SUPREME COURT OF THE UNITED STATES
TRAVIS BECKLES, PETITIONER v.
on writ of certiorari to the united states court of appeals for the eleventh circuit
[March 6, 2017]
Justice Sotomayor, concurring in the judgment.
Justice Ginsburg explains why the Court’s holding today is unnecessary. See ante,
1–2 (opinion concurring in judgment). Petitioner Travis Beckles was sentenced to 30 years in prison on the basis of commentary promul-gated by the U. S. Sentencing Commission interpreting a sentencing provision identical to the “residual clause” we held unconstitutionally vague two years ago in Johnson
v. United States
, 576 U. S. ___ (2015). But Johnson
affords Beckles no relief, because the commentary under which he was sentenced was not unconstitutionally vague. Had the majority limited itself to this conclusion, I would have joined its opinion. Instead, the majority reaches far beyond what is necessary to resolve this case and announces that the U. S. Sentencing Guidelines as a whole are immune from vagueness challenges.
I write separately to explain why that holding is not only unnecessary, but also deeply unsound. The Guidelines anchor every sentence imposed in federal district courts. They are, “ ‘in a real sense[,] the basis for the sentence.’ ” Molina-Martinez
v. United States
, 578 U. S. ___, ___ (2016) (slip op., at 9) (quoting Peugh
v. United States
, 569 U. S. ___, ___ (2013) (slip op., at 11); emphasis deleted). The Due Process Clause requires that rules this weighty be drafted “with sufficient definiteness that ordinary people can understand” them, and “in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender
461 U. S. 352,
. Because I cannot agree with the majority’s conclusion to the contrary, I respectfully concur in the judgment only.
The Due Process Clause prohibits the Government from “taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson
, 576 U. S., at ___ (slip op., at 3). The prohibition against vagueness in criminal proceedings is “a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.” Connally
v. General Constr. Co.
269 U. S. 385,
. The doctrine rests on two justifications. First, it ensures that people receive “fair notice of what is prohibited.” United States
553 U. S. 285,
. Second, it safeguards the integrity of the judicial system by ensuring that criminal adjudications are not conducted in an arbitrary manner and that terms of imprisonment are not imposed “on an ad hoc
and subjective basis.” Grayned
v. City of Rockford
408 U. S. 104,
“These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences.” Johnson
, 576 U. S., at ___ (slip op., at 4). Just two Terms ago, we struck down a sentencing law—the Armed Career Criminal Act’s (ACCA) residual clause,
18 U. S. C. §924(e)(2)(B)—as unconstitutionally vague. See 576 U. S., at ___ (slip op., at 15). We spent little time on whether the vagueness doctrine applied to such provisions. Id.,
at ___ (slip op., at 4). And for good reason: A statute fixing a sentence imposes no less a deprivation of liberty than does a statute defining a crime, as our
Sixth Amendment jurisprudence makes plain. See Apprendi
v. New Jersey
530 U. S. 466,
. We instead analyzed the residual clause in light of “[n]ine years’ experience trying to derive meaning from” it, 576 U. S., at ___ (slip op., at 10), and declared the experiment a failure. “Invoking so shapeless a provision to condemn someone to prison for 15 years to life,” we held, “does not comport with the Constitution’s guarantee of due process.” Ibid.
The question before us is how these principles apply to the U. S. Sentencing Guidelines.
Congress established the U. S. Sentencing Commission in 1984 in order to address “[f]undamental and widespread dissatisfaction” with the then-prevailing regime of discretionary sentencing. Mistretta
v. United States
488 U. S. 361
–366 (1989); see Sentencing Reform Act of 1984, §217(a),
2017. It charged the Commission with reducing “the great variation among sentences imposed by different judges upon similarly situated offenders” and the resulting “uncertainty as to the time [each] offender would spend in prison.” Mistretta
, 488 U. S., at 366. The Sentencing Guidelines are the product of that mandate. The Guidelines establish a framework “under which a set of inputs specific to a given case (the particular characteristics of the offense and offender) yiel[d] a predetermined output (a range of months within which the defendant [can] be sentenced).” Peugh
, 569 U. S., at ___ (slip op., at 4). In doing so, the Guidelines ensure “uniformity
in sentencing . . . imposed by different federal courts for similar criminal conduct” and “proportionality
in sentencing through a system that imposes appropriately different sentences for criminal conduct of different sever-ity.” Rita
v. United States
551 U. S. 338,
(in-ternal quotation marks omitted).
