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                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 14-10396
                             ________________________

                       D.C. Docket No. 1:13-cr-20630-KMM-1



UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

versus

CALVIN MATCHETT,

                                                    Defendant - Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________



Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and
JILL PRYOR, Circuit Judges.

BY THE COURT:

         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
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Court having voted against granting a rehearing en banc, it is ORDERED that this

case will not be reheard en banc.




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WILLIAM PRYOR, Circuit Judge, joined by JULIE CARNES, Circuit Judge,
respecting the denial of rehearing en banc:

      A majority of the Court has voted not to rehear 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 not 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:

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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 (1976); see also Williams v. New

York, 337 U.S. 241, 247–48 (1949). All crimes “had a defined punishment,” and

“the period of incarceration was generally prescribed with specificity by the

legislature.” Ilene 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 (1978). Legislatures enacted broad statutory ranges, and judges

began tailoring sentences to individual defendants by considering “the

circumstances of the offense together with the character and propensities of the

offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937); see also

Pepper v. United States, 562 U.S. 476, 487–88 (2011). “So long as sentencing

judges stayed within the statutory boundaries, they had unbridled discretion to

arrive at any sentence they pleased.” United States v. Irey, 612 F.3d 1160, 1180

(11th Cir. 2010) (en banc). As Judge Marvin Frankel described the state of

sentencing in 1973, “The sentencing powers of the judges [were] . . . so far

unconfined that, except for frequently monstrous maximum [statutory] limits, they

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[were] effectively subject to no law at all.” Marvin E. Frankel, Criminal Sentences:

Law Without Order 8 (1973).

      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 (1989). “[J]udges

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 (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 (2005).

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      Because of the disparities associated with individualized sentencing, see

Koon v. United States, 518 U.S. 81, 92 (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 (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 behavior (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
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      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 (emphasis added). The mandatory guidelines were challenged again in

United States v. Booker, 543 U.S. 220 (2005)—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. 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. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013); see

also Apprendi v. New Jersey, 530 U.S. 466, 476–90 (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.

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, 136 S. Ct. 1338, 1346 (2016). District courts must

calculate the guideline range correctly, Gall v. United States, 552 U.S. 38, 51
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(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 (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; 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, and they cannot “presume that a sentence within the applicable

Guidelines range is reasonable,” Nelson v. United States, 555 U.S. 350, 352

(2009). Appellate courts cannot presume that a deviation from the guideline range

is unreasonable. Rita, 551 U.S. at 354–55. 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 (2009) (citing Kimbrough

v. United States, 552 U.S. 85 (2007)).




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      The question presented in this appeal was whether the advisory guidelines

can be void for vagueness. The vagueness doctrine states that “a statute which

either forbids or requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning and differ as to its

application violates the first essential of due process of law.” Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926). As the decisions of the Supreme Court

make clear, the vagueness doctrine applies only to laws that regulate private

conduct—laws that define crimes, e.g., City of Chicago v. Morales, 527 U.S. 41

(1999); Kolender v. Lawson, 461 U.S. 352 (1983); Colautti v. Franklin, 439 U.S.
379 (1979); Smith v. Goguen, 415 U.S. 566 (1974); Papachristou v. City of

Jacksonville, 405 U.S. 156 (1972); Winters v. New York, 333 U.S. 507 (1948);

Lanzetta v. New Jersey, 306 U.S. 451 (1939); Cline v. Frink Dairy Co., 274 U.S.
445 (1927); United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); Int’l

Harvester Co. of Am. v. Kentucky, 234 U.S. 216 (1914); laws that fix sentences,

e.g., Johnson v. United States, 135 S. Ct. 2551 (2015); laws that restrict speech,

e.g., FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012); Gentile v. State

Bar of Nevada, 501 U.S. 1030 (1991); Keyishian v. Bd. of Regents of Univ. of State

of N.Y., 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360 (1964); Cramp v. Bd.

of Pub. Instruction of Orange Cty., 368 U.S. 278 (1961); and laws that regulate

businesses, e.g., A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233 (1925).

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      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 (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 (1966). The guidelines

implicate neither of these concerns. See United States v. Hurlburt, No. 14-3611,

slip op. at 22 (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

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respect for the law,” to “provide just punishment,” to “afford adequate deterrence,”

and to “provide the defendant with needed . . . correctional treatment”; and the

need to “avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a). Each

of these factors is “vague and . . . hopelessly open-ended.” United States v. Dean,

414 F.3d 725, 729 (7th Cir. 2005). Even if a person could predict what a judge

would find relevant about his “history and characteristics” or what a judge thinks

makes a punishment “just,” the sentencing statute makes “no attempt to give

weights to the different factors.” United States v. Siegel, 753 F.3d 705, 707 (7th

Cir. 2014). “[W]ithout weighting its factors a multifactor test is not a test but a list,

and cannot yield an objective result.” Id.

      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




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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 (2008). “The due process concerns that . . . require notice in a world of

mandatory Guidelines no longer” apply. Id. at 714. 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 (describing the vagueness doctrine as

governing laws that “forbid[] or require[] the doing of an act”); United States v.

