### In the 

# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

- 3611

U NITED S TATES OF A MERICA

,

Plaintiff

- Appellee

,

v.

T ONY A. H URLBURT

, Defendant

- Appellant

.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin

.

No. 14

- cr

- 62

- jdp

— James D. Peterson

, Judge

.

____________________

No. 15

- 1686

U NITED S TATES OF A MERICA

,

Plaintiff

- Appellee

,

v.

J OSHUA G ILLESPIE

, Defendant

- Appellant

.

____________________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 14

- cr

- 106

- wmc

— William C. Conley

, Chief Judge

.2 No s

. 14

- 3611 & 15

- 1686

____________________

A RGUED D ECEMBER 2, 2015

— D ECIDED A UGUST 29, 2016

____________________

Before W OOD

, Chief Judge

, and P OSNER

, F LAUM

, E ASTERBROOK

, K ANNE

, R OVNER

, W ILLIAMS

, S YKES

, and

H AMILTON

, Circuit Judges

.

S YKES

, Circuit Judge

. T ony Hurlburt and Joshua Gillespie

pleaded guilty in separate cases to unlawfully possessi n g a

firearm as a felon

. See 18 U.S.C. § 922(g ) (1)

. Their appeals

raise the same legal issue, so we ’ve consolidat e d the m for

decision

. To calculate the Sentencing Guidelines range in

each case , t he district court began with U .S.S.G. § 2K2.1(a)

,

which assigns progressively higher offense level s if the

defendant has one or more pr ior convict ions for a “crime of

violence.” The term “crime of violence” is defined in the

career

- offender guideline and includes “ any offense ...

that

... is burglary of a dwelling, arson, or extortion, i nvolves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another .” Id.

§ 4B1.2(a)(2) (201 4 ) (emphasis added)

. The highlighted text is

known as the “ residual clause

. ”

The residual clause in § 4B1.2(a)(2) mirrors the residual

clause in the Armed Career Criminal Act (“ACCA”)

, which

steeply increases the minimum and maximum p enalties for

§ 922(g) violations

. 18 U.S.C. § 924(e)(2)(B)

. One year ago t he

Supreme Court invalidated t he ACCA’s residual clause a s

unconstitutionally vague

. Johnson v. United States

, 135 S. Ct.

255 1 , 2563 (2015). Th e question here is whether Johnson ’s

holding applies to the parallel residual clause in the career

-No s

. 14

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- 1686 3

offender guideline

. A n emerging consen sus of th e circuits

holds that it does. See infra pp. 16

– 17.

In this circuit , however, vagueness challenges to the Se nte ncing G uidelines are categorically foreclosed. Circuit

precedent

— namely, United States v. Tichenor 683 F.3d 358

,

364

– 65 (7th Cir. 2012)

— holds that the G uidelines are not

susceptible to challenge on vagueness grounds

. But Tichenor

was decided before Johnson and Peugh v. United States

,

133 S. Ct. 2072 (2013) , which have fatally undermined its

reasoning

. Accordingly, w e now overrule Tichenor

. Applying

Johnson

, we join the increasing majority of our sister circuits

in holding that the residual clause in § 4B1.2(a)(2) is unco nstitutional ly vague.

I. Background

Tony Hurlburt was charged in a two

- count indictment

with possessi ng a firearm as a felon

, see § 9 22(g)(1) , and

possessi ng a short

- barreled shotgun, see 26 U.S.C. §§ 5841,

5845(a)(2), and 5861(d)

. He pleaded guilty to the felon

- in

possession count ; the second count was dismissed.

Under the Sentencing Guidelines, t he offense level for the

crime of unlawful firearm possession depends in part on the

defendant’s criminal history. For Hurlburt’s crime the base

offense level ordinarily is 18

. § 2K2.1(a)(5) . B ut i f the defen dant has a prior conviction for a “crime of violence or a

controlled substance offense,” the base offense level is 22

. § 2K2.1(a)(3) . For a defendant with t wo or more prior convi ctions of either type

, the base offense level jumps to 26.

§ 2K2.1(a)(1).4 No s

. 14

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- 1686

Application Note 1 to § 2K2.1 incorporates the “crime of

violence” definition in the career

- offender guide line , which

reads :

(a) The term “crime of violence” means any o ffense 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 ph ysical force

against the person of another, or

(2) is burglary of a dwelling, arson, or e xtortion, involves use of explosives, or othe rwise involves conduct that presents a serious

potential risk of physical injury to another

.

U.S.S.G. § 4B1.2(a) ( e mphasis added)

. The highlighted text is

known as the “ residual clause

. ”

Hurlburt has a prior conviction for armed burglary , and

a t sentencing he conceded that this conviction qualifies as a

predicate crime of vio lence

. T he government ar gued that

a nother of Hurlb urt’s prior conviction s

— for discharging a

firearm into a build ing or vehicle, s ee W IS

. S TAT . § 941.20

—

should also count as a crime of violence

. More particularly,

t he govern ment argued that th is second conviction q ualified

under § 4B1.2(a)(2) ’s residual clause

. Over Hurlburt’s obje ction t he district judge accepted th is argument

.

With two predicate convictions for crimes of violence,

Hurlburt’s base offense level was 26

, and the recommended

sentencing range was 84

– 105 months. The judge imposed a

below

- rang e sentence of 72 months. Without the secondNo s

. 14

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career

- offender predicate

, the G uidelines range drops to 57

–

71 months.

In a n unrelated case in the same district, Joshua Gillespie

was indicted for unlawfully possessin g a firearm as a felon

, and h e too pleaded guilty. Gillespie has a prior conviction

for fleeing an officer

. Se e id. § 346.04(3). The district judge

counted this conviction a s a predicate crime of violence

under the residual clause , which increased Gillespie’s base

offense level t o 20

. § 2K2.1(a) (4). The resulting G uidelines

range was 92

– 115 months , and t h e judge imposed a below

range sentence of 84 months. Without the career

- offender

predicate in the mix, the G uide lines range drops to 51

–

63 months.

