837 F.3d 1118 | 11th Cir. | 2016
Rehearing
respecting the denial of rehearing en banc;
A majority of the Court has voted not to rehéar en banc our decision in this appeal, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that the advisory sentencing guidelines cannot be challenged as void for vagueness. As members of the panel (and coincidentally the only members of this Court to have served on the United States Sentencing Commission), we write to explain why we agree with that decision.
We divide our discussion in two parts. First, we explain that Matchett is correct because the vagueness doctrine applies only to laws that regulate the primary conduct of private ■ citizens. Advisory sentencing guidelines regulate judges, not private individuals; they guide judicial discretion within a statutory range. Advisory sentencing- guidelines do not define crimes or fix punishments. Second, we explain that Matchett is hot worthy of en banc rehearing.
A. Matchett Is Correct.
Our opinion held that advisory sentencing guidelines cannot be void- for vagueness under the Due Process Clause of the Fifth Amendment. See id. at 1193-96. We reaffirm that holding. To explain why, we begin with a brief history of the federal sentencing guidelines.'
Before the Civil War, Congress enacted very few criminal laws and “crime control was left largely to the states.” Sara Sun Beale, Federalizing Crime: Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol; & Soc. Sci. 39, 40 (1996). The states “uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses.” Woodson v. North Carolina, 428 U.S. 280, 289, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); see also Williams v. New York, 337 U.S. 241, 247-48, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). All crimes “had a defined punishment,” and “the period of incarceration was generally prescribed with specificity by the legislature.” llene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 892 (1990).
After the Civil War, this system of fixed sentencing was gradually replaced with individualized sentencing. See id. at 893-95; United States v. Grayson, 438 U.S. 41, 45-46, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Legislatures enacted broad statutory ranges, and judges began tailoring sentences to individual defendants by considering “the circumstances of the offense
Although individualized sentencing was less draconian than fixed sentencing, it produced new problems. Because sentencing judges had unbridled discretion and no real standards to guide them, “[s]erious disparities in sentences ,,. were common.” Mistretta v. United States, 488 U.S. 361, 365, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), “[Jjudges of widely varying attitudes on sentencing, administering statutes that confer[red] huge measures of discretion, mete[d] out widely divergent sentences where the divergences [were] explainable only by the variations among the judges, not by material differences in the defendants or their crimes.” Frankel, supra, at 21. And because sentencing judges focused on the individual history and characteristics of each offender, “the offender’s race, sex, religion, income, education, occupation and other status characteristics were found to influence judicial outcomes.” Nagel, supra, at 895.
Despite its flaws, individualized sentencing remains perfectly constitutional. “[L]egislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases.... ” Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Supreme 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Because of the disparities associated with individualized sentencing, see Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), and following a massive expansion of federal criminal law in the twentieth century, see Beale, supra, at 41-43, Congress enacted the Sentencing Reform Act of 1984, which created the United States Sentencing Commission and empowered it to promulgate federal sentencing guidelines, see 28 U.S.C. §§ 991, 994. The first guidelines came into effect in 1987. See United States Sentencing Guidelines Manual (Nov. 1987). They calculated a narrow sentencing range by assigning numeric values to the type of offense, the characteristics of the offense, the offender’s criminal history, and other factors. See id. The initial guidelines were also mandatory: district judges were required to impose a sentence within the guideline range, subject to limited departures, see 18 U.S.C. § 3553(b)(1), and appellate courts reviewed departures from the guidelines de novo, see id. § 3742(e).
The mandatory guidelines were quickly challenged as unconstitutional. The Supreme Court rebuffed a separation-of-powers challenge to the guidelines in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). The Court concluded that the mandatory guidelines were not an impermissible exercise of the legislative power because they do not regulate primary conduct:
Although the Guidelines are intended to have substantive effects on public behav*1121 ior (as do the rules of procedure), they do not bind ■ or regulate the primary conduct of the public or vest in the Judicial Branch the legislative responsibility for establishing minimum and maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations — impose sentences within the broad limits established by Congress.
Id. at 396,109 S.Ct, 647 (emphasis added). The mandatory guidelines were challenged again in United States v. Booker, 643 U.S. 220, 126 S.Ct. 738, 160 L.Ed.2d 621 (2006) — this time under the Fifth and Sixth Amendments. A majority of the Supreme Court held that the mandatory guidelines were unconstitutional because they allowed judges to find facts, by a preponderance of the evidence, that increased a defendant’s sentence. See id. at 230-44, 126 S.Ct. 738. Other than prior convictions, “[a]ny fact that, by law, increases the penalty for a crime” must be admitted by the defendant or found by a jury beyond a reasonable doubt because such facts are not mere sentencing provisions; they are elements of the crime. Allegne v. United States, — U.S. —, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013); see also Apprendi v. New Jersey, 530 U.S. 466, 476-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). To remedy this constitutional defect, a different majority of the Booker Court invalidated the statutory provisions that made the guidelines mandatory. Booker, 543 U.S. at 245, 125 S.Ct. 738. What remained were guidelines that are “effectively advisory.” Id.
Now that the guidelines are advisory, they continue to play an important role in sentencing, but they do not and cannot play a decisive one. On the one hand, the guidelines are the “starting point” for sentencing and the “lodestar.” Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016). District courts must calculate the guideline range correctly, Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and the failure to do so can constitute plain error because “[i]n the usual case ... the selected Guidelines range will affect the sentence,” Molina-Martinez, 136 S.Ct. at 1346. And appellate courts can presume that a sentence within the guideline range is reasonable, Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), although this Court does not do so, United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). On the other hand, the guidelines are just one factor among many to be balanced against six other statutory sentencing factors, 18 U.S.C. § 3553(a), See Pepper, 562 U.S. at 490, 131 S.Ct. 1229; see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). District courts commit reversible error if they “treat[] the Guidelines as mandatory,” Gall, 552 U.S. at 51, 128 S.Ct. 586, and they cannot “presume that a sentence within the applicable Guidelines rangé is reasonable,” Nelson v. United States, 555 U.S. 350, 352, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009). Appellate courts cannot presume that a deviation from the guideline range is unreasonable, Rita, 551 U.S. at 354-55, 127 S.Ct. 2456. A district, judge may even refuse to follow the guidelines “based on [a] policy disagreement” with the Sentencing Commission, Spears v. United States, 555 U.S. 261, 264, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (citing Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)).
The vagueness doctrine reflects two “connected but discrete” concerns: notice and arbitrary enforcement. Fox Television Stations, 132 S.Ct. at 2317. Notice means that a law does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Arbitrary enforcement means that a law leaves government actors “free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Giaccio v. Pennsylvania, 382 U.S. 399, 402-03, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). The guidelines implicate neither of these concerns. See United States v. Hurlburt, 835 F.3d 715, 726, No. 14-3611, 2016 WL 4506717 (7th Cir. Aug. 29, 2016) (en banc) (Hamilton, J., dissenting) (“After all, how can non-binding advice be unconstitutionally vague?”).
With respect to notice, the advisory guidelines cannot notify a defendant of what sentence he will receive because they are just that — advisory. Consider a person who is thinking about committing a federal crime and wants to know what punishment he will receive if he gets caught. He can identify a hard ceiling (the statutory maximum sentence) and a hard floor (the statutory minimum sentence). But he cannot identify the sentence he will receive within the statutory range. He could calculate his guideline range, but the guidelines are just one of seven sentencing factors that the sentencing judge will consider. The other six include factors like “the history and characteristics of the defendant”; the need to “promote respect for the law,” to “provide just punishment,” to “afford adequate
The'data collected by the Sentencing Commission reveal the difficulties of trying to predict a sentence based on the guidelines. On average, the odds of receiving a sentence within the guideline range are worse than a coin flip. See U.S. Sentencing Comm’n, 2015 Sourcebook of Federal Sentencing Statistics tbl. N (reporting that 47.3 percent of defendants received a sentence within the guideline range in fiscal year 2015). If a defendant is a career offender, then the odds are even worse— essentially 3:1 against. See U.S. Sentencing Comm’n, Report to the Congress: Career Offender Sentencing Enhancements . 36 (2016) [hereinafter Career Offender Report:] (reporting that 27.5 percent of career offenders received a sentence within the guideline range in fiscal year 2014).
The advisory nature of the guidelines explains why the Supreme Court held in Irizarry v. United States that “[a]ny expectation subject to due process protection ... that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in [Booker], which invalidated
the mandatory features, of the Guidelines.” 553 U.S. 708, 713, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). “The due process concerns that ... require notice in a world of mandatory Guidelines no longer” apply. Id. at 714, 128 S.Ct. 2198. Those concerns include the vagueness doctrine. See United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990). The advisory guidelines do not implicate arbitrary enforcement either. Our dissenting colleagues criticize our decision for allegedly failing to consider arbitrary enforcement separately from notice, but these concerns are “connected,” Fox Television Stations, 132 S.Ct. at 2317. And the panel opinion concluded that the guidelines implicate neither notice nor arbitrary enforcement for the same overarching reason. Both aspects of the vagueness doctrine are .concerned only with laws that regulate the primary conduct of private individuals. See id. (describing the vagueness doctrine as governing “laws which regulate persons or entities”); Gen. Constr. Co., 269 U.S. at 391, 46 S.Ct. 126 (describing the vagueness doctrine as governing laws that “forbid[ ] or require[ ] the doing of an act”); United States v. Brierton, 165 F.3d 1133, 1139. (7th Cir. 1999) (“[T]he vagueness doctrine presumes a law that attempts to proscribe or prescribe conduct.”); Wivell, 893 F.2d at 159 (“[Bjoth theories supporting the vagueness doctrine presume a law that attempts to proscribe or prescribe conduct.”); El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 856 n.4 (D.C. Cir. 2010) (en banc) (Kava-naugh, J., concurring in the judgment) (describing the vagueness doctrine as governing laws that “regulatfe] private conduct”); Cass R. Sunstein, Problems with Rules, 83 Calif. L. Rev. 953, 968 (1995) (“[T]he ‘void for vagueness’ doctrine requires the state to set forth clear guidance before it may punish private conduct.”).