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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 (“[B]oth 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) (Kavanaugh, J.,

concurring in the judgment) (describing the vagueness doctrine as governing laws

that “regulat[e] 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 enforcement of laws that regulate the primary conduct of private

individuals—hence the word “enforcement.” See Papachristou, 405 U.S. at 170;

Parker v. Levy, 417 U.S. 733, 775 (1974). Vague laws allow for arbitrary

enforcement because they do not meaningfully limit who the police can arrest, who

prosecutors can prosecute, and who judges and juries can convict. See Lawson, 461
U.S. at 358–60; Grayned, 408 U.S. at 108–09. In the federal context, one of the

main concerns behind arbitrary enforcement is the separation of powers: “In our

system, . . . defining crimes and fixing penalties are legislative, not judicial,

functions,” and vague statutes require courts to “fill[] gaps so large that doing so

becomes essentially legislative.” United States v. Evans, 333 U.S. 483, 486–87

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(1948); accord Lawson, 461 U.S. at 358 n.7 (citing United States v. Reese, 92 U.S.
214, 221 (1875)); Goguen, 415 U.S. at 575.

      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 (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.

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 (1966). In Giaccio, the Supreme Court invalidated a

Pennsylvania statute that required acquitted defendants to pay the costs of their

prosecution. See id. at 403. 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. This statute as construed by the

Pennsylvania courts plainly regulated primary conduct: it imposed a penalty (costs,

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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 (1971) (distinguishing the

statute in Giaccio 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. 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 at 160 (“The Sentencing Guidelines do not define illegal conduct: they are

directives to judges for their guidance in sentencing convicted criminals, not to

citizens at large.”).

       The term “arbitrary enforcement” makes little sense in this context. If judges

exercising their sentencing discretion are “enforcing” the law against individuals,

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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, then vague sentencing guidelines,

which only guide that discretion, are too.

      The decision of the Supreme Court in Peugh v. United States, 133 S. Ct.
2072 (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). 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

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principles of ‘fundamental justice.’” Peugh, 133 S. Ct. at 2085 (plurality opinion)

(quoting Carmell v. Texas, 529 U.S. 513, 531 (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. (Dall.) 386, 390 (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, 135
S. Ct. 2551 (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)

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(quoting United States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004)). So, if the

guidelines are subject to the vagueness doctrine, then the residual clause of the

career-offender guideline is void for vagueness because its language is virtually

identical to the statutory language that was invalidated in Johnson. But that’s a big

“if,” for the reasons given above, and Johnson says nothing whatsoever about the

issue. See In re Embry, No. 16-5447, slip op. at 4 (6th Cir. July 29, 2016) (“Before

a court could invoke Johnson to invalidate the residual clause of the Guidelines, it

would have to resolve a threshold question: Do[es] the [vagueness doctrine] apply

to the advisory Sentencing Guidelines? The answer to this gateway question is not

self-evident.” (citation omitted)); Donnell v. United States, No. 15-2581, slip op. at

2 (8th Cir. June 20, 2016) (“Whether an advisory sentencing guideline is

susceptible to a vagueness challenge is an open question in this circuit . . . and the

answer is not dictated by Johnson.”); United States v. Gonzalez-Longoria, No. 15-

40041, slip op. at 13–14 (5th Cir. Aug. 5, 2016) (en banc) (Jones, J., concurring)

(“Johnson itself did not specifically treat or address the Guidelines,” and “[n]o

other Supreme Court case has directly confronted a vagueness challenge to the

Guidelines or implied the propriety of such a challenge.”).

      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

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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 (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 (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

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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. 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 (explaining that the

phrase “detrimental to the public interest” would be void for vagueness in a

criminal statute); Finley, 524 U.S. at 588 (explaining that the word “respect” is

“undeniably opaque” and “could raise substantial vagueness concerns” if it

“appeared in a criminal statute or regulatory scheme”); EPA v. EME Homer City

Generation, L.P., 134 S. Ct. 1584, 1616 (2014) (Scalia, J., dissenting) (“One could

hardly overstate the capaciousness of the word ‘adequate’ . . . .”); Frink Dairy Co.,
274 U.S. at 465 (holding that the phrase “reasonable profit” was void for

vagueness in a criminal statute). But federal judges apply these standards every day

and do so without a second thought. The dissents appear to think that there is a

due-process right of judges to be free from interpreting vague laws in the exercise

of their judicial duty. That “right” does not exist.

      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

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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

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: “liquidat[ing] and ascertain[ing]” 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

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“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. 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 (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.* (1993) (Scalia, J.,

concurring).

      Judge Rosenbaum’s concurrences on this subject, appended to her dissent,

fret that, unless the guidelines can be challenged as unconstitutionally vague,

nothing would prevent the Sentencing Commission from issuing a nonsensical

guideline about “cheese,” see Rosenbaum Dissent app. at 22, but this concern is

unfounded. For one, Judge Rosenbaum’s concurrences fail to appreciate the

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difference between vagueness and unintelligibility. Vagueness is “[u]ncertain

breadth of meaning; unclarity resulting from abstract expression.” Vagueness,

Black’s Law Dictionary (10th ed. 2014). Unintelligibility is

“[i]ncomprehensibility; the quality of being incapable of being understood.”

