Case Information
*1 Before E ASTERBROOK Chief Judge , and W OOD and S YKES , Circuit Judges .
S YKES , Circuit Judge
. Andre Jones was convicted of unlawfully possessing a firearm as a felon and was sen- tenced as an armed career criminal based in part on a prior Illinois conviction for vehicular fleeing, which the district judge counted as a third violent felony under the residual clause of the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(2)(B)(ii). This classifica- tion triggered a mandatory minimum sentence of 15 years and raised the statutory maximum to life. The judge sentenced Jones to 184 months, just above the manda- tory minimum.
Jones challenges only his sentence, raising a vagueness challenge to the residual clause. More specifically, he argues that the residual clause of the ACCA contains no discernible standard to guide its application and there- fore permits arbitrary enforcement in violation of the Due Process Clause of the Fifth Amendment. This posi- tion has at least one notable proponent. See Sykes v. United States , 131 S. Ct. 2267, 2284 (2011) (Scalia, J., dis- senting). But a majority of the Supreme Court has rejected the argument, albeit only in response to dissents by Justice Scalia, not in the more formal sense of deciding an explicit void-for-vagueness challenge. See id. at 2277. Perhaps Jones can persuade the Court to directly consider the issue, but our hands are tied. We affirm Jones’s sentence.
I. Background
On January 3, 2011, police officers in Springfield, Illinois, initiated a traffic stop of a vehicle in which Jones was riding as a passenger. As the officers began following the car, Jones threw a handgun out the window. When the driver pulled over, the officers obtained consent to search from both Jones and the driver. Jones had an empty handgun holster around his waist and 18 grams of marijuana in his shoe. The officers then retraced their route and retrieved the handgun from a driveway a few blocks away where Jones had tossed it. Jones ad- mitted the gun was his. 3
Jones was indicted on several drug and gun charges. He eventually entered a guilty plea to one count of unlaw- ful possession of a firearm by a felon in violation of U.S.C. §§ 922(g)(1), 924(a)(2) and (e), and the government dismissed the other charges. The felon-in-possession offense normally carries a ten-year maximum and no minimum penalty. See 18 U.S.C. § 924(a)(2). But if the defendant has three prior convictions for “violent felo- nies” as defined in the ACCA, he is subject to a mandatory minimum sentence of 15 years in prison and the maximum penalty is raised to life. See id. § 924(e)(1). Jones preserved his right to challenge the application of the ACCA at sentencing.
Jones’s presentence report recommended that he be sentenced as an armed career criminal based on three qualifying violent felonies: Illinois convictions for robbery, aggravated robbery, and aggravated vehicular fleeing from a police officer. Jones conceded that the first two convictions qualified as violent felonies under § 924(e)(2)(B)(i). That subsection defines the term “violent felony” as any crime punishable by more than one year in prison that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” He also acknowledged that under our deci- sion in Welch v. United States , 604 F.3d 408, 425 (7th Cir. 2010), his vehicular-fleeing conviction qualified as a violent felony under the so-called “residual clause” of § 924(e)(2)(B)(ii). Under that provision a “violent felony” includes any crime punishable by more than one year in prison that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).
Jones argued that Welch notwithstanding, the residual clause is unconstitutionally vague and thus unenforceable under the Due Process Clause of the Fifth Amendment. The judge rejected this argument as implicitly foreclosed by the Supreme Court’s decision in Sykes and sen- tenced Jones to 184 months in prison. This sentence fell just below the advisory guidelines range of 188 to 235 months and just above the ACCA’s mandatory mini- mum of 180 months.
II. Discussion
Under the ACCA a felon who unlawfully possesses a firearm in violation of § 922(g)(1) is subject to steeply enhanced penalties — a minimum sentence of 15 years and a maximum of life — if he has three prior convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The statute defines a “violent felony” as
any crime punishable by imprisonment for a term exceeding one year . . . that — (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Id. § 924(e)(2)(B). The final clause of this definition has come to be known as the “residual clause.” Subsection (ii) of the statute lists four specific but disparate crimes followed by the catchall “residual clause” that sweeps in any crime that “otherwise involves conduct that pres- ents a serious potential risk of physical injury to another.”
