In Beckles v. United States, 580 U.S. ___, 2017 WL 855781 (March 6, 2017) the Supreme Court held that Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015), does not apply to the Guidelines’ residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Slip op. at 1. In an opinion by Justice Thomas, the Court’s reasoning was based on the advisory nature of the Guidelines since United States v. Booker, 543 U.S. 220 (2005). Slip op. at 7. Because the now advisory guidelines “merely guide the district court’s discretion,” they do not implicate the vagueness doctrine’s concerns with notice and arbitrary enforcement. Slip op. at 7-9. Justice Thomas noted that the decision did “not render the advisory Guidelines immune from constitutional scrutiny,” only void-for-vagueness scrutiny; they are still subject to ex post facto rules and Eighth Amendment limitations. Slip op. at 10-11.
Justice Kennedy concurred briefly to point out that a sentencing provision that did not fit within the definitional structure of vagueness could be so arbitrary as to implicate constitutional concerns.
Justices Ginsburg and Sotomayor each concurred separately in the judgment only, both concluding that the vagueness claim should have been disposed of by the inclusion of specific crimes in the commentary and that there was no need for such a sweeping holding. Justice Ginsburg left it there, but Justice Sotomayor wrote further to express her disagreement with the majority holding that the vagueness doctrine did not apply to the advisory Guidelines. The central role of the guidelines in determining the starting point and defining a presumptively reasonable sentence, Justice Sotomayor reasoned, should make them subject to vagueness challenges.
This decision seems to foreclose 2255 petitions based on Johnson’s application to the Guidelines (career offender, 2K2.2, 2L1.2) for defendants who were sentenced after Booker was decided, January 10, 2005, or who obtained re-sentencings after Booker under the correct advisory scheme.
However, petitioners who were sentenced under the mandatory scheme pre-Booker still have a glimmer of hope because the Beckles decision is absolutely tied to the advisory nature of the post-Booker Guidelines. See also, concurring opinion of Justice Sotomayor at 10, n. 4(the decision leaves open the question whether sentences under pre-Booker regime are subject to vagueness challenge). Those petitions are still in the game. However, the retroactivity question and the question whether offenses listed in the guideline commentary qualify independently of the residual clause were not resolved in Beckles and remain open. And Justices Ginsburg and Sotomayor have accepted the government’s argument that predicates listed in the commentary to the career offender guideline count, regardless of the residual clause.
Beckles does not affect ACCA cases, which are directly governed by Johnson and made retroactive by Welch v. United States, 136 S.Ct.1257 (2016).
Neither does Beckles affect petitions based on Johnson’s applicability to the residual clause in 18 U.S.C. 924(c). Those involve statutory mandatory minimums, which are subject to vagueness challenges. We are still waiting for the Supreme Court’s decision in Lynch v. Dimaya , 137 S.Ct. 31 (Sept. 29, 2016) (cert. granted on whether Johnson applies to the similar residual clause in 18 U.S.C. 16(b)). Hopefully that will turn out better than Beckles.