(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BECKLES v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 15–8544. Argued November 28, 2016—Decided March 6, 2017 

Petitioner Beckles was convicted of possession of a firearm by a convicted felon, 18 U. S. C. §922(g)(1). His presentence investigation report

concluded that he was eligible for a sentencing enhancement as a 

“career offender” under United States Sentencing Guideline 

§4B1.1(a) because his offense qualified as a “crime of violence” under

§4B1.2(a)’s residual clause. The District Court sentenced petitioner 

as a career offender, and the Eleventh Circuit affirmed. Petitioner 

then filed a postconviction motion to vacate his sentence, arguing

that his offense was not a “crime of violence.” The District Court denied the motion, and the Eleventh Circuit affirmed. Petitioner next 

filed a petition for a writ of certiorari from this Court. While his petition was pending, this Court held that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA),

§924(e)(2)(b), was unconstitutionally vague, Johnson v. United States, 

576 U. S. ___. The Court vacated and remanded petitioner’s case in 

light of Johnson. On remand, the Eleventh Circuit affirmed again,

distinguishing the ACCA’s unconstitutionally vague residual clause

from the residual clause in the Sentencing Guidelines. 

Held: The Federal Sentencing Guidelines, including §4B1.2(a)’s residual clause, are not subject to vagueness challenges under the Due Process Clause. Pp. 4–13.

(a) The Due Process Clause prohibits the Government from “taking

away someone’s life, liberty, or property under a criminal law so

vague that it fails to give ordinary people fair notice of the conduct it 

punishes, or so standardless that it invites arbitrary enforcement.” 

Johnson, supra, at ___–___. Under the void-for-vagueness doctrine,

laws that fix the permissible sentences for criminal offenses must 

specify the range of available sentences with “sufficient clarity.” 
 

 

 

 

2 BECKLES v. UNITED STATES 

Syllabus 

United States v. Batchelder, 442 U. S. 114, 123. In Johnson, this 

Court held that the ACCA’s residual clause fixed—in an impermissibly vague way—a higher range of sentences for certain defendants. 

But the advisory Guidelines do not fix the permissible range of sentences. They merely guide the exercise of a court’s discretion in 

choosing an appropriate sentence within the statutory range. Pp. 4–

10. 

(1) The limited scope of the void-for-vagueness doctrine in this

context is rooted in the history of federal sentencing. Congress has

long permitted district courts “wide discretion to decide whether the 

offender should be incarcerated and for how long.” Mistretta v. United States, 488 U. S. 361, 363. Yet this 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, nor suggested that a defendant can successfully challenge 

as vague a sentencing statute conferring discretion to select an appropriate sentence from within a statutory range, even when that 

discretion is unfettered, see Batchelder, supra, at 123, 126. Pp. 6–7.

(2) The Sentencing Reform Act of 1984 departed from this regime 

by establishing several factors to guide district courts in exercising

their sentencing discretion. It also created the United States Sentencing Commission and charged it with establishing the Federal 

Sentencing Guidelines. Because the Guidelines have been rendered 

“effectively advisory” by this Court, Booker, supra, at 245, they guide 

district courts in exercising their discretion, but do not constrain that

discretion. Accordingly, they are not amenable to vagueness challenges: If a system of unfettered discretion is not unconstitutionally

vague, then it is difficult to see how the present system of guided discretion could be. Neither do they implicate the twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary 

enforcement. The applicable statutory range, which establishes the 

permissible bounds of the court’s sentencing discretion, provides all

the notice that is required. Similarly, the Guidelines do not invite 

arbitrary enforcement within the meaning of this Court’s case law,

because they do not permit the sentencing court to prohibit behavior

or to prescribe the sentencing ranges available. Rather, they advise

sentencing courts how to exercise their discretion within the bounds 

established by Congress. Pp. 7–10.

(b) The holding in this case does not render the advisory Guidelines 

immune from constitutional scrutiny, see, e.g., Peugh v. United 

States, 569 U. S. ___, or render “sentencing procedure[s]” entirely

“immune from scrutiny under the due process clause,” Williams v. 

New York, 337 U. S. 241, 252, n. 18. This Court holds only that the

Sentencing Guidelines are not subject to a challenge under the void-
 

Cite as: 580 U. S. ____ (2017) 3 

Syllabus 

for-vagueness doctrine. Pp. 10–11.

(c) Nor does this holding cast doubt on the validity of the other factors that sentencing courts must consider in exercising their sentencing discretion. See §§3553(a)(1)–(3), (5)–(7). A contrary holding, 

however, would cast serious doubt on those other factors because 

many of them appear at least as unclear as §4B1.2(a)’s residual

clause. This Court rejects the Government’s argument that the individualized sentencing required by those other factors is distinguishable from that required by the Guidelines. It is far from obvious that 

§4B1.2(a)’s residual clause implicates the twin concerns of vagueness 

more than the other factors do, and neither the Guidelines nor the 

other factors implicate those concerns more than the absence of any

guidance at all, which the Government concedes is constitutional.

Pp. 11–13. 

616 Fed. Appx. 415, affirmed. 

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. KENNEDY, J., filed 

a concurring opinion. GINSBURG, J., and SOTOMAYOR, J., filed opinions

concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case. 
 

 

_________________ 

_________________ 

Cite as: 580 U. S. ____ (2017) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–8544 

TRAVIS BECKLES, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

[March 6, 2017] 

JUSTICE THOMAS delivered the opinion of the Court. 

At the time of petitioner’s sentencing, the advisory

Sentencing Guidelines included a residual clause defining 

a “crime of violence” as an offense that “involves conduct 

that presents a serious potential risk of physical injury to 

another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). This Court 

held in Johnson v. United States, 576 U. S. ___ (2015),

that the identically worded residual clause in the Armed 

Career Criminal Act of 1984 (ACCA), 18 U. S. C. 

§924(e)(2)(B), was unconstitutionally vague. Petitioner 

contends that the Guidelines’ residual clause is also void 

for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the 

Due Process Clause, we reject petitioner’s argument. 

I 

Petitioner Travis Beckles was convicted in 2007 of possession of a firearm by a convicted felon, §922(g)(1). According to the presentence investigation report, the firearm was a sawed-off shotgun, and petitioner was therefore

eligible for a sentencing enhancement as a “career offender” under the Sentencing Guidelines. The 2006 version of 
 

2 BECKLES v. UNITED STATES 

Opinion of the Court 

the Guidelines, which were in effect when petitioner was

sentenced,1 provided that “[a] defendant is a career offender if 

“(1) the defendant was at least eighteen years old at 

the time the defendant committed the instant offense 

of conviction; (2) the instant offense of conviction is a

felony that is either a crime of violence or a controlled 

substance offense; and (3) the defendant has at least 

two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG 

§4B1.1(a). 

The Guidelines defined “crime of violence” as 

“any offense under federal or state law, punishable by

imprisonment for a term exceeding one year that— 

“(1) has as an element the use, attempted use, or 

threatened use of physical force against the person of

another, or 

“(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct 

that presents a serious potential risk of physical injury 

to another.” §4B1.2(a) (emphasis added). 