Unintelligibility, Black’s Law Dictionary. “Vagueness . . . is often intentional, as

general terms (reasonable time, best efforts, equal protection) are adopted to cover

a multitude of situations that cannot practicably be spelled out in detail or even

foreseen.” Antonin Scalia & Bryan A. Garner, Reading Law 32–33 (2012). But

“[a]n unintelligible text is inoperative.” Id. at 134. Judges would not apply a

gibberish-filled guideline about “cheese” because such a guideline would be

unintelligible. See id. at 134–39. The vagueness doctrine would have nothing to do

with it. See Johnson, 135 S. Ct. at 2568 n.3 (Thomas, J., concurring in the

judgment); Ralph W. Aigler, Legislation in Vague or General Terms, 21 Mich. L.

Rev. 831, 834 (1923). For another, the members of the United States Sentencing

Commission take their oaths seriously and strive to craft guidelines that “provide

certainty 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,” Rosenbaum Dissent app.

at 30.




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      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, No. 14-3611, slip op. at 27 (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 §§ 2B1.1(b)(1)(10), 3A1.1(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 (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

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maximum penalties for every crime.” Mistretta, 488 U.S. at 396. 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. 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 sentencing, then the guidelines look more

presumptive and less advisory. See Kimbrough, 552 U.S. at 113–14 (2007) (Scalia,

J., concurring) (“If there is any thumb on the scales[,] . . . then the ‘advisory’

Guidelines would, over a large expanse of their application, entitle the defendant to

a lesser sentence but for the presence of certain additional facts found by judge

rather than jury. This, as we said in Booker, would violate the Sixth

Amendment.”). True, applying the Ex Post Facto Clause to the advisory guidelines

did not undermine Booker because “the Sixth Amendment and Ex Post Facto

Clause inquiries are analytically distinct.” Peugh, 133 S. Ct. at 2088. But the Sixth

Amendment and the Due Process Clause are not so distinct; the Supreme Court

often has linked them together. See, e.g., Irizarry, 553 U.S. at 713; Yu Cong Eng v.

Trinidad, 271 U.S. 500, 518 (1926); L. Cohen Grocery Co., 255 U.S. at 92. See

also Hurlburt, No. 14-3611, slip op. at 24 (Hamilton, J., dissenting) (“If the

Supreme Court extends the rationale of Peugh . . . that result would be difficult to

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reconcile with the Booker remedy, which spared the Guidelines from Sixth

Amendment challenges by making them advisory.”).

       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. See also Hurlburt, No. 14-3611, slip op. at 27 (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.




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      Judge Martin’s dissent portrays Matchett as a legal pariah, a decision that

supposedly contradicts the “uniform view” of ten other circuits, see Martin Dissent

at 1–2 & n.1, 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, No. 14-3969 (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 (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 be good law after Johnson and Peugh. See United

States v. Hurlburt, No. 14-3611, slip op. at 21–29 (Hamilton, J., joined by Posner,

J., Flaum, J., and Easterbrook, J., dissenting) (describing Matchett as “careful and

persuasive”); Gonzalez-Longoria, No. 15-40041, slip op. at 13–23 (en banc)

(Jones, J., joined by Smith, J., concurring); United States v. Lee, 821 F.3d 1124,

1133–35 (9th Cir. 2016) (Ikuta, J., dissenting); United States v. Taylor, 803 F.3d
931, 933–35 (8th Cir. 2015) (Colloton, J., dissenting). In short, when Judge

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Martin’s dissent says “ten circuits,” it really means “four circuits and the

Department of the Justice.” And Judge Martin’s dissent ignores the numerous state

courts that have rejected the possibility that their sentencing guidelines could be

void for vagueness. See, e.g., State v. Rourke, 773 N.W.2d 913, 922 (Minn. 2009);

State v. Baldwin, 78 P.3d 1005, 1010–12 (Wash. 2003) (en banc); Hall v. State,

767 So. 2d 560, 562–63 (Fla. Dist. Ct. App. 2000), approved, 826 So. 2d 268 (Fla.

2002); People v. McLeod, 372 N.W.2d 526, 528 (Mich. Ct. App. 1985); State v.

Mushrush, 733 N.E.2d 252, 259 (Ohio Ct. App. 1999) (op. of Winkler, J.).

      By my count, the circuits are split 5–3 and the states generally agree with

Matchett. 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,

136 S. Ct. 2510 (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

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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 recidivate 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.




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WILSON, Circuit Judge, 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

standardless that it invites arbitrary enforcement.”1 See Johnson v. United States,

576 U.S. ___, ___, 135 S. Ct. 2551, 2556–57 (2015). Post-Booker,2 the touchstone

of appellate review of sentences is reasonableness—an inquiry that turns on a

district court’s application of the United States Sentencing Guidelines

(Guidelines). That is to say, Supreme Court precedent establishes an expectation

that defendants will receive reasonable sentences, and we rely on the Guidelines to

determine reasonableness. Because the Guidelines drive appellate review under

this sentencing scheme, fatally vague Guidelines provisions necessarily result in

both “arbitrary enforcement by [courts]” and denial of “fair notice.” See id. at

2557. Therefore, vague Guidelines provisions violate the due process clause’s

void-for-vagueness doctrine. The Matchett panel’s decision to the contrary is

erroneous.

