1 (Slip Opinion) OCTOBER TERM, 2016

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 convict

ed 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 qualifie d as a “crime of violence” under §4B1.2(a)’s residual clause. The Di strict 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 de

nied the motion, and the Eleventh Ci rcuit affirmed. Petitioner next filed a petition for a writ of certiorari from this Court. While his peti

tion was pending, this Court held that the identically worded residu

al 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 an d remanded petitioner’s case in light of Johnson . On remand, the Eleventh Circuit affirmed again, distinguishing the ACCA’s unconstitut ionally vague residual clause from the residual clause in the Sentencing Guidelines.
Held : The Federal Sentencing Guidelin es, including §4B1.2(a)’s residu

al clause, are not subject to vagu eness challenges under the Due Pro

cess Clause. Pp. 4–13.

(a) The Due Process Clause prohib its the Government from “taking away someone’s life, lib erty, 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 sent ences for criminal offenses must specify the range of available sent ences 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 impermissi

bly vague way—a higher range of sentences for certain defendants. But the advisory Guidelines do not fix the permissible range of sen

tences. They merely guide the exer cise of a court’s discretion in choosing an appropriate sentence wi thin 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 “wid e discretion to decide whether the offender should be incarcerated and for how long.” Mistretta v. Unit

ed States , 488 U. S. 361, 363. Yet this Court has “never doubted the authority of a judge to exercise br oad discretion in imposing a sen

tence 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 ap

propriate 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 al so created the United States Sen

tencing Commission and charged it with establishing the Federal Sentencing Guidelines. Because th e 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 ar e not amenable to vagueness chal

lenges: If a system of unfettered discretion is not unconstitutionally vague, then it is difficult to see how the present system of guided dis

cretion could be. Neither do they implicate the twin concerns under

lying vagueness doctrine—providing notice and preventing arbitrary enforcement. The applicable statut ory range, which establishes the permissible bounds of the court’s se ntencing discretion, provides all the notice that is required. Simila rly, the Guidelines do not invite arbitrary enforcement within the me aning of this Court’s case law, because they do not permit the sent encing 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 “sen tencing 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 subj ect to a challenge under the void

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

Syllabus

for-vagueness doctrine. Pp. 10–11.

(c) Nor does this holding cast do ubt on the validity of the other fac

tors that sentencing courts must consider in exercising their sentenc

ing discretion. See §§3553(a)(1)–(3), (5)–(7). A contrary holding, however, would cast serious doub t 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 indi

vidualized sentencing required by those other factors is distinguisha

ble from that required by the Guide lines. It is far from obvious that §4B1.2(a)’s residual clause implicat es the twin concerns of vagueness more than the other factors do, an d neither the Guidelines nor the other factors implicate those concer ns more than the absence of any guidance at all, which the Governme nt concedes is constitutional. Pp. 11–13. 616 Fed. Appx. 415, affirmed.

T HOMAS , J., delivered the opinion of the Court, in which R OBERTS , C. J., and K ENNEDY , B REYER , and A LITO , JJ., joined. K ENNEDY , J., filed a concurring opinion. G INSBURG , J., and S OTOMAYOR , J., filed opinions concurring in the judgment. K AGAN , J., took no part in the considera

tion or decision of the case._________________

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

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, Wash

ington, 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]

J USTICE T HOMAS 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, Guide

lines 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 Guide

lines 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 pos

session of a firearm by a convicted felon, §922(g)(1). Ac

cording to the presentence investigation report, the fire

arm was a sawed-off shotgun, and petitioner was thereforeeligible for a sentencing enhancement as a “career offender” under the Sentencing Guidelines. The 2006 version of2 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 of

fender 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 vio

lence 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, in

volves 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 pro

vided that possession of a sa wed-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”).

——————

1 With 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, refer

ences in this opinion to the Guidelines are to the 2006 version.3 Cite as: 580 U. S. ____ (2017)

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 Dis

trict Court’s view, petitioner’s §922(g)(1) conviction quali

fied 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 sen

tenced 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 Ap

peals, and remanded for further consideration in light of Johnson

. Beckles v. United States , 576 U. S. ___ (2015). On remand, petitioner argued that his enhanced sen

tence 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 peti

tioner “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] of

fense as a ‘crime of violence.’ ” 616 Fed. Appx. 415, 416 (2015) ( per curiam ). “ Johnson ,” the Court of Appeals reasoned, “says and decided no thing about career-offender enhancements under the Sentencing Guidelines or aboutthe 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 prohib

its the Government from “ta king 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 en

forcement.” Johnson , 576 U. S., at ___–___ (slip op., at 3– 4) (citing Kolender v. Lawson , 461 U. S. 352, 357–358

