BECKLES v. UNITED STATES
No. 15-8544
SUPREME COURT OF THE UNITED STATES
March 6, 2017
580 U. S. ____ (2017)
Argued November 28, 2016
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Syllabus
BECKLES v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
Petitioner Beckles was convicted of possession of a firearm by a convicted felon,
Held: The Federal Sentencing Guidelines, including
(a) 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, supra, at ___. Under the void-for-vagueness doctrine, laws that fix the permissible sentences for criminal offenses must specify the range of available sentences with “sufficient clarity.”
(1) The limited scope of the void-for-vagueness doctrine in this context is rooted in the history of federal sentencing. Congress has long permitted district courts “wide discretion to decide whether the offender should be incarcerated and for how long.” Mistretta v. United States, 488 U. S. 361, 363. Yet this Court has “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range,” United States v. Booker, 543 U. S. 220, 233, nor suggested that a defendant can successfully challenge as vague a sentencing statute conferring discretion to select an appropriate sentence from within a statutory range, even when that discretion is unfettered, see Batchelder, supra, at 123, 126. Pp. 6–7.
(2) The Sentencing Reform Act of 1984 departed from this regime by establishing several factors to guide district courts in exercising their sentencing discretion. It also created the United States Sentencing Commission and charged it with establishing the Federal Sentencing Guidelines. Because the Guidelines have been rendered “effectively advisory” by this Court, Booker, supra, at 245, they guide district courts in exercising their discretion, but do not constrain that discretion. Accordingly, they are not amenable to vagueness challenges: 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. Neither do they implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement. The applicable statutory range, which establishes the permissible bounds of the court‘s sentencing discretion, provides all the notice that is required. Similarly, the Guidelines do not invite arbitrary enforcement within the meaning of this Court‘s case law, because they do not permit the sentencing court to prohibit behavior or to prescribe the sentencing ranges available. Rather, they advise sentencing courts how to exercise their discretion within the bounds established by Congress. Pp. 7–10.
(b) The holding in this case does not render the advisory Guidelines immune from constitutional scrutiny, see, e.g., Peugh v. United States, 569 U. S. 530, or render “sentencing procedure[s]” entirely “immune from scrutiny under the due process clause,” Williams v. New York, 337 U. S. 241, 252, n. 18. This Court holds only that the Sentencing Guidelines are not subject to a challenge under the void-
(c) Nor does this holding cast doubt on the validity of the other factors that sentencing courts must consider in exercising their sentencing discretion. See
616 Fed. Appx. 415, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. KENNEDY, J., filed a concurring opinion. GINSBURG, J., and SOTOMAYOR, J., filed opinions concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
JUSTICE THOMAS delivered the opinion of the Court.
At the time of petitioner‘s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual
I
Petitioner Travis Beckles was convicted in 2007 of possession of a firearm by a convicted felon,
“(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG
§4B1.1(a) .
The Guidelines defined “crime of violence” as
“any offense under federal or state law, punishable by imprisonment for a term exceeding one year that—
“(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
“(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
§4B1.2(a) (emphasis added).
The clause beginning with “or otherwise” in this definition is known as the residual clause.
The commentary to the career-offender Guideline provided that possession of a sawed-off shotgun was a crime of violence. See
In September 2010, petitioner filed a motion to vacate his sentence under
Petitioner then filed a second petition for certiorari in this Court. While his petition was pending, the Court decided Johnson, holding that “imposing an increased sentence under the residual clause of the [ACCA]“—which contained the same language as the Guidelines’ residual clause—“violate[d] the Constitution‘s guarantee of due process” because the clause was unconstitutionally vague. 576 U. S., at ___ (slip op., at 15). We subsequently granted his petition, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of Johnson. Beckles v. United States, 576 U. S. ___ (2015).
On remand, petitioner argued that his enhanced sentence was based on
Petitioner filed another petition for certiorari in this Court, again contending that
II
This Court has held that 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 3–4) (citing Kolender v. Lawson, 461 U. S. 352, 357–358
For the former, the Court has explained that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id., at 357. For the latter, the Court has explained that “statutes fixing sentences,” Johnson, supra, at ___ (slip op., at 4) (citing United States v. Batchelder, 442 U. S. 114, 123 (1979)), must specify the range of available sentences with “sufficient clarity,” id., at 123; see also United States v. Evans, 333 U. S. 483 (1948); cf. Giaccio v. Pennsylvania, 382 U. S. 399 (1966).