       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 (2016), Matchett’s holding is unworkable. Appellate judges
       1
         I previously penned a concurrence in In re Hunt, ___ F.3d ___, No. 16-14756 (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.
       2
         United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
             Case: 14-10396     Date Filed: 09/13/2016   Page: 31 of 88


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 § 4b1.2(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

Rosenbaum 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 (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

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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 Guidelines range, see Rita v. United

States, 551 U.S. 338, 355, 127 S. Ct. 2456, 2467 (2007), and our court has

concluded that a within-Guidelines-range sentence is ordinarily reasonable, see

United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009).

                                          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

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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. 3

                                                 B

       Likewise, when a Guidelines provision is vague, it denies the public fair

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, Matchett’s rationale for holding that the void-for-

vagueness doctrine does not apply to the Guidelines—that defendants cannot “look
       3
          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.
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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, ___ F. 3d ___, Nos. 14-3611, 15-1686 (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

Johnson, 135 S. Ct. at 2556–57. As demonstrated here, a fatally vague Guidelines

provision does both. For this reason, vague Guidelines provisions must be treated

no differently under the due process clause than vague criminal statutes. To hold

otherwise ignores the reality of sentencing post-Booker: the Guidelines are

enmeshed in our case law and we heavily depend on them to fulfill our judicial

duties. See Molina-Martinez, 136 S. Ct. at 1346 (“[T]he Guidelines are not only

the starting point for most federal sentencing proceedings but also the lodestar.

The Guidelines inform and instruct the district court’s determination of an

appropriate sentence.”).

                                          II

      Turning to the specific impact of Matchett on our appellate review process,

the “hopeless indeterminacy” of the residual clause in § 4b1.2(a) makes our charge

to review the reasonableness of sentences based on that clause all but impossible.

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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.




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MARTIN, Circuit Judge, 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 also 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 (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




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Guidelines.1 The government argues the same. But in the face of this uniform

view to the contrary, a panel of this court ruled that the vagueness doctrine does

not apply to the Sentencing Guidelines, so neither does Johnson. See United States

v. Matchett, 802 F.3d 1185 (11th Cir. 2015). By doing so, the panel has taken

away all ability of judges on this court to give relief to people serving prison

sentences that were calculated based on language that the Supreme Court said

resulted in “more unpredictability and arbitrariness than the Due Process Clause

tolerates.”2 Johnson, 135 S. Ct. at 2558.

       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 certiorari in a case that will allow




       1
          United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016); United States v. Welch, No.
12-4402, 2016 WL 536656 (2d Cir. Feb. 11, 2016); United States v. Townsend, No. 14-3652,
2015 WL 9311394 (3d Cir. Dec. 23, 2015); United States v. Frazier, 621 F. App’x 166 (4th Cir.
2015); United States v. Estrada, No. 15-40264 (5th Cir. Oct. 27, 2015); United States v. Pawlak,
__ F.3d. __, 2016 WL 2802723 (6th Cir. May 13, 2016); United States v. Hurlburt, No. 14-3611
(7th Cir. Aug. 29, 2016); United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (per curiam);
United States v. Benavides, 617 F. App’x 790 (9th Cir. 2015); United States v. Madrid, 805 F.3d
1204 (10th Cir. 2015). At least two of these courts have published opinions naming the panel
opinion and criticizing it at length. See Madrid, 805 F.3d at 1212 n.10; Pawlak, 2016 WL
2802723, at *6–*8; see also Soto-Rivera, 811 F.3d at 61 n.10 (“[T]he Eleventh Circuit’s
reasoning . . . appears well on its way of becoming a minority view.”).
        2
          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.
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it to evaluate the panel opinion in Matchett. 3 In doing so, the Court will be able to

address the questions presented by Mr. Matchett’s case. But in the meantime the

panel’s Matchett opinion will continue to dictate how this Circuit treats hundreds

of prisoners who were sentenced in Alabama, Florida and Georgia. I had very

much hoped that the outlier position that now constitutes binding precedent for our

Circuit would be reconsidered by our court as a whole. It is with disappointment

therefore that I dissent to the decision by the majority of this court not to rehear the

appeal of Calvin 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

       3
         See Beckles v. United States, No. 15-8544, 2016 WL 1029080 (U.S. June 27, 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, __ F.3d __, 2016 WL 3002293 (11th Cir. May
25, 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, No. 16-13338-J, 2016 WL
3648334, at *3 (11th Cir. July 7, 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.
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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 convictions

of either a crime of violence or a controlled substance offense.” USSG § 4B1.1.