——————

2 Compare United States v. Matchett , 802 F. 3d 1185, 1193–1196 (CA11 2015) (holding that the Guide lines 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).5 Cite as: 580 U. S. ____ (2017)

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 permis

sible sentences for criminal offenses. For the former, the Court has explained that “the void

for-vagueness doctrine requires that a penal statute define the criminal offense with suffi cient definiteness that ordi

nary people can understand w hat 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 fed

eral crimes, Congress historica lly 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 distri ct courts to craft individual

ized 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 exer

cise 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 impermissi

ble for judges to exercise discretion . . . in imposing a judgment within the range prescribed by statute”); Giac

cio

, 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 juri es finding defendants guilty of a crime the power to fix punishment within legally pre

scribed limits”). More specifically, our cases have never suggested that a defendant can successfully challenge as vague a sentenc

ing statute conferring discreti on to select an appropriate sentence from within a statut ory range, even when that7 Cite as: 580 U. S. ____ (2017)

Opinion of the Court
discretion is unfettered. In fact, our reasoning in Batchel

der 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 cre

ate[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 seve ral factors to guide district courts in exercising their tradi tional 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 ren

dered them “effectively advisory,” id. , at 245. Although the Guidelines remain “the starting point and the initial benchmark” for sentencing, a sentencing court may no8 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 exer

cising 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 ___ (T HOMAS , J., dissenting) (slip op., at 2). Because they merely guide th e 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 constitution

ally 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 co uld 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 expecta

tion subject to due process protection . . . that a criminal9 Cite as: 580 U. S. ____ (2017)

Opinion of the Court
defendant would receive a sentence within the presump

tively 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 st atutory range, which estab

lishes the permissible bounds of the court’s sentencing discretion. The advisory Guidelines also do not implicate the vagueness doctrine’s concern wi th arbitrary enforcement. Laws that “regulate persons or entities,” we have ex

plained, 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 enforce

ment in this sense if it “leaves judges and jurors free to decide, without any legally fixed standards, what is pro

hibited 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 peti

tioner’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. J USTICE S OTOMAYOR ’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 judg

ment) (internal quotation marks omitted). A judge granted unfettered discretion could use those same approaches in determining a defendant’s sentence. Indeed, the con

currence 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 Guide

lines 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 fo

cused 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 establish11 Cite as: 580 U. S. ____ (2017)

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 sen

tences 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 Amend

ment context” that a district court’s reliance on a vague sentencing factor in a capita l 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 inappo

site, as it did not involve advisory Sentencing Guidelines or the Due Process Clause. Finally, our holding today also does not render “sentenc

ing 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 sent encing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their12 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 determina

tions to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors—like the Guidelines—do not mandate any specific sent ences, but rather guide the exercise of a district court’s discretion within the applica

ble 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 th e 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 voca

tional 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 guide

line,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided dis

cretion 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

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

Opinion of the Court
ness any more than the statutory command that sentenc

ing 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 conc edes 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 sentenc

ing 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 o ffer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discre

tion. There is no sound reason to conclude that the Guide

lines—but not §3553(a)’s other sentencing factors—are amenable to vagueness review.

* * * Because the advisory Sent encing 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.

J USTICE K AGAN took no part in the consideration or decision of this case._________________

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

K ENNEDY , 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]

J USTICE K ENNEDY , 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 deci

sion 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 in

volved as distinct from a statutory command. See John

son v. United States , 576 U. S. ___ (2015). The existing principles for defining vagueness cannot be transported uncritically to the re alm 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._________________

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

G INSBURG , 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]

J USTICE G INSBURG , 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

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* 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 va gue. 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 vaguene ss challenges.” Brief for United States 55. This Court has routinely rejected, in a variety of contexts, vagueness claims where a clarifying construction rendered an other

wise enigmatic provision clear as applied to the challenger. See Bell v. Cone , 543 U. S. 447, 453, 457–458 (2005) ( per curiam ) (capital aggra

vating 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 cl arified by licensi ng guidelines); Red Lion Broadcasting Co. v. FCC , 395 U. S. 367, 395 (1969) (federal regulation clarified by agency adjudications).2 BECKLES v. UNITED STATES

G INSBURG , J., concurring in judgment
his conduct was “clearly proscribed,” he also “cannot com

plain 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 omit

ted) (rejecting vagueness c hallenge 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._________________

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

S OTOMAYOR , 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]

J USTICE S OTOMAYOR , concurring in the judgment.
J USTICE G INSBURG explains why the Court’s holding today is unnecessary. See ante, at 1–2 (opinion concurring in judgment). Petitioner Travis Beckles was sentenced to30 years in prison on the basis of commentary promulgated by the U. S. Sentenci ng 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 be

yond what is necessary to resolve this case and announces that the U. S. Sentencing Guidelines as a whole are im

mune from vagueness challenges. I write separately to explain why that holding is not only unnecessary, but also deeply unsound. The Guide

lines 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 suffi cient definiteness that ordi

nary people can understand” them, and “in a manner that2 BECKLES v. UNITED STATES