The clause beginning with “or otherwise” in this definition

is known as the residual clause. 

The commentary to the career-offender Guideline provided that possession of a sawed-off shotgun was a crime 

of violence. See §4B1.2, comment., n. 1 (“Unlawfully 

possessing a firearm described in 26 U. S. C. §5845(a) (e.g.,

a sawed-off shotgun . . . ) is a ‘crime of violence’”); §5845(a) 

(“The term ‘firearm’ means (1) a shotgun having a barrel

or barrels of less than 18 inches in length”). 

—————— 

1With one exception not relevant here, 18 U. S. C. §3553(a)(4)(A) 

instructs sentencing courts to consider the Guidelines ranges that “are 

in effect on the date the defendant is sentenced.” Accordingly, references in this opinion to the Guidelines are to the 2006 version. 
 

 

Cite as: 580 U. S. ____ (2017) 3 

Opinion of the Court 

The District Court agreed that petitioner qualified as a 

career offender under the Guidelines. Petitioner was over 

18 years of age at the time of his offense, and his criminal

history included multiple prior felony convictions for 

controlled substance offenses. Furthermore, in the District Court’s view, petitioner’s §922(g)(1) conviction qualified as a “crime of violence.” Because he qualified as a 

career offender, petitioner’s Guidelines range was 360 

months to life imprisonment. The District Court sentenced petitioner to 360 months. The Court of Appeals 

affirmed petitioner’s conviction and sentence, and this

Court denied certiorari. United States v. Beckles, 565 

F. 3d 832, 846 (CA11), cert denied, 558 U. S. 906 (2009). 

In September 2010, petitioner filed a motion to vacate 

his sentence under 28 U. S. C. §2255, arguing that his 

conviction for unlawful possession of a firearm was not a

“crime of violence,” and therefore that he did not qualify as

a career offender under the Guidelines. The District Court 

denied the motion, and the Court of Appeals affirmed. 

Petitioner then filed a second petition for certiorari in 

this Court. While his petition was pending, the Court 

decided Johnson, holding that “imposing an increased 

sentence under the residual clause of the [ACCA]”—which 

contained the same language as the Guidelines’ residual

clause—“violate[d] the Constitution’s guarantee of due

process” because the clause was unconstitutionally vague.

576 U. S., at ___ (slip op., at 15). We subsequently granted 

his petition, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of 

Johnson. Beckles v. United States, 576 U. S. ___ (2015).

On remand, petitioner argued that his enhanced sentence was based on §4B1.2(a)’s residual clause, which he 

contended was unconstitutionally vague under Johnson. 

The Court of Appeals again affirmed. It noted that petitioner “was sentenced as a career offender based not on 

the ACCA’s residual clause, but based on express lan-
 

 

 

4 BECKLES v. UNITED STATES 

Opinion of the Court 

guage in the Sentencing Guidelines classifying [his] offense as a ‘crime of violence.’” 616 Fed. Appx. 415, 416

(2015) (per curiam). “Johnson,” the Court of Appeals

reasoned, “says and decided nothing about career-offender 

enhancements under the Sentencing Guidelines or about

the Guidelines commentary underlying [petitioner]’s status as a career-offender.” Ibid. The Court of Appeals 

denied rehearing en banc.

Petitioner filed another petition for certiorari in this

Court, again contending that §4B1.2(a)’s residual clause is

void for vagueness. To resolve a conflict among the Courts

of Appeals on the question whether Johnson’s vagueness

holding applies to the residual clause in §4B1.2(a) of the 

Guidelines,2 we granted certiorari. 579 U. S. ___ (2016).

Because the United States, as respondent, agrees with

petitioner that the Guidelines are subject to vagueness 

challenges, the Court appointed Adam K. Mortara as 

amicus curiae to argue the contrary position. 579 U. S. 

___ (2016). He has ably discharged his responsibilities. 

II 

This Court has held that the Due Process Clause prohibits the Government from “taking away someone’s life, 

liberty, or property under a criminal law so vague that it

fails to give ordinary people fair notice of the conduct it 

punishes, or so standardless that it invites arbitrary enforcement.” Johnson, 576 U. S., at ___–___ (slip op., at 3– 

4) (citing Kolender v. Lawson, 461 U. S. 352, 357–358 

—————— 

2Compare United States v. Matchett, 802 F. 3d 1185, 1193–1196 

(CA11 2015) (holding that the Guidelines are not subject to due process 

vagueness challenges), with, e.g., United States v. Townsend, 638 Fed. 

Appx. 172, 178, n. 14 (CA3 2015) (declining to follow Matchett); United 

States v. Pawlak, 822 F. 3d 902, 905–911 (CA6 2016) (holding that the 

Guidelines are subject to due process vagueness challenges); United 

States v. Hurlburt, 835 F. 3d 715, 721–725 (CA7 2016) (en banc) (same); 

United States v. Madrid, 805 F. 3d 1204, 1210–1211 (CA10 2015) 

(same). 
Cite as: 580 U. S. ____ (2017) 5 

Opinion of the Court 

(1983)). Applying this standard, the Court has invalidated 

two kinds of criminal laws as “void for vagueness”: laws

that define criminal offenses and laws that fix the permissible sentences for criminal offenses. 

For the former, the Court has explained that “the voidfor-vagueness doctrine requires that a penal statute define

the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited 

and in a manner that does not encourage arbitrary and 

discriminatory enforcement.” Id., at 357. For the latter, 

the Court has explained that “statutes fixing sentences,” 

Johnson, supra, at ___ (slip op., at 4) (citing United States 

v. Batchelder, 442 U. S. 114, 123 (1979)), must specify the 

range of available sentences with “sufficient clarity,” id., 

at 123; see also United States v. Evans, 333 U. S. 483 

(1948); cf. Giaccio v. Pennsylvania, 382 U. S. 399 (1966). 

In Johnson, we applied the vagueness rule to a statute

fixing permissible sentences. The ACCA’s residual clause, 

where applicable, required sentencing courts to increase a

defendant’s prison term from a statutory maximum of 10 

years to a minimum of 15 years. That requirement thus

fixed—in an impermissibly vague way—a higher range of 

sentences for certain defendants. See Alleyne v. United 

States, 570 U. S. ___, ___ (2013) (describing the legally 

prescribed range of available sentences as the penalty 

fixed to a crime). 

Unlike the ACCA, however, the advisory Guidelines do

not fix the permissible range of sentences. To the contrary, 

they merely guide the exercise of a court’s discretion in

choosing an appropriate sentence within the statutory 

range. Accordingly, the Guidelines are not subject to a 

vagueness challenge under the Due Process Clause. The 

residual clause in §4B1.2(a)(2) therefore is not void for 

vagueness. 
 

6 BECKLES v. UNITED STATES 

Opinion of the Court 

A 

The limited scope of the void-for-vagueness doctrine in

this context is rooted in the history of federal sentencing. 