“Pursuant to that Guideline, each defendant who qualifies for career offender status

is automatically placed in criminal history ‘Category VI,’ the highest available

under the Guidelines.” United States v. LaBonte, 520 U.S. 751, 754, 117 S. Ct.
1673, 1675 (1997). No matter how low a defendant’s criminal history score

otherwise might be, once he is found to be a career offender, he is placed in the

worst class of offenders. In fiscal year 2014 alone 2,269 people around the country

were sentenced using the “career offender” guideline. 4

       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. See, 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



        4
         See http://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-
facts/Quick_Facts_Career_Offender_FY14.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.
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one “crime of violence” or triple or quadruple it based on two 5); id. § 2S1.1 (the

section for laundering crimes); id. § 7B1.1 (the section for probation and

supervised release violations).

       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.

       5
          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. § 4B1.2(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/quick-facts/Quick_Facts_Felon_in_Possession_FY14.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), (x)(1), 923, 924(a), (b),
(e)–(i), (k)–(o), 2332g, as well as 26 U.S.C. §§ 5685, 5861(a)–(l), 5871. See USSG App. A.

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Matchett alone will serve out a prison term based on a standard that the Supreme

Court has found results in “unavoidable uncertainty and arbitrariness of

adjudication.” Johnson, 135 S. Ct. at 2562. His fellow inmates sentenced outside

the Eleventh Circuit have likely been back before a judge for a new sentence that

does not violate Johnson.

                                               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 10. 6 With that,

the Matchett panel reasons that the provisions of ACCA are subject to the

vagueness doctrine because ACCA regulates private conduct. And even though

sentencing judges administer the residual clause in the Sentencing Guidelines by

exactly the same process that they used to administer the identical provision in




       6
         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.”
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ACCA, Matchett says the Guidelines “are directed to judges, not private citizens,”7

so the vagueness doctrine cannot apply. Pryor Op. at 17.

       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 Tichenor 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: “‘[S]ince 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


       7
          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 Matchett, 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.”).
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the Supreme Court’s decisions in Johnson and Peugh v. United States, __ U.S. __,

133 S. Ct. 2072 (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 (1981). This right to fair notice, the

Supreme Court concluded, is violated “when a defendant is sentenced under

Guidelines promulgated after he committed his criminal acts and the new version

provides a higher applicable Guidelines sentencing range than the version in place

at the time of the offense.” Peugh, 133 S. Ct. at 2078.

      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

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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 (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.”).8

       The Guidelines have this “anchor” effect even when judges depart from

       8
          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 Stephanos 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”).
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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 enhanced pressure to

plead guilty. This pressure does not disappear simply because the Guidelines

range is advisory; the defendant will be aware that the range is intended to, and

usually does, exert controlling influence on the sentence that the court will

impose.”).9 Peugh recognizes that the Sentencing Guidelines govern both how a

judge decides a sentence, as well as the private conduct of the person who will be

sentenced.



       9
         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 (2010). State defendants negotiating plea deals won’t
likely know how their current conviction will impact a future § 4B1.2 sentence in federal court.
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      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 (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.

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      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 (2008). See 802 F.3d at 1194; Pryor Op. at 10, 14. 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” the Sixth Circuit “insofar as we reject Matchett’s argument that advisory

guidelines can be unconstitutionally vague.” 802 F.3d at 1196 (citing United

States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996)). As it happens, the Sixth

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Circuit has itself considered this same argument and held “that the rationale of

Johnson applies equally to the residual clause of the Guidelines.” United States v.

Pawlak, __ F.3d. __, 2016 WL 2802723 at *8 (6th Cir. May 13, 2016) (overruling

Smith, 73 F.3d 1414). The Matchett panel also twice quoted from United States v.

Wivell, 893 F.2d 156 (8th Cir. 1990), and so does today’s Statement. See 802 F.3d

at 1194–95, 1196; Pryor Op. at 11, 13. But the Eighth Circuit has recognized that

“[t]he reasoning in Wivell that the guidelines cannot be unconstitutionally vague

because they do not proscribe conduct is doubtful after Johnson.” Taylor, 803 F.
3d at 933. And as I mentioned, the Tichenor opinion, quoted by the Matchett panel

four times, has now been overruled by the Seventh Circuit sitting en banc.

Hurlburt, No. 14-3611. This leaves only the Fifth Circuit among the courts relied

upon by the Matchett panel, and it has also vacated § 4B1.2 sentences in light of

Johnson. See, e.g., Estrada, No. 15-40264. The Eleventh Circuit is now all alone

on this.

      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 8. In fact, he says “the odds of

receiving a sentence within the guideline range are worse than a coin flip.” Id. at

9. 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.

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       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. 10 Id. This means that in the majority of cases in which a

judge sentenced a defendant below the guideline range, she did so not because of

her distaste or disregard for the Guidelines. Instead she sentenced outside of the

guideline range because the prosecutor asked her to. In other words, everyone who

is in court for the sentence hearing recognizes that, unless the government asks for

a below-guideline sentence, the district judge is often going to sentence the

defendant within the guideline range. Also important, it was in only 2.2 percent of

all cases that a judge sentenced a defendant above the guideline range. Id. So

while a person may not be able to rely on the Guidelines to predict whether he will

receive a sentence even lower than the bottom of the guideline range, he can

reliably use the Guidelines to predict the harshest sentence he’ll get.

