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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0685%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2017

## Text

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

i

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-

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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

IT

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
v.
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)

2

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-

3

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

4

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

5

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

6

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).

7

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).

8

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

9

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

10

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)).

11

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).

12

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

13

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

14

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

15

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”

16

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

17

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

18

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-

19

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

20

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-

21

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

22

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,”

23

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0685%3A08. Public record. Not legal advice.