The residual clause has eluded stable construction. The
Supreme Court has heard four ACCA residual-clause
cases in fairly rapid succession in an effort to clarify
the open-ended language of the clause and to establish
a framework for how to distinguish crimes that qualify
from crimes that do not.
See Sykes
, 131 S. Ct. at 2270
(“The instant case is another in a series in which the
Court is called upon to interpret § 924(e) . . . .”);
Chambers
v. United States
, 555 U.S. 122 (2009);
Begay v. United
States
Applying this “similarity of risk” principle, the Court held that the Indiana crime of vehicular fleeing qualifies as a violent felony under the residual clause. Id. at 2277. To reach this conclusion, the Court undertook what it *6 6
called a “commonsense” comparison of the risk of injury posed by vehicular fleeing and by the other crimes speci- fied in the residual clause. Id. at 2273-74. The Court also looked to statistical data about the rate of injury from police chases, which, though “not dispositive,” served to “confirm the commonsense conclusion” that the crime of vehicular fleeing poses a similar risk of injury as the offenses listed in the statute. Id. at 2274-75.
Justice Scalia dissented, at length explaining his con-
clusion that the residual clause “fails to speak with the
clarity that criminal proscriptions require.”
Id.
at 2288
(Scalia, J., dissenting). The statute’s risk-of-injury require-
ment uses “the word ‘otherwise,’ ” but this connector
is “ ‘preceded by four confusing examples that have
little in common with respect to the supposedly defining
characteristic.’ ”
Id.
(quoting
James
, 550 U.S. at 230 n.7
(Scalia, J., dissenting)). He gave the following example
to illustrate the statute’s lack of clarity: “ ‘The phrase
“shades of red,” standing alone, does not generate con-
fusion or unpredictability; but the phrase “fire-engine
red, light pink, maroon,
navy blue
, or colors that
otherwise involve shades of red” assuredly does so.’ ”
Id.
(quoting
James
,
Justice Scalia then traced the Court’s earlier efforts to discern a clear standard for deciding residual- clause cases and noted that the formula kept shifting. Id. [1] 7 at 2284-86 (Scalia, J., dissenting) (discussing James , Begay , and Chambers ). In his view the Court’s latest effort in Sykes had produced only “a fourth ad hoc judgment that will sow further confusion.” Id. at 2284 (Scalia, J., dissenting). The Court’s “repeated inability to craft a principled test out of the statutory text” was proof posi- tive of the statute’s “incurable vagueness.” Id. at 2287 (Scalia, J., dissenting). The time had come, he said, to “admit that [the] ACCA’s residual provision is a drafting failure and declare it void for vagueness.” Id. at 2284 (Scalia, J., dissenting); see also Derby v. United States 131 S. Ct. 2858, 2860 (2011) (Scalia, J., dissenting from denial of certiorari) (“I would grant certiorari, declare ACCA’s residual provision to be unconstitutionally vague, and ring down the curtain on the ACCA farce playing in federal courts throughout the Nation.”).
Jones asks us to adopt Justice Scalia’s position and
declare the residual clause unconstitutionally vague
under the Due Process Clause of the Fifth Amendment.
“It is a fundamental tenet of due process that ‘[n]o one
may be required at peril of life, liberty or property to
speculate as to the meaning of penal statutes.’ ”
United
States v. Batchelder
442 U.S. 114, 123 (1979) (quoting
Lanzetta v. New Jersey
,
Vagueness doctrine rests on concerns about fair
notice and arbitrary enforcement. “A conviction or pun-
ishment fails to comply with due process if the statute
or regulation under which it is obtained ‘fails to provide
a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.’ ”
FCC
v. Fox Television Stations, Inc.,
A threshold difficulty for Jones’s vagueness claim is that at the time of his offense, we had already held that the Illinois crime of aggravated vehicular fleeing qualifies as a violent felony under the residual clause of the ACCA. See Welch , 604 F.3d at 425 (“[W]e stand with the majority of circuits that have held that intentional vehicular fleeing is a violent felony within the meaning of the ACCA.”). Our decision in Welch thus gave Jones “a reasonable opportunity to know” of his career- offender status under the residual clause, and also served to “prevent arbitrary and discriminatory enforce- ment” of the statute — at least in prosecutions for conduct, like Jones’s, committed after the decision was issued. United States v. Plummer , 581 F.3d 484, 488 (7th Cir. 2009) (quotation marks omitted).