                                                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

       10
          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.
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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 certain conduct to be punished by more years in prison

“prohibit[s] conduct and fix[es] punishments” and regulates “private citizens.” But

even if I am wrong on this, we know that the Supreme Court’s application of the

vagueness doctrine is not limited to things that “prohibit conduct and fix

punishments.”

      For example, in Giaccio v. State of Pennsylvania, 382 U.S. 399, 86 S. Ct.
518 (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. 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. The

Supreme Court recognized that the law was not a penal “statute which imposed

forfeitures, punishments or judgments for costs.” Id. at 404. Yet while the statute

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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 (1991) (O’Connor, 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 12-13. 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. Rather it authorized the jury to impose the “sentence” in its

discretion. Giaccio, 382 U.S. at 401. 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. 11

       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


       11
           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 (“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.”).
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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 standardless 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.

       The Matchett panel gave no heed to these admonitions against “arbitrary

enforcement.” Zero. Instead, the panel addressed only Johnson’s “notice”

rationale, without ever mentioning the Court’s concern about “arbitrary

enforcement by judges.” This matters because we have been instructed that the

“arbitrary enforcement” concern is “the more important aspect of vagueness

doctrine.” Kolendar v. Lawson, 461 U.S. 352, 358, 103 S. Ct. 1855, 1858 (1983).

Perhaps reflecting this lesson, every time Johnson told us why the residual clause

is not lawful, it underscored the problem that the vague language of the clause led

different judges to give similarly situated defendants widely varying sentences.12


       12
           See, e.g., 135 S. Ct. at 2558 (“[T]his 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
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But again, the panel made no effort to address this concern about arbitrariness,

which the Supreme Court told us is “the more important aspect of vagueness

doctrine.” Id.

       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 easily resolved in Mr. Matchett’s favor.13 The Supreme Court has told

us that overly vague laws violate our Constitution because they “delegate[] basic

policy matters to policemen, judges, and juries for resolution on an ad hoc and

subjective basis, with the attendant dangers of arbitrary and discriminatory

application.” Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S. Ct. 2294,

2299 (1972). Or as Johnson put it, “the indeterminacy of the wide-ranging inquiry

required by the residual clause” makes the clause unconstitutional because it

“invites arbitrary enforcement by judges.” 135 S. Ct. at 2557.

       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

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.”).
        13
           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. Pryor Op. at 16.
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under USSG § 4B1.2 will certainly try to apply pre-Johnson residual clause

opinions correctly. 14 But Justice Scalia once said that he worried that, in the end,

judges will have little choice but to “simply throw the opinions into the air in

frustration, and give free rein to their own feelings as to what offenses should be

considered crimes of violence.” Derby v. United States, 131 S. Ct. 2858, 2859

(2011) (Scalia, J., dissenting from denial of certiorari). 15 Of course we expect that

judges will not act so ignobly. But “the due process protection against vague

regulations does not leave the public at the mercy of noblesse oblige.” FCC v. Fox

Television Stations, Inc., __ U.S. __, __, 132 S. Ct. 2307, 2318 (2012) (quotation

omitted). Instead it bans any regulation that is “so standardless that it authorizes or

encourages seriously discriminatory enforcement.” United States v. Williams, 553
U.S. 285, 304, 128 S. Ct. 1830, 1845 (2008).

                                               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.


       14
           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 (“[S]entencing courts interpreting the residual clause of the guidelines must still adhere
to the reasoning of cases interpreting the nearly identical language in [ACCA].).
        15
           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.
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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.16

                                              IV.

       The panel warned that applying the vagueness doctrine to the residual clause


       16
          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).
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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 22. 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 (1987)

(Brennan, J., dissenting). And in any event, while I appreciate Judge Pryor’s full-

throated defense of the Sentencing Guidelines, the Guidelines are not under attack.

Johnson did not invalidate any or all guidelines that “could be described as vague.”

Instead the Court singled out a far more distinct problem: laws that require judges

to apply overly vague standards “to a judicially imagined ‘ordinary case’ of a

crime, not to real-world facts.” 135 S. Ct. at 2557; see also id. at 2558 (“It is one

thing to apply an imprecise “serious potential risk” standard to real-world facts; it

is quite another to apply it to a judge-imagined abstraction.”).

       The Guidelines determine punishment based almost exclusively on a

defendant’s actual conduct. 17 Consider the two provisions that the Matchett panel


       17
          See United States v. Booker, 543 U.S. 220, 250, 125 S. Ct. 738, 759 (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
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warned could next be deemed vague. See 802 F.3d at 1196. The first asks if the

defendant used “sophisticated means” in committing the actual crime. USSG §

2B1.1(b)(10). The other asks if she played a “minor” role in the actual crime. Id.

§ 3B1.2(b). Johnson expressly condones standards that assess actual conduct in

this way. See 135 S. Ct. at 2561 (“[W]e do not doubt the constitutionality of laws

that call for the application of a qualitative standard such as ‘substantial risk’ to

real-world conduct.”). What the panel describes as a slippery slope in fact contains

a clear, well-defined “constitutional toehold.” Walz v. Tax Comm’n of City of

New York, 397 U.S. 664, 699–700, 90 S. Ct. 1409, 1427 (1970) (Harlan, J.,

concurring).