Hurlburt and Gillespie a ppealed and immediately asked

us to suspend briefing to await the Supreme Court’s decision

in Johnson , which raised the question whether the residual

clause in the ACCA ’s definition of “violent felony”

— a

mirror image of the residual clause in § 4B1.2(a)(2)

— is

unconsti tutionally vague. We held the cases for Johnson and

reinstated brief ing after the Supreme Court issued its opi nion

. A panel heard argument in both appeals on the same

day

. 1 The panel prepared an opinion proposing to overrule

Tichenor and circulated it to t he full court in accordance with

Circuit Rule 40(e). A n en banc vote followed , and a majority

of the court approved

. T his , then, is the opinion of the en

1 Another appeal we decide today, United States v. Rollins , No. 13

- 1731

, also raises the same issue and was argued the same day. Because Rollins

presents an additional issue unique to that case, we have not consolida ted it here.6 No s

. 14

- 3611 & 15

- 1686

banc court

. 2 See Buchmeier v. United States , 581 F.3d 561 (7th

Cir. 2009) (using the same procedure).

II. Discussion

I n Johnson the Supreme Court held that the A CCA’s r esidual cla use i s too vague to satisfy minimum requirements

of due process . 13 5 S. Ct. at 2563. Hurlburt and Gillespie

argue that Johnson ’s holding applies to the identically

phrased residual cl ause in § 4B1.2(a)(2) , which was used in

their cases to increase the base offense level and thus the

recommen ded sentencing range under the G uidelines

. The

Johnson argument is new on appeal , so o ur review is for

plain error

. Henderson v. United States , 133 S. Ct. 1121, 1124

(2013) ; F ED

. R. C RIM

. P. 52(b). Under Rule 52(b) w e may

correct a forfeited error if (1) the error is “plain ”; (2) affect s

the defendant’s “ substantial rights ” ; and (3) “ seriously

affect s the fairness, integrity, or public reputation of [ the ]

judicial proceeding s

. ” Henderson , 133 S. Ct. at 1126

– 27 (qu otation marks omitted)

.

Johnson was not yet decided when the defendants were

sentenced

, but plain

- error review asks whether the error is

“plain” at the time of appellate review. Id. at 113 0

. The

defendants maintain that the Johnson error is plain : T he two

residual clauses are identi cal , and because the ACCA’s

residual clause is unconstitutionally vague, it necessarily

follows that the residual clause in § 4B1.2(a)(2) is also unco nstitutional

.

2 District Judge J. Phil Gilbert, of the Southern District of Illinois, served

on the original panel, sitting by designation. We appreciate his willin gness to assist the court.No s

. 14

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- 1686 7

The logic is compelling, but o ur decision i n Tichenor

stands in the way

. Tichenor held that the G uidelines cannot

be challenge d on vagueness grounds. 683 F.3d at 364

– 65. The

defendants maintain that Tichenor has been fatally unde rmined by the Supreme Court’s decisions in Johnson and

Peugh . T h e government agrees , s o the parties join forces in

asking us to overrule Tichenor

, apply Johnson , and invalidate

the residual clause in § 4B1.2(a)(2) as unconstitutionally

vague

.

Of course t he parties’ agreement doesn ’ t relieve us of our

obligation to resolve the question ourselves. Sibron v. New

York , 392 U.S. 40, 58 (1968). Before proceeding, however, we

pause to note two important recent developments. First, t he

Sentenc ing Commission has amended the G uidelines to

delete § 4B1.2(a)(2) ’s residual clause in light of Johnson ; the

amendment became effective August 1, 2016. 81 Fed. Reg.

4741, 4742 (2016). Second, the Supreme Court has granted

certiorari in a case on collateral review t o address the precise

question presented here: whether Johnson ’s holding applies

to the residual clause in § 4B1.2(a)(2). Beckles v. United States

, 616 F. App’x 415 (11th Cir. 2015), cert. granted , 2016 WL

1029080 (U.S. June 27, 2016) (No. 15

- 8544). Beckles will be

heard in the Court’s upcoming term and raises additional

issues unique to its facts and procedural posture

. T he

Court’s decision is many months away , so we think it best

not to hold these case s for Beckles

.8 No s

. 14

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- 1686

A. Johnson and § 4B1.2(a)(2) ’s Residual Clause

T he Due Process Clause 3 pro hibits the government from

depriving a person of 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.” J ohnson , 135 S. Ct. at 2556.

Johnson address ed persistent vagueness concerns about the

residual clause in the ACCA’s definition of “violent felony

. ”

T he Act increases the minimum and maximum p enalties for

various firearm

- possession offenses if the defendant has

three prior convictions “for a violent felony or a serious drug

offense.” 18 U.S.C. § 924(e)(1). The Act defines the term

“violent felony” as follows :

[A] ny crime punishable by imprisonment for a

term exceeding one year ... that

—

( i ) has as an element the use, attempted use,

or threatened use of physical force against

the person of another ; or

(ii ) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves co nduct that presents a serious potential risk of

phys ical injury to another

... .

§ 924(e)(2)(B) (emphasis added). The highlighted text is the

residual clause ; the residual clause in the career

- offender

guide line is a carbon copy

.

