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Sentencing Guidelines are Not Subject to Vagueness Challenges

In a landmark decision, the Supreme Court decided on March 6th that the federal Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause.  Beckles v. United States,  580 U.S. _____ (2017), Slip Op. No. 15-8544.  Beckles was precipitated by the Court’s opinion in Johnson v. United States, 135 S. Ct. 2551, 576 U.S. _____ (2015), which held that the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague under the due process clause of the Fifth Amendment.  An identically-worded residual clause was contained in § 4B1.2(a)(2) of the Sentencing Guidelines, and was used to impose a more severe sentence on Defendant Beckles.  Beckles argued that if the residual clause of the ACCA was void for vagueness, then the residual clause of the Guidelines must be unconstitutionally vague, too.  The Supreme Court disagreed.

Writing for the majority in Beckles, Justice Thomas explained, “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.  Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause.  The residual clause in § 4B1.2(a)(2) is therefore not void for vagueness.”

In an opinion concurring in the judgment, Justice Sotomayor criticized the majority for underscoring the role the Sentencing Guidelines play when determining a defendant’s ultimate sentence:  “In most cases, it is the range set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that specifies the number of years a defendant will spend in prison.  District Court’s impose a sentence within the Guidelines (or below the Guidelines based on a government motion) over 80% of the time . . . . It is therefore no exaggeration to say that the Guidelines are, ‘in a real sense, the basis for the sentence’ imposed by the district court.”  Id. (quoting Molina Martinez v. United States, 578 U.S. at ____ (2016)).  Justice Sotomayor found no reason why, for example, the Guidelines are subject to an ex post facto challenge, but not to a vagueness challenge, even though the ex post facto clause and due process clause are both “rooted in concerns about ‘fair warning’ and fundamental fairness.’”  Id.

So what does Beckles ultimately mean?  For most defendants, not much.  Beckles has no impact on the residual clause of ACCA, which is covered by Johnson and is unconstitutionally vague.  Beckles also has no impact on defendants whose alleged offenses occurred on or after August 1, 2016, because the Sentencing Commission has amended the Guidelines to remove the residual clause.  It has been replaced with a new list of enumerated offenses.

But Beckles does affect defendants whose alleged offenses occurred before August 1, 2016.  Those whose sentences were enhanced based on the residual clause in the Guidelines are likely left without recourse – which is a clear injustice in the American criminal justice system.  If their sentences had been enhanced based on the residual clause of the ACCA, they would be entitled to relief, but if their sentences were enhanced based on an identically worded Guideline, they are not.  The result is nonsensical, and fundamentally unfair to criminal defendants.

The full text of the Beckles opinion can be found here: https://www.supremecourt.gov/opinions/16pdf/15-8544_2co3.pdf

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