Instead of enacting specific sentences for particular federal crimes, Congress historically permitted district courts

“wide discretion to decide whether the offender should be 

incarcerated and for how long.” Mistretta v. United States, 

488 U. S. 361, 363 (1989). For most crimes, Congress set 

forth a range of sentences, and sentencing courts had 

“almost unfettered discretion” to select the actual length of 

a defendant’s sentence “within the customarily wide 

range” Congress had enacted. Id., at 364; see also, e.g., 

Apprendi v. New Jersey, 530 U. S. 466, 481–482 (2000); 

Williams v. New York, 337 U. S. 241, 247–248 (1949). 

That discretion allowed district courts to craft individualized sentences, taking into account the facts of the crime

and the history of the defendant. As a result, “[s]erious

disparities in sentences . . . were common.” Mistretta, 

supra, at 365. 

Yet in the long history of discretionary sentencing, this

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); see also, e.g., Apprendi, supra, at 481 

(“[N]othing in this history suggests that it is impermissible for judges to exercise discretion . . . in imposing a 

judgment within the range prescribed by statute”); Giaccio, supra, at 405, n. 8 (“[W]e intend to cast no doubt 

whatever on the constitutionality of the settled practice of

many States to leave to juries finding defendants guilty of

a crime the power to fix punishment within legally prescribed limits”).

More specifically, our cases have never suggested that a

defendant can successfully challenge as vague a sentencing statute conferring discretion to select an appropriate

sentence from within a statutory range, even when that 
Cite as: 580 U. S. ____ (2017) 7 

Opinion of the Court 

discretion is unfettered. In fact, our reasoning in Batchelder suggests the opposite. This Court considered in that 

case the constitutionality of two overlapping criminal 

provisions that authorized different maximum penalties

for the same conduct. 442 U. S., at 115–116. The Court 

held that the sentencing provisions were not void for 

vagueness because they specified the “penalties available”

and defined the “punishment authorized” upon conviction

for each crime. Id., at 123. “Although the statutes create[d] uncertainty as to which crime may be charged and 

therefore what penalties may be imposed, they d[id] so to 

no greater extent than would a single statute authorizing 

various alternative punishments.” Ibid. (emphasis added).

By specifying “the range of penalties that prosecutors and 

judges may seek and impose,” Congress had “fulfilled its

duty.” Id., at 126 (citing Evans, supra, at 483; emphasis 

added). Indeed, no party to this case suggests that a 

system of purely discretionary sentencing could be subject 

to a vagueness challenge. 

B 

The Sentencing Reform Act of 1984 departed from this

regime by establishing several factors to guide district 

courts in exercising their traditional sentencing discretion. 

18 U. S. C. §3553. Congress in the same Act created the 

United States Sentencing Commission and charged it with 

establishing guidelines to be used for sentencing. Mistretta, supra, at 367. The result of the Commission’s work is 

the Federal Sentencing Guidelines, which are one of the 

sentencing factors that the Act requires courts to consider. 

§3553(a)(4).

The Guidelines were initially binding on district courts, 

Booker, 543 U. S., at 233, but this Court in Booker rendered them “effectively advisory,” id., at 245. Although

the Guidelines remain “the starting point and the initial

benchmark” for sentencing, a sentencing court may no 
 

 

 

 

8 BECKLES v. UNITED STATES 

Opinion of the Court 

longer rely exclusively on the Guidelines range; rather, 

the court “must make an individualized assessment based 

on the facts presented” and the other statutory factors. 

Gall v. United States, 552 U. S. 38, 49, 50 (2007). The 

Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for 

sentencing,” Peugh v. United States, 569 U. S. ___, ___ 

(2013) (slip op., at 11), but they “do not constrain th[at] 

discretion,” id., at ___ (THOMAS, J., dissenting) (slip op., 

at 2).

Because they merely guide the district courts’ discretion,

the Guidelines are not amenable to a vagueness challenge.

As discussed above, the system of purely discretionary 

sentencing that predated the Guidelines was constitutionally permissible. If a system of unfettered discretion is not

unconstitutionally vague, then it is difficult to see how the

present system of guided discretion could be.

The advisory Guidelines also do not implicate the twin

concerns underlying vagueness doctrine—providing notice 

and preventing arbitrary enforcement. As to notice, even 

perfectly clear Guidelines could not provide notice to a

person who seeks to regulate his conduct so as to avoid 

particular penalties within the statutory range. See, e.g., 

Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).

That is because even if a person behaves so as to avoid an

enhanced sentence under the career-offender guideline,

the sentencing court retains discretion to impose the

enhanced sentence. See, e.g., Pepper v. United States, 562 

U. S. 476, 501 (2011) (“[O]ur post-Booker decisions make 

clear that a district court may in appropriate cases impose 

a non-Guidelines sentence based on a disagreement with 

the Commission’s views”). As we held in Irizarry v. United 

States, 555 U. S. 708 (2008), “[t]he due process concerns 

that . . . require notice in a world of mandatory Guidelines

no longer” apply. Id., at 714; see id., at 713 (“Any expectation subject to due process protection . . . that a criminal 
 

 

 

Cite as: 580 U. S. ____ (2017) 9 

Opinion of the Court 

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”). All of the notice required is 

provided by the applicable statutory range, which establishes the permissible bounds of the court’s sentencing

discretion. 

The advisory Guidelines also do not implicate the

vagueness doctrine’s concern with arbitrary enforcement.

Laws that “regulate persons or entities,” we have explained, must be sufficiently clear “that those enforcing 

the law do not act in an arbitrary or discriminatory way.” 

FCC v. Fox Television Stations, Inc., 567 U. S. 239, 253 

(2012); see also Grayned, supra, at 108–109 (“A vague law 

impermissibly delegates basic policy matters” to judges

“for resolution on an ad hoc and subjective basis”). An 

unconstitutionally vague law invites arbitrary enforcement in this sense if it “leaves judges and jurors free to 

decide, without any legally fixed standards, what is prohibited and what is not in each particular case,” Giaccio, 

382 U. S., at 402–403, or permits them to prescribe the 

sentences or sentencing range available, cf. Alleyne, 570 

U. S., at ___ (slip op., at 11) (“[T]he legally prescribed 

range is the penalty affixed to the crime”). 

The Guidelines, however, do not regulate the public by 

prohibiting any conduct or by “establishing minimum and 

maximum penalties for [any] crime.” Mistretta, 488 U. S., 

at 396 (Sentencing Guidelines “do not bind or regulate the 

primary conduct of the public”). Rather, the Guidelines 

advise sentencing courts how to exercise their discretion

within the bounds established by Congress. In this case, 

for example, the District Court did not “enforce” the careeroffender Guideline against petitioner. It enforced 18 

U. S. C. §922(g)(1)’s prohibition on possession of a firearm 

by a felon—which prohibited petitioner’s conduct—and 

§924(e)(1)’s mandate of a sentence of 15 years to life im-
 

 

 

10 BECKLES v. UNITED STATES 

Opinion of the Court 

prisonment—which fixed the permissible range of petitioner’s sentence. The court relied on the career-offender 

Guideline merely for advice in exercising its discretion to

choose a sentence within those statutory limits. 