Arbitrary enforcement, for purposes of the vagueness doctrine, means arbitrary
Judge Martin’s dissent contends that the vagueness doctrine is not limited to laws that regulate primary conduct, but her two counterexamples only support the opposite conclusion. First, Judge Martin’s dissent points out that the vagueness doctrine applies to sentencing statutes, see United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). But statutes that specify facts that increase a defendant’s mandatory minimum or maximum sentence do regulate primary conduct because they define the elements of the crime. See Alleyne, 133 S.Ct. at 2158. After Booker, the advisory guidelines -do no such thing. See Booker, 543 U.S. at 233, 125 S.Ct. 738. Second, Judge Martin’s dissent asserts that the Supreme Court applied the vagueness doctrine to a statute that did not regulate primary conduct in Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). In Giac-cio, the Supreme Court invalidated a Pennsylvania statute that required acquitted defendants to pay the costs of their prosecution. See id. at 403, 86 S.Ct. 518. A jury could award the costs as a “sentence” if it found that the defendant was “guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction (and) ... his misconduct has given rise to the prosecution.” Id. at 403-04, 86 S.Ct. 518. This statute as construed by the Pennsylvania courts plainly regulated primary conduct: it imposed a penalty (costs, and possibly jail time) on an acquitted defendant (a private individual) based on his out-of-court conduct (the misconduct that led to his prosecution). Contrary to Judge Martin’s characterization, the statute in Giaccio did not impose administrative court costs; it imposed a penalty for out-of-court conduct by a private citizen. See Schilb v. Kuebel, 404 U.S. 357, 370, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) (distinguishing the statute in Giac-cio from “an administrative cost imposed upon ... guilty and innocent alike”). The Supreme Court has never applied the vagueness doctrine to a statute that did not regulate primary conduct.
We know that the federal sentencing guidelines do not regulate primary conduct. In Mistretta, the Supreme Court held that the guidelines “do not bind or regulate the primary conduct of the public.” 488 U.S. at 396, 109 S.Ct. 647.' The guidelines “fetter the discretion of sentencing judges”; they do not “establish ] minimum and maximum penalties” for crimes. Id.; accord Brierton, 165 F.3d at 1139 (“The Guidelines do not establish the illegality of any conduct. Rather, they —are designed to assist and limit the discretion of the sentencing judge.”); Wivell, 893 F.2d
The term “arbitrary enforcement” makes little sense in this context. If judges exercising their sentencing discretion are “enforcing” the law against individuals, then the former system of individualized sentencing should have been void for vagueness. After all, the former system of individualized sentencing imposed no standards on judges, provided no notice to individual defendants, and resulted in disparate, arbitrary, and discriminatory sentences. See Frankel, supra, at 5. If individualized sentencing, which gives judges unbridled discretion, is constitutional, see Lockett, 438 U.S. at 603, 98 S.Ct. 2964, then vague sentencing guidelines, which only guide that discretion,, are too.
The decision of the Supreme Court in Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), does not mean that the guidelines can be void for vagueness. Peugh held that the guidelines can violate the Ex Post Facto Clause, see id. at 2088, but it said nothing about the vagueness doctrine. In fact, a plurality of the Court explained that its decision did not implicate the holding in Irizarry that “a defendant does not have an ‘expectation subject to due process protection’ that he will be sentenced within the Guidelines range.” Id. at 2085 (plurality opinion) (quoting Irizarry, 553 U.S. at 713-14, 128 S.Ct. 2198). And for good reason: the Ex Post Facto Clause and the vagueness doctrine have different scopes. Then-Judge Sotomayor has explained in detail why, although the Ex Post Facto Clause and the vagueness doctrine “share a concern for notice,” “they are not necessarily identical in scope.” Sash v. Zenk, 439 F.3d 61, 65 (2d Cir. 2006): Unlike the vagueness doctrine, “the Ex Post Facto Clause does not merely protect reliance interests. It also reflects . principles of ‘fundamental justice.’ ” Peugh, 133 S.Ct. at 2085 (plurality opinion) (quoting Carmell v. Texas, 529 U.S. 513, 531, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000)); see also Sash, 439 F.3d at 64-66. Specifically, the Ex Post Facto Clause is “broader” and “more expansive” because it “is concerned not just with notice, but with the inherent injustice associated with retroactivity itself.” Sash, 439 F.3d at 64-65. And the Ex Post Facto Clause is not limited to laws that-regulate primary.conduct. It applies to any change in law that “creates a ‘significant risk’ of a higher sentence,” Peugh, 133 S.Ct. at 2088 (majority opinion) — including, for example, changes to the rules of evidence, see id. at 2081 (citing Calder v. Bull, 3 U.S. 3 (Dall.) 386, 390, 1 L.Ed. 648 (1798) (opinion of Chase, j.)). That the guidelines can be ex post facto laws does not mean that they can be void for vagueness. Different doctrines with different purposes should be assessed differently. See Sash, 439 F.3d at 65 n.2.
Nor does the decision of the Supreme Court in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), mean that the guidelines can be void for vagueness. Johnson held that the residual clause -of the Armed Career Criminal Act — a criminal statute that regulates primary conduct — was void for vagueness. See id. at 2557. The Court did not address the constitutionality of the career-offender guideline or any other guideline for that matter. Of course, the residual clause of the career-offender guideline is “virtually identical” to the residual clause of the Armed Career Criminal Act. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (quoting United States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004)). So, if the guidelines are subject to the vagueness
The dissents are troubled by the possibility that judges must apply a guideline with language that Johnson held was vague, but the task is not as .unusual or as daunting as they suggest. Johnson held that the language of the residual clause was too vague to be included in the Armed Career Criminal Act, a law that regulates primary conduct. See Johnson, 135 S.Ct. at 2557. But the advisory guidelines are directed to judges, not private citizens, and we tolerate much more vagueness in laws that regulate government actors than we do in laws that regulate private citizens. See Mahler v. Eby, 264 U.S. 32, 40-41, 44 S.Ct. 283, 68 L.Ed. 549 (1924) (distinguishing between vague statutes that provide discretion to government actors, which cannot be void for vagueness, and vague statutes that define crimes, which can); see also Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (“[T]he Government may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake.”); Robert C. Post, Reconceptualizing Vagueness: Legal Rules and Social Orders, 82 Calif. L. Rev. 491, 492 (1994) (“[T]he doctrine of undue discretion is most often used when laws are addressed to official decisionmakers, whereas vagueness doctrine is typically used when legal rules directly constrain the conduct of ordinary citizens-”).
Vague standards regulate government officials, including judges, all the time— searches must be “reasonable,” U.S. Const, amend. IV; trials must be “speedy,” id. amend. VI; and regulations must be “in the public interest,” 47 U.S.C. § 201(b). Consider the statutory sentencing factors: District judges must impose a sentence that is “sufficient, but not greater than necessary,” to “promote respect for the law,” to “provide just punishment,” and to “afford adequate deterrence,” among other things. 18 U.S.C. § 3553(a). And appellate judges must review whether a sentence is “unreasonable.” Booker, 543 U.S. at 261, 125 S.Ct. 738. All of these standards might be void for vagueness if they appeared in a statute that regulated private individuals. Cf. L. Cohen Grocery Co., 255 U.S. at 89, 41 S.Ct. 298 (explaining that the phrase “detrimental to the public interest” would be void for vagueness in a criminal statute); Finley, 524 U.S. at 588, 118 S.Ct. 2168 (explaining that the word “respect” is “undeniably opaque” and “could raise substantial vagueness concerns” if it “ap
Furthermore, judges who must apply the residual clause of the career-offender guideline are not hopelessly adrift. Johnson held that the residual clause is vague in many of its applications, but it acknowledged that “there will be straightforward cases under the residual clause” and that “there is some conduct that clearly falls within the provision’s grasp.” 135 S.Ct. at 2560-61. Judges will continue to see examples of “obviously risky crimes” that “clearly pose a serious t potential risk of physical injury to another.” Id. Indeed, federal circuit and district judges interpreted this language thousands of times before Johnson. The Supreme Court did so four times,as well. That caselaw is still on the books, and it can guide judges as they continue to do what they have always done when interpreting vague provisions directed at government officials: “liquidating] and ascertaining]” their meaning through “a series of particular discussions and adjudications,” The Federalist No. 37, at 236 (James Madison) (Carl Van Doren ed., Easton Press, collector’s ed. 1979).
Of course, a guideline that is too vague is not a good guideline. Fortunately, mechanisms short of constitutional invalidation already exist to deal with bad guidelines. Most notably, the Sentencing Commission can and does repeal guidelines that are difficult to apply. In fact, it did so here.
As of August 1, 2016, the residual clause of the career-offender guideline no longer exists. See U.S. Sentencing Comm’n, Amendment to the Sentencing Guidelines 2 (Jan. 21, 2016). The Commission concluded that the residual clause should be repealed “as a matter of policy” based in part on the “considerable application difficulties” that the Supreme Court outlined in Johnson. Id. We have no reason to doubt that the Commission will continue to fulfill its ongoing duty to “periodically ... review and revise ... the guidelines” in the light of new data and commentary from all sectors of the federal criminal justice system. 28 U.S.C. § 994(o).
In addition to the Sentencing Commission, individual judges can vary from vague guidelines on policy grounds. See Spears, 555 U.S. at 264-66, 129 S.Ct. 840. That a guideline cannot be applied consistently could be a.legitimate reason for a district judge to conclude that the guideline does not, for example, “avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. § 3553(a)(6). We do not mean to suggest that every problem can be solved by the “noblesse oblige” of sentencing commissioners and district judges, Fox Television Stations, 132 S.Ct. at 2318 (quoting United States v. Stevens, 559 U.S. 460, 480, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010)); but as the author of Johnson was fond of reminding us, “not every problem was meant to be solved by the United States Constitution,” Herrera v. Collins, 506 U.S, 390, 428 n.*, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (Scalia, J., concurring).
Judge Rosenbaum’s concurrences on this subject, appended to her dissent, fret that, unless the guidelines can be chai-
Although we have little to lose if the guidelines cannot be void for vagueness, the converse is not true. Many provisions of the federal guidelines might not withstand scrutiny under the vagueness doctrine. See Matchett, 802 F.3d at 1196. See
also Hurlburt, 835 F.3d at 729, No. 14-3611, (Hamilton, J., dissenting) (suggesting that provisions for “sophisticated means,” “vulnerable victim,” “otherwise extensive” criminal activity, “relevant conduct,” and several departures could be found to be unconstitutionally vague) (citing United States Sentencing Guidelines Manual §§ 2Bl.l(b)(l)(10), 3Al.l(b), 3B1.1, 1B1.3). Twenty states also have sentencing guidelines, see generally Neal Kauder & Brian Ostrom, Nat’l Ctr. for State Courts, State Sentencing Guidelines: Profiles and Continuum (2008), and any interpretation of the Due Process Clause of the Fifth Amendment applies to the Due Process Clause of the Fourteenth Amendment, see Hurtado v. California, 110 U.S. 516, 534-35, 4 S.Ct. 292, 28 L.Ed. 232 (1884). A decision holding that the federal guidelines can be void for vagueness could lead to the invalidation of many state guidelines as well.,
Further on the horizon, a decision holding that the advisory guidelines can be void for vagueness would be in considerable tension with the rulings that have upheld the constitutionality of the sentencing guidelines. Mistretta held that the guidelines do not violate the separation of powers because they “do not bind or regulate the primary conduct of the’ public or establish ] minimum and maximum penalties for every crime.” Mistretta, 488 U.S. at 396, 109 S.Ct. 647. But if the guidelines can be void for vagueness because they are laws that fix punishments and regulate primary conduct, then the guidelines look more like an exercise of the legislative power that the Constitution vests exclusively in Congress, see Evans, 333 U.S. at 486, 68 S.Ct. 634. Booker held that the Fifth and Sixth Amendments require the guidelines to be advisory. But if the guidelines can be void for vagueness because they are the be-all and end-all of sentenc
If advisory guidelines can be void for vagueness, then the task for sentencing commissions just got harder. Advisory guidelines are not always drafted with the precision of laws that regulate primary conduct; vagueness can be a virtue in the case-by-case world of sentencing. And a decision undermining the constitutionality of advisory guidelines would be unfortunate because, although they are not perfect, advisory guidelines . strike a much better balance between consistency, predictability, and flexibility than purely individualized sentencing and rigid fixed sentencing. “So to treat the due-process clause would hinder if not preclude ... progressive efforts to improve the administration of criminal justice.” Williams, 337 U.S. at 251, 69 S.Ct. 1079. See also Hurlburt, 835 F.3d at 729, No. 14-3611, (Hamilton, J., dissenting) (“[T]his pervasive vagueness in Guideline provisions is not a bug in the system. It is a feature. It is intended to provide sentencing judges with needed flexibility.”).