Jones acknowledges
Welch
but argues that his chal-
lenge must be evaluated by reference to the
statutory
text
alone, not
judicial precedent interpreting and
applying it. To be sure, the focus of any due-process
vagueness challenge is statutory clarity.
See Grayned v.
City of Rockford
Still, “there are limits beyond which we cannot go in
finding what Congress has not put into so many words
or in making certain what it has left undefined or too
vague for reasonable assurance of its meaning.”
Evans,
333 U.S. at 486. This principle is a necessary feature of
the separation of powers, and in this context, it reinforces
the rule that there are no common-law crimes. “In our
system, so far at least as concerns the federal powers,
defining crimes and fixing penalties are legislative, not
judicial, functions.”
Id.
;
see also Lanier
,
What’s important for our purposes, however, is that
Welch
settled the question whether the Illinois crime of
vehicular fleeing is a violent felony under the ACCA
before
Jones was caught with a gun. “The root of the
vagueness doctrine is a rough idea of fairness,
” Colten v.
Kentucky
, 407 U.S. 104, 110 (1972), and one who violates
a “settled interpretation[]” of a statute is “ ‘certainly . . . in
no position to say that [he] had no adequate advance
notice that [he] would be visited with punishment,’ ”
Lanier
, 520 U.S. at 267 (quoting
Screws v. United States
That alone might be enough to resolve the matter.
Vagueness challenges are normally evaluated in light of
the particular facts of the case, not in general.
See Holder
v. Humanitarian Law Project
, 130 S. Ct. 2705, 2718-19
(2010);
Chapman v. United States
,
ness grounds, “the statute is judged on an as-applied basis.” Id. ; see also Humanitarian Law Project , 130 S. Ct. at 2718-19 (“We consider whether a statute is vague as applied to the particular facts at issue . . . .”); Chapman U.S. at 467 (A vagueness claim “must be evaluated as the statute is applied to the facts of th[e] case.”); Plummer 581 F.3d at 488 (vagueness challenges “are analyzed as- applied”). On the strength of this line of cases, the gov- ernment maintains that because Welch gave Jones fair notice that the residual clause would apply to him, his vagueness challenge fails “as applied” and he cannot bring a “facial” challenge to the statute.
This makes sense as a matter of the form and structure
of the claim. A due-process claim usually challenges
executive enforcement action.
See
Nicholas Quinn
Rosenkranz,
The Objects of the Constitution
63 S TAN . L.
R EV . 1005, 1041-43 (2011). “As a matter of grammar
and structure, the Due Process Clause is not an
absolute
restriction on
legislative
power, like the First Amendment;
it is, at least at its core, a
conditional
check on
execu-
tive
power . . . .”
Id.
at 1042-43 (emphases added).
Cf.
Nathan S. Chapman & Michael W. McConnell,
Due
Process as Separation of Powers
121 Y ALE L.J. 1672, 1722
(2012) (explaining that “the Due Process Clause was
originally understood to apply to legislative as well as
executive and judicial acts”). In a vagueness claim, the
challenger contends that a legislative enactment is too
vague and standardless to be enforced as law; applying
the vague statute to him deprives him of his liberty or
property without due process of law. Thus, the Supreme
Court has held that “[o]ne to whose conduct a statute
clearly applies may not successfully challenge it for
vagueness.”