3 The Fifth Amendment provides: “No person shall ... be deprived of

life, liberty, or property, without due process of law

... .” U.S. C ONST

. amend

. V.No s

. 14

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The Court began its analysis in Johnson by reaffirming the

principl e that the C o nstitution ’s pro hibition of vague laws

applies “ not only to statutes defining elements of crimes, but

also to statutes fixing sentences.” 135 S. Ct. at 2557 (citing

United States v. Batchelder , 442 U.S. 114, 123 (1979))

. Before

continuing the doctrinal analysis , t he Court first explain ed

that the residual clause mandates a two

- step categorical

ap proach for classifying crimes as violent felonies . In the

first step

, the sentencing court must evaluate the predicate

crime of conviction, hypothesiz ing “the kind of conduct that

the crime involves in ‘the ordinary case

, ’” rather than loo king to the actual facts of the underlying c ase ; in the second

step , the court must assess whether th is hypothesized “ ord inary ” case of the crime “presents a serious p otential risk of

physical injury.” Id.

T hese two features of the residual clause , the Court said,

“conspire to make it unconstitutionally vague.” Id

. First, t he

clause “leaves grave uncertainty about how to estimate the

risk posed by a crime” because “[i]t ties the judicial asses sment of risk to a judicially imagined ‘ordinary case’ of a

crime, not to real

- world facts or statutory elements.” Id. ; see

also id

. (“How does one go about deciding what kind of

conduct the ‘ordinary case’ of the crime involves? ‘A statist ical analysis of the state reporter? A survey? Expert evidence?

Google? Gut instinct?’” (quoting United States v. Mayer

,

560 F.3d 948, 952 (9th Cir. 2009) (Kozinski, C.J., dissenting

from denia l of rehearing en banc))). S econd, the residual

clause “ leaves uncertainty about how much risk it takes for a

crime to qualify as a violent felony.” Id. at 2558.

“By combining indeterminacy about how to measure the

risk posed by a crime with indeterminacy about how much10 No s

. 14

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- 1686

risk it takes for the crime to qualify a s a violent felony, the

residual clause produces more unpredictability and arbitra riness tha n the Due Process Clause tolerates.” Id. The Court

noted as well that the resid ual clause had persistently resis ted judicial effort s

— by the Justices themselves and the lower

courts

— to settle on a stable construction

. Id. at 2558

– 63. Th is

interpretive struggle , the Court said, was a “failed ente rprise,” id . at 2560, and “ t h e experience of the federal courts

leaves no doubt about the unavoidable uncertainty and

arbitra riness of adjudication under the residual clause

, ” i d . at

2562.

The clause’s “hopeless indeterminacy

, ” the Court co ncluded

, “both denies fair notice to defendants and invites

arbitrary enforcement by judges.” Id. at 2557

– 58. T he Court

called a halt to the long

- running interpretive battle and held

that “imposing an increased sentence under the [ACCA’s]

residual clause ... violates the Constitution’s guarantee of

due process.” Id. at 2560, 2563.

As we’ve explained

, § 4B1.2(a)(2) ’s definition of “violent

felony” contains the same residual clause, and we interpret

the two provisions interchangeably, using the same categor ical approach that Johnson found impermissibly indeterm inate

. See, e.g., United States v. Griffin , 652 F.3d 793, 802 (7th

Cir. 2011); Uni ted States v. Spells , 537 F.3d 743, 749 n.1 (7th

Cir. 2008). So u nless the G uidelines are immune from cha lleng e on vagueness grounds

, it follows inexorably from

John son that the residual clause in § 4B1.2(a)(2) is also unco nstitutionally vague

. See United States v. Vivas

- Ceja , 808 F.3d

719 , 722

– 23 (7th Cir. 2015) (applying Johnson to the similarly

phrased residual clause in the “crime of violence” definition

in 18 U.S.C. § 16(b)).No s

. 14

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B. Tichenor

Tichenor held that the G uidelines are i mmune from

vaguen ess challenges , but that conclusion is on shaky

ground after Johnson and Peugh

. Our decision in Tichenor

rested on t wo premises

. First, we reasoned that vagueness

doctrine doesn’t apply to the G uidelines because they do not

declare an y conduct illegal ; they ’ re just “directives to judges

for their guidance in sentencing. ” Tichenor , 683 F.3d at 364

( quo ting United States v. Wivell

, 893 F. 2 d 156, 160 (8th Cir.

1990) ). The second premise overlap s the first : W e reasoned

that vagueness doctrine doesn’t apply b ecause United States

v. Booker , 54 3 U.S. 220 (2005), demoted the G uidelines from

“rules to advice.” Tichenor , 683 F.3d at 364 (quotati on marks

omit ted). Because the G uidelines are merely advisory, a

defendant has no due

- process expectation that he will be

sentenced within the recommended range, id. (citing Irizarry

v. United States , 553 U.S. 708, 713

– 14 (2008)), and he “cannot

rely on them to communicate the sentence that the district

court will impose,” id. at 365.

Johnson conclusively refutes Tichenor ’s first premise . Ci ting Batchelder , 442 U.S. at 123, the Court confirmed that

vagueness doctrine applies to sentencing provisions as well

as laws declaring conduct illegal. Johnson , 135 S. Ct. at 2557

.

We touched on Batchelder in Tichen or but dismissed it a s

irr e le van t , construing its re ference to “ vague sentencing

provisions” as “mere dictum

. ” 683 F.3d at 365

. We now

know t he Supreme Court sees things differently ; the C onst itution ’s protection against vague laws is not limited to laws

defining criminal liab ility . A s far as vagueness doctrine is

concerned, it makes no differ ence that the G uidelines deal

exclusively with sentenc ing

.12 No s

. 14

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Tichenor ’s second rationale has been fatally undermined

by the Court’s decision in Peugh . There the Court he ld that

the G uidelines, even though advisory, are subject to the

limits imposed by the Ex Post Facto Clause. Peugh , 133 S. Ct.

at 2077

– 78. A district judge in Northern Illinois had calcula ted Peugh’s sentencing range under the version of the G uid eline s in effect at the time of sentenc ing

, as required by

18 U.S.C. § 3553(a)(4)(A)(ii) , and this newer version yielded a

higher range than the version in effect at the time of the

crime

. Id. at 2078

– 79. Peugh objected, argu ing that applying

the harsher version of the G uidelines promulgated after he

committed the crime violated his rights under the Ex Post

Facto Clause . Based on our circuit precedent, the district

judge rejected th e argument , and we affirmed

. United States

v. Peugh , 675 F.3d 736, 741 (7th Cir. 2012) (cit ing United States

v. Demaree , 459 F.3d 791 (7th Cir. 2006)). T he Supreme Court

reversed, finding an ex post facto violation.