JUSTICE SOTOMAYOR’s concurrence suggests that judges 

interpreting a vague sentencing Guideline might rely on 

“statistical analysis,” “gut instinct,” or the judge’s “own

feelings” to decide whether a defendant’s conviction is a

crime of violence. Post, at 6 (opinion concurring in judgment) (internal quotation marks omitted). A judge granted 

unfettered discretion could use those same approaches

in determining a defendant’s sentence. Indeed, the concurrence notes that federal judges before the Guidelines

considered their own “view[s] of proper sentencing policy,” 

among other considerations. Post, at 11. Yet we have 

never suggested that unfettered discretion can be void for 

vagueness.

Accordingly, we hold that the advisory Sentencing

Guidelines are not subject to a vagueness challenge under

the Due Process Clause and that §4B1.2(a)’s residual

clause is not void for vagueness. 

III 

Our holding today does not render the advisory Guidelines immune from constitutional scrutiny. This Court 

held in Peugh, for example, that a “retrospective increase 

in the Guidelines range applicable to a defendant” violates

the Ex Post Facto Clause. 569 U. S., at ___ (slip op., at 

13). But the void-for-vagueness and ex post facto inquiries

are “analytically distinct.” See id., at ___ (slip op., at 19) 

(distinguishing an ex post facto inquiry from a Sixth

Amendment inquiry). Our ex post facto cases “have focused on whether a change in law creates a ‘significant 

risk’ of a higher sentence.” Ibid. A retroactive change in 

the Guidelines creates such a risk because “sentencing

decisions are anchored by the Guidelines,” which establish 
Cite as: 580 U. S. ____ (2017) 11 

Opinion of the Court 

“the framework for sentencing.” Id., at ___, ___ (slip op., 

at 10, 11). In contrast, the void-for-vagueness doctrine

requires a different inquiry. The question is whether a

law regulating private conduct by fixing permissible sentences provides notice and avoids arbitrary enforcement

by clearly specifying the range of penalties available. The 

Government’s rebuttal that both doctrines are concerned 

with “‘fundamental justice,’” Reply Brief for United States

7, ignores the contours of our precedents.

The Court has also recognized “in the Eighth Amendment context” that a district court’s reliance on a vague

sentencing factor in a capital case, even indirectly, “can

taint the sentence.” Brief for United States 43 (citing 

Espinosa v. Florida, 505 U. S. 1079, 1082 (1992) (per 

curiam); emphasis added). But our approach to vagueness

under the Due Process Clause is not interchangeable with

“the rationale of our cases construing and applying the 

Eighth Amendment.” Maynard v. Cartwright, 486 U. S. 

356, 361 (1988). Our decision in Espinosa is thus inapposite, as it did not involve advisory Sentencing Guidelines 

or the Due Process Clause. 

Finally, our holding today also does not render “sentencing procedure[s]” entirely “immune from scrutiny under

the due process clause.” Williams, 337 U. S., at 252, n. 18; 

see, e.g., Townsend v. Burke, 334 U. S. 736, 741 (1948) 

(holding that due process is violated when a court relies on

“extensively and materially false” evidence to impose a 

sentence on an uncounseled defendant). We hold only that 

the advisory Sentencing Guidelines, including §4B1.2(a)’s

residual clause, are not subject to a challenge under the 

void-for-vagueness doctrine. 

IV 

In addition to directing sentencing courts to consider the

Guidelines, see §3553(a)(4)(A), Congress has directed them

to consider a number of other factors in exercising their 
 

12 BECKLES v. UNITED STATES 

Opinion of the Court 

sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The 

Government concedes that “American judges have long 

made th[e] sorts of judgments” called for by the §3553(a) 

factors “in indeterminate-sentencing schemes, and this

Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 

42. Because the §3553 factors—like the Guidelines—do 

not mandate any specific sentences, but rather guide the

exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on

their validity.

Holding that the Guidelines are subject to vagueness

challenges under the Due Process Clause, however, would 

cast serious doubt on their validity. Many of these other 

factors appear at least as unclear as §4B1.2(a)’s residual

clause. For example, courts must assess “the need for the

sentence imposed” to achieve certain goals—such as to

“reflect the seriousness of the offense,” “promote respect

for the law,” “provide just punishment for the offense,” 

“afford adequate deterrence to criminal conduct,” and 

“provide the defendant with needed educational or vocational training . . . in the most effective manner.” 

§3553(a)(2). If petitioner were correct that §4B1.2(a)’s 

residual clause were subject to a vagueness challenge, we

would be hard pressed to find these factors sufficiently

definite to provide adequate notice and prevent arbitrary 

enforcement. 

The Government tries to have it both ways, arguing that 

the individualized sentencing required by the other 

§3553(a) factors is different in kind from that required by 

the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing

process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief 

for United States 10–11. But it is far from obvious that 

the residual clause implicates the twin concerns of vague-
 

 

Cite as: 580 U. S. ____ (2017) 13 

Opinion of the Court 

ness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to

promote respect for the law.” §3553(a)(2)(A). And neither 

the Guidelines nor the other §3553 factors implicate those

concerns more than the absence of any guidance at all, 

which the Government concedes is constitutional. 

The Government also suggests that the Guidelines are 

not like the other §3553(a) factors “because they require a

court to decide whether the facts of the case satisfy a legal 

standard in order to derive a specific numerical range.” 

Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing.

Section 3553(a) states that district courts “shall impose a

sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in [§3553(a)(2)].” In 

fact, the Guidelines generally offer more concrete advice in 

imposing a particular sentence and make it easier to 

review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines—but not §3553(a)’s other sentencing factors—are 

amenable to vagueness review. 

* * * 

Because the advisory Sentencing Guidelines are not 

subject to a due process vagueness challenge, §4B1.2(a)’s

residual clause is not void for vagueness. The judgment of 

the Court of Appeals, accordingly, is affirmed. 

It is so ordered.

 JUSTICE KAGAN took no part in the consideration or 

decision of this case. 
_________________ 

_________________ 

Cite as: 580 U. S. ____ (2017) 1 

KENNEDY, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 15–8544 

TRAVIS BECKLES, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

[March 6, 2017] 

JUSTICE KENNEDY, concurring. 

As sentencing laws and standards continue to evolve, 

cases may arise in which the formulation of a sentencing 

provision leads to a sentence, or a pattern of sentencing,

challenged as so arbitrary that it implicates constitutional 

concerns. In that instance, a litigant might use the word 

vague in a general sense—that is to say, imprecise or

unclear—in trying to establish that the sentencing decision was flawed. That something is vague as a general 

matter, however, does not necessarily mean that it is

vague within the well-established legal meaning of that 

term. And it seems most unlikely that the definitional

structure used to explain vagueness in the context of fair

warning to a transgressor, or of preventing arbitrary

enforcement, is, by automatic transference, applicable to

the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015). 