Parker
, 417 U.S. at 756. Putting the point
slightly differently, a person “ ‘who engages in some
conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of
others.’ ”
Humanitarian Law Project
, 130 S. Ct. at 2719
(quoting
Hoffman Estates
,
And yet the Supreme Court regularly decides due-
process vagueness claims without regard to the facts of
the case.
See, e.g. Skilling
130 S. Ct. at 2925-34;
City of
Chicago v. Morales
, 527 U.S. 41, 55-64 (1999);
Kolender
461 U.S. at 357-62;
Smith v. Goguen
, 415 U.S. 566, 572-78
(1974);
Coates v. City of Cincinnati
,
This raises a substantive point about the nature of the
claim. The Due Process Clause “is essentially a separa-
tion of powers provision.” Rosenkranz,
The Objects of
the Constitution
63 S TAN . L. R EV . at 1043. “The clause
protects individual rights by assigning and channeling
federal power.”
Id.
On this understanding, due-process
vagueness doctrine guards against impermissible delega-
tions of lawmaking authority.
See
Chapman & McConnell,
Due Process as Separation of Powers
, 121 Y ALE L.J. at 1806
(“Vague statutes have the effect of delegating lawmaking
authority to the executive.”);
L. Cohen Grocery Co.
The doctrine surrounding the “facial” and “as applied” forms of judicial review is “currently a subject of hot debate, both in the Supreme Court and among commenta- tors.” Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges 99 C ALIF . L. R EV . 915, 917 (2011). See also Doe v. Reed , 130 S. Ct. 2811, 2817 (2010); Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 S TAN . L. R EV . 1209, 1227-35 (2010); Luke Meier, Facial Challenges and Separation of Powers 85 I ND . L. J. 1557 (2010); Gillian E. Metzger, Facial and As-Applied Challenges Under the Roberts Court 36 F ORDHAM U RB . L.J. 773 (2009); David L. Franklin, Looking Through Both Ends of the Telescope: Facial Challenges and the Roberts Court 36 H ASTINGS C ONST . L.Q. 689 (2009). See generally Symposium, The Roberts Court: Distinguishing As-Applied Versus Facial Challenges 36 H ASTINGS C ONST . L.Q. 563 (2009). We do not need to weigh in on the debate here. Even if we set Welch to one side, as an intermediate appellate court in the judicial hierarchy, we cannot sustain Jones’s vagueness challenge to the residual clause.
Although the Supreme Court has not formally consid- ered the issue, it has twice responded to Justice Scalia’s argument that the residual clause is unconstitutionally vague. In James the Court said this:
While ACCA requires judges to make sometimes
difficult evaluations of the risks posed by different
offenses, we are not persuaded by Justice Scalia’s
suggestion — which was not pressed by James or his
amici
— that the residual provision is unconstitutionally
vague. See
post
, at 230 [(Scalia, J., dissenting)]. The
statutory requirement that an unenumerated crime
“otherwise involv[e] conduct that presents a serious
potential risk of physical injury to another” is not
so indefinite as to prevent an ordinary person
from understanding what conduct it prohibits.
See
Kolender v. Lawson
,
Jones points out that the Supreme Court has never
received briefing on the vagueness issue. True, but the
Court’s statements in
James
and
Sykes
are direct, and
because Justice Scalia so thoroughly developed the argu-
ment, we are reluctant to treat the Court’s responsive
statements as mere dicta. Indeed, they are not dicta in
the traditional sense. The question presented in
James
and
Sykes
required the Court to decide both the kind
and degree of risk necessary for a conviction to fall
within the scope of the residual clause. A possible
answer in both cases was that the residual clause is an
irreparable drafting failure and too vague to be enforced.
See id.
at 2284 (Scalia, J., dissenting);
James
,
A FFIRMED . 7-27-12
Notes
[1] Without belaboring the point, here is a shorthand version of the decisional history: In James the Court held that a crime (continued...)
[1] (...continued)
will involve the required level of risk when “the risk posed
by [the crime in question] is comparable to that posed by its
closest analog among the enumerated offenses.”
James v. United
States
,