The Ex Post Facto Clause prohibits , among other things,

“[e]very law that changes the punishment, and inflicts a

greater punishment , than the law annexed to the crime,

when committed.” Peugh , 133 S. Ct. at 2081 (quoting Calder v.

Bull , 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.)).

T he “touchstone of [the Ex Post Facto Clause] inquiry is

whether a given change in law presents a sufficient risk of

increasing the measure of punishment attached to the co vered crimes.” Id. at 2082 (internal quotation marks omitted).

As t he Court explained in Peugh

, the Ex Post Facto Clause

“ ensures that individuals have fair warning of app licable

laws and guards against vindictive legislative action .” Id . at

2085

. And “[e]ven where these concerns are not directly

implicated,

... the Clause also safeguards ‘a fundamentalNo s

. 14

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fairness interest ... in having the government abide by the

rules of law it establishes to govern the circumstances under

which it can deprive a person of his or her liberty or life.’” Id

. (quoting Carmell v. Texas , 529 U.S. 513, 533 (2000) ); see also

Miller v. Florida , 482 U.S. 423, 429 (1987) (exp laining that the

Ex Post Facto Clauses “assure that federal and state legisl atures [are] restrained from enacting arbitrary or vindictive

legislation” and that “legislative enactments give fair war ning of their effect and permit individuals to rely on their

meaning until explicitly chan ged”) (internal quotation

omitted)).

Crucially here

, the government argued in Peugh that b ecause the post

- Booker G uidelines are advisory

, they “lack

sufficient legal effect ” to be considered “law” for purposes of

the Ex Post Facto Clause. Peugh

, 133 S. Ct. at 2085 ; id. at 2086

(“The Government ... argues ... that the G uidelines are too

much like guideposts and not enough like fences to give rise

to an ex post facto violation.”). T he Court emphatically rejec ted that argument

, explain ing that “[t]he post

- Booker f ederal

sentencing scheme aims to achieve uniformity by ensuring

that sentencing decisions are anchored by the Guidelines

and that they remain a meaningful benchmark through the

process of appellate review.” Id. at 2083. Th is “ anchoring”

effect , the Court s aid, is enough to implicate the concerns

underlying the Ex Post Facto Clause; the sentencing court ’s

discretion to sen tence outside the Guidelines range “[does]

not defeat an ex post facto claim.” Id . at 2081.

T he Court explicitly listed the procedural rul es and a ppellate

- review standards that give the post

- Booker G uidelines

a degree of “binding legal effect ” sufficient to raise ex post

facto concerns

. Id . at 2086. D istrict j udges must begin the ir14 No s

. 14

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- 1686

sentencing analysis with the G uide lines and correctly calc ulate the applicable sentencing range

. Id. at 2083 (citing Gall v.

United States

, 552 U.S. 38, 50 (2007)). F ailure to correctly

calculate the Guidelines range is procedural error. Id. (citing

Gall , 552 U.S. at 51). V ariance s above or below the range

must be specifically justified

, and more justification is nee ded as the variance increases

. Id

. In short, even though “ a

district court may ultimately sentence a given defend ant

outside the ... range ,” the G uidelines retain “ force ” as the

“ framework for sentencing. ” Id. “ Inde ed , the rule that an

incorrect G uidelines calculation is procedural error ensures

that they remain the starting point for every sentencing

calculation

... . ” Id.

And p e rhaps most importantly

, reviewing court s may

presum e that a within

- G uidelines s entence is reasonable. Id

. Our circuit has adopted such a presumption

. See United

States v. Mykytiuk , 415 F.3d 606, 608 (7th Cir. 2005) (“[A]ny

sentence that is properly calculated under the Guidelines is

entitled to a rebuttable presumption of reasonableness [on

appeal].”)

.

With all t h ese formal procedural requireme nts, the post

Booker G uidelines

, though ultimately advisory

, are not

“ mere ly a vo lume that the district court reads with academic

interest in the course of sentencing.” Peugh , 133 S. Ct. at

2087. To the contrary, the G uidelines have real

- world cons equences despite their d emotion to advisory status

. Peugh

p ointed to “ c onsiderable empirical evidence” establishing

that the G uidelines continue to have “ the intended effect of

influencing the sentences imposed by judges.” Id . at 2084.

Data from the Sentencing Commission “ indicate that w hen a

G uidelines range moves up or down , offenders’ sentencesNo s

. 14

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move with it.” Id

. A s the Court put it very recently, “ [t]hese

sources confirm that t he Guidelines are not only the starting

point for most federal sentencing proceedings but also the

lode star. ” Molina

- Martinez v. United States , 136 S. Ct. 1338,

1346 (2016).

Th is combination of formal legal requirements and real

world effects led the Court to conclude that the G uidelines

, though advisory, are not immune from Ex Post Facto Clause

scrutiny

. Peugh

, 133 S. Ct . at 2084. T he Court went on to hold

that “[a] retrospective increase in the Guidelines range

... creates a sufficient risk of a higher sentence to constitute an

ex post facto violation

. ” Id

.

It should be clear from this discussion that Tichenor ’s se cond prem ise

— that the G uidelines’ ad visory status insulates

them from vagueness challenge s

— did not survive Peugh

. The Court held, after all, that the G uidelines are sufficiently

law

- like to trigger Ex Post Facto protection . I f the G uidelines

are constraining enough to require compliance with the Ex

Post Facto Clause

, it follows that they are constraining

enough to require compliance with the Due Process Clause’s

p rohibition against vague laws

. We see no principled way to

distinguish Peugh on doctrinal grounds : T he two constit utional pro tections share the same underlying concern s about

fair notice and arbitrary government al action

.

