even if the

factor serves only as one consideration in a non-bind-

ing recommendation to the ultimate sentencer. /bid.

Espinosa therefore illustrates that even where the

Constitution permits discretionary sentencing, incor-

porating an impermissibly vague factor into a non-

binding recommendation, to which the decisionmaker

must accord “great weight,” id. at 1082, can render

the ultimate sentencing determination unconstitution-

ally arbitrary.

C. A Vague Guideline Gives Rise To Fundamental Proce-

dural Unfairness Even Though It Does Not “Regulate

Private Conduct”

Amicus also contends that the vagueness doctrine

applies only to “measures that directly regulate pri-

vate conduct” and that for that reason the Guidelines

are not subject to the vagueness doctrine. Br. 14

(capitalization altered). That argument lacks merit.

1. As an initial matter, amicus is incorrect (Br. 17)

that “[t]he common thread” weaving through all of

this Court’s vagueness decisions “is that measures

were void because the public could not know what was

proscribed.” Although most of this Court’s vagueness

decisions have concerned provisions drawing the line

between lawful and unlawful conduct, this Court has

also concluded that statutory provisions delineating

the punishment for indisputably unlawful conduct are

subject to the vagueness doctrine. Indeed, Johnson

itself held as much: “[{Vagueness] principles apply not

only to statutes defining elements of crimes, but also

to statutes fixing sentences.” 135 S. Ct. at 2557 (citing

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

see United States v. Evans, 333 U.S. 483, 487-488

(1948) (holding that a statute that prescribed “no

penalty” for an offense was impermissibly vague).

Although amicus claims (Br. 16) that Johnson applied

the vagueness doctrine to the Armed Career Criminal

Act of 1984 (ACCA), 18 U.S.C. 924(e)(2)(B)(ii), only

because the ACCA “define[s] a separate crime,” this

Court has never held that ACCA defines a separate

crime. It is a sentencing provision.

2. In any event, amicus’s “private conduct” argu-

ment fails to grapple with the basic reason that a

vague guideline violates due process: not because it

leaves uncertainty about what conduct is unlawful, or

about the statutorily authorized range of punishment

for that conduct, but because it fundamentally distorts

the process of sentencing by anchoring the judge’s

exercise of discretion to an arbitrarily determined

range.

It is true that the problem here is different from

the problem in other cases in which this Court has

declared a statute void for vagueness. In those cases,

the challenged statute gave rise to a substantive prob-

lem: A person of ordinary intelligence could not de-

termine what conduct was prohibited or what range of

punishment was prescribed for the offense. That is

why those holdings applied retroactively on collateral

review. See Welch v. United States, 136 S. Ct. 1257,

1263-1268 (2016).

By contrast, a vague advisory guideline gives rise

to a procedural problem: The sentencing process is

anchored to a starting benchmark determined arbi-

trarily, based on a court’s conjecture about the mean-

ing of an impenetrable text, not based on the reasona-

bly discernible views of the Sentencing Commission or

any other criteria relevant to the sentencing process.

Yet the federal sentencing framework requires the

court to treat that range as reflecting the considered

judgment of the Commission. It is that procedural

problem, in conjunction with the Guidelines’ signifi-

cant effect on sentences actually imposed, that offends

due process.

Amicus does not seriously address that argument.

He merely argues (Br. 15-17) that this Court has nev-

er held a provision akin to an advisory guideline void

for vagueness. That is true, but it is equally true that

the Court has never held that such a provision is im-

mune from vagueness scrutiny. It is not an issue that

has previously arisen, because nothing quite like the

advisory Guidelines existed for federal sentencing

before Booker. The question to resolve here, there-

fore, is whether the basic guarantee of the Due Pro-

cess Clause against “unfair and arbitrary judicial ac-

tion,” Rogers, 532 U.S. at 466-467, is implicated when

a district court is legally required to consider a range

calculated based on a “hopeless[ly] indeterminal[te]”

provision of the Guidelines, Johnson, 135 S. Ct. at

2558. For the reasons discussed above, that proce-

dural unfairness violates due process.