The Guidelines today play a central role in federal sentencing. Although no longer binding on federal courts, see United States
543 U. S. 220,
, the Guidelines nonetheless “provide the framework for the tens of thousands of federal sentencing proceedings that occur each year,” Molina-Martinez
, 578 U. S., at ___ (slip op., at 2). A district court must “begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Gall
v. United States
552 U. S. 38
–50 (2007). The court must entertain the parties’ arguments and consider the factors set forth in
18 U. S. C. §3553(a) as possible grounds for deviation from the Guidelines range, 552 U. S., at 49–50, and “may not presume the . . . range is reasonable,” id.,
at 50. But it must explain any deviation from the range on the record, and it must “ensure that the justification is sufficiently compelling to support the degree of the variance.” Ibid.
; see Peugh
, 569 U. S., at ___–___ (slip op., at 17–18). A district court that incorrectly calculates the Guidelines range commits reversible procedural error, see Gall
, 552 U. S., at 51; a district court that imposes a sentence within the correct Guidelines range, by contrast, may be afforded a presumption that the sentence it has imposed is reasonable, see Rita
, 551 U. S., at 347.
The importance of the Guidelines in this process, as we explained last Term, makes them “not only the starting point for most federal sentencing proceedings but also the lodestar.” Molina-Martinez
, 578 U. S., at ___ (slip op., at 10). 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 courts impose a sentence within the Guidelines (or below the Guidelines based on a Government motion) over 80% of the time. Ibid.
; see 2015 Annual Report and 2015 Sourcebook of Federal Sen-tencing Statistics (20th ed.) (Figure G), online at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2015/FigureG.pdf (as last visited Feb. 27, 2017). And when Guidelines ranges change—because the Guidelines themselves change, or because the court is informed of an error it made in applying them—sentences change, too.[1
] See Molina-Martinez
, 578 U. S., at ___ (slip op., at 10); Peugh
, 569 U. S., at ___ (slip op., at 13). 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. Molina-Martinez
, 578 U. S., at ___ (slip op., at 9) (quoting Peugh
, 569 U. S., at ___ (slip op., at 11); emphasis deleted).
It follows from the central role that the Guidelines play at sentencing that they should be susceptible to vagueness challenges under the Due Process Clause.
Contrary to the majority’s conclusion, an inscrutably vague Guideline implicates both of the concerns animating the prohibition on vagueness. First, a district court’s reliance on such a Guideline deprives an ordinary person of “fair notice” of the consequences of his actions. See Johnson
, 576 U. S., at ___ (slip op., at 3). A defendant is entitled to understand the legal rules that will determine his sentence. But a vague Guideline is by definition impossible to understand. Take the career-offender Guideline at issue here. We explained in Johnson
that the identically worded provision in the ACCA created “pervasive disagreement” among courts imposing sentences as to “the nature of the inquiry” that they were required to conduct. Id.,
at ___ (slip op., at 9). The result was a law that was “ ‘nearly impossible to apply consistently.’ ” Ibid.
v. United States
555 U. S. 122,
(Alito, J., concurring in judgment)). An ordinary person cannot be expected to understand the consequences that such a shapeless provision will have on his sentence.[2
Second, and more importantly, a district court’s reliance on a vague Guideline creates a serious risk of “arbitrary enforcement.”
, 576 U. S., at ___ (slip op., at 3). As set out above, although the Guidelines do not bind a district court as a formal
matter, as a functional
matter they “anchor both the district court’s discretion and the appellate review process.” Peugh
, 569 U. S., at ___ (slip op., at 18). It introduces an unacceptable degree of arbitrariness into sentencing proceedings to begin by applying a rule that is so vague that efforts to interpret it boil down to “guesswork and intuition.” Johnson
, 576 U. S., at ___ (slip op., at 8). One judge may conduct a statistical analysis to decide that a defendant’s crime of conviction is not a crime of violence. Another may rely on gut instinct to conclude that it is. Still a third may “throw [our] opinions into the air in frustration, and give free rein to [her] own feelings” in making the decision. Derby
v. United States
564 U. S. 1047,
(Scalia, J., dissenting from denial of certiorari). Importantly, that decision is the end of the ballgame for a criminal defendant. Although he may ask the judge to vary downward from the Guidelines range, he must take the range as the starting point for his request. He may ask for a month here or a month there, but he is negotiating from a baseline he cannot control or predict. The result is a sentencing proceeding hopelessly skewed from the outset by “unpredictability and arbitrariness.” Johnson
, 576 U. S., at ___ (slip op., at 6). The Due Process Clause does not tolerate such a proceeding.