       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



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).
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to be governed by the rule of law.” McCleskey, 481 U.S. at 339 (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.




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ROSENBAUM, Circuit Judge, 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, ___ F.3d ___, No. 16-14756-J, 2016 WL 3895246, at *4-7 (11th Cir. July

18, 2016) (Rosenbaum, J., concurring),1 and In re Clayton, ___ F.3d ___, No. 16-

14556-J, 2016 WL 3878156, at *10-13 (11th Cir. July 18, 2016) (Rosenbaum, J.,

concurring), which criticize our opinion in United States v. Matchett, 802 F.3d
1185 (11th Cir. 2015).         Judge Pryor’s opinion both expressly assails my

Hunt/Clayton concurrences and more generally attacks my concurrences when his

opinion refers to all of the Hunt/Clayton concurrences as a whole. I respectfully

disagree with his points.

       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.




       1
         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.
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       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 22, and (2)

that I have mistaken vagueness for unintelligibility.

       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,2 I

think I must respond.

       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.’”3


       2
          See Pryor Op. at 23 (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 certainty 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 the 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.
        3
          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
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But just to reassure my colleague, I note that I do not now nor have I ever lived in

fear that the Sentencing Commission might issue a “nonsensical guideline about

‘cheese.’” 4

       I used what I described as the “hypothetical” cheese guideline as an analogy.

An analogy, of course, is a literary device that is a “comparison made between one

thing and another for the purpose of explanation or clarification.”                        Analogy,

OXFORD         ENGLISH       DICTIONARY,          Definition      3.b.,     http://www.oed.com/

view/Entry/7030?redirectedFrom=analogy#eid (last visited Aug. 26, 2016). In this

case, I employed the fictional cheese guideline to help explain the problem of

trying to apply a guideline, like the residual clause of the career-offender guideline,

that is essentially unintelligible.

       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 23.

       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


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.”).
        4
          Now, that is a sentence I never imagined I would write in an opinion.
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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

(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 (2015); see also Sykes v. United States, 564 U.S. 1, 33

(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.




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                                         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 20. 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 risky crimes” that
             “clearly pose a serious potential risk of physical injury to
             another.” Id.

Pryor Op. at 20-21.

      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. . . .

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             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
             “conduct[ing] 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 21. 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.



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      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] reveal[ed] 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 22. 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 21 (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 policy grounds is no answer to the judge who has no policy qualm with the aim

behind the career-offender guideline—that violent recidivists should receive

substantially longer sentences than other defendants—and just wants to be able to

ascertain properly whether, in a given case, the guideline should apply. What is

that judge to do?

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      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 because 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




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range based on a policy disagreement with the residual clause, even if they wanted

to do so.5

                                            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 3, 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 18 (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—applies to
       5
         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 (2007).
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only laws that “regulate the primary conduct of private citizens,” and the

Sentencing Guidelines do not fall into that category. Pryor Op. at 3. This “rule”—

that the vagueness doctrine applies to only laws that “regulate the primary conduct

of private citizens”—is a creation of Judge Pryor, based on his characterization of

cases where the vagueness doctrine has been applied. The Supreme Court has not

been so narrow in describing the types of laws to which the vagueness doctrine

may apply. In fact, Supreme Court jurisprudence applying the vagueness doctrine

defies my colleague’s characterization of that body of caselaw.

      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 standardless 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 standardless that it invite[d] arbitrary

enforcement.”

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      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 (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 14 (quoting

Giaccio, 382 U.S. at 403-04). 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. 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.

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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 6—as unconstitutionally

vague:

              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, limitation
              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.    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 14-15.

      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


      6
          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.
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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 20. 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 19. In support of his position,

Judge Pryor relies on Mahler v. Eby, 264 U.S. 32, 40-41 (1924), and National

Endowment for the Arts v. Finley, 524 U.S. 569 (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

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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. 7 I address each problem

below in more detail.

       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 because the residual clause is applied categorically, meaning that the

sentencing court may not consider unique factual circumstances when determining

whether the residual clause applies to a given prior conviction. If a specific crime

qualifies as a violent crime under the residual clause, it qualifies for all defendants,

regardless of the individual factual circumstances of a particular defendant’s prior

conviction for that crime. So, if the residual clause were susceptible of application

in the way it was intended, a district judge’s determination of whether the residual


       7
         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.
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clause of the career-offender guideline applies in a specific case would be either

objectively right or wrong.     There would be no room for a range of correct

answers.

       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.

       Similarly, the law at issue in NEA, 524 U.S. 569, 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 (quoting 20 U.S.C. § 954(d)(1)). The

Supreme Court described this law as “vest[ing] the NEA with substantial discretion

to award grants [by] identif[ying] only the broadest funding priorities . . . .” Id. at

573.

       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

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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.




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                                         III.