3. Amicus relatedly argues (Br. 20) that the gov-

ernment has “offer[ed] no principle to determine when

a non-binding measure becomes ‘binding enough’ to

risk being unconstitutionally vague.” That argument

misses the point. The Guidelines range is not sub-

stantively binding in any sense; a judge has authority

to impose a sentence anywhere within the statutorily

authorized range. That is why a judge’s fact-finding

in calculating the range does not violate the Sixth

Amendment. Booker, 543 U.S. at 233. And contrary

to amicus’s suggestion (at 32-33), applying vagueness

principles to advisory Guidelines no more risks recre-

ating a Sixth Amendment problem than applying the

Ex Post Facto Clause, see Peugh, 133 S. Ct. at 2087-

2088. The due process problem arises from the vital

procedural role that the Guidelines range plays in the

sentencing process and in appellate review. Though

not binding, the starting benchmark must be taken by

the parties and the courts to reflect the considered

recommendation of the Sentencing Commission. If

that range was instead determined through the judge’s

“guesswork and intuition,” Johnson, 135 S. Ct. at

2559, the ensuing process is unfair.

D. Subjecting The Guidelines To Vagueness Scrutiny

Will Not Impede The Work Of The Sentencing Com-

Amicus contends (Br. 30-35) that subjecting the

Guidelines to vagueness scrutiny would “threaten |]

the work of the Commission and could wreak havoc on

the states that use sentencing guidelines.” /d. at 33.

That concern is groundless. Applying the vagueness

doctrine here is highly unlikely to invalidate other

guidelines currently in force. And more importantly,

where a guideline is so unclear that it would be facial-

ly void for vagueness, it does not serve the Commis-

sion’s interests to have federal judges continue to

engage in the “failed enterprise” of attempting to

apply it. Johnson, 135 S. Ct. at 2560.

1. Amicus contends (Br. 31-33) that many other

provisions of the Guidelines would be vulnerable to a

vagueness challenge. That is incorrect. The problem

with the residual clause of the ACCA and the former

residual clause of Section 4B1.2(a)(2) arises from a

confluence of “uncertainties”: applying a risk standard

to the ordinary case of an offense; the requirement

that judges consider conduct that might occur after

completion of the offense; the confusing list of enu-

merated crimes; and the long history of failed efforts

by this Court to construe that language and the wide-

spread confusion among lower courts. Johnson, 135 S.

Ct. at 2560; see id. at 2557-2560. It was the “sum” of

those problems that led the Court to conclude that the

ACCA’s language was unconstitutionally vague, id. at

2560 (citation omitted), and that requires the same

result here.

No reason exists to believe that other provisions of

the Guidelines raise comparable vagueness concerns.

Indeed, the Ninth Circuit has held for at least 25

years that the Guidelines are subject to vagueness

scrutiny, see United States v. Helmy, 951 F.2d 988,

993 (9th Cir. 1991), cert. denied, 504 U.S. 945 (1992),

yet that court has never held that a guideline is un-

constitutionally vague. The former residual clause of

Section 4B1.2(a)(2) stands alone.

Amicus’s lead example of a provision that would

be in jeopardy under vagueness doctrine is the

vulnerable-victim guideline, § 3A1.1, which increases a

defendant’s offense-conduct score by two levels “{ilf

the defendant knew or should have known that a vic-

tim of the offense was a vulnerable victim,” defined in

the commentary to include, inter alia, a victim “who is

unusually vulnerable due to age, physical or mental

condition, or who is otherwise particularly susceptible

to the criminal conduct.” Sentencing Guidelines

§ 3A1.1 & comment. (n.2). Unlike the residual clause,

however, that provision calls for a case-specific evalu-

ation of whether the victim was particularly vulnera-

ble to the criminal scheme, with the commentary giv-

ing the examples of “a fraud case in which the defend-

ant marketed an ineffective cancer cure,” or “a rob-

bery in which the defendant selected a handicapped

victim,” ibid. Although different judges might disa-

gree in borderline cases over whether a victim was

especially susceptible to particular offense conduct,

that provision does not involve basic uncertainty about

“the nature of the inquiry” that courts must under-

take, Johnson, 135 S. Ct. at 2560. And disagreements

about close cases under an intelligible, if qualitative,

standard do not make a provision vague. United

States v. Williams, 553 U.S. 285, 305-306 (2008). In-

deed, Johnson itself did “not doubt the constitutionali-

ty of laws that call for the application of a qualitative

standard such as ‘substantial risk’ to real-world con-

duct,” 135 S. Ct. at 2561, and the vulnerable-victim

guideline is just such a provision.