Consider, by way of example, a hypothetical version of Beckles’ own sentencing proceeding in which the commentary played no clarifying role. Beckles was convicted of possessing a firearm as a convicted felon, in violation of
18 U. S. C. §922(g)(1), and sentenced to 360 months in prison. That sentence sat at the bottom end of the applicable Guidelines range, factoring in the career-offender Guideline: 360 months to life. But had the career-offender Guideline not
applied to Beckles, the Guidelines range calculated by the District Court would have been significantly lower: 262 to 327 months. See Beckles
v. United States
, Civ. No. 10–23517 (SD Fla., Mar. 4, 2013), App. 129–130. Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she “would not have imprisoned Beckles to 360 months” in prison. Id.
, at 149 (emphasis deleted). Years of Beckles’ life thus turned solely on whether the career-offender Guideline applied. There is no meaningful way in which the Guideline exerted less effect on Beckles’ sentence than did the statute setting his minimum and maximum terms of imprisonment; indeed, it was the Guidelines, not just the statute, that “fix[ed]” Beckles’ “sentenc[e]” in every meaningful way. Johnson
, 576 U. S., at ___ (slip op., at 4). Nothing of substance, in other words, distinguishes the Guidelines from the kind of laws we held susceptible to vagueness challenges in Johnson
; both law and Guideline alike operate to extend the time a person spends in prison. The Due Process Clause should apply equally to each.
The majority brushes past this logic in its decision to shield the Guidelines from vagueness challenges. In doing so, it casts our sentencing jurisprudence into doubt and upends the law of nearly every Court of Appeals to have considered this question.[3
] None of its explanations justify its novel and sweeping conclusion.
The majority first reasons that the Guidelines are not susceptible to vagueness challenges because they “do not fix the permissible range of sentences,” ante
, at 5, but merely “guide district courts in exercising their discretion,” ante
, at 8. But we have not embraced such formalism before, and the majority provides no coherent justification for its decision to do so here.
Indeed, we have refused before to apply exactly the formalistic distinction that the majority now embraces. In Espinosa
505 U. S. 1079,
), we held that a state’s capital aggravating factor that was drafted in a manner “so vague as to leave the sentencer without sufficient guidance for determining the presence or absence of the factor” violated the
Eighth Amendment. The factor was unconstitutional, we explained, notwithstanding the fact that only the jury, not the judge, was instructed on the factor; that the judge, not the jury, made the final decision to sentence the defendant to death; and that the judge, in doing so, was not required to defer to the jury’s recommendation. “This kind of indirect weighing of an invalid aggravating factor,” we explained, “creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor.” Id.,
at 1082. In doing so, we effectively rejected just the argument the majority now embraces: that advisory guidelines lack the kind of binding legal effect that subject them to constitutional scrutiny.
If there were any doubt that advisory sentencing guidelines are subject to constitutional limits, we dispelled it in Peugh
, where we held that the Guidelines are amenable to challenges under the Ex Post Facto
Clause. See 569 U. S., at ___ (slip op., at 1). There, the Government argued that the “advisory” nature of the Guidelines rendered them immune from such claims. Id.,
at ___ (slip op., at 8). But we rejected such an argument. “The federal system,” we explained, “adopts procedural measures intended to make the Guidelines the lodestone of sentencing,” and “considerable empirical evidence indicate[s] that the . . . Guidelines have the intended effect.” Id.,
at ___–___ (slip op., at 12–13). We declined the Government’s invitation to limit our ex post facto
jurisprudence to rules that, as a formal matter, “increase[d] the maximum sentence for which a defendant is eligible.” Id.,
at ___ (slip op., at 8). And we explained that a rule may exert “ ‘binding legal effect’ through . . . procedural rules and standards for appellate review that, in combination, encourag[e] district courts to sentence within the guidelines.” Id.,
at ___ (slip op., at 16). It was not true, we concluded, that “the Guidelines are too much like guideposts and not enough like fences,” ibid.
; instead, the Guidelines were just fencelike enough—just lawlike enough—that they cannot be shielded from the Constitution’s reach.
The same principle should dictate the same result in this case. How can the Guidelines carry sufficient legal weight to warrant scrutiny under the
Eighth Amendment and the Ex Post Facto
Clause, but not enough to warrant scrutiny under the Due Process Clause? Cf. United States
, 835 F. 3d 715, 724 (CA7 2016) (en banc) (“We see no principled way to distinguish Peugh
on doctrinal grounds”). The majority offers no convincing answer. It asserts that the Due Process Clause “requires a different inquiry” than these provisions do. Ante
, at 10. But it does not explain why it views this as relevant to the constitutional status of the Guidelines. A court considering a challenge to a criminal statute under the Ex Post Facto
Clause will apply a different legal standard than will a court considering a vagueness challenge to the same statute; that does not make the statute more or less susceptible to constitutional challenge in one context than the other. Our opinion in Peugh
is particularly difficult for the majority to escape, given that the Ex Post Facto
Clause, like the Due Process Clause’s prohibition against vagueness, is rooted in concerns about “fair warning” and “ ‘fundamental fairness.’ ” 569 U. S., at ___ (plurality opinion) (slip op., at 13). The majority musters no persuasive explanation for why those concerns would have less force in this context than in that one. That is because none exists.[4
The majority next posits that because courts have long sentenced defendants under purely discretionary regimes, there can be no vagueness concern with any system that, like the Guidelines regime, sets guideposts on the exercise of discretion. Ante,
at 6–7. But this argument fundamentally misunderstands the problem caused by a court’s reliance on a vague sentencing guideline.