The existing principles for defining vagueness cannot be

transported uncritically to the realm of judicial discretion

in sentencing. Some other explication of the constitutional 

limitations likely would be required. 

These considerations inform my reading of the Court’s 

opinion, in which I join. 
_________________ 

_________________ 

 

 

Cite as: 580 U. S. ____ (2017) 1 

GINSBURG, J., concurring in judment 

SUPREME COURT OF THE UNITED STATES 

No. 15–8544 

TRAVIS BECKLES, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

[March 6, 2017] 

JUSTICE GINSBURG, concurring in the judgment. 

This case has a simple solution. When Travis Beckles 

was convicted in 2007 of violating 18 U. S. C. §922(g)(1),

the official commentary to the career-offender Sentencing

Guideline expressly designated his offense of conviction—

possessing a sawed-off shotgun as a felon—a “crime of 

violence.” See ante, at 1–3; United States Sentencing 

Commission, Guidelines Manual §4B1.2(a), comment., n. 1 

(Nov. 2006). Harmonious with federal law and the text of 

§4B1.2(a), that commentary was “authoritative.” Stinson 

v. United States, 508 U.S. 36, 38 (1993).* 

Beckles therefore cannot, and indeed does not, claim 

that §4B1.2(a) was vague as applied to him. And because 

—————— 

*Beckles protests that the commentary is “inconsistent with” 

§4B1.2(a), and thus inoperative, once the residual clause is stricken

from the Guideline as impermissibly vague. Brief for Petitioner 49; see 

Stinson, 508 U. S., at 38. But excising the problematic provision first 

and considering illustrative language second “flip[s] the normal order of

operations in adjudicating vagueness challenges.” Brief for United 

States 55. This Court has routinely rejected, in a variety of contexts, 

vagueness claims where a clarifying construction rendered an otherwise enigmatic provision clear as applied to the challenger. See Bell v. 

Cone, 543 U. S. 447, 453, 457–458 (2005) (per curiam) (capital aggravating factor clarified by state-court precedent); Hoffman Estates v. 

Flipside, Hoffman Estates, Inc., 455 U. S. 489, 500–502, and n. 18 

(1982) (quasi-criminal ordinance clarified by licensing guidelines); Red 

Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 (1969) (federal

regulation clarified by agency adjudications). 
 

2 BECKLES v. UNITED STATES 

GINSBURG, J., concurring in judgment 

his conduct was “clearly proscribed,” he also “cannot complain of the vagueness of the [guideline] as applied to the 

conduct of others.” Holder v. Humanitarian Law Project, 

561 U. S. 1, 18–19 (2010) (internal quotation marks omitted) (rejecting vagueness challenge to terrorism materialsupport statute, 18 U. S. C. §2339B). I would accordingly

defer any more encompassing ruling until a case we have 

agreed to take up requires one. 
_________________ 

_________________ 

Cite as: 580 U. S. ____ (2017) 1 

SOTOMAYOR, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 15–8544 

TRAVIS BECKLES, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT 

[March 6, 2017] 

JUSTICE SOTOMAYOR, concurring in the judgment. 

JUSTICE GINSBURG explains why the Court’s holding

today is unnecessary. See ante, at 1–2 (opinion concurring 

in judgment). Petitioner Travis Beckles was sentenced to 

30 years in prison on the basis of commentary promulgated by the U. S. Sentencing Commission interpreting a

sentencing provision identical to the “residual clause” we

held unconstitutionally vague two years ago in Johnson v. 

United States, 576 U. S. ___ (2015). But Johnson affords 

Beckles no relief, because the commentary under which he

was sentenced was not unconstitutionally vague. Had the 

majority limited itself to this conclusion, I would have

joined its opinion. Instead, the majority reaches far beyond what is necessary to resolve this case and announces 

that the U. S. Sentencing Guidelines as a whole are immune from vagueness challenges.

I write separately to explain why that holding is not

only unnecessary, but also deeply unsound. The Guidelines anchor every sentence imposed in federal district 

courts. They are, “‘in a real sense[,] the basis for the 

sentence.’” Molina-Martinez v. United States, 578 U. S. 

___, ___ (2016) (slip op., at 9) (quoting Peugh v. United 

States, 569 U. S. ___, ___ (2013) (slip op., at 11); emphasis

deleted). The Due Process Clause requires that rules this

weighty be drafted “with sufficient definiteness that ordinary people can understand” them, and “in a manner that 
 

 

 

2 BECKLES v. UNITED STATES 

SOTOMAYOR, J., concurring in judgment 

does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983).

Because I cannot agree with the majority’s conclusion to

the contrary, I respectfully concur in the judgment only. 

I 

A 

The Due Process Clause prohibits the Government from 

“taking away someone’s life, liberty, or property under a 

criminal law so vague that it fails to give ordinary people

fair notice of the conduct it punishes, or so standardless 

that it invites arbitrary enforcement.” Johnson, 576 U. S., 

at ___ (slip op., at 3). The prohibition against vagueness 

in criminal proceedings is “a well-recognized requirement, 

consonant alike with ordinary notions of fair play and the

settled rules of law.” Connally v. General Constr. Co., 269 

U. S. 385, 391 (1926). The doctrine rests on two justifications. First, it ensures that people receive “fair notice of 

what is prohibited.” United States v. Williams, 553 U. S. 

285, 304 (2008). Second, it safeguards the integrity of the 

judicial system by ensuring that criminal adjudications

are not conducted in an arbitrary manner and that terms

of imprisonment are not imposed “on an ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U. S. 104, 

109 (1972).

“These principles apply not only to statutes defining

elements of crimes, but also to statutes fixing sentences.” 

Johnson, 576 U. S., at ___ (slip op., at 4). Just two Terms 

ago, we struck down a sentencing law—the Armed Career

Criminal Act’s (ACCA) residual clause, 18 U. S. C. 

§924(e)(2)(B)—as unconstitutionally vague. See 576 U. S., 

at ___ (slip op., at 15). We spent little time on whether the

vagueness doctrine applied to such provisions. Id., at ___ 

(slip op., at 4). And for good reason: A statute fixing a

sentence imposes no less a deprivation of liberty than does

a statute defining a crime, as our Sixth Amendment juris-
Cite as: 580 U. S. ____ (2017) 3 

SOTOMAYOR, J., concurring in judgment 

prudence makes plain. See Apprendi v. New Jersey, 530 

U. S. 466, 490 (2000). We instead analyzed the residual 

clause in light of “[n]ine years’ experience trying to derive 

meaning from” it, 576 U. S., at ___ (slip op., at 10), and 

declared the experiment a failure. “Invoking so shapeless 

a provision to condemn someone to prison for 15 years to

life,” we held, “does not comport with the Constitution’s 

guarantee of due process.” Ibid. 

B 

The question before us is how these principles apply to

the U. S. Sentencing Guidelines.