B. Matchett Is Not Worthy of En Banc Review.
This appeal also does not meet the traditional criteria for rehearing en banc. As we have explained, our decision is correct. Correct decisions are never worthy of en banc review.
Judge Martin’s dissent portrays Match-ett as a legal pariah, a decision that supposedly contradicts the “uniform view” of ten other circuits, see Martin Dissent at 1133-34 & n.l, but her math is hard to follow. Four circuits have held, in a published opinion, that the advisory guidelines can be void for vagueness. See Hurlburt, No. 14-3611; United States v. Calabretta, 831 F.3d 128, No. 14-3969, 2016 WL 3997215 (3d Cir. July 26, 2016); United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). The other circuits cited in Judge Martin’s dissent merely assumed, based on the government’s concession, that the advisory guidelines could be void for vagueness. Such assumptions are not holdings and do not create precedent. See Casey v. United States, 343 U.S. 808, 808, 72 S.Ct. 999, 96 L.Ed. 1317 (1952). In fact, binding precedent in two of those circuits currently states that the guidelines cannot be void for vagueness. See Wivell, 893 F.2d at 160; United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990). And several distinguished judges have explained why those precedents should still
By my count, the circuits are split 5-3 and the states generally agree with Match-ett. Although conflict with other courts can be a compelling reason to rehear an appeal, that concern is less pressing when rehearing will, at best, move us from one side of the conflict to the other. The Supreme Court of the United States, not this Court, is best suited to resolve such disagreements. Indeed, the Supreme Court will soon consider whether the guidelines can be vague in Beckles v. United States, — U.S. —, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016), and its decision could settle the issue once and for all. Rehearing Matchett en banc would not be a wise use of our resources.
Judge Martin’s dissent advocates rehearing Matchett based on the plight of career offenders who were sentenced in the Eleventh Circuit, but of course there are costs on the other side. According to a recent study by the Sentencing Commission, one in ten federal prisoners are career offenders — or 20,000 total offenders. See Career Offender Report, supra, at 24. Of those career offenders, 80 percent are potentially eligible to benefit from an invalidation of the residual clause of the career-offender guideline because they have a conviction for a crime of violence. See id. at 28. But once they are released from prison, career offenders with at least one conviction for a crime of violence reci-divate at a rate of almost 70 percent— much higher than the recidivism rate for other federal prisoners, even though career offenders are older when released from prison after serving long sentences. See id. at 40-41. Their recidivating crimes of choice are most often violent — assault (28.6 percent) and robbery (35.3 percent). Id. at 42. Undoubtedly, smaller percentages of these offenders commit even more serious crimes like murder, rape, and kidnapping. Although Judge Martin’s dissent empathizes with the prisoners who were sentenced in the Eleventh Circuit under the career-offender guideline, they are not the only “victims” our decision might affect.
Any cost-benefit analysis is better left to the Sentencing Commission, an expert agency that gathers data on disparities and recidivism and amends or repeals the guidelines accordingly. Our job is to get the law right. In our view, the panel opinion in Matchett correctly assessed the longstanding limits on the vagueness doctrine and correctly held that it does not apply to advisory sentencing guidelines. We concur in the denial of rehearing en banc.
. For example, a defendant convicted of being a felon in possession of a firearm who has two felony convictions from earlier in his life normally gets a sentencing range of 15 to 21 months. See id, § 2K2.1(a)(7). If just one of those convictions meets the definition that Johnson said was "nearly impossible to apply consistently,” 135 S.Ct. at 2560, the range becomes 41 to 51 months. See USSG § 2K2.1(a)(4)(A). If both meet that definition, it becomes 63 to 78 months. See id. § 2K2.1(a)(2). This fourfold increase is automatic even if the earlier convictions were themselves punished with as little as a year in state prison. See id. § 4B 1.2(a).
USSG § 2K2.1 may affect more people than the career offender guideline. The Sentencing Commission’s most recent published data shows that ”[i]n fiscal year 2014, there were 5,498 offenders convicted under 18 U.S.C. § 922(g), accounting for 7.2% of all offenders sentenced under the guidelines.” See http:// www.ussc.gov/sites/default/files/pdf/research- and-publications/quiclc-facts/Quick-Facts-FeIon_in_PossessionJFY14.pdf. "For each of the past five years, more than half of offenders convicted of violating 18 U.S.C. § 922(g) were sentenced within the [guideline] range.” Id. And as with § 4B1.1, two of the top five districts for § 922(g) cases, are in the Eleventh Circuit. See id. And that’s just § 922(g). USSG § 2K2.1 is also used to calculate sentences for violations of 18 U.S.C. §§ 922(a)-(p), (r)-(w), 00(1), 923, 924(a), (b), (e)-(i), (k)(o), 2332g, as well as 26 U.S.C. §§ 5685, 5861(a) — (/), 5871. See USSG App. A.
Dissenting Opinion
joined by JILL PRYOR, Circuit Judge, dissenting from the denial of rehearing en banc:
It is a violation of due process for a court to rely on a criminal sentencing scheme “so vague that it fails to give ordinary people fair notice ... or so standard-less that it invites arbitrary enforcement.”
And importantly, given the “central,” “significant role” that the Guidelines play in sentencing, see Molina-Martinez v. United States, 578 U.S. —, —, 136 S.Ct. 1338, 1341-42, 194 L.Ed.2d 444 (2016), Matchett’s holding is unworkable. Appellate judges like myself must now review sentences that were imposed based on language that the Supreme Court has deemed “hopeless[ly] indetermina[te]”— the text of the residual clause in § 4bl.2(a) of the Guidelines. See Johnson, 135 S.Ct. at 2558.
For these reasons, as well as those set forth by Judge Martin and Judge Rosen-baum in their thoughtful dissents, our court should reconsider Matchett. Accordingly, I respectfully dissent from the denial of the request to rehear Matchett en banc.
I
Under our post-Booker sentencing regime, appellate courts must review all sentences for reasonableness, and the Guidelines direct each step of that review. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Consequently, “[t]he Sentencing Guidelines provide the framework for the tens of thousands of federal sentencing proceedings that occur each year.” See Molina-Martinez, 136 S.Ct. at 1342.
We are required to assess the reasonableness of a sentence in two steps. See Gall, 552 U.S. at 51, 128 S.Ct. at 597. We “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range ... or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Id, Next, we “consider the substantive reasonableness, of the sentence.” Id. In doing so, we “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. Indeed, the Supreme Court has held that appellate courts may “apply a presumption of reasonableness” to a sentence within the
A
Considering the “central role” of the Guidelines in this analysis, see Molina-Martinez, 136 S.Ct. at 1341, an impossibly vague Guidelines provision guarantees arbitrary enforcement of the law and denial of fair notice to the public as to what constitutes a reasonable sentence. For example, given that the first step of reasonableness review requires us to determine whether the district court properly calculated the defendant’s Guidelines range, arbitrary enforcement is a fait accompli when the defendant’s range is based on a vague provision. A defendant’s Guidelines range is dictated ' by which Guidelines provisions apply to the defendant. Hence, if the district court relied on a vague provision in calculating a defendant’s range, then we must interpret that provision to decide whether it actually applies to the defendant. A vague provision, however, provides no “generally applicable test” for determining its reach. See Johnson, 135 S.Ct. at 2559. Confronted with such a provision, we will be forced to rely on “guesswork and intuition,” see id. and our decisions regarding to which defendants it properly applies will be arbitrary. This means that our enforcement of the “reasonable sentence” requirement will be arbitrary. If two similar defendants simultaneously challenge a district court’s application of the provision to them, one defendant’s appeals panel could find her sentence unreasonable and vacate her sentence, while — by mere bad luck — the other defendant’s panel could affirm his sentence. Thus, despite the Guidelines being advisory, a vague Guidelines provision can give rise to arbitrary enforcement of the law and dictate the treatment of defendants.
B
: Likewise, when a Guidelines provision is vague, it denies the public fail' notice of the consequences of breaking the law. Because defendants have a clearly established expectation that they will receive reasonable sentences and the Guidelines serve as the foundation of the reasonableness analysis, the Guidelines provide notice as to the scope of an acceptable federal sentence. The public must look to the Guidelines to discern the types of sentence that can reasonably be imposed on them. Therefore, Matched'S s rationale for holding that the void-for-vagueness doctrine does not apply to the Guidelines — that defendants cannot “look to the Guidelines for notice” — is unconvincing. See 802 F.3d at 1194 (quoting United States v. Tichenor, 683 F.3d 358, 365 (7th Cir. 2012), overruled by United States v. Hurlburt, 835 F.3d 715, Nos. 14-3611, 15-1686, 2016 WL 4506717 (7th Cir. August 29, 2016) (en banc)).
* * *
In sum, the Supreme Court has held that a sentencing scheme-that either “invites arbitrary enforcement” or denies “fair notice” is unconstitutional. See John
II
Turning to the specific impact of Match-ett on bur appellate review process, the “hopeless indeterminacy” of the residual clause in § 4bl.2(a) makes our charge to review the reasonableness of sentences based on that clause all but impossible. See Johnson, 135 S.Ct. at 2558. As discussed above, our first step when reviewing a sentence is to determine whether the defendant’s Guidelines range was properly calculated. Accordingly, when faced with an appeal in which the district court found that the defendant qualified for a particular sentence under the residual clause, we must decide whether that frustratingly opaque clause applies to the defendant. As made clear in Johnson, this is a futile inquiry. See id. at 2560. In the face of such an unworkable task, appellate review of the defendant’s sentence is not only impracticable but also “does not comport with the Constitution’s guarantee of due process.” See id.
I respectfully dissent.
