Yesterday’s oral argument in Beckles v. United States found the justices wrestling with retroactivity and vagueness in the context of the U.S. Sentencing Guidelines. The petitioner, Travis Beckles, questioned the constitutionality of the residual clause of the career-offender provision in Section 4B1.2 of the guidelines after the Supreme Court, in Johnson v. United States, found an identically worded residual clause in the Armed Career Criminal Act to be unconstitutionally vague. Beckles asked the court to rule first on whether a favorable ruling on the constitutional question – on which he and the government agree — would be retroactive on collateral review. Even if the court were to find in favor of Beckles on both counts, he could still lose because of a unique interplay between the career-offender guideline and the guideline commentary, which specifically declared his offense – possession of a sawed-off shotgun – to be a crime of violence.
With her opening question, Justice Ruth Bader Ginsburg forced Janice Bergmann, representing Beckles, to focus on the third issue in the case: the relationship between the guidelines’ residual clause and the commentary, which specifically listed Beckles’ offense of conviction as a crime of violence. A number of justices took issue with Bergmann’s assertion that the commentary cannot define “shapeless” language, a term taken from Johnson. After all, they noted, the guideline commentary, at least in part, interpreted the residual clause, presumably providing meaning in that manner. They also questioned whether the commission was not in the best position to clarify its own language. Bergmann responded that the guideline language was not the commission’s, but rather was drawn from the ACCA residual clause. Any interpretation and examples offered by the commission, she argued, would therefore be arbitrary.
Justice Samuel Alito was the first to direct the argument to the question of what vagueness would mean in a guideline-free world. Along with Justice Stephen Breyer, Alito reminded Bergmann that pre-guideline sentencing appears substantially more vague and arbitrary than the residual clause, as do many of the current guideline provisions. In response, Bergmann asserted that the guideline residual clause is unique among those provisions because of its identity with the ACCA residual clause, and that it shares the same characteristics embodied in the categorical approach that ultimately caused the court to declare the ACCA provision void for vagueness.
Chief Justice John Roberts and Justice Anthony Kennedy continued along similar lines by pointing to the decrease in vagueness any guideline, even a vague one, would provide as compared to the previous system of discretionary sentencing. Why, they asked, should greater precision lead to greater vagueness?
Ginsburg seemed to be seeking a way out of the guideline morass. Initially, she focused on the specificity provided through the commentary. She next tried out a mootness argument, noting that Beckles has already received a substantial reduction in his sentence, based on the assistance he provided to the government. Bergmann responded that because the substantial assistance reduction would come on top of a reduced guideline range should Beckles be resentenced, the case was not moot.
Only in her rebuttal did Bergmann get to address her retroactivity argument. In support of her claim that a ruling on vagueness would be substantive, and therefore should apply retroactively on collateral review, she relied on Welch v. United States, in which the court declared Johnson to be retroactive, and on Montgomery v. Louisiana, the juvenile life-without-parole case that applied Miller v. Alabama retroactively, requiring courts to make a finding of incorrigibility in order to re-sentence a juvenile offender to life without parole.
Deputy Solicitor General Michael Dreeben argued for the government. The caliber of both his presentation and substantive argument was high. Dreeben directly confronted the justices’ concerns about the constitutionality of discretionary sentencing, outlining a due-process framework that embodies fundamental fairness but considers it in light of “history and practice.” Discretionary sentencing, he explained, which has been part of the criminal justice system since the founding of the country, is built on “individualization or proportionality.” The process by which the court arrives at a sentence, according to Dreeben, amounts to “conscientious judgment rather than arbitrary action.”
In contrast, after United States v. Booker, which made the guidelines advisory, the guidelines have a strong legal foundation, because the judge must consider them throughout the sentencing process. That means sentencing is anchored in the guidelines. To support his argument that the guidelines function as the lodestar of sentencing, Dreeben cited high judicial compliance with the advisory guidelines. Because of the essential function of the advisory guidelines, Dreeben conceded that they are subject to constitutional review for vagueness. (Under this analysis, constitutional review for vagueness obviously also applies to mandatory guidelines. Dreeben stated directly, however, that the government has not taken a position on retroactivity with respect to cases that arose under the mandatory, pre-Booker guidelines, because this case arose under the advisory guidelines.)