Congress established the U. S. Sentencing Commission 

in 1984 in order to address “[f]undamental and widespread dissatisfaction” with the then-prevailing regime of

discretionary sentencing. Mistretta v. United States, 488 

U. S. 361, 365–366 (1989); see Sentencing Reform Act of 

1984, §217(a), 98 Stat. 2017. It charged the Commission

with reducing “the great variation among sentences imposed by different judges upon similarly situated offenders” and the resulting “uncertainty as to the time [each] 

offender would spend in prison.” Mistretta, 488 U. S., at 

366. The Sentencing Guidelines are the product of that 

mandate. The Guidelines establish a framework “under 

which a set of inputs specific to a given case (the particular characteristics of the offense and offender) yiel[d] a

predetermined output (a range of months within which the 

defendant [can] be sentenced).” Peugh, 569 U. S., at ___ 

(slip op., at 4). In doing so, the Guidelines ensure “uniformity in sentencing . . . imposed by different federal

courts for similar criminal conduct” and “proportionality in 

sentencing through a system that imposes appropriately 

different sentences for criminal conduct of different severity.” Rita v. United States, 551 U. S. 338, 349 (2007) (internal quotation marks omitted).

The Guidelines today play a central role in federal 
 

4 BECKLES v. UNITED STATES 

SOTOMAYOR, J., concurring in judgment 

sentencing. Although no longer binding on federal courts, 

see United States v. Booker, 543 U. S. 220, 245 (2005), the 

Guidelines nonetheless “provide the framework for the 

tens of thousands of federal sentencing proceedings that

occur each year,” Molina-Martinez, 578 U. S., at ___ (slip 

op., at 2). A district court must “begin all sentencing

proceedings by correctly calculating the applicable Guidelines range.” Gall v. United States, 552 U. S. 38, 49–50 

(2007). The court must entertain the parties’ arguments

and consider the factors set forth in 18 U. S. C. §3553(a) as

possible grounds for deviation from the Guidelines range, 

552 U. S., at 49–50, and “may not presume the . . . range is 

reasonable,” id., at 50. But it must explain any deviation

from the range on the record, and it must “ensure that the 

justification is sufficiently compelling to support the degree of the variance.” Ibid.; see Peugh, 569 U. S., at ___– 

___ (slip op., at 17–18). A district court that incorrectly 

calculates the Guidelines range commits reversible procedural error, see Gall, 552 U. S., at 51; a district court that 

imposes a sentence within the correct Guidelines range, by

contrast, may be afforded a presumption that the sentence 

it has imposed is reasonable, see Rita, 551 U. S., at 347. 

The importance of the Guidelines in this process, as we

explained last Term, makes them “not only the starting

point for most federal sentencing proceedings but also the

lodestar.” Molina-Martinez, 578 U. S., at ___ (slip op., at 

10). In most cases, it is the range set by the Guidelines,

not the minimum or maximum term of imprisonment set 

by statute, that specifies the number of years a defendant 

will spend in prison. District courts impose a sentence 

within the Guidelines (or below the Guidelines based on a 

Government motion) over 80% of the time. Ibid.; see 2015 

Annual Report and 2015 Sourcebook of Federal Sentencing Statistics (20th ed.) (Figure G), online at http://

www.ussc.gov/sites/default/files/pdf/research-and-publications/

annual-reports-and-sourcebooks/2015/FigureG.pdf (as last 
Cite as: 580 U. S. ____ (2017) 5 

SOTOMAYOR, J., concurring in judgment 

visited Feb. 27, 2017). And when Guidelines ranges

change—because the Guidelines themselves change, or 

because the court is informed of an error it made in applying them—sentences change, too.1 See Molina-Martinez, 

578 U. S., at ___ (slip op., at 10); Peugh, 569 U. S., at ___ 

(slip op., at 13). It is therefore no exaggeration to say that 

the Guidelines are, “‘in a real sense[,] the basis for the 

sentence’” imposed by the district court. Molina-Martinez, 

578 U. S., at ___ (slip op., at 9) (quoting Peugh, 569 U. S., 

at ___ (slip op., at 11); emphasis deleted). 

C 

It follows from the central role that the Guidelines play

at sentencing that they should be susceptible to vagueness 

challenges under the Due Process Clause. 

Contrary to the majority’s conclusion, an inscrutably

vague Guideline implicates both of the concerns animating 

the prohibition on vagueness. First, a district court’s 

reliance on such a Guideline deprives an ordinary person 

of “fair notice” of the consequences of his actions. See 

Johnson, 576 U. S., at ___ (slip op., at 3). A defendant is 

entitled to understand the legal rules that will determine 

his sentence. But a vague Guideline is by definition impossible to understand. Take the career-offender Guideline at issue here. We explained in Johnson that the 

identically worded provision in the ACCA created “pervasive disagreement” among courts imposing sentences as to

“the nature of the inquiry” that they were required to 

—————— 

1The evidence before us suggests that the same is true of the careeroffender Guideline at issue here. Given the near consensus among the 

lower courts that this Guideline is unconstitutionally vague, see n. 3, 

infra, some courts have proceeded to resentence defendants whose 

sentences were originally enhanced under the Guideline. See App. to

Reply Brief 1–14. In these resentencings, “every defendant but one 

received a sentence lower than the sentence originally imposed,” and 

the average defendant received a sentence “more than [three] years 

lower than the original sentence.” Reply Brief 12. 
 

 

6 BECKLES v. UNITED STATES 

SOTOMAYOR, J., concurring in judgment 

conduct. Id., at ___ (slip op., at 9). The result was a law 

that was “‘nearly impossible to apply consistently.’” Ibid. 

(quoting Chambers v. United States, 555 U. S. 122, 133 

(2009) (ALITO, J., concurring in judgment)). An ordinary

person cannot be expected to understand the consequences 

that such a shapeless provision will have on his sentence.2 

Second, and more importantly, a district court’s reliance

on a vague Guideline creates a serious risk of “arbitrary

enforcement.” See Johnson, 576 U. S., at ___ (slip op., at 

3). As set out above, although the Guidelines do not bind 

a district court as a formal matter, as a functional matter 

they “anchor both the district court’s discretion and the 

appellate review process.” Peugh, 569 U. S., at ___ (slip 

op., at 18). It introduces an unacceptable degree of arbitrariness into sentencing proceedings to begin by applying 

a rule that is so vague that efforts to interpret it boil down

to “guesswork and intuition.” Johnson, 576 U. S., at ___ 

(slip op., at 8). One judge may conduct a statistical analysis to decide that a defendant’s crime of conviction is not a 

crime of violence. Another may rely on gut instinct to

conclude that it is. Still a third may “throw [our] opinions 

into the air in frustration, and give free rein to [her] own

feelings” in making the decision. Derby v. United States, 

564 U. S. 1047, 1049 (2011) (Scalia, J., dissenting from

denial of certiorari). Importantly, that decision is the end 

of the ballgame for a criminal defendant. Although he

may ask the judge to vary downward from the Guidelines 

range, he must take the range as the starting point for his 

—————— 

2Our decision in Irizarry v. United States, 553 U. S. 708 (2008), is not 

to the contrary. In Irizarry we held that Federal Rule of Criminal 

Procedure 32(h) does not require a judge to inform a defendant, in

advance of a sentencing proceeding, of his intent to vary above the 

Guidelines range. Id., at 715–716. That narrow decision has no 

bearing on the broader question whether ordinary people are entitled to

fair notice, under the Due Process Clause, of the rules that will dictate 

their punishment. 
 