. I previously penned a concurrence in In re Hunt, 835 F.3d 1277, No. 16-14756, 2016 WL 3895246 (11th Cir, July 18, 2016) to explain why I believe United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) was wrongly decided. This dissent repeats the concerns I expressed in that concurrence.
. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
. In fact, the Supreme Court recently concluded that, "[i]n the usual case ... the systemic function of the selected Guidelines range will affect [a defendant’s] sentence.” Molina-Martinez, 136 S.Ct. at 1346. It follows that a vague provision — by causing appellate and district courts to arbitrarily determine Guidelines ranges — will have a “real and pervasive effect” on defendant outcomes, See id.
Dissenting Opinion
joined by JILL PRYOR, Circuit Judge, dissenting from the denial of rehearing en banc:
The United States Sentencing Guidelines generally call for longer prison sentences for defendants who have a history of criminal convictions. Calvin Matchett’s sentence was based, in part, on a guideline provision that calls for a harsher punishment for people whose earlier crime “involves conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2). The Supreme Court has told us that these 13 words, referred to as the “residual clause” and alsb found in the ' Armed Career Criminal Act (ACCA), are so vague that prison sentences based on them violate the Due Process Clause of the Fifth Amendment. See Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In explaining its ruling, the Court analyzed cases applying these 13 words from the Sentencing Guidelines as well as cases applying the same words from ACCA. This review led to the Court’s conclusion that these words have “proved nearly impossible to apply consistently.” Id. at 2560 (quotation omitted).
The criticisms the Supreme Court leveled at this language in ACCA apply equally to the identical words found in the Sentencing Guidelines. Indeed, every other Court of Appeals (ten total) has either held or assumed that Johnson makes these 13 words unconstitutionally vague in both ACCA and the Sentencing Guidelines.
Over eleven months ago Mr. Matchett asked this court to rehear his case. Only now do we issue our ruling denying his petition for rehearing. In the intervening months, the Supreme Court granted cer-tiorari in a case that will allow it to evaluate the panel opinion in Matchett.
I.
The panel’s opinion in Matchett affects a lot of people. In establishing the framework for federal sentencing, the Sentencing Guidelines routinely set harsher sentencing ranges for people convicted of a “crime of violence” earlier in their lives. The Guidelines define this term “crime of violence” in three ways, one of which is the 13 words the Supreme Court ruled unconstitutional in Johnson: an offense that “involves conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2). Perhaps the most severe sentencing enhancement that incorporates this definition is known as the “career offender” guideline, which applies to defendants with “at least two prior felony
The 13 word definition of “crime of violence” found in § 4B1.2(a)(2) is also used in other guidelines, where it triggers harsher guideline ranges for people being sentenced under those guidelines. Seé, e.g., id. § 2K1.3 (the Guidelines section for crimes involving explosives, which requires a 12-level increase for two prior “crimes of violence”); id. § 2K2.1 (the section for firearm crimes, which was the basis for Mr. Matchett’s sentence, and can double a defendant’s guideline range for one “crime of violence” or triple or quadruple it based on two
The decision of this court to leave the Matchett panel opinion in effect — even in light of the uniform rejection of its ruling by other federal courts of appeal — results in harsher treatment for prisoners who were sentenced in the Eleventh Circuit. Calvin Matchett’s case demonstrates this point. Mr. Matchett was sentenced in Florida but is serving his sentence outside the Eleventh Circuit. See http://www.bop.gov/ inmateloc. He is likely in prison with other inmates who committed the same federal crime he did. The other inmates were prosecuted by the same federal ■ government and sentenced by federal judges who all took the same oath. But if he is the only inmate sentenced in the Eleventh Circuit, Mr. Matchett alone will serve out a prison term based on a standard that the Supreme Court has found results in “un
II.
The Matchett panel opinion rests on two flawed assertions. It limits application of the vagueness doctrine and it makes an unjustified distinction between ACCA and the Sentencing Guidelines. Then Matchett stands on this .foundation to put the Guidelines beyond the reach of the vagueness doctrine. Specifically, the panel says the vagueness doctrine applies only to “laws that regulate the primary conduct of private individuals.” Pryor Op. at 1-123.
Neither the panel’s characterization of the Sentencing Guidelines nor its characterization of the vagueness doctrine accurately reflects the state of the law. I will address each in turn.
A.
In explaining why the Supreme Court’s holding in Johnson doesn’t apply to the Guidelines, the panel relied on United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012). The Seventh. Circuit decided Tiche-nor before the Supreme Court’s ruling in Johnson, and held in Tichenor that the Guidelines are not susceptible to challenge on vagueness grounds. The Matchett panel followed the lead of the Seventh Circuit, quoting from its opinion as follows: “ ‘[Sjinee the Guidelines are merely advisory, defendants cannot rely on them to communicate the sentence that the district court will impose. Defendants’ inability to look to the Guidelines for notice underscores why ... they cannot bring vagueness challenges against the Guidelines.’” 802 F.3d at 1194 (quoting Tichenor, 653 F.3d at 365). But the Seventh Circuit’s path in Tichenor is no longer there for us to follow. In light of the Supreme Court’s decisions in Johnson and Peugh v. United States, — U.S. —, 133 S.Ct, 2072, 186 L.Ed.2d 84 (2013), the Seventh Circuit has abandoned Tichenor. See Hurlburt, No. 14-3611. Indeed that court recognized that Johnson and Peugh “have fatally undermined [Tichenor’s] reasoning.” Id. at 3.
In Peugh, the Supreme Court applied the Ex Post Facto Clause to the Sentencing Guidelines. 133 S.Ct. at 2078. Like the vagueness doctrine, the Ex Post Facto Clause imposes a constitutional requirement of “fair notice.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). This right to fair notice,
The notion that the Sentencing Guidelines do not regulate private conduct — or, in the words of Matchett, do not “fix punishments,” 802 F.3d at 1189 — rests on the idea that the Guidelines play a minimal or optional role in the sentencing process. As Matchett put it, the Guidelines merely “ ‘assist ... the sentencing judge’ in determining a sentence.” Id. at 1194 (quoting Tichenor, 653 F.3d at 364). But Peugh has put this misconception to rest. Peugh told us that although the Guidelines are advisory, they “remain the starting point for every sentencing calculation in the federal system.” 133 S.Ct. at 2083. In fact, the Eleventh Circuit has long required district judges to calculate the guideline range for the person being sentenced. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005) (citing United States v. Shelton, 400 F.3d 1325, 1332 n.9 (11th Cir. 2005)). So while judges can choose a sentence outside what the Guidelines recommend, the Supreme Court has for good reason emphasized “the centrality of the Guidelines in the sentencing process.” Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016). In Molina-Martinez, the Supreme Court again reminded us that the Guidelines are “the starting point for the district court’s decision and anchor the court’s discretion in selecting an appropriate sentence.” Id. at 1349; see also id. at 1342 (“The Sentencing Guidelines provide the framework for the tens of thousands of federal sentencing proceedings that occur each year.”); Peugh, 133 S.Ct. at 2087 (“District courts must begin their sentencing analysis with the Guidelines ... and use them to calculate the sentencing range correctly; and those Guidelines will anchor both the district court’s discretion and the appellate review process.”).
The Guidelines have this “anchor” effect even when judges depart from them. “Even if the sentencing judge sees a reason to vary from' the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence.” Peugh, 133 S.Ct. at 2083 (quotation omitted). “In less than one-fifth of cases since 2007 have district courts imposed above- or below-Guidelines sentences absent a Government motion. Moreover, the Sentencing Commission’s data indicate that when a Guidelines range moves up or down, offenders’ sentences move with it.” Id. at 2084 (citations omitted). Indeed, a vague guideline can wreak harm on a defendant even before he is convicted of any crime. See Peugh, 133 S.Ct. at 2085 (plurality opinion) (citation omitted) (“[A] defendant charged with an increased punishment for his crime is likely to feel en hanced pressure to plead guilty. This pressure does not disappear simply be
Peugh outright rejected the idea the Matchett panel relied on — that the Guidelines need not give notice because they are “purely advisory.” Id. at 2087 (majority opinion). The Court wrote: “[i]t is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.” Id. Rather, the Guidelines are “the Federal Government’s authoritative view of the appropriate sentences for specific crimes.” Id at 2085 (plurality opinion). And they announce “the most recent views of the agency charged by Congress with developing sentencing policy.” Id. at 2087 (majority opinion). For these reasons the Guidelines must “give fair warning of their effect and permit individuals to rely on their meaning.” Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quotation omitted) (applying the Ex Post Facto Clause to Florida’s advisory sentencing guidelines); see also Peugh, 133 S.Ct. at 2085 (plurality opinion) (“The [Ex Post Facto] Clause ensures that individuals have fair warning of applicable laws.”).
The vagueness doctrine must apply to the Sentencing Guidelines. Just as the Ex Post Facto Clause ensures “fair warning,” the vagueness doctrine says no law can be “so vague that it fails to give ordinary people fair notice of the conduct it punishes.” Johnson, 135 S.Ct. at 2556. The Matchett panel rejected Johnson, saying “advisory guidelines that inform a sentencing judge’s discretion ... cannot violate the notice requirement.” 802 F.3d at 1195. Peugh tells us the opposite.
The panel’s idea that notice is not relevant to the Sentencing Guidelines seems to be based on its misreading of Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008). See 802 F.3d at 1194; Pryor Op. at 1122, 1124. Irizarry held that Rule 32 of the Federal Rules of Criminal Procedure does not require a judge to say in advance of the sentence hearing what sentence she may impose. Id. at 709, 128 S.Ct. at 2200. In contrast, neither Peugh nor Johnson has anything to do with what a judge must say in any single case. Peugh and Johnson tackle the larger question of what notice is due the entire public about what punishment can be expected for a given offense. This type of notice is required from the “sentencing process long before the district court imposes the sentence.” Molina-Martinez, 136 S.Ct. at 1342. That’s why Peugh says that the Guidelines must give notice of what conduct the courts will punish, even if a particular judge is not required to give advance warning about how she will use her discretion in a given case.
The Matchett opinion ignores these lessons from Peugh, Johnson, and Molina-Martinez. Worse, the Matchett panel relies on decisions of the other courts of appeal that those courts have themselves recognized are no longer good law in light of Peugh, Johnson, and Molina-Martinez. For example, the panel purported to “join”
Finally, in his Statement Judge Pryor tells us that federal judges depart from the Sentencing Guidelines so often that the “guidelines cannot notify a defendant of what sentence he will receive.” Pryor Op. at 1122. In fact, he says “the odds of receiving a sentence within the guideline range are worse than a coin flip.” Id. at 1123. While he cites statistics that make this seem true, the fact is that district judges give the Sentencing Guidelines much more deference than he lets on.