In Johnson, we applied the vagueness rule to a statute fixing permissible sentences. The ACCA‘s residual clause, where applicable, required sentencing courts to increase a defendant‘s prison term from a statutory maximum of 10 years to a minimum of 15 years. That requirement thus fixed—in an impermissibly vague way—a higher range of sentences for certain defendants. See Alleyne v. United States, 570 U. S. ___ (2013) (describing the legally prescribed range of available sentences as the penalty fixed to a crime).
Unlike the ACCA, however, 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
The limited scope of the void-for-vagueness doctrine in this context is rooted in the history of federal sentencing. Instead of enacting specific sentences for particular federal crimes, Congress historically permitted district courts “wide discretion to decide whether the offender should be incarcerated and for how long.” Mistretta v. United States, 488 U. S. 361, 363 (1989). For most crimes, Congress set forth a range of sentences, and sentencing courts had “almost unfettered discretion” to select the actual length of a defendant‘s sentence “within the customarily wide range” Congress had enacted. Id., at 364; see also, e.g., Apprendi v. New Jersey, 530 U. S. 466, 481–482 (2000); Williams v. New York, 337 U. S. 241, 247–248 (1949). That discretion allowed district courts to craft individualized sentences, taking into account the facts of the crime and the history of the defendant. As a result, “[s]erious disparities in sentences . . . were common.” Mistretta, supra, at 365.
Yet in the long history of discretionary sentencing, this Court has “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” United States v. Booker, 543 U. S. 220, 233 (2005); see also, e.g., Apprendi, supra, at 481 (“[N]othing in this history suggests that it is impermissible for judges to exercise discretion . . . in imposing a judgment within the range prescribed by statute“); Giaccio, supra, at 405, n. 8 (“[W]e intend to cast no doubt whatever on the constitutionality of the settled practice of many States to leave to juries finding defendants guilty of a crime the power to fix punishment within legally prescribed limits“).
More specifically, our cases have never suggested that a defendant can successfully challenge as vague a sentencing statute conferring discretion to select an appropriate sentence from within a statutory range, even when that
B
The Sentencing Reform Act of 1984 departed from this regime by establishing several factors to guide district courts in exercising their traditional sentencing discretion.
The Guidelines were initially binding on district courts, Booker, 543 U. S., at 233, but this Court in Booker rendered them “effectively advisory,” id., at 245. Although the Guidelines remain “the starting point and the initial benchmark” for sentencing, a sentencing court may no
Because they merely guide the district courts’ discretion, the Guidelines are not amenable to a vagueness challenge. As discussed above, the system of purely discretionary sentencing that predated the Guidelines was constitutionally permissible. 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.
The advisory Guidelines also do not implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary enforcement. As to notice, even perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range. See, e.g., Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). That is because even if a person behaves so as to avoid an enhanced sentence under the career-offender guideline, the sentencing court retains discretion to impose the enhanced sentence. See, e.g., Pepper v. United States, 562 U. S. 476, 501 (2011) (“[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission‘s views“). As we held in Irizarry v. United States, 555 U. S. 708, 714 (2008), “[t]he due process concerns that . . . require notice in a world of mandatory Guidelines no longer” apply. Id., at 713 (“Any expectation subject to due process protection . . . that a criminal
The advisory Guidelines also do not implicate the vagueness doctrine‘s concern with arbitrary enforcement. Laws that “regulate persons or entities,” we have explained, must be sufficiently clear “that those enforcing the law do not act in an arbitrary or discriminatory way.” FCC v. Fox Television Stations, Inc., 567 U. S. 239, 253 (2012); see also Grayned, supra, at 108–109 (“A vague law impermissibly delegates basic policy matters” to judges “for resolution on an ad hoc and subjective basis“). An unconstitutionally vague law invites arbitrary enforcement in this sense if it “leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case,” Giaccio, 382 U. S., at 402–403, or permits them to prescribe the sentences or sentencing range available, cf. Alleyne, 570 U. S., at ___ (slip op., at 11) (“[T]he legally prescribed range is the penalty affixed to the crime“).
The Guidelines, however, do not regulate the public by prohibiting any conduct or by “establishing minimum and maximum penalties for [any] crime.” Mistretta, 488 U. S., at 396 (Sentencing Guidelines “do not bind or regulate the primary conduct of the public“). Rather, the Guidelines advise sentencing courts how to exercise their discretion within the bounds established by Congress. In this case, for example, the District Court did not “enforce” the career-offender Guideline against petitioner. It enforced
JUSTICE SOTOMAYOR‘s concurrence suggests that judges interpreting a vague sentencing Guideline might rely on “statistical analysis,” “gut instinct,” or the judge‘s “own feelings” to decide whether a defendant‘s conviction is a crime of violence. Post, at 6 (opinion concurring in judgment) (internal quotation marks omitted). A judge granted unfettered discretion could use those same approaches in determining a defendant‘s sentence. Indeed, the concurrence notes that federal judges before the Guidelines considered their own “view[s] of proper sentencing policy,” among other considerations. Post, at 11. Yet we have never suggested that unfettered discretion can be void for vagueness.