 

Cite as: 580 U. S. ____ (2017) 7 

SOTOMAYOR, J., concurring in judgment 

request. He may ask for a month here or a month there,

but he is negotiating from a baseline he cannot control or

predict. The result is a sentencing proceeding hopelessly 

skewed from the outset by “unpredictability and arbitrariness.” Johnson, 576 U. S., at ___ (slip op., at 6). The Due 

Process Clause does not tolerate such a proceeding.

Consider, by way of example, a hypothetical version of 

Beckles’ own sentencing proceeding in which the commentary played no clarifying role. Beckles was convicted of 

possessing a firearm as a convicted felon, in violation of 18

U. S. C. §922(g)(1), and sentenced to 360 months in prison.

That sentence sat at the bottom end of the applicable 

Guidelines range, factoring in the career-offender Guideline: 360 months to life. But had the career-offender 

Guideline not applied to Beckles, the Guidelines range

calculated by the District Court would have been significantly lower: 262 to 327 months. See Beckles v. United 

States, Civ. No. 10–23517 (SD Fla., Mar. 4, 2013), App.

129–130. Absent that Guideline, Beckles would have been 

sentenced to between 33 and 98 fewer months in prison.

The District Court admitted as much, explaining that had

the Guideline not applied, she “would not have imprisoned

Beckles to 360 months” in prison. Id., at 149 (emphasis

deleted). Years of Beckles’ life thus turned solely on 

whether the career-offender Guideline applied. There is 

no meaningful way in which the Guideline exerted less 

effect on Beckles’ sentence than did the statute setting his

minimum and maximum terms of imprisonment; indeed,

it was the Guidelines, not just the statute, that “fix[ed]” 

Beckles’ “sentenc[e]” in every meaningful way. Johnson, 

576 U. S., at ___ (slip op., at 4). Nothing of substance, in

other words, distinguishes the Guidelines from the kind of 

laws we held susceptible to vagueness challenges in Johnson; both law and Guideline alike operate to extend the 

time a person spends in prison. The Due Process Clause 

should apply equally to each. 
 

8 BECKLES v. UNITED STATES 

SOTOMAYOR, J., concurring in judgment
 

II
 

The majority brushes past this logic in its decision to

shield the Guidelines from vagueness challenges. In doing 

so, it casts our sentencing jurisprudence into doubt and

upends the law of nearly every Court of Appeals to have 

considered this question.3 None of its explanations justify 

its novel and sweeping conclusion. 

A 

The majority first reasons that the Guidelines are not 

susceptible to vagueness challenges because they “do not 

fix the permissible range of sentences,” ante, at 5, but 

merely “guide district courts in exercising their discretion,” ante, at 8. But we have not embraced such formalism before, and the majority provides no coherent justification for its decision to do so here. 

Indeed, we have refused before to apply exactly the

formalistic distinction that the majority now embraces. In 

Espinosa v. Florida, 505 U. S. 1079, 1081 (1992) ( per 

curiam), we held that a state’s capital aggravating factor

that was drafted in a manner “so vague as to leave the 

sentencer without sufficient guidance for determining the

presence or absence of the factor” violated the Eighth

Amendment. The factor was unconstitutional, we explained, notwithstanding the fact that only the jury, not 

the judge, was instructed on the factor; that the judge, not 

the jury, made the final decision to sentence the defendant 

to death; and that the judge, in doing so, was not required 

—————— 

3See United States v. Hurlburt, 835 F. 3d 715, 721–725 (CA7 2016)

(en banc) (the Guidelines are subject to vagueness challenges); United 

States v. Calabretta, 831 F. 3d 128, 136–137 (CA3 2016) (same); United 

States v. Sheffield, 832 F. 3d 296, 312–313 (CADC 2016) (same); United 

States v. Pawlak, 822 F. 3d 902, 905–911 (CA6 2016) (same); United 

States v. Madrid, 805 F. 3d 1204, 1210–1211 (CA10 2015) (same). But 

see United States v. Matchett, 802 F. 3d 1185, 1193–1196 (CA11 2015) 

(they are not). 
Cite as: 580 U. S. ____ (2017) 9 

SOTOMAYOR, J., concurring in judgment 

to defer to the jury’s recommendation. “This kind of indirect weighing of an invalid aggravating factor,” we explained, “creates the same potential for arbitrariness as

the direct weighing of an invalid aggravating factor.” Id., 

at 1082. In doing so, we effectively rejected just the argument the majority now embraces: that advisory guidelines

lack the kind of binding legal effect that subject them to 

constitutional scrutiny.

If there were any doubt that advisory sentencing guidelines are subject to constitutional limits, we dispelled it in 

Peugh, where we held that the Guidelines are amenable to 

challenges under the Ex Post Facto Clause. See 569 U. S., 

at ___ (slip op., at 1). There, the Government argued that

the “advisory” nature of the Guidelines rendered them

immune from such claims. Id., at ___ (slip op., at 8). But 

we rejected such an argument. “The federal system,” we

explained, “adopts procedural measures intended to make

the Guidelines the lodestone of sentencing,” and “considerable empirical evidence indicate[s] that the . . . Guidelines have the intended effect.” Id., at ___–___ (slip op., at 

12–13). We declined the Government’s invitation to limit 

our ex post facto jurisprudence to rules that, as a formal 

matter, “increase[d] the maximum sentence for which a 

defendant is eligible.” Id., at ___ (slip op., at 8). And we 

explained that a rule may exert “ ‘binding legal effect’ 

through . . . procedural rules and standards for appellate 

review that, in combination, encourag[e] district courts to

sentence within the guidelines.” Id., at ___ (slip op., at 

16). It was not true, we concluded, that “the Guidelines 

are too much like guideposts and not enough like fences,” 

ibid.; instead, the Guidelines were just fencelike enough—

just lawlike enough—that they cannot be shielded from

the Constitution’s reach. 