To the extent that Tichenor relied on Irizarry

, Peugh expli citly considered and rejected the analogy

. Irizarry held that

district judges are not required to gi ve notice before impo sing a n above

- G uidelines sentence based on the sentencing

factors in 18 U.S.C. § 3553(a). 553 U.S. at 713. Peugh disti nguished Irizarry this way :16 No s

. 14

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- 1686

It is true that we held, in Irizarry v. United

States , 553 U.S. 708, 713

– 714

... , that a defen dant does not have an “expectation subject to

due process protection” that he will be se ntenced w ithin the Guidelines range. But ... the

Ex Post Facto Clause does not merely protect r eliance interests. It also reflects principles of

“fundamental justice .” Carmell , 529 U.S. at 531,

120 S. Ct. 1620.

Peugh

, 133 S. Ct. at 2085. The Court’s reference to “reliance

interests” is shorthand for the fair

- notice principle , and its

reference to “ f undamental justice” captures the Ex Post Facto

Clause’s concern about arbitrary government al action

. Vagueness doctrine reflects the same concerns

. In deed, in

Johnson the Court concluded that the ACCA’s residual clause

both denies fair notice and invites arbitrary enforcement

. B ut

the fair

- notice principle was mostly in the background; the

Court’s chief concern was that the radical indeterminacy of

the residual clause made judicial enforcement ess entially ad

hoc and arbitrary.

Irizarry is also distinguishable for another reason

. It a ddressed a question about procedural notice : Must the senten cing court give the defendant notice and an opportunity to

respond before imposing an above

- G uidelines sentence

under § 3553(a) ? 553 U.S. at 712

– 13. Vagueness doctrine and

t he Ex Post Facto Clause enforce a different notice principl e:

t he substantive requirement that the law must give clear

notice of the conduct that it prohibit s and the consequenc es

that attach to a violation

. See United States v. Pawlak , 822 F.3d

902, 909 (6th Cir . 2016) ( explaining the difference betweenNo s

. 14

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“adversar ial notice” and “ex ante notice”). For this additio nal reason, Irizarry doesn’t inform the analysis here.

Finally, our dissenting colleagues warn that if vagueness

doctrine extends to the advisory Guidelines, then other

broad and open

- ended provisions are vulnerable

— for

example, the “sophisticated means” enhancement,

§ 2B1.1(b)(10); the “vulnerable victim” enhancement,

§ 3A1.1(b); the “abuse of trust” enhancement, § 3B1.3; and

even the foundational concept of “relevant conduct,”

§ 1B1.3 , whi ch applies to all crimes

. See Dissent at p p

. 2 7

– 2 8

. Johnson itself specially addressed this kind of objection and

rejected it. The Court explained at length that the vagueness

defect in the ACCA’s residual clause i s not just its use of

indeterminate langua ge; it’s that the clause uses indeterm inate language and must be applied categorically , without

regard to real

- world facts. Johnson , 135 S. Ct. at 2557

– 58. The

Court could not have been clearer on this point: I t’s the

combination of indeterminate language and categorical

application that makes the clause fatally vague. The same is

true of the residual clause in the Guidelines

. But the catego rical feature is unique to the residual clause; other Guidelines

provisions are applied to actual facts on the ground. That

distinction makes a difference under Johnson

.

Simply put, a fter Peugh we can no longer say , as we did

in Tichenor

, that because the G uidelines are “advice” rather

than “rules,” they are i mmune from challenge on vagueness

grounds

. Because Tichen or has lost its analytical foundation

,

we now overrule it

. Applying Johnson , we hold that the

residual clause in § 4B1.2(a)(1) is unconstitutionally vague.

With this holding, we join a growing consensus among

the circuits. See id. at 907 (applying Johnson to the residual18 No s

. 14

- 3611 & 15

- 1686

clause in § 4B1.2(a)(2) and finding it unconstitutionally

vague); United States v. Madrid , 805 F.3d 1204, 1211 (10th Cir.

2015) (same); United States v. Taylor , 803 F.3d 931, 933 (8th

Cir. 2015) (holding that Johnson applies to the career

- offender

guideline but remanding for determination of the vagueness

question). Several other circuits have accepted the gover nment’s concession without further discussion or assumed

without deciding that Johnson applies to the career

- offender

guidel ine. See United States v. Soto

- Rivera , 811 F.3d 53 , 59 (1st

Cir. 2016) (accepting the government’s concession that the

§ 4B1.2(a)(2) residual clause is unconstitutionally vague

without deciding the issue); United States v. Maldonado , 636 F.

App’x 807, 810 & n.1 (2d. Cir. 2016) (assuming without

deciding that “the due process concerns that led Johnson to

invalidate the ACCA’ s residual clause as void for vagueness

are equally applicable to the Sentencing Guidelines”); United

States v. Townsend , 638 F. App’x 1 72 , 178 & n.14 (3d. Cir.