It is true that in 52.7 percent of all sentencings in 2015 the judge did not sentence the defendant within the guideline range. U.S. Sentencing Comm’n, 2015 Sourcebook of Federal Sentencing Statistics tbl. N. However, the statistics also tell us that for all sentences imposed during 2015, in which a judge imposed a sentence below the guideline range, 58 percent of the time the judge did so based on the government’s motion.
B.
This is how the Matchett panel got the Sentencing Guidelines wrong. But the panel got the vagueness doctrine wrong as well. It said “[t]he vagueness doctrine applies only to laws that prohibit conduct and fix punishments.” 802 F.3d at 1189." Or as the Statement now says, the doctrine “applies only to laws that regulate the primary conduct of private citizens.” Pryor Op. at 12. I say federal policy that causes
For example, in Giaccio v. State of Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), the Supreme Court held unconstitutionally vague a Pennsylvania law that allowed juries, after acquitting a defendant, to decide whether to charge that defendant the costs of prosecution. Specifically, the jury could impose costs if it found the defendant “guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty[.]” Id. at 404, 86 S.Ct. 518. The statute said that, if a jury decides to impose costs, the trial judge “‘shall forthwith pass sentence to that effect, and order him (defendant) to be committed to the jail of the. county’ there to remain until he either pays or gives security for the costs.” Id. at 403, 86 S.Ct. 518. The Supreme Court recognized that the law was not a penal “statute which imposed forfeitures, punishments or judgments for costs.” Id at 404, 86 S.Ct. 518. Yet while the statute neither prohibited conduct nor fixed punishment, “[t]he Court did not hesitate in striking down the statute on vagueness grounds.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 49, 111 S.Ct. 1032, 1059, 113 L.Ed.2d 1 (1991) (O’Con-nor, J., dissenting). The Statement argues that the Pennsylvania statute, unlike the Sentencing Guidelines, “imposed a penalty for out-of-court conduct by a private citizen” and thus “regulated primary conduct.” Pryor Op. at 1124-25. Not so. Rather, the law at issue in Giaccio is closely analogous to the Sentencing Guidelines. Contrary to Judge Pryor’s description in the Statement, the statute did not “require[ ]” a jury to impose costs. Id. at 12, 111 S.Ct. 1032, 1059. Rather it authorized the jury to impose the “sentence” in its discretion. Giaccio, 382 U.S. at 401, 86 S.Ct. 518. It was, in effect, an advisory sentencing guideline. Giaccio thus makes clear that, while the vagueness doctrine might more commonly apply to laws that directly govern private conduct, the doctrine also applies to laws that govern judges’ or juries’ decisions about whether and how to punish private conduct. And this is true even where that decision-making is fully discretionary.
The application of the vagueness doctrine to rules that guide discretionary sentencing goes to the very heart of the fairness interests that the doctrine is designed to protect. Johnson reminded us of two ways in which vague laws can violate the Fifth Amendment’s guarantee of due process of law: by being “so vague that [the law] fails to give ordinary people fair notice of the conduct it punishes, or so stan-dardless that it invites arbitrary enforcement.” 135 S.Ct. at 2556. The Court then held that the 13 words of ACCA’s residual clause were unlawful in both these ways: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Id. at 2557.
If the panel had been willing to evaluate how the residual clause in the Sentencing Guidelines leads to “arbitrary enforcement by judges,” then the case would have eásily resolved in Mr, Matchett’s favor.
The risks of “discriminatory application” and “arbitrary enforcement” here should be obvious. Two judges who are sentencing defendants with identical records can arrive at different sentences based on each judge’s personal sense of what seems like a crime of violence. Judges who must review sentences imposed under USSG § 4B1.2 will certainly try to apply pre-Johnson residual clause opinions correctly.
III.
Also worrisome, the Matchett panel opinion forces this court to continue to apply and even add to the body of law that Johnson discredited- when it reviews the sentences of individuals who were sentenced under § 4B1.2(a)(2)’s residual clause. The panel recognizes that in Johnson, the Court “abrogated the previous decisions of the Supreme Court interpreting the residual clause.” 802 F.3d at 1195. But the panel nevertheless instructs courts that we “must still adhere to the reasoning of [these] cases” when interpreting § 4B1.2. Id. at 1195-96. Our court will thus continue to apply cases the Supreme Court derided as “anything but evenhanded, predictable, or consistent.” Johnson, 135 S.Ct. at 2563. Indeed Johnson referenced several § 4B1.2 cases to illustrate how the residual clause “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. The Supreme Court even gave this court an unwanted tip of the hat, when it cited one of our § 4B1.2 opinions to declare that “[t]his Court is not the only one that has had trouble making sense of the residual clause.” Id. at 2559-60 (quotation omitted) (citing United States v. Whitson, 597 F.3d 1218 (11th Cir. 2010)). By my reading, the Supreme Court treated the problem with the residual clause in the statute as identical to the problem with the residual clause in the Sentencing Guidelines.
IV.
The panel warned that applying the vagueness doctrine to the residual clause in the Guidelines “would upend our sentencing regime” since “many [Guidelines] provisions could be described as vague.” Id. at 1196. Now in his Statement, Judge Pryor expands the point. He describes an even more forbidding scene in which all sentencing guidelines, in both the federal and state systems, could be invalidated. Pryor Op. at 1127-28. I am sure he does not mean to advocate abandoning our Constitution because the effect of enforcing it would be too disruptive. This approach would seem, as Justice Brennan put it, “to suggest a fear of too much justice.” McCleskey v. Kemp, 481 U.S. 279, 339, 107 S.Ct. 1756, 1791, 95 L.Ed.2d 262 (1987) (Brennan, J., dissenting). And in any event, while I appreciate Judge Pryor’s
The Guidelines determine punishment based almost exclusively-on a defendant’s actual conduct.
But even if applying Johnson to the identical residual clause in the Guidelines were to lead to a future holding that some other provision of the Guidelines is also void for vagueness, this possibility is no basis for refusing to uphold the Constitution here. The prospect that there may be other provisions of the Guidelines that are unconstitutionally vague “may be dismaying, but it does not justify complete abdication of our judicial role. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.” McCleskey, 481 U.S. at 339, 107 S.Ct. 1756 (Brennan, J., dissenting). Our court and the people of Alabama, Florida, and Georgia would have been well served by vacatur of the Matchett panel opinion. I dissent from the court’s vote to leave it intact.
. United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016); United States v. Welch, 641 Fed.Appx. 37 (2d Cir.2016); United States v. Townsend, 638 Fed.Appx. 172 (3d Cir.2015); United States v. Frazier, 621 Fed.Appx. 166 (4th Cir. 2015); United States v. Estrada, No. 15-40264 (5th Cir. Oct. 27, 2015); United States v. Pawlak, 822 F.3d 902 (6th Cir.2016); United States v. Hurlburt, 835 F.3d 715, No. 14-3611, 2016 WL 4506717 (7th Cir. Aug. 29, 2016); United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (per curiam); United States v.
. Since Matchett was decided, the Sentencing Commission has amended the Guidelines to repeal § 4B1.2(a)(2)'s residual clause in light of Johnson. The amendment became effective August 1, 2016. 81 Fed. Reg. 4741, 4742 (2016). While the Commission’s decision will prevent any person from being sentenced under the residual clause in the future, it provides no relief for prisoners like Mr. Matchett who have already been sentenced under the clause.
. See Beckles v. United States, — U.S. —, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). It is important to note that our court has expanded the ruling in Matchett. While Matchett is a case where the inmate was sentenced under the advisory guidelines, our court relied on Matchett to hold that prisoners can’t even make "a prima facie showing" that Johnson applies to the pre-Booker mandatory guidelines. See In re Griffin, 823 F.3d 1350 (11th Cir.2016). Three of my colleagues have explained in detail "why [they] believe Griffin is deeply flawed and wrongly decided” even if Matchett is correct. In re Sapp, 827 F.3d 1334, 1337 (11th Cir.2016) (Jordan, Rosenbaum, and Jill Pryor, JJ., concurring). I share their view. I add that Travis Beckles was sentenced after Booker, which means the Supreme Court’s ruling in his case might not address the mandatory guidelines issue the Eleventh Circuit decided in Griffin.
. See http://www.ussc.gov/sites/default/files/ pdf/research-and-publications/quick-facts/ Quick_Facts_Career_Offender_FY 14.pdf. In over 90 percent of these cases, § 4B1.1 “increased the guideline range.” Id. Also, two of the top five judicial districts for § 4B1.1 sentences are within the Eleventh Circuit. See id. This is the latest data published by the Sentencing Commission.
. Our court has two Judge Pryors. By this citation, I refer to Judge William Pryor and his Statement respecting the denial of rehearing of Mr. Matchett's case en banc. I will refer to this as Judge Pryor's "Statement.”
. Matchett does not use the "private conduct” language that now appears throughout the Statement. The panel opinion does employ precisely the same reasoning, however, couched in slightly different terms. See Matchétt, 802 F.3d at 1189-94 ("The vagueness doctrine applies only to laws that prohibit conduct and fix punishments.... The Armed Career Criminal Act defines a crime and fixes a sentence, see 18 U.S.C, § 924(e), but the advisory guidelines do neither.”).
. The concept of an "anchor” effect makes sense, If a judge is told a sentencing range, her sentence is likely-to be weighted toward that range no matter how far she might be permitted to depart from it. See Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stan. L. Rev. 683, 705 (1999) (explaining how a number that appears early in a decision-making process "serves as a perceptual ‘anchor’ ” and distorts the ultimate decision even if the decision-maker has wide,discretion); see also Stepha-nos Bibas & Susan Klein, The Sixth Amendment and Criminal Sentencing, 30 Cardozo L, Rev. 775, 779 (2008) (noting that the advisory federal guidelines "provide mental anchors, starting points that influence how judges think about cases and where they wind up”).
. Uncertainty about § 4B1.2’s meaning also distorts plea bargaining in state courts, where “[p]leas account for nearly 95% of all [felony] convictions." Padilla v. Kentucky, 559 U.S. 356, 372 & n.13, 130 S.Ct. 1473. 1485 & n.13. 176 L.Ed.2d 284 (2010). State defendants negotiating plea deals won't likely know how their current conviction will impact a future § 4B1.2 sentence in federal court.
. This category consists of all cases in which "the prosecution initiated, proposed, or stipulated to a sentence” below the guideline range. Federal Sentencing Statistics tbl. N.
. The Supreme Court also made clear in Giaccio that the scope of the vagueness doctrine, whatever it might be, is not decided by fitting a given law or policy into formalistic categories. Giaccio, 382 U.S. at 402, 86 S.Ct. 518 ("Whatever label be given the 1860 Act, there is no doubt that it provides the State with a procedure for depriving an acquitted defendant of his liberty and his property.... [T]his state Act whether labeled ‘penal’ or not must meet the challenge that it is unconstitutionally vague.”).