The same principle should dictate the same result in

this case. How can the Guidelines carry sufficient legal 

weight to warrant scrutiny under the Eighth Amendment 
 

 

 

10 BECKLES v. UNITED STATES 

SOTOMAYOR, J., concurring in judgment 

and the Ex Post Facto Clause, but not enough to warrant 

scrutiny under the Due Process Clause? Cf. United States 

v. Hurlburt, 835 F. 3d 715, 724 (CA7 2016) (en banc) (“We

see no principled way to distinguish Peugh on doctrinal 

grounds”). The majority offers no convincing answer. It 

asserts that the Due Process Clause “requires a different 

inquiry” than these provisions do. Ante, at 10. But it does 

not explain why it views this as relevant to the constitutional status of the Guidelines. A court considering a 

challenge to a criminal statute under the Ex Post Facto 

Clause will apply a different legal standard than will a

court considering a vagueness challenge to the same statute; that does not make the statute more or less susceptible to constitutional challenge in one context than the 

other. Our opinion in Peugh is particularly difficult for 

the majority to escape, given that the Ex Post Facto 

Clause, like the Due Process Clause’s prohibition against 

vagueness, is rooted in concerns about “fair warning” and 

“‘fundamental fairness.’” 569 U. S., at ___ (plurality

opinion) (slip op., at 13). The majority musters no persuasive explanation for why those concerns would have less 

force in this context than in that one. That is because 

none exists.4 

B 

The majority next posits that because courts have long 

sentenced defendants under purely discretionary regimes,

there can be no vagueness concern with any system that, 

—————— 

4The Court’s adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether

defendants sentenced to terms of imprisonment before our decision in 

United States v. Booker, 543 U. S. 220 (2005)—that is, during the 

period in which the Guidelines did “fix the permissible range of sentences,” ante, at 5—may mount vagueness attacks on their sentences.

See Brief for Scholars of Criminal Law, Federal Courts, and Sentencing 

as Amici Curiae 33–34. That question is not presented by this case and 

I, like the majority, take no position on its appropriate resolution. 
 

Cite as: 580 U. S. ____ (2017) 11 

SOTOMAYOR, J., concurring in judgment 

like the Guidelines regime, sets guideposts on the exercise

of discretion. Ante, at 6–7. But this argument fundamentally misunderstands the problem caused by a court’s 

reliance on a vague sentencing guideline.

True enough, for many years, federal courts relied on “a 

system of indeterminate sentencing” in criminal cases. 

Mistretta, 488 U. S., at 363; see also K. Stith & J. 

Cabranes, Fear of Judging: Sentencing Guidelines in the

Federal Courts 9–14 (1998). Under such a scheme, a 

sentencing judge considers the full range of relevant aggravating and mitigating facts and circumstances, as well 

as his view of proper sentencing policy, and then imposes 

a sentence in light of those considerations. See Koon v. 

United States, 518 U. S. 81, 113 (1996) (“It has been uniform and constant in the federal judicial tradition for the 

sentencing judge to consider every convicted person as an 

individual and every case as a unique study in the human

failings that sometimes mitigate, sometimes magnify, the

crime and the punishment to ensue”). As the majority

notes, no party here “suggests that a system of purely 

discretionary sentencing could be subject to a vagueness

challenge.” Ante, at 7. The majority reasons that the

Guidelines—which limit the sentencing judge’s discretion

from what he otherwise would have enjoyed—must therefore also be immune from vagueness attacks. Ibid. 

But the majority misapprehends the nature of the constitutional infirmity that occurs when a sentencing judge

relies on an inscrutably vague guideline. A defendant who 

is sentenced under a purely discretionary regime does not 

face the prospect of “arbitrary enforcement” by the sentencing judge, Kolender, 461 U. S., at 358; rather, he faces 

a fact- and context-sensitive determination informed by 

the exercise of reasoned judgment. A defendant sentenced 

pursuant to an impossibly vague Guideline, by contrast, is

put in an untenable position. The “lodestone” of his sentence—the baseline against which the district court will 
 

12 BECKLES v. UNITED STATES 

SOTOMAYOR, J., concurring in judgment 

assess his characteristics and his conduct—is set by a rule

that is impossible to understand. Such a proceeding is the

antithesis of due process. See Giaccio v. Pennsylvania, 

382 U. S. 399, 403 (1966) (“Implicit in [due process] is the 

premise that the law must be one that carries an understandable meaning with legal standards that courts must

enforce”). It is not reliance on discretion that makes a 

sentencing regime vague; it is reliance on an impenetrable

rule as a baseline for the exercise of that discretion. Reliance on a rule of this kind, whether set out in a statute or 

in a Guideline, does not comport with “‘ordinary notions of 

fair play.’” Johnson, 576 U. S., at ___ (slip op., at 4). 

C 

The majority ends by speculating that permitting

vagueness attacks on the Guidelines would call into question the validity of many Guidelines, and even the factors 

that Congress has instructed courts to consider in imposing sentences. See ante, at 11–12. In doing so, the majority once more resuscitates arguments we have already 

considered and dismissed. 

Johnson confronted and rejected a version of this argument. There, the Government contended that “dozens of 

federal and state criminal laws use terms like ‘substantial 

risk,’ ‘grave risk,’ and ‘unreasonable risk,’” terms that—in

its view—were indistinguishable from the residual clause

at issue in that case. 576 U. S., at ___ (slip op., at 12). We 

rejected the argument, explaining that such rules “call[ed] 

for the application of a qualitative standard such as ‘substantial risk’ to real-world conduct; ‘the law is full of instances where a man’s fate depends on his estimating 

rightly . . . some matter of degree.’” Ibid. (quoting Nash v. 

United States, 229 U. S. 373, 377 (1913)). What rendered 

the ACCA’s residual clause unconstitutionally vague, we

explained, was not that it required “gauging the riskiness

of conduct in which an individual defendant engages on a 
 

Cite as: 580 U. S. ____ (2017) 13 

SOTOMAYOR, J., concurring in judgment 

particular occasion,” but that it required the application of 

an ambiguous standard “to an idealized ordinary case of

the crime.” 576 U. S., at ___ (slip op., at 12). Holding the

residual clause unconstitutionally vague, in other words,

cast no doubt on the dozens of laws elsewhere in the U. S. 

Code requiring the application of general standards to

particular conduct.

The same is true here. The sentencing factors described

by the majority bear no similarity to the categorical risk

analysis that the Court held unconstitutionally vague in 

Johnson, nor to any other statutes it has previously found 

vague. Congress’ instruction to district courts to consider,

for instance, “the nature and circumstances of the offense 

and the history and characteristics of the defendant,” 

§3553(a)(1), bears little resemblance to statutes requiring

subjective determinations as to whether conduct is “annoying” or “unjust.” See Coates v. Cincinnati, 402 U. S. 

611, 615–616 (1971); United States v. L. Cohen Grocery 

Co., 255 U. S. 81, 89 (1921).5 And to the extent that the 

majority’s concern is that subjecting sentencing factors 

to the Due Process Clause’s prohibition on vagueness

would risk the demise of discretionary sentencing regimes, 

that prospect is unlikely, for the reasons I have already

explained. 

* * * 

It violates the Due Process Clause “to condemn someone 

to prison” on the basis of a sentencing rule “so shapeless” 

as to resist interpretation. 576 U. S., at ___ (slip op., at 

10). But the Court’s decision today permits exactly that

result. With respect, I concur only in the judgment. 

—————— 

5 Indeed, the Ninth Circuit has held for decades that the Guidelines 

are subject to vagueness challenges, see United States v. Helmy, 951 

F. 2d 988, 993 (CA9 1991), yet the Government represents that that

court has never found a Guideline unconstitutionally vague. See Reply 

Brief for United States 20.