2015) (invalidating the Guidelines’ residual clause after

Johnson without extended discussion of whether the vagu eness doctrine applies). O ne circuit has declin ed to apply

Johnson to the Guidelines. See United States v. Matchett

,

8 02 F.3d 1185, 1194

– 95 (11th Cir. 2015)

. 4

C. Remedy

For both Hurlburt and Gillespie, the Johnson error pr oduced a G uide lines range that was too high. That’s ordinar ily enough to satisfy the prejudice requirement of plain

- error

4 As we’ve noted, the Supreme Court has granted certiorari in a case

from the Eleventh Circuit. Beckles v. United States , 616 F. App’x 415 (11th

Cir. 2015), cert. granted , 2016 WL 10290 80 (U.S. June 27, 2016)

(No. 15

- 8544). The Beckles panel followed Matchett , the Eleventh Circuit’s

precedent on this question

.No s

. 14

- 3611 & 15

- 1686 19

review . T o establish that the error affected their substantial

rights, t he defendant s must show “a reasonable probability

that, but for the error, the outcome of the proce eding would

have been different. ” Molina

- Martinez , 136 S. Ct. at 1343,

(internal quotation mar ks omitted). “When a defendant is

sentenced under an incorrect G uidelines range[,] ... the error

itself can, and most often will , be sufficient to show a reason able probability of a different outcome absent the error.” Id . at

1345 (emphasis added). This is b ecause the G uidelines

“inform and instruct the district court’s determination of an

appropriate sentence. In the usual case, then, the syste mic

function of the selected G uidelines range will affect the

sentence.” Id . at 1346.

Hurlburt’s 72

- mont h sentence f ell below the origina l

G uidelines range but is above the correctly calculated range

once the Johnson error is removed . The same is true of

Gillespie’s 84

- month s entence . The defendants request full

remand for resentencing.

T he government argues for a limited remand a kin to the

procedure we adopted in United States v. Paladino , 401 F.3d

471 (7th Cir. 2005) , for Booker errors

. Paladino fashioned a

“limited remand to permit the sentencing judge to determine

whether he would (if required to resentenc e) reimpose his

original sentence.” Id. at 484. But we’ve generally rejected

the Paladino

- style limited

- remand procedure when the

sentencing error involves a miscalculation of the defend ant’s

G uidelines range

. See United States v. Williams , 742 F.3d 304

(7 th Cir. 2014). “When a district court incorrectly calculates

the [G] uideline [s] range, we normally presume the impro perly calculated [G] uideline [s] range influenced the judge’s

choice of sentence, unless he says otherwise.” United States v.20 No s

. 14

- 3611 & 15

- 1686

Adams , 7 46 F.3d 734, 743 (7th Cir. 2014). Neither judge said

otherwise here

.

Accordingly, w e V ACATE the defendants’ sentences and

R EMAND for resentencing.Nos. 14

‐ 3611 & 15

‐ 1686 21

H AMILTON

, Circuit Judge

, joined by P OSNER

, F LAUM

, and

E ASTERBROOK

, Circuit Judges

, dissenting.

By now the Supreme Court’s decision in Johnson v. United

States

, 135 S. Ct. 2551 (2015), is familiar to all in the federal

criminal justice system. Johnson held that the “residual clause”

in the Armed Career Criminal Act definition of a violent fel

‐

ony, see 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague.

The en banc majority now holds that the reasoning of Johnson

extends to a similar residual clause in an advisory Sentencing

Guideline on career offenders, holding the guideline provi

‐

sion unconstitutionally vague. The majority also overrules

United States v. Tichenor

, 683 F.3d 358 (7th Cir. 2012), which

held, correctly in my view, that the advisory Guidelines are

not susceptible to vagueness challenges.

The majority’s holding is both premature and erroneous.

There is no need for us to decide this now. There is already a

circuit split, and the Supreme Court is likely to rule on this

question in the coming term. See United States v. Beckles

, 616

Fed. Appx. 415 (11th Cir. 2016), cert. granted, 136 S. Ct. 2510

(2016), which should be argued in the autumn of 2016. We

should not hurry to send many cases back to district courts

for re

‐ sentencings that may well prove unnecessary. I respect

‐ fully dissent.

The best course at this point would be for this court simply

to wait for the Supreme Court to decide the issue in Beckles

. If

we must reach the merits now, we should stick with Tichenor

and agree with the Eleventh Circuit, which decided in United

States v. Matchett

, 802 F.3d 1185, 1193–96 (11th Cir. 2015), that

the so

‐ called “residual clause” in the advisory Guideline def

‐

inition of a crime of violence, see U.S.S.G. § 4B1.2(a)(2), is not

unconstitutionally vague because it is only advisory. Judge22 Nos. 14

‐ 3611 & 15

‐ 1686

Pryor’s opinion in Matchett is careful and persuasive. Doctri

‐

nal and practical considerations support that view. After all,

how can non

‐ binding advice be unconstitutionally vague?

To begin with the doctrine, the residual clauses in the

Armed Career Criminal Act and the advisory Sentencing

Guidelines have identical language, but their legal effects dif

‐

fer in a fundamental way. That difference should lead to dif

‐

ferent answers on the issue of constitutional vagueness. The

vague definition in the statute led directly to higher, often

much higher, mandatory minimum and maximum sentences.

The most common effect of the Armed Career Criminal Act

provision was to require a fifteen

‐ year mandatory minimum

sentence for a felon in possession of a firearm when the statu

‐

tory maximum was otherwise just ten years. See Johnson

, 135

S. Ct. at 2560 (“Invoking so shapeless a provision to condemn

someone to prison for 15 years to life does not comport with

the Constitution’s guarantee of due process.”).

In contrast, the definition in the advisory Sentencing

Guidelines leads to no direct consequences of any kind. It

simply gives the sentencing judge advice about an appropri

‐

ate sentence. Unlike in statutory cases, the parties are free to

argue that the Guidelines’ advice about the defendant’s crim

‐

inal history is either too harsh or too lenient. The judge may

accept the Guidelines’ advice or reject it. In fact, the law re

‐ quires the judge to treat the advice as only advice. A judge

who presumes the Guidelines’ advice produces a reasonable

sentence commits reversible error. Gall v. United States

, 552

U.S. 38, 50 (2007); Rita v. United States

, 551 U.S. 338, 351 (2007).