.See, e.g„ 135 S.Ct. at 2558 ("[TJhis Court’s repeated attempts and repeated failures , to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy.”); id. at 2559-60 ("This Court is not the only one that has had trouble making sense of the residual clause. The clause has created numerous splits among the lower federal courts, where it has proved nearly impossible to apply consistently.”) (quotation ■ omitted); id. at 2560 ("Nine years’ experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed'enterprise.”); id. at 2562 (“[T]he experience of the federal courts leaves no doubt about the unavoidable uncertainty and arbitrariness of adjudication under the residual clause.”); id, at 2563 ("Decisions under the residual clause have proved to be anything but evenhanded, predictable, or consistent.”).
. Judge Pryor never tries to argue that the residual clause in the Sentencing Guidelines could withstand scrutiny under the vagueness doctrine. He concedes that, once subject to the vagueness doctrine, the clause must fail. Piyor Op. at 112,5.
. As detailed in the next section, even though these cases were overruled by Johnson, courts in the Eleventh Circuit are required to keep applying them. See Matchett, 802 F.3d at 1195-96 ("[Sjentencing courts interpreting the residual clause of the guidelines must still adhere to the reasoning of cases interpreting the nearly identical language in [ACCA],”).
. Note that Justice Scalia refers here to "crimes of violence” (the term USSG § 4B1.2 defines), not "violent felony” (the term used in ACCA, see 18 U.S.C. § 924(e)(2)(B)). Perhaps the panel would say this was an oversight. But the Supreme Court has always treated both residual clauses identically, including in Johnson itself.
. Up until Matchett, this court also recognized that the two "residual clauses are identical” and treated them that way. United States v. Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010), Most notably, we did so on the flip side of the exact issue decided in Matchett. See United States v. Chitwood, 676 F.3d 971, 978 n.3 (11th Cir. 2012) (noting that the Supreme Court’s rejection of a vagueness challenge to ACCA’s residual clause "appears to foreclose” a vagueness challenge to § 4B1.2’s residual clause).
. See United States v. Booker, 543 U.S. 220, 250, 125 S.Ct. 738, 759, 160 L.Ed.2d 621 (2005) (remedial opinion for the Court by Breyer, J.) ("Congress' basic statutory goal — a system that diminishes sentencing disparity— depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction.”). For more on the "real conduct" focus of the Sentencing Guidelines, see Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 12 (1988).
Dissenting Opinion
joined by JILL PRYOR, Circuit Judge, dissenting from the denial of en banc rehearing:.
My colleague Judge William Pryor takes issue with my concurrences in In re Hunt, 835 F.3d 1277, 1280-85, No. 16-14756-J, 2016 WL 3895246, at *4-7 (11th Cir. July 18, 2016) (Rosenbaum, J., concurring),
Judge Pryor’s criticism of my specific Hunt/Clayton concurrences is not substantive in nature and is belied by what my concurrences actually say. As for my colleague’s more general condemnation of all of the Hunt/Clayton concurrences’ points about the arbitrary-enforcement problem that the career-offender guideline’s residual clause creates, a close review of Judge Pryor’s analysis reveals why the Hunt/Clayton concurrences have the better argument.
I.
Judge Pryor’s opinion makes two complaints expressly about my particular Hunt/Clayton concurrences: (1) that I “fret” that the .Sentencing Commission might issue a “nonsensical guideline about ‘cheese,’” see Pryor Op. at 1128, and (2) that I have mistaken vagueness for unin-telligibility.
I feel silly addressing Judge Pryor’s first point. But since he relies on it to incorrectly insinuate that I attribute ill intentions to the Sentencing Commission,
Surely Judge Pryor does not truly believe that the introductory paragraph of my Hunt/Clayton concurrences somehow suggests that we should worry that the Sentencing Commission might issue a “nonsensical guideline about ‘cheese.’ ”
That brings me to my second point. Judge Pryor offers a vocabulary lesson in the differences between “vagueness” and “unintelligibility,” suggesting that although the career-offender guideline’s residual clause is vague, it is not unintelligible. See Pryor Op. at 1128.
But the problem with the career-offender guideline’s residual clause is that it is so vague as to be essentially unintelligible. Indeed, that’s exactly how Justice Scalia characterized the identical residual clause of the Armed Career Criminal Act (“ACCA”) — as “unintelligible.” See James v. United States, 550 U.S. 192, 230-31, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Scalia, J., dissenting) (describing the residual clause of the ACCA as “an unintelligible criminal statute”), overruled by Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015); see also Sykes v. United States, 564 U.S. 1, 33, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting) (same). I think we can safely assume that Justice Scalia understood the meanings of “vague” and “unintelligible.” And his viewpoint that the identically phrased ACCA residual clause is “unintelligible” ultimately prevailed in Johnson,
II.
I now turn to Judge Pryor’s more general criticism of all of the Hunt/Clayton concurrences’ point that the residual clause of the career-offender guideline is unconstitutionally vague because it allows for arbitrary enforcement. First, Judge Pryor embarks on a half-hearted defense of the idea that arbitrary enforcement of the career-offender guideline’s residual clause may be avoided. Then, in apparent recognition of the problems with this position, he focuses his fire power on the idea that even if arbitrary enforcement is a problem, it is not a cognizable concern when it comes to the residual clause of the career-offender guideline. I respectfully disagree.
A.
For the reasons described in my Hunt/Clayton concurrences, arbitrary enforcement of the residual clause of the career-offender guideline represents a serious problem. In response to these concerns, Judge Pryor wishfully offers that “judges who must apply the residual clause of the career-offender guideline are not hopelessly adrift.” Pryor Op. at 1127. But the support for my colleague’s conclusion rests on quotations from Johnson which, when read in context, suggest the opposite. Judge Pryor explains,
Johnson held that the residual clause is vague in many of its applications, but it acknowledged that “there will be straightforward cases under the residual clause” and that “there is some conduct that clearly falls within the provision’s grasp.” 135 S.Ct, at 2560-61. Judges will continue to see examples of “obviously*1146 risky crimes” that “clearly pose a serious potential risk of physical injury to another.” Id.
Pryor Op. at 1126-27.
The actual sections from which Judge Pryor selectively picked his quotations leave a very different impression. They suggest that to the extent that a universe of “obviously risky crimes” exists, it is exceedingly small:
The Government and the dissent claim that there will be straightforward cases under the residual clause, because some crimes clearly pose a serious potential risk of physical injury to another.... True enough, though we think many of the cases the Government and the dissent deem easy turn out not to be so easy after all....
In all events, although statements in some of our opinions could be read to suggest otherwise, our holdings squarely contradict the theory that a vague provision is constitutional merely because there is some conduct that clearly falls with the provision’s grasp. For instance, we have deemed a law prohibiting grocers from charging an “unjust or unreasonable rate” void for vagueness— even though charging someone a thousand dollars for a pound of sugar would surely be unjust and unreasonable. We have similarly deemed void for vagueness a law prohibiting people on sidewalks from “conducting] themselves in a manner annoying to persons passing by” — even though spitting in someone’s face would surely be annoying. These decisions refute any suggestion that the existence of some obviously risky crimes establishes the residual clause’s constitutionality.
Johnson, 135 S.Ct. at 2560-61 (bold emphasis added) (regular italics original) (citations omitted). So, at least in the Supreme Court’s view, we cannot take comfort in the idea that some significant number of crimes “clearly” fall within the bounds of the residual clause.
Nor, for this same reason, is Judge Pryor’s proposal that pre-Johnson caselaw “guide judges” in construing the residual clause satisfactory. See Pryor Op. at 1127. Judge Pryor notes that “federal circuit and district judges interpreted [the residual clause] thousands of times before Johnson[,] [and] [t]he Supreme Court did so four times as well.” Id. He suggests that this fact means that nothing is wrong with continuing to construe the residual clause like it was interpreted before the Supreme Court issued Johnson.
This argument buries its head in the pre-Johnson landscape’s sand. After Johnson, that argument is stranded in a legal desert, devoid of usable caselaw. As the Supreme Court explained in Johnson, it could revisit its earlier residual-clause decisions under stare decisis only because “experience with [the] application [of those earlier decisions] revealfed] that [they were] unworkable.” Johnson, 135 S.Ct. at 2562. If the Supreme Court found its own decisions and other pre-Johnson caselaw “unworkable,” it requires no leap of logic to conclude that the lower courts also should not rely on that body of law.
Judge Pryor seems to implicitly recognize this problem, proposing two solutions: first, he advises sentencing judges that they can just “vary from [the career-offender guideline] on policy grounds.” Pryor Op. at 1127. And second, he states that “the Sentencing Commission can and does repeal [“bad”] guidelines that are difficult to apply. In fact, they did so here.” Pryor Op. at 1127 (noting the repeal of the residual clause of the career-offender guideline, as of August 1, 2016).
But disregarding the effect of the career-offender guideline’s residual clause on
Plus, in view of Judge Pryor’s second solution to the problems raised by the residual clause of the career-offender guideline — that the Sentencing Commission repealed it as of August 1, 2016 — my colleague’s advice is the legal equivalent of closing the stable door after the horse has bolted. No one reading his opinion now will be required to decide whether and how to apply the career-offender guideline’s residual clause at sentencing. And I am sure that Judge Pryor does not mean to suggest that appellate courts can decide to set aside a district court’s application of the career-offender guideline’s residual clause solely becausé of an appellate court’s policy disagreement with the guideline under which a defendant was sentenced.
Nor are Judge Pryor’s responses any answer to arbitrary enforcement in the many cases where sentencings occurred before the residual clause of the career-offender guideline was revoked. Indeed, although the Supreme Court issued Johnson on June 26, 2015, the residual clause remained in effect — and arbitrary enforcement continued to occur — for more than a year after that, until August 1, 2016. And it’s too late now for district courts that sentenced defendants during that period to take my colleague’s advice to vary downward from the Guidelines range based on a policy disagreement with the residual clause, even if they wanted to do so.
B.
With no satisfactory answer to the problem of arbitrary enforcement, Judge Pryor turns his attention to arguing that arbitrary enforcement is not a cognizable reason to invalidate a guideline. He invokes two' major reasons why: (1) in Judge Pryor’s view, the vagueness doctrine applies to only laws that “regulate the primary conduct of private citizens,” Pryor Op. at 1119, and the residual clause of the career-offender guideline does not fall into that category; and (2) “judges [do not have a due-process right] to be free from interpreting vague laws in the exercise of judicial duty,” id. at 1127 (emphasis in original). Judge Pryor’s first contention is not borne out by the caselaw. And his second proceeds from an incorrect premise: of course, the Hunt/Clayton concurrers do not believe that judges have a due-process right to be free from interpreting vague laws. We do, however, believe that the public has a due-process right to be free from the necessarily arbitrary enforcement that judges must engage in when they must apply unconstitutionally vague laws.
1.