Accordingly, we hold that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and that
III
Our holding today does not render the advisory Guidelines immune from constitutional scrutiny. This Court held in Peugh, for example, that a “retrospective increase in the Guidelines range applicable to a defendant” violates the Ex Post Facto Clause. 569 U. S., at ___ (slip op., at 13). But the void-for-vagueness and ex post facto inquiries are “analytically distinct.” See id., at ___ (slip op., at 19) (distinguishing an ex post facto inquiry from a Sixth Amendment inquiry). Our ex post facto cases “have focused on whether a change in law creates a ‘significant risk’ of a higher sentence.” Ibid. A retroactive change in the Guidelines creates such a risk because “sentencing decisions are anchored by the Guidelines,” which establish
The Court has also recognized “in the Eighth Amendment context” that a district court‘s reliance on a vague sentencing factor in a capital case, even indirectly, “can taint the sentence.” Brief for United States 43 (citing Espinosa v. Florida, 505 U. S. 1079, 1082 (1992) (per curiam); emphasis added). But our approach to vagueness under the Due Process Clause is not interchangeable with “the rationale of our cases construing and applying the Eighth Amendment.” Maynard v. Cartwright, 486 U. S. 356, 361 (1988). Our decision in Espinosa is thus inapposite, as it did not involve advisory Sentencing Guidelines or the Due Process Clause.
Finally, our holding today also does not render “sentencing procedure[s]” entirely “immune from scrutiny under the due process clause.” Williams, 337 U. S., at 252, n. 18; see, e.g., Townsend v. Burke, 334 U. S. 736, 741 (1948) (holding that due process is violated when a court relies on “extensively and materially false” evidence to impose a sentence on an uncounseled defendant). We hold only that the advisory Sentencing Guidelines, including
IV
In addition to directing sentencing courts to consider the Guidelines, see
Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as
The Government tries to have it both ways, arguing that the individualized sentencing required by the other
The Government also suggests that the Guidelines are not like the other
*
*
*
Because the advisory Sentencing Guidelines are not subject to a due process vagueness challenge,
It is so ordered.
JUSTICE KAGAN took no part in the consideration or decision of the case.
As sentencing laws and standards continue to evolve, cases may arise in which the formulation of a sentencing provision leads to a sentence, or a pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns. In that instance, a litigant might use the word vague in a general sense—that is to say, imprecise or unclear—in trying to establish that the sentencing decision was flawed. That something is vague as a general matter, however, does not necessarily mean that it is vague within the well-established legal meaning of that term. And it seems most unlikely that the definitional structure used to explain vagueness in the context of fair warning to a transgressor, or of preventing arbitrary enforcement, is, by automatic transference, applicable to the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015).
The existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing. Some other explication of the constitutional limitations likely would be required.
These considerations inform my reading of the Court‘s opinion, in which I join.
This case has a simple solution. When Travis Beckles was convicted in 2007 of violating
Beckles therefore cannot, and indeed does not, claim that
JUSTICE GINSBURG explains why the Court‘s holding today is unnecessary. See ante, at 1–2 (opinion concurring in judgment). Petitioner Travis Beckles was sentenced to 30 years in prison on the basis of commentary promulgated 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
I
A
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. ___, ___ (2015) (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, 391 (1926). The doctrine rests on two justifications. First, it ensures that people receive “fair notice of what is prohibited.” United States v. Williams, 553 U. S. 285, 304 (2008). 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, 109 (1972).
“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,
B
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, 365–366 (1989); see
The Guidelines today play a central role in federal
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 Sentencing 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
C
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
Second, and more importantly, a district court‘s reliance on a vague Guideline creates a serious risk of “arbitrary enforcement.” See Johnson, 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, 1049 (2011) (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
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
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.
A
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 v. Florida, 505 U. S. 1079, 1081 (1992) (per curiam), 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
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
B
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,
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, 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, 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
C
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 majority once more resuscitates arguments we have already considered and dismissed.
Johnson 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. (quoting Nash v. United States, 229 U. S. 373, 377 (1913)). 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
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,”
* * *
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.