The same is true of the other provisions that ami-

cus cites. They bear no similarity either to the cate-

gorical risk analysis that Johnson found problematic

or to other statutes that this Court has held unconsti-

tutionally vague, which often relied on subjective

value judgments open to a wide range of interpreta-

tion. See, e.g., Coates v. City of Cincinnati, 402 U.S.

611, 615-616 (1971) (holding unconstitutionally vague

ordinance prohibiting “annoying” conduct); United

States v. L. Cohen Grocery, 255 U.S. 81, 89 (1921)

(“unjust or unreasonable rate or charge”).

Furthermore, no sound basis exists to believe that

the Commission would draft unconstitutionally vague

guidelines in the future. Apart from Section

4B1.2(a)(2)’s former residual clause, which was bor-

rowed from the ACCA, and which this Court declared

unconstitutional only after a decade of efforts to con-

strue it, amicus has pointed to no evidence that the

Commission has struggled to draft guidelines that are

sufficiently clear to satisfy the minimal standard of

the vagueness doctrine. Moreover, as explained in the

government’s opening brief (at 53-57), any ambiguity

in the text of a guideline can be eliminated or reduced

through the Commission’s authoritative commentary.

2. Amicus also contends (Br. 30-31) that if the

Guidelines are subject to the vagueness doctrine, the

statutory sentencing factors set forth at 18 U.S.C.

3553(a) would also be invalid. As explained in the

government’s opening brief (at 42), that is incorrect.

The Section 3553(a) factors essentially capture the

general set of considerations relevant to a sentencing

determination. Just as traditional discretionary sen-

tencing regimes do not raise due process problems, a

statutory command to consider a set of general! factors

in sentencing is not unconstitutionally vague. The

Guidelines are different because they require a court

to decide whether the facts of the case satisfy a legal

standard in order to derive a specific numerical range.

That range reflects the expert recommendation of the

Sentencing Commission, and for that reason it struc-

tures the sentencing process and appellate review,

and it exerts a substantial effect on the sentences

actually imposed. The general Section 3553(a) factors

have none of those characteristics.

3. Finally, amicus argues (Br. 33-35) that applying

the vagueness doctrine to the Guidelines will impede

the work of the Sentencing Commission. The opposite

is true. If the Commission drafts a guideline that is so

indefinite that it would be subject to facial invalidation

for vagueness, then courts necessarily would struggle

and fail to ascertain the Commission’s true recom-

mendation. Requiring courts to continue engaging in

a “task * * * which at best could be only guesswork,”

Johnson, 135 S. Ct. at 2560 (citation omitted), does not

vindicate the Commission’s important role.

Amicus also asserts (Br. 33) that the “Commission

is charged with addressing the same questions that

this Court is asking in this case,” such as whether a

guideline is “still fit for its intended purpose and, if

not, [whether] an amendment eliminating it [should]

be retroactive.” Those are not the questions posed by

a vagueness challenge like this. Rather, the question

is whether the Commission has expressed its meaning

with sufficient clarity that a court can apply the guide-

line in a non-arbitrary manner. Nor is a vagueness

challenge, as amicus characterizes it (Br. 34), “an

attempt to obtain judicial second-guessing of the Com-

mission’s expert decisions.” It instead is an argument

that the Commission’s recommendation cannot be dis-

cerned. As amicus himself puts it (Br. 30), “(bly defi-

nition,” when a provision is unconstitutionally vague,

“no one knows what it means.” If “no one knows” what

a Guidelines provision means, it is hard to see how

continuing to enforce that provision respects the Com-

mission’s work.

*- * * 7

For the reasons stated in the government’s opening

brief, the judgment of the court of appeals should be

affirmed.

Respectfully submitted.

IAN HEATH GERSHENGORN

Acting Solicitor General

NOVEMBER 2016

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.