The central theme of Judge Pryor’s argument is that the vagueness doctrine-including its concern for avoiding arbitrary enforcement
First, the Supreme Court has never described the vagueness doctrine as applying solely to laws that regulate the primary conduct of private individuals. In Johnson, for example, the Supreme Court observed broadly that the vagueness doctrine invalidates a criminal law that is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standard-less that it invites arbitrary enforcement.” 135 S.Ct. at 2556 (emphasis added). Nothing more is required. So even if all existing Supreme Court jurisprudence on the vagueness doctrine could accurately be characterized as involving laws that regulate the primary conduct of private individuals — it can’t (more on this later) — a law that does not regulate the primary conduct of private individuals could still be unconstitutionally vague if it were “so standard-less that it invite[d] arbitrary enforcement.”
Second, in supporting his thesis that the vagueness doctrine applies to only laws that regulate the primary conduct of private citizens, Judge Pryor incorrectly characterizes Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966) — a decision on which Judge Martin relied in her Clayton concurrence — as a case where the Supreme Court invalidated a law that regulated the primary conduct of private citizens. Judge Pryor describes the law at issue in Giaccio as allowing “[a] jury [to] award the costs [of an acquitted defendant’s prosecution] as a ‘sentence’ if it found that the defendant was ‘guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction.’” Pryor Op. at 1124 (quoting Giaccio, 382 U.S. at 403-04, 86 S.Ct. 518). But that description matches only part of what the Supreme Court held unconstitutionally vague in Giaccio: the judge’s jury instructions.
Significantly, the Supreme Court also ruled unconstitutionally vague the actual law itself that was at issue in Giaccio — and that law did not even arguably regulate primary conduct. See Giaccio, 382 U.S. at 402-03, 86 S.Ct 518. The law that the Supreme Court invalidated in Giaccio provided, in relevant part, only that “in all cases of acquittals by the petit jury on indictments for (offenses other than felonies), the jury trying the same shall determine, by their verdict, whether the county, or the prosecutor, or the defendant shall pay the costs.Id. at 400-01, 86 S.Ct. 518. It required no assessment of fault of any type on the part of the acquitted defendant.
The Supreme Court specifically invalidated that law as written — and without regard to how the jury was instructed in Giaccio’s case
This ... Act contains no standards at all, nor does it place any conditions of any kind upon the . jury’s power to impose costs upon a defendant who has been found by the jury to be not guilty of a crime charged against him. The Act, without imposing a single condition, limi*1149 tation or contingency on a jury which has acquitted a defendant simply says the jurors ‘shall determine, by their verdict, whether ... the defendant shall pay the costs’ whereupon the trial judge is told he ‘shall forthwith pass sentence to that effect, and order him (defendant) to be committed to the jail of the county’ there to remain until he either pays or gives security for the costs.
Id. at 403, 86 S.Ct. 518. Judge Pryor concluded that the law at issue in Giaccio “plainly regulated primary conduct” because “it imposed a penalty (costs, and possibly jail time) on an acquitted defendant (a private individual) based on his out-of-court conduct (the misconduct that led to his prosecution).” Pryor Op. at 1124.
That description of the Giaccio law is simply incorrect. The law allowed the imposition of costs on an acquitted defendant, even if the jury concluded that the defendant had engaged in no misconduct that led to his prosecution. A law that imposes a penalty on a private individual, without respect to his out-of-court conduct, cannot qualify as a law that regulates the primary conduct of private individuals. And since the vagueness doctrine was held applicable to such a law in Giaccio, Judge Pryor’s thesis that the vagueness doctrine applies to only laws regulating primary conduct of private individuals cannot be correct.
2.
Judge Pryor also seems to think that the fact that judges do not enjoy a due-process right “to be free from interpreting vague laws in the exercise of their judicial duty” can somehow excuse a vague law like the residual clause of the career-offender guideline from constitutional compliance. See Pryor Op. at 1122-23. He argues that “the advisory guidelines are directed to judges, not private citizens, and we tolerate much more vagueness in laws that regulate government actors than we do in laws that regulate private citizens.” Id. at 1126. In support of his position, Judge Pryor relies on Mahler v. Eby, 264 U.S. 32, 40-41, 44 S.Ct. 283, 68 L.Ed. 549 (1924), and National Endowment for the Arts v. Finley, 524 U.S. 569, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (“NEA”).
Judge Pryor’s argument suffers from at least two problems. First, determination of whether the career-offender guideline’s residual clause applies to any given prior conviction is not discretionary. Nor is the requirement that every sentencing court begin the sentencing process by correctly calculating the defendant’s applicable Guidelines range. So Mahler and NEA, which involve vagueness challenges to' discretionary provisions, are not instructive. And second, Judge Pryor’s argument fails to recognize that, regardless of to whom the Guidelines and the ACCA are addressed, the residual clause of each requires judges to engage in the same analysis, meaning that the arbitrary-enforcement problems that plagued ACCA’s residual clause occur with equal force in the context of the career-offender guideline’s ' residual clause.
First, Mahler and NEA are not relevant to the question of whether the vagueness doctrine applies to the residual clause of the career-offender guideline. Significantly, correct determination of whether the residual clause of the career-offender guideline applies to a defendant should not involve discretion of any kind. That’s be
That is simply not the case with the discretionary laws at issue in the cases Judge Pryor cites. In Mahler, for example, the Supreme Court rejected a vagueness challenge to the Secretary of Labor’s statutory power to expel aliens, observing that the power was discretionary. 264 U.S. at 40-41, 44 S.Ct. 283.
Similarly, the law at issue in NEA, 524 U.S. 569, 118 S.Ct, 2168, required the Chairperson of the National Endowment for the Arts to ensure that “artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect .for the diverse beliefs and values of the American public.” Id. at 572, 118 S.Ct. 2168 (quoting 20 U.S.C. § 954(d)(1)). The Supreme Court described this law as “vestfing] the NEA with substantial discretion to award grants [by] identifying] only the broadest funding priorities....” Id. at 573, 118 S.Ct. 2168.
The laws at issue in Mahler and NEA, of course, are nothing like the residual clause of the career-offender, guideline, the application of which, I have noted, was intended to result in a single objectively correct answer to the question of whether a prior conviction qualified as a violent crime. Because Mahler and NEA involved laws that did not purport to establish standards whose application results in a single correct answer, they are not helpful in appraising the residual clause of the career-offender guideline for vagueness.
Second, Judge Pryor’s argument does not account for the fact that the residual clauses of both the career-offender guideline and the ACCA require judges to engage in the same analysis. Judge Pryor describes the Guidelines as “directed to judges, not private citizens,” Pryor Op. at 19, suggesting that the vagueness in the residual clause of the career-offender guideline is somehow more tolerable than the exact same vagueness in the ACCA. See id.
But regardless of at whom the Sentencing Guidelines are directed, judges engage in the very same analysis when they apply the career-offender guideline’s residual clause as they did when they applied the ACCA’s residual clause. In both cases, judges must construe the same thirteen words, and in both cases, judges must decide whether a prior conviction categorically — not individually with respect to the details of a given defendant’s prior crime — qualifies as a violent crime. That one definition appears in a guideline while the other is in a statute does not, as a practical matter, affect the way in which the courts go about analyzing whether the provision applies. And if the provision is too vague to avoid arbitrary enforcement under the ACCA, it is equally too vague to avoid arbitrary enforcement under the career-offender guideline.
III.
Finally, in a last-ditch effort to support his view that the vagueness doctrine
But ruling that the residual clause of the career-offender guideline is unconstitutionally vague would not mean the end of the sentencing world as we know it. Unlike the residual clause of the career-offender guideline, most guidelines are not intended to be categorically applicable. They are designed instead to, as Judge Pryor has explained, “strike a ... balance between consistency, predictability, and flexibility.” Pryor Op. at 1129. As a result, most guidelines are supposed to and do allow the judge some discretion in determining the relevant facts of a particular defendant’s case in applying the. guideline. In fact, at times, correct application of a single guideline can result in different, correct answers. Again, that’s by design.
But the residual clause of the career-offender guideline is different. It is not intended to apply flexibly, depending on a particular defendant’s unique factual circumstances. Because it is meant to be applied categorically, it is supposed to yield an objectively correct answer about whether any particular crime qualifies under it as a violent crime, regardless of a defendant’s individual circumstances and a sentencing judge’s view of the record. That it cannot be applied in this way, despite the intended design of the guideline, is the source of the vagueness problem with the residual clause of the career-offender guideline. Indeed, the Supreme Court held ACCA’s identical residual clause unconstitutionally vague, in significant part, because of the law’s failed categorical nature. See Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1262, 194 L.Ed.2d 387 (2016).
Alowing a successful vagueness challenge to a guideline that is intended to apply categorically but is incapable of actually working that way does not set a precedent for holding guidelines that are designed to apply with some flexibility and discretion — as opposed to categorically— vague. As I have previously noted, non-categorical guidelines “guide judicial discretion,” Pryor Op. at 1119, in a way that is substantively and materially different than categorical guidelines do. Whereas categorical guidelines should yield but a single correct answer applicable to every case without regard to an individual defendant’s circumstances or a judge’s view of the record, non-categorical guidelines should not. So an inability to categorically apply a guideline that is intended to be categorically applied necessarily results in arbitrary enforcement every time it is applied. As a result, it is vague in a way that a non-categorical guideline never can be.
Similarly, invalidating the career-offender guideline’s residual clause as unconstitutionally vague has no implications for 18 U.S.C. § 3553(a) standards, see Pryor Op. at 1126-27, since they also do not apply categorically. Rather, by design, judges consider the individual circumstances of a given defendant’s case and are expected to exercise their discretion in applying the § 3553(a) standards. See United States v. Hurlburt, No. 14-3611, 2016 WL 4506717, at *7 (7th Cir. Aug. 29, 2016) (en banc) (“Johnson itself specially addressed this kind of objection [that holding the residual clause unconstitutional will open the floodgates to vagueness challenges to other sen-
Nor does declaring the residual clause of the career-offender guideline unconstitutionally vague have any implications for the constitutionality of the Sentencing Guidelines under the Separation of Powers. The reason that the residual clause of the career-offender guideline must be held unconstitutionally vague is not that the freestanding guideline results by itself in arbitrary enforcement — a circumstance that might cause Separation-of-Powers problems if it existed; it is instead because under 18 U.S.C. § 3553(a), “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Gall v. United States, 552 U.S. 38, 50 & n.6, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (emphasis added).
As the Supi-eme Court has recognized, by congressional mandate in the form of § 3553(a), the Sentencing Guidelines “anchor .,. the district court’s discretion.”
IY.
These issues are important ones. They potentially impact numerous defendants. So I would have granted en banc rehearing when the poll was initially taken in March 2016.