The doctrinal foundation of the majority opinion is incon

‐

sistent with the overall sweep of Supreme Court decisions fol

‐ lowing United States v. Booker

, 543 U.S. 220 (2005), which heldNos. 14

‐ 3611 & 15

‐ 1686 23

the Guidelines advisory as the remedy for the Sixth Amend

‐

ment problems with mandatory sentencing rules that require

judicial fact

‐ finding. Since Booker

, the Supreme Court has

been trying to maintain a delicate balance, recognizing that

the difference between “binding law” and “advice” depends

on the different standards of appellate review. See Gall

, 552

U.S. at 50–51.

Since Booker

, the Court has treated the Guidelines essen

‐ tially as advice for almost all purposes, but as closer to bind

‐ ing law for just one. For purposes of the Sixth Amendment

rights to jury trial, to proof beyond a reasonable doubt, and to

grand jury indictment, the Guidelines are now advice. Booker

,

543 U.S. at 245. For purposes of due process notice, they are

advice. Irizarry v. United States

, 553 U.S. 708, 714 (2008). For

purposes of sentencing policy, they are also advice. Kimbrough

v. United States

, 552 U.S. 85, 110–11 (2007) (sentencing court

could reject guideline advice on ratio of crack and powder co

‐

caine sentences).

In one sense, though, the Court has treated the Guidelines

as more law

‐ like. For purposes of the Ex Post Facto Clause,

the Guidelines are closer to the binding law end of the spec

‐

trum. Peugh v. United States

, 569 U.S.

—, 133 S. Ct. 2072 (2013).

The analysis in Peugh was based on the persuasive effect the

Guidelines have, including “anchoring” effects on sentencing

judges. It is not easy to reconcile Peugh with the cases treating

the Guidelines as advisory, particularly since constitutional

doctrine allows completely unguided sentencing discretion, at

least apart from capital cases. Perhaps Peugh is the first sign

of a sea

‐ change in this area of the law, but given the extensive24 Nos. 14

‐ 3611 & 15

‐ 1686

case law treating the Guidelines as truly advisory, that re

‐

mains to be seen. 1

If the Supreme Court extends the rationale of Peugh

, as the

majority does here, and embraces wholeheartedly the concept

that the Guidelines are like laws, that result would be difficult

to reconcile with the Booker remedy, which spared the Guide

‐

lines from Sixth Amendment challenges by making them ad

‐ visory. The delicate doctrinal balance the Court has tried to

maintain since Booker would be threatened by extending

vagueness jurisprudence to the advisory Guidelines.

In Welch v. United States

, 578 U.S.

—, 136 S. Ct. 1257 (2016),

the Supreme Court held that Johnson is retroactive, applicable

on collateral review of federal sentences under 28 U.S.C.

§ 2255. If Johnson is extended to the advisory Guidelines, the

argument will be powerful for applying that new holding ret

‐

1 In extending Johnson to the Guidelines, the Sixth Circuit has tried to split

hairs even more finely, saying that for one due process notice purpose—

“adversarial notice”—the Guidelines are advisory, as in Irizarry

, while for

a supposedly different due process notice purpose—“ex ante notice”—

they are closer to binding laws. United States v. Pawlak

, 822 F.3d 902, 909–

10 (6th Cir. 2016). This distinction cannot withstand scrutiny. The hypoth

‐

esis of “ex ante notice” is that a person deciding whether to commit a

crime is entitled to know what punishment the law prescribes. The answer

is the statutory sentencing range, regardless of the Guidelines. The hypo

‐ thetically rational candidate for prosecution should know already there is

no guarantee of a guideline sentence. Under Booker

, Gall

, Kimbrough

, and

§ 3553(a), the sentencing court will be free to impose a non

‐ guideline sen

‐

tence for many reasons. That is exactly the same knowledge imputed to a

defendant and defense counsel on the eve of sentencing. Given that

knowledge, the Court held in Irizarry

, due process does not require further

advance notice to the defense about reasons why the sentencing judge

may be considering not imposing a guideline sentence.Nos. 14

‐ 3611 & 15

‐ 1686 25

roactively. If that is the just result, so be it. But we should rec

‐ ognize the likely consequences. Federal courts would need to

revisit thousands of previous guideline sentences that relied

on the residual clause in the career criminal guidelines.

And what would be the point? The difference between

statutory mandates and advisory Guidelines means that the

practical consequences of the vagueness holdings differ dra

‐ matically. In the Armed Career Criminal Act cases affected by

Johnson

, many cases must result in lower sentences, and in vir

‐ tually all cases, lighter sentences are reasonably likely on re

‐ sentencing. But if guideline sentences are remanded on the

theory that Johnson should apply to the advisory Guidelines,

in every case that is remanded the district court will be free to

impose exactly the same sentence again. In fact, the district

courts probably should do so.

To understand why, consider the intellectual gymnastics

required by the “categorical” approach to recidivist enhance

‐

ments. Applying that approach, courts must focus on ele

‐

ments of a prior offense of conviction and must ignore what

the defendant actually did. The results are often arbitrary.

See, e.g., Mathis v. United States

, 579 U.S.

—, 136 S. Ct. 2243

(2016) (breadth of state burglary statute, which included bur

‐ glarizing vehicles, meant that defendant’s prior convictions

for actually burglarizing occupied houses did not count as

convictions of “violent felonies”). Yet both before and after

Booker

, the Guidelines have allowed sentencing judges to ex

‐

amine what the defendant actually did

. See 18 U.S.C.

§ 3553(a)(1) (requiring consideration of “history and charac

‐

teristics of the defendant”); § 3661 (“No limitation shall be

placed on the information concerning the background, char

‐

acter, and conduct of a person convicted of an offense which26 Nos. 14

‐ 3611 & 15

‐ 1686

a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.”); U.S.S.G.

§ 4A1.3 cmt. (encouraging departures where guideline crimi

‐

nal history is over ‐ or under

‐ representative); cf. United States

v. Sonnenberg

, 628 F.3d 361, 367–68 (7th Cir. 2010) (applying

categorical approach to vacate career criminal enhancement

but encouraging district judge on remand to consider defend

‐

ant’s actual conduct in case of child sex abuse).