S OTOMAYOR , J., concurring in judgment
does not encourage arbitrary and discriminatory enforce

ment.” 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 justifica

tions. 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 sub

jective 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

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

S OTOMAYOR , 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 wide

spread 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 im

posed by different judges upon similarly situated offend

ers” 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 particu

lar 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 “ uni

formity 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) (in

ternal quotation marks omitted). The Guidelines today play a central role in federal4 BECKLES v. UNITED STATES

S OTOMAYOR , 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 Guide

lines range.” Gallv. 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 de

gree 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 proce

dural 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 pr esumption 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 2015Annual 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 last5 Cite as: 580 U. S. ____ (2017)

S OTOMAYOR , 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 apply

ing 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 conse quences 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 im

possible to understand. Take the career-offender Guide

line at issue here. We explained in Johnson that the identically worded provision in the ACCA created “perva

sive disagreement” among courts imposing sentences as to “the nature of the inquiry” that they were required to

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1 The 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 se ntence “more than [three] years lower than the original sentence.” Reply Brief 12.6 BECKLES v. UNITED STATES

S OTOMAYOR , 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) (A LITO , 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 arbi

trariness into sentencing proceed ings 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 analy

sis 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). Important ly, 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

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2 Our 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 whethe r ordinary people are entitled to fair notice, under the Due Process Clau se, of the rules that will dictate their punishment.7 Cite as: 580 U. S. ____ (2017)

S OTOMAYOR , 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 arbitrari

ness.” 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 commen

tary 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 Guide

line: 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 signifi

cantly 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 t han 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 John

son ; 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

S OTOMAYOR , 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 discre

tion,” ante , at 8. But we have not embraced such formal

ism before, and the majority pr ovides no coherent justifi

cation 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 ex

plained, notwithstanding the fact that only the jury, not the judge, was instructed on the factor; that the judge, not the jury, made the final decisi on to sentence the defendant to death; and that the judge, in doing so, was not required

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3 See United States v. Hurlburt , 835 F. 3d 715, 721–725 (CA7 2016) (en banc) (the Guidelines are su bject 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).9 Cite as: 580 U. S. ____ (2017)

S OTOMAYOR , J., concurring in judgment
to defer to the jury’s recommend ation. “This kind of indi

rect weighing of an invalid aggravating factor,” we ex

plained, “creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor.” Id., at 1082. In doing so, we effe ctively rejected just the argu

ment 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 guide

lines 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 “consid

erable empirical evidence indicate[s] that the . . . Guide

lines 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 Amendment10 BECKLES v. UNITED STATES

S OTOMAYOR , 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 constitu

tional 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 stat

ute; that does not make the statute more or less suscepti

ble 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 persua

sive 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 pure ly discretionary regimes, there can be no vagueness concern with any system that,

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4 The Court’s adherence to the formalistic distinction between manda

tory and advisory rules at least leaves open the question whether defendants sentenced to terms of im prisonment 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 sen

tences,” 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 positi on on its appropriate resolution.11 Cite as: 580 U. S. ____ (2017)

S OTOMAYOR , J., concurring in judgment
like the Guidelines regime, sets guideposts on the exercise of discretion. Ante, at 6–7. But this argument fundamen

tally 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 th e full range of relevant ag

gravating 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 uni

form 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 mitiga te, sometimes magnify, the crime and the punishment to ensue”). As the majority notes, no party here “suggests that a system of purely discretionary sentencing coul d 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 there

fore also be immune fr om vagueness attacks. Ibid. But the majority misapprehends the nature of the con

stitutional infirmity that occurs when a sentencing judge relies on an inscrutably vague guideline. A defendant who is sentenced under a purely di scretionary regime does not face the prospect of “arbitrary enforcement” by the sen

tencing 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 sen

tence—the baseline against which the district court will12 BECKLES v. UNITED STATES

S OTOMAYOR , 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 under

standable 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 exerci se of that discretion. Reli

ance 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 ques

tion the validity of many Guidelines, and even the factors that Congress has instructed courts to consider in impos

ing 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 argu

ment. 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 ‘sub

stantial risk’ to real-world conduct; ‘the law is full of in

stances 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 a13 Cite as: 580 U. S. ____ (2017)

S OTOMAYOR , 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 “an

noying” 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 s ubjecting sentencing factors to the Due Process Clause’s prohibition on vagueness would risk the demise of dis cretionary 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.

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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.