On March 5, 2017, I blogged about the importance of challenging criminal laws for vagueness and over breadth. The very next day, the United States Supreme Court confirmed the over breadth doctrine as it applies to statutes, but said that Due Process vagueness challenges do not apply to voluntary sentencing guidelines. Beckkles v. United States,  ___ U.S. ___ (March 6, 2017).

Beckles challenged the federal sentencing guidelines §4B1.2(a)’s definition of “crime of violence” — for purposes of determining whether a convicted defendant qualifies as an armed career criminal — as vague, in the portion of that guidelines section that included  any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Beckles bars challenging sentencing guidelines for Due Process vagueness challenges, because the Supreme Court over a decade ago ruled that all state and federal criminal sentencing guidelines — versus statutory mandatory minimum sentencing schemes or statutory provisions that increase the maximum available penalty — are discretionary and not mandatory upon sentencing judges. Beckles.

Beckles leaves intact a criminal defendant’s right to challenge a criminal statute as unconstitutionally vague: “This Court has held that the Due Process Clause prohibits the Government from ‘taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.’ Johnson [v. United States], 576 U. S. at ___–___ (slip op., at 3– 4)”  (rest of citation omitted).

Importantly, said 2015 Johnson v. United States case voids for vagueness the section of the Armed Career Criminal Act that duplicates that very same federal sentencing guidelines language challenged in Beckles. 

Concurring in Beckles, Justices Ginsburg and Sotomayor wisely point out that Beckles is too broad for barring vagueness challenges to sentencing guidelines when Beckles himself clearly qualified under the guidelines for being an armed career criminal. Indeed, particularly considering that Beckles confirms “the [federal sentencing] Guidelines remain ‘the starting point and the initial benchmark’ for sentencing,” an absence of vagueness in sentencing guidelines is crucial. Beckles, therefore, should have left open the possibility for another day to attack portions of the sentencing guidelines as unconstitutionally vague.