As a result, we should expect little gain in terms of fairness

for defendants by telling sentencing judges (a) they cannot

use the residual clause in the career offender Guideline, but

(b) they remain free to consider available information about

the defendant’s actual conduct in the earlier crime and to sen

‐

tence accordingly. In fact, they should be doing so already.

The judge’s job is first to calculate the guideline range but

then to exercise judgment and discretion under § 3553(a) in

light of all the available information.

If Johnson is extended to the Guidelines, and if a judge

were to reduce the sentence because of such a reversal, that

decision might be evidence that the judge did not do his/her

job at the initial sentencing

. No facts would be different, only

the advice that the judge was supposed to evaluate critically

the first time around. Absent new material facts, a different

sentence on remand would tend to show that the judge fol

‐

lowed the Guidelines too mechanically, perhaps presuming

they were reasonable without assessing the defendant’s indi

‐

vidual history and characteristics and the particular circum

‐

stances of the case. 2

2 Federal prisoners who were sentenced as career offenders based on the

residual clause before Booker

, while the Guidelines were still consideredNos. 14

‐ 3611 & 15

‐ 1686 27

In considering the consequences here, the scope of the ma

‐ jority’s vagueness holding under the Guidelines will also be

difficult to limit. As the Eleventh Circuit noted in Matchett

, if

we extend due process vagueness doctrine to the advisory

Guidelines, many guideline sentences will be subject to chal

‐ lenge. 802 F.3d at 1196. I do not see a principled way to avoid

extending such a holding beyond the residual clause in the

crime of violence definition to other provisions in the Guide

‐

lines that are at least as vague if not more so.

Consider, for example, the enhancements for “sophisti

‐

cated means” in fraud crimes, § 2B1.1(b)(10); the “vulnerable

victim” in § 3A1.1(b) (defined as someone who is “unusually

vulnerable due to age, physical or mental condition, or who

is otherwise particularly susceptible to the criminal conduct”—

which sounds a lot like a residual clause); aggravating roles

in § 3B1.1 (based on “otherwise extensive” criminal activity);

or “abuse of trust” under § 3B1.3. Many departure provisions

in Part 5K of the Guidelines are quite vague, as is the provi

‐

sion in § 4A1.3 for over ‐ or under

‐ representative criminal his

‐

tory. Even the fundamental concept of “relevant conduct” in

§ 1B1.3 could easily be challenged as vague if we are worried

about whether defendants have fair notice of the conse

‐

quences of their crimes. Yet this pervasive vagueness in

Guideline provisions is not a bug in the system. It is a feature.

It is intended to provide sentencing judges with needed flex

‐ ibility.

binding, might have a much stronger argument for extending Johnson to

their sentences. These cases do not present that issue, and I express no

views on it.28 Nos. 14

‐ 3611 & 15

‐ 1686

Perhaps one might draw a line between the residual clause

and every other provision of the advisory Guidelines, by

simply declaring that the result is limited to categorical deter

‐

minations rather than application of vague standards to spe

‐

cific facts. But it is difficult to see a principled basis for such a

limited rule, particularly since § 3553(a) already calls upon

judges to take into account the real

‐ world facts of prior con

‐

victions. The majority has opened the door to vagueness chal

‐ lenges to any advisory Guidelines. As a matter of broader

constitutional doctrine, including the difference between

binding and advisory Guidelines that is essential to the

Court’s Sixth Amendment jurisprudence, it would be more

sound to maintain instead the distinction between vague sen

‐ tencing advice (permitted) and a vague sentencing statute

with mandatory consequences (not permitted).

After all, judges can find vague sentencing advice from

many sources. Section 3553(a)(2) tells judges in a vague and

contradictory way to follow several conflicting theories of

punishment at once, so that a sentence should reflect the seri

‐

ousness of the offense, promote respect for the law, provide

just punishment, afford adequate deterrence to crimes, pro

‐

tect the public from further crimes of the defendant, and reha

‐

bilitate the defendant. Judges can find further vague or inde

‐

terminate advice about sentencing in law review articles, phil

‐ osophical reflections on crime and punishment, advice from

probation officers and law clerks, and even from appellate

opinions. The fact that some of the advice may be vague

should not render the sentence unconstitutional.

I recognize that the Guidelines have a special, elevated sta

‐

tus among those other available sources of advice, but they doNos. 14

‐ 3611 & 15

‐ 1686 29

remain advisory. And as we and later the Supreme Court con

‐

sider the vagueness issue here, it is worth remembering that

one simple remedy to a regime of somewhat vague advisory

Guidelines would be to eliminate some or all of the advice and

to leave sentencing judges to their own devices. The permis

‐ sibility of such discretion has been consistent in all of the Su

‐

preme Court’s recent sentencing decisions under the Sixth

Amendment, from Apprendi v. New Jersey

, 530 U.S. 466, 481

(2000); id

. at 544–45 (O’Connor, J., dissenting), through Booker

,

543 U.S. at 233, and Alleyne v. United States

, 570 U.S.

—, —, 133

S. Ct. 2151, 2163 (2013).

Such unguided discretion would be the vaguest regime of

all. Defendants would face even greater uncertainty about po

‐

tential sentences and even greater risk of arbitrary variation

in sentences. Yet that is all perfectly constitutional. Why not

allow some vagueness in the Guidelines, whose advisory sta

‐

tus is essential to avoid Sixth Amendment violations?

Another permissible remedy would be to impose manda

‐

tory sentences by statute, denying judges any flexibility. But

stripping sentencing judges of discretion leads to other unfor

‐

tunate results, including delegating sentencing decisions to

prosecutors’ charging decisions. Better to leave the Guide

‐

lines as true guidelines, despite their vagueness and flexibil

‐ ity.