True enough, for many years, federal courts relied on “a system of indeterminate sentencing” in criminal cases. Mistretta
, 488 U. S., at 363; see also K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9–14 (1998). Under such a scheme, a sentencing judge considers the full range of relevant aggravating and mitigating facts and circumstances, as well as his view of proper sentencing policy, and then imposes a sentence in light of those considerations. See Koon
v. United States
518 U. S. 81,
(“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, sometimes magnify, the crime and the punishment to ensue”). As the majority notes, no party here “suggests that a system of purely discretionary sentencing could be subject to a vagueness challenge.” Ante,
at 7. The majority reasons that the Guidelines—which limit the sentencing judge’s discretion from what he otherwise would have enjoyed—must therefore also be immune from vagueness attacks. Ibid.
But the majority misapprehends the nature of the constitutional infirmity that occurs when a sentencing judge relies on an inscrutably vague guideline. A defendant who is sentenced under a purely discretionary regime does not face the prospect of “arbitrary enforcement” by the sentencing judge, Kolender
, 461 U. S., at 358; rather, he faces a fact- and context-sensitive determination informed by the exercise of reasoned judgment. A defendant sentenced pursuant to an impossibly vague Guideline, by contrast, is put in an untenable position. The “lodestone” of his sentence—the baseline against which the district court will assess his characteristics and his conduct—is set by a rule that is impossible to understand. Such a proceeding is the antithesis of due process. See Giaccio
382 U. S. 399,
(“Implicit in [due process] is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce”). It is not reliance on discretion that makes a sentencing regime vague; it is reliance on an impenetrable rule as a baseline for the exercise of that discretion. Reliance on a rule of this kind, whether set out in a statute or in a Guideline, does not comport with “ ‘ordinary notions of fair play.’ ” Johnson
, 576 U. S.,
at ___ (slip op., at 4).
The majority ends by speculating that permitting vagueness attacks on the Guidelines would call into question the validity of many Guidelines, and even the factors that Congress has instructed courts to consider in imposing sentences. See ante
, at 11–12. In doing so, the major-ity once more resuscitates arguments we have already considered and dismissed.
confronted and rejected a version of this argument. There, the Government contended that “dozens of federal and state criminal laws use terms like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable risk,’ ” terms that—in its view—were indistinguishable from the residual clause at issue in that case. 576 U. S., at ___ (slip op., at 12). We rejected the argument, explaining that such rules “call[ed] for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct; ‘the law is full of instances where a man’s fate depends on his estimating rightly . . . some matter of degree.’ ” Ibid.
v. United States
229 U. S. 373,
). What rendered the ACCA’s residual clause unconstitutionally vague, we explained, was not that it required “gauging the riskiness of conduct in which an individual defendant engages on a particular occasion
,” but that it required the application of an ambiguous standard “to an idealized ordinary case of the crime.” 576 U. S., at ___ (slip op., at 12). Holding the residual clause unconstitutionally vague, in other words, cast no doubt on the dozens of laws elsewhere in the U. S. Code requiring the application of general standards to particular conduct.
The same is true here. The sentencing factors described by the majority bear no similarity to the categorical risk analysis that the Court held unconstitutionally vague in Johnson
, nor to any other statutes it has previously found vague. Congress’ instruction to district courts to consider, for instance, “the nature and circumstances of the offense and the history and characteristics of the defendant,” §3553(a)(1), bears little resemblance to statutes requiring subjective determinations as to whether conduct is “annoying” or “unjust.” See Coates
402 U. S. 611
–616 (1971); United States
v. L. Cohen Grocery Co.
255 U. S. 81,
] And to the extent that the majority’s concern is that subjecting sentencing factorsto the Due Process Clause’s prohibition on vagueness would risk the demise of discretionary sentencing regimes, that prospect is unlikely, for the reasons I have already explained.
* * *
It violates the Due Process Clause “to condemn someone to prison” on the basis of a sentencing rule “so shapeless” as to resist interpretation. 576 U. S., at ___ (slip op., at 10). But the Court’s decision today permits exactly that result. With respect, I concur only in the judgment.