APPENDIX
ROSENBAUM, Circuit Judge, concurring, joined by WILSON and JILL PRYOR, Circuit Judges:
Imagine a sentencing guideline that read, “A defendant is a career offender if ‘[p]uddles do not ask for why not? It is cheese! Breath and wind. It is cheese.’” Boston Legal, “Word Salad Days” (2006), http://www.imdb.com/title/tt0770843/quotes (last visited Apr. 28, 2016). Now imagine
No doubt criminal defendants do not have a due-process right to a sentence within a particular Sentencing Guidelines range. But Congress can, and essentially has, required courts to begin the sentencing process by correctly calculating the Guidelines range. The question here is whéther, when the Supreme Court strikes language from a statute because it is unconstitutionally vague language and that same language also appears in a guideline, we are constitutionally able to continue to apply that language in the sentencing process that Congress has mandated. The answer, unlike the challenged part of the career-offender guideline, is clear: we are not.
I concur in Sections I.A. and II of Judge Wilson’s well-reasoned concurrence. I agree that the Supreme Court’s decision in Johnson v. United States, 576 U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), holding the Armed Career Criminal Act’s (“ACCA”) residual clause unconstitutionally vague renders the exact same language in the Sentencing Guidelines unconstitutional as well. So while we are bound by Matehett in deciding Hunt’s Guidelines claim, I write separately to explain why I believe that Matehett was incorrectly decided.
I.
In Matehett, 802 F.3d 1185, the panel reached the opposite conclusion because it held that the vagueness doctrine does not apply to the Sentencing Guidelines. 802 F.3d at 1193-95, To reach that result, the panel first described the vagueness doctrine as “resting] on [a] lack of notice.” Id. at 1194 (quoting Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988)). Then, the panel construed Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), as precluding due-process challenges to, essentially, anything having to do with sentencing under the Guidelines, based on the Supreme Court’s remark that that “[a]ny expectation subject to due process protection ... that a criminal defendant would receive a sentence within the presumptively applicable Guidelines range did not survive our decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which invalidated the mandatory features of the Guidelines.” Matchett, 802 F.3d at 1194 (quoting Irizarry, 553 U.S. at 713, 128 S.Ct. at 2202). Finally, the panel quoted the Eighth Circuit’s decision in United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), for the proposition that “[bjecause there is no constitutional right' to sentencing guidelines ... the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.” Matchett, 802 F.3d at 1194-95 (quoting Wivell, 893 F.2d at 160).
The problem with the first part of the panel’s analysis — that the vagueness doctrine “rest[s] on [a] lack of notice” — is that it is incomplete. The vagueness doctrine also protects against arbitrary enforcement by judges. Indeed, in Johnson itself the Supreme Court held that the ACCA equivalent of the 13 words at issue here violated due process because it “both denies fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 135 S.Ct. at 2557 (emphasis added).
B.
As for the second part of the panel’s analysis — that Irizarry precludes due-process challenges to all forms of sentencing error under the Guidelines — I respectfully disagree. In Irizarry, under the advisory Guidelines, a defendant was sentenced above the correctly calculated Guidelines range. 553 U.S. at 712, 128 S.Ct. at 2201. He asserted that his due-process rights had been violated because the sentencing court varied upwards from the Guidelines range without providing him with prior notice. See id. The Supreme Court rejected his argument, explaining that under the advisory Guidelines, “neither the Government nor the defendant may place the same degree of reliance on the type of ‘expectancy’ [of a given sentence] that gave rise to a special need for notice [when the Guidelines were mandatory and the sentencing court departed from them].” Id. 553 U.S. at 713-14, 128 S.Ct. at 2202.
Put simply, Irizarry stands for only the proposition that a defendant has no due-process interest in receiving a sentence within the Guidelines range. But Irizarry says nothing about whether a defendant has a due-process right to a correct and fair sentencing process under the Sentencing Guidelines. And while the Supreme Court has not expressly spoken to such a right, the Court’s recent decisions strongly indicate that the right exists.
For starters, in Molina-Martinez v. United States, 578 U.S. —, 136 S.Ct. 1338, 194 L.Ed.2d 444 (2016), the Supreme Court recently explained that a district court that “improperly calculates]” a defendant’s Guidelines range makes a “significant procedural error,” id. at 1346 (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)) (quotation marks omitted) — so “particularly serious,” id. in fact, that the error generally qualifies in its own right as having “affected the defendant’s substantial rights.” Id.
And that is not surprising, given that the Supreme Court has established that a correct and fan- sentencing process necessarily begins with the correct calculation of the Guidelines range. Gall v. United States, 552 U.S. 38, 50 & n.6, 128 S.Ct. 586, 596 & n.6, 169 L.Ed.2d 445 (2007). Indeed, the Supreme Court has instructed that under 18 U.S.C. § 3553(a), “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.” Id. at 50 n.6, 128 S.Ct. at 596 n.6 (emphasis added); see Peugh v. United States, 569 U.S. —, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013) (same). The correct Guidelines calculation “anchor[s] both the district court’s [sentencing] discretion and the appellate review process.” Peugh, 133 S.Ct. at 2087.
That is exactly the problem that the challenged language of the career-offender guideline presents.' How can a sentencing court correctly calculate the Guidelines range when it is forced to apply the “hopelessly] indetermina[te]” language of the career-offender guideline? Johnson, 135 S.Ct. at 2448. Courts had “trouble making sense” of the very same words when they tried to apply them under the ACCA’s residual clause. Id. at 2559-60. The Supreme Court observed that “[n]ine years’ experience trying to derive meaning from the residual clause convince[d it] that [it] ha[d] embarked upon a failed enterprise.” Id. at 2560. This “ ‘black hole of confusion and uncertainty
Because of this muddle, a sentencing court cannot ascertain whether the challenged part of the career-offender guideline even applies when the guideline is raised, so the court necessarily cannot correctly calculate the Sentencing Guidelines range. As a result, the sentencing court cannot comply with the sentencing process’s virtual statutory requirement that the sentencing court first correctly calculate the applicable Guidelines range.
And, as Judge Wilson notes, the confusion only grows on appeal. Determining whether a sentence imposed by a district court was procedurally reasonable requires appellate courts to first ascertain whether the district court correctly calculated the applicable Guideline range. But we are no more skilled in applying “hopelessly] indeterminate]” language than district courts.
C.
Finally, with regard to the third part of the Matchett panel’s analysis — that the Sentencing Guidelines cannot be challenged as vague because no constitutional right to sentencing guidelines exists — I again respectfully disagree. True, “legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases.” Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). But legislatures cannot, as Matchett would apparently hold, cabin the sentencing discretion of judges by mandating that they calculate a defendant’s sentence using unconstitutionally vague language.
This would be another ease entirely if sentencing judges could choose to wholly disregard the unconstitutionally vague career-offender guideline in calculating sen
II.
At bottom, statutorily, courts are required to begin every sentencing by correctly calculating the Guidelines range. Yet the Supreme Court has recognized that courts cannot reliably know whether the challenged language of the career-offender Guideline applies in any given case. As a result, they cannot possibly know whether a correct calculation of the Guidelines range should or should not include such an enhancement. But in Matchett, we nonetheless. required sentencing courts to impose the enhancement and ourselves to uphold it, anyway. Trying to divine meaning from the word salad that is the challenged portion of the career-offender guideline guarantees an arbitrary and unfair sentencing process in violation of due process. For this reason, I respectfully disagree with our holding in Matchett.
. My concurrences in Hunt and Clayton are, for the most part, the same. For convenience, I attach a copy of my concurrence in Hunt in the Appendix to my dissent.
. See Pryor Op. at 1128 (arguing that my alleged "concern” that the Sentencing Commission might issue a "nonsensical guidelines about ‘cheese' ” is "unfounded” because '-‘the members of the United States Sentencing Commission take their oaths seriously and strive to craft guidelines that 'provide certainly and fairness in meeting the purposes of sentencing,’ 28 U.S.C. § 991(b)(1)(B). We know of no instance in which the Commission has intentionally or inadvertently constructed a ‘word salad.’ ”). To be clear, I have never ■ doubted the good intentions of the Sentencing Commission. In fact, I have nothing but the utmost respect and appreciation for die hours upon hours that members and former members of the Commission — including Judges Pryor and Julie Carnes — devote and have devoted to trying to develop the best possible guidelines they can. It is also certainly understandable why the Commission would have adopted the wording of the residual clause of the career-offender guideline — they had the residual clause of the congressionally enacted Armed Career Criminal Act as a model. But the Commissioners' good intentions, of • course, do not somehow insulate the Sentencing Guidelines from legal critique. And criticizing a guideline is not the same thing as impugning the intentions of the Sentencing Commission.
, In fact, I would be surprised if the Sentencing Commission had reason to issue a guideline about cheese at all. After all, the moon does not fall within the Sentencing Commission's jurisdiction. See Robert Nemiroff & Jerry Bonnell, Hubble Resolves Expiration Date for Green Cheese Moon, Astronomy Picture of the Day (Apr. 1, 2002), http://www.phys.ncku, edu.tw/-astrolab/mirrors/apod_e/ap020401. html ("The popular ‘Moon is made of Green Cheese’ myth can be traced,back almost 500 years. It has been used historically in context to indicate a claim so clearly false that no one ... will believe it.”); see also Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. I, Jan, 27, 1967, 18 U.S.T. 2410 ("The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.”).
. Now, that is a sentence I never imagined I would write in an opinion.
. Even if they could, I note that "closer [appellate] review may be in order when the sentencing judge varies from the Guidelines based solely” on a policy disagreement with the apparently applicable guidelines. See Kimbrough v. United States, 552 U.S. 85, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).
. The Supreme Court separately concluded that even as limited by the judge’s jury instructions, the statute was unconstitutionally vague. See Giaccio, 382 U.S. at 403, 86 S.Ct. 518.
. The one difference is that a judge applying the guideline must determine whether two predicate convictions exist, while a judge applying the ACCA must determine whether three are present.
. Much as my colleague would like to ignore the inconvenient fact that the Guidelines continue to hold great sway over sentencing courts, see Pryor Op. at 1123 ("On average, the odds of receiving a sentence within the guideline range are worse than a coin flip”), that is not the way the Supreme Court sees things. Just a few months ago, the Court described the Sentencing Commission's statistics as "demonstrating] the real and pervasive effect the Guidelines have on sentencing,” Molina-Martinez, 136 S.Ct. at 1346, In support of this point, the Supreme Court noted that district courts have "imposed above- or below-Guidelines sentences absent a Government motion” in less than 20% of cases since 2007. Molina-Martinez, 136 S.Ct. at 1345. Judge Pryor’s citation of statistics fails to account for the government's role in sentencing.
. If the Guidelines calculation error in Molina-Martinez that resulted in a difference of 7 months’ imprisonment on the low end of the Guidelines range constitutes a "significant procedural error,” so too must an error in the application of the career-offender Guideline, which can double and sometimes even triple the otherwise-applicable Guidelines range.
Lead Opinion
A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.