Alito pressed Dreeben on the government’s position, attempting to ascertain when advisory guidelines would become so non-binding that vagueness review would no longer be applicable. Would non-binding, non-advisory guidelines meet that standard, or would that point be reached when high rates of non-compliance suggested that the guidelines were irrelevant? Dreeben avoided these hypothetical questions by indicating that the data failed to show a large-scale movement toward judicial non-compliance. He also noted that the feedback loop from the courts to the commission allows the commission to adjust guidelines when a large number of judges indicate their misunderstanding or disapproval of guideline language.
To Kennedy, the government’s portrayal of the overall structure of the guidelines is in tension with its claim that, for retroactivity purposes, a ruling on vagueness would be merely procedural, not substantive. In response, Dreeben emphasized the narrow framework of retroactivity, as opposed to due process, analysis. A new rule is not retroactive, he explained, unless it changes the range of conduct or the entire class of people affected by making them effectively ineligible for a specific sentence. In this case, in contrast, the new rule would merely affect the likelihood of a sentence.
Some of the justices remained concerned about the government’s vagueness argument because other guideline provisions may appear similarly vague. Dreeben responded that guideline language generally mirrors the elements of crimes, which judges are familiar with construing. The residual clause, however, is different. Nevertheless, when the commission adopted it to facilitate the work of judges, it added commentary language to provide specificity.
Ginsburg returned to her initial question, suggesting that she had considered ruling only on the third issue in the case, presumably by holding that the commentary language made the residual clause sufficiently specific, at least in Beckles’ case. Dreeben forcefully counseled against this path in light of the number of cases pending in the lower courts on the issue of retroactivity. Even though the court is not required to follow its jurisprudence that has made retroactivity the threshold question on collateral review, he argued, avoiding the issue would do a disservice to those who had already filed cases and, by extension, to the federal judiciary.
Alito asked Dreeben whether, if the court decided the retroactivity question, it would need to reach vagueness. Dreeben responded that a ruling on vagueness would only be necessary if the court ruled against the government on retroactivity. Even then, however, Dreeben asserted, Beckles should lose, because the commentary specifically cited possession of a sawed-off shotgun as a crime of violence.
Adam Mortara, the court-appointed amicus curiae, argued in support of the decision of the U.S. Court of Appeals for the 11th Circuit on vagueness. His overarching defense of discretionary sentencing despite its arbitrariness seemed to fall flat, however.
Mortara argued that judges honor the career offender guideline in the breach, largely because the language emanates from the statute rather than the commission’s specific expertise. If discretionary sentencing and the sentencing factors in 18 U.S.C.3553(a)(2) – despite their vagueness – are constitutional, a career offender enhancement, especially if district court judges do not follow it, cannot be vague. Mortara met with few questions from the justices.
Throughout the argument, Justice Sonia Sotomayor tried to provide a helping hand to Beckles’ counsel. She expressed concern about the relevance of Johnson and Welch if the guidelines’ residual clause were not found retroactively vague. Dreeben conceded that other than in felon-in-possession cases, Welch and Johnson would not be relevant, but argued that this is because the guidelines, in contrast to statutes, do not mandate a specific finding. Dreeben assured Sotomayor that prisoners who have already been resentenced would not see their sentences disturbed, postulating that the judges in those cases had likely moved to resentence because the cases were unusual.
At the end of the argument, it seemed doubtful that Beckles will prevail. On what ground the justices will decide his case, however, is open for conjecture. One thing is clear: Booker’s declaration that the guidelines are advisory did not end the guideline conundrum, but instead opened the door to other questions. A decision is likely next year.
Nora Demleitner is the 2016 Boden Visiting Professor at Marquette University Law School. This piece is cross-posted at SCOTUSblog.com.