Vagueness Challenge to Sentencing Guidelines Rejected

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By Alisa Johnson

The catchall definition of “crime of violence” in the advisory U.S. Sentencing Guidelines can’t be void for vagueness under the due process clause, the U.S. Supreme Court held March 6 ( Beckles v. United States , U.S., No. 15-8544, affirmed 3/6/17 ).

Travis Beckles was sentenced as a career offender under the guidelines, which define a career offender as one who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”

Section 4B1.2(a)(2) defines a “crime of violence” as either having certain elements, being an enumerated offense or being one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

This catchall language is almost identical to the catchall provision in the Armed Career Criminal Act.

The ACCA language was struck down by the Supreme Court as unconstitutionally vague in Johnson v. United States, 2015 BL 204915 (U.S. June 26, 2015).

Beckles asked the court to hold that the language in the guidelines is similarly vague in violation of due process.

Discretion, Not Vagueness

The court distinguished Johnson and held that the guidelines “are not subject to a vagueness challenge under the Due Process Clause,” in an opinion by Justice Clarence Thomas.

Unlike the ACCA, “the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range.”

An advisory sentencing guideline fails to fall under one of the two types of provisions the court has previously found void for vagueness: those that “define criminal offenses” and those that “fix the permissible sentences for criminal offenses,” the court said.

The guidelines also fail to implicate “the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement,” the court said.

The court has never suggested that a defendant can successfully challenge as vague a sentencing statute allowing a judge to select an appropriate sentence from within a statutory range, even when that discretion is unfettered.

“If a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided discretion could be,” it said.

Thousands of cases have been waiting in the pipeline for a decision in this case, Deputy U.S. Solicitor General Michael R. Dreeben told the court during oral argument.

In separate concurrences, Justices Ruth Bader Ginsburg and Sonia Sotomayor said the court did not need to issue such a sweeping opinion in this case when Beckles’s offense of conviction—possessing a sawed-off shotgun as a felon—meant that the catchall definition did not have to come into play at his sentencing.

Sotomayor accused the majority of casting the court’s “sentencing jurisprudence into doubt.”

The Department of Justice declined to comment on the decision.

Professor Carissa Byrne Hessick of the University of North Carolina School of Law, Chapel Hill, N.C., told Bloomberg BNA that “the court’s opinion ignores entirely the fact that many lower federal courts continue to treat the Federal Sentencing Guidelines as mandatory.”

Thomas’s opinion repeatedly mentions the advisory nature of the guidelines.

The “court should require sentencing judges to justify within-guideline sentences, and the court should reverse circuit court cases that have limited sentencing judges’ ability to sentence outside of the guidelines. The guidelines should not be treated as advisory only when doing so advances the interests of prosecutors,” she added.

To contact the reporter on this story: Alisa Johnson in Washington at ajohnson@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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