      Finally, in a last-ditch effort to support his view that the vagueness doctrine

should not apply to the residual clause of the career-offender guideline, Judge

Pryor trots out the old parade of horribles. He predicts that most of the Sentencing

Guidelines and the states’ sentencing guidelines will necessarily be invalidated if

the vagueness doctrine can apply to the residual clause of the career-offender

guideline, and down the road, the Sentencing Guidelines themselves, as a whole,

will be ruled an unconstitutional violation of the Separation of Powers. Pryor Op.

at 23-24.

      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 25. 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.




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      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 (2016).

      Allowing 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 3, 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

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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 19-20, 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 sentencing provisions] and rejected it. The Court explained at

length that the vagueness defect in the ACCA’s residual clause is not just its use of

indeterminate language; it's that the clause uses indeterminate language and must

be applied categorically, without regard to real-world facts.”).

      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

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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 (2007)

(emphasis added).

       As the Supreme Court has recognized, by congressional mandate in the form

of § 3553(a), the Sentencing Guidelines “anchor . . . the district court’s

discretion.”8 Molina-Martinez v. United States, ___ U.S. ___, 136 S. Ct. 1338,

1345 (2016). And it is that same congressional mandate of § 3553(a) that causes a

district court’s improper calculation of a defendant’s Guidelines range to constitute

a “significant procedural error,” id. at 1346 (quoting Gall, 552 U.S. at 51)

(quotation marks omitted)—so “particularly serious,” id., that the error generally

qualifies in its own right as having “affected the defendant’s substantial rights.”

Id. Because the unconstitutional vagueness of the residual clause of the career-

offender guideline results from the congressional mandate in § 3553(a) that

requires courts to first correctly calculate the Guidelines range—not from any force

       8
         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 9 (“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 “demonstrat[ing] 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.
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that the freestanding career-offender guideline has in and of itself, allowing the

residual clause of the career-offender guideline to be stricken as unconstitutionally

vague does not implicate the Separation of Powers.

                                        IV.

      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.




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                                   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 that based on the Guidelines

range that that indecipherable language required, a district court sentenced a

defendant to twice as much time as it otherwise would have. How could the

sentencing court know that the guideline applied? How could the reviewing court

know that the correct Guidelines calculation included an enhancement under that

guideline?   Surely doubling a defendant’s sentence based on nonsense would

violate due process. But in United States v. Matchett, 802 F.3d 1185 (11th Cir.

2015), we allowed defendants to continue to be sentenced to much more severe

sentences than they would otherwise receive, based on the residual clause of the

career-offender guideline, a guideline that the Supreme Court has found hardly

more scrutable than the hypothetical one above.

      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 whether, when the Supreme Court strikes
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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 (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 Matchett in deciding Hunt’s Guidelines claim, I write separately to

explain why I believe that Matchett was incorrectly decided.

                                         I.

       In Matchett, 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 “rest[ing] on [a] lack of notice.” Id. at 1194 (quoting

Maynard v. Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1857 (1988)). Then,

the panel construed Irizarry v. United States, 553 U.S. 708, 128 S. Ct. 2198 (2008),

as precluding due-process challenges to, essentially, anything having to do with

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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

“[b]ecause 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).

                                        A.

      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).

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                                           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.
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1338 (2016), the Supreme Court recently explained that a district court that

“improperly calculat[es]” 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 (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.1

       And that is not surprising, given that the Supreme Court has established that

a correct and fair 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 (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 (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.

       In other words, the Supreme Court has acknowledged that Congress has

effectively legislated the requirement that a sentencing court start the sentencing

       1
        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.
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process by first correctly calculating the Guidelines range. That makes § 3553(a) a

“statute[ specifying the procedure for] fixing sentences.” See Johnson, 135 S. Ct.

at 2556-57 (holding that the vagueness doctrine applies to statutes fixing

sentences). So to the extent that, as a part of the statutorily mandated sentencing

process, § 3553(a) requires courts in calculating the Guidelines range to use a

guideline that is “so standardless that it invites arbitrary enforcement,” the

guideline must be struck down.       See id.   Failure to do so would render the

sentencing process that § 3553(a) requires—determining the correct calculation of

the Guidelines range—violative of due process because no court could reliably

ascertain the correct calculation of the Guidelines range.

      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 “hopeless[ly] 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’ that frustrates any effort to impart

‘some sense of order and direction,’” id. at 2562 (quoting United States v. Vann,

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660 F.3d 771, 787 (4th Cir. 2011) (Agee, J., concurring)), does not somehow

magically become clearer or more meaningful because the words appear in the

guideline, rather than in the ACCA.

      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 “hopeless[ly] indetermina[te]” 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,

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603, 98 S. Ct. 2954, 2964 (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 case entirely if sentencing judges could choose to

wholly disregard the unconstitutionally vague career-offender guideline in

calculating sentences.   They cannot.        Instead, district courts must begin the

sentencing process by correctly calculating a defendant’s Guidelines range.

Peugh, 133 S. Ct. at 2083.       Under Matchett, that means that Congress has

essentially required district courts to apply unconstitutionally vague language in

sentencing defendants. But it could not do that. Due process may not require

sentencing guidelines, but it does prohibit Congress from requiring judges to apply

unconstitutionally vague language in correctly calculating a defendant’s sentence

under any guidelines it chooses to enact.

                                            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

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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.




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