In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-3611

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TONY A. HURLBURT,

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSHUA GILLESPIE,

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 Nos. 14-3611 & 15-1686

____________________

ARGUED DECEMBER 2, 2015 — DECIDED AUGUST 29, 2016

____________________

Before WOOD, Chief Judge, and POSNER, FLAUM,

EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and

HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Tony Hurlburt and Joshua Gillespie 

pleaded guilty in separate cases to unlawfully possessing a 

firearm as a felon. See 18 U.S.C. § 922(g)(1). Their appeals 

raise the same legal issue, so we’ve consolidated them for 

decision. To calculate the Sentencing Guidelines range in 

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

which assigns progressively higher offense levels if the 

defendant has one or more prior convictions 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, involves use of explosives, or otherwise involves conduct that 

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

§ 4B1.2(a)(2) (2014) (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 penalties for 

§ 922(g) violations. 18 U.S.C. § 924(e)(2)(B). One year ago the 

Supreme Court invalidated the ACCA’s residual clause as 

unconstitutionally vague. Johnson v. United States, 135 S. Ct. 

2551, 2563 (2015). The question here is whether Johnson’s 

holding applies to the parallel residual clause in the career-
Nos. 14-3611 & 15-1686 3

offender guideline. An emerging consensus of the circuits 

holds that it does. See infra pp. 16–17.

In this circuit, however, vagueness challenges to the Sentencing Guidelines are categorically foreclosed. Circuit

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

364–65 (7th Cir. 2012)—holds that the Guidelines 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, we 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 unconstitutionally vague.

I. Background

Tony Hurlburt was charged in a two-count indictment 

with possessing a firearm as a felon, see § 922(g)(1), and 

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

5845(a)(2), and 5861(d). He pleaded guilty to the felon-inpossession count; the second count was dismissed.

Under the Sentencing Guidelines, the 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). But if the defendant 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 two or more prior convictions of either type, the base offense level jumps to 26.

§ 2K2.1(a)(1).
4 Nos. 14-3611 & 15-1686

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

violence” definition in the career-offender guideline, which

reads:

(a) The term “crime of violence” means any offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, 

that—

(1) has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another, or

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

potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added). The highlighted text is 

known as the “residual clause.”

Hurlburt has a prior conviction for armed burglary, and 

at sentencing he conceded that this conviction qualifies as a 

predicate crime of violence. The government argued that 

another of Hurlburt’s prior convictions—for discharging a 

firearm into a building or vehicle, see WIS. STAT. § 941.20—

should also count as a crime of violence. More particularly, 

the government argued that this second conviction qualified 

under § 4B1.2(a)(2)’s residual clause. Over Hurlburt’s objection the district judge accepted this 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-range sentence of 72 months. Without the second 
Nos. 14-3611 & 15-1686 5

career-offender predicate, the Guidelines range drops to 57–

71 months. 

In an unrelated case in the same district, Joshua Gillespie 

was indicted for unlawfully possessing a firearm as a felon, 

and he too pleaded guilty. Gillespie has a prior conviction 

for fleeing an officer. See id. § 346.04(3). The district judge 

counted this conviction as a predicate crime of violence 

under the residual clause, which increased Gillespie’s base 

offense level to 20. § 2K2.1(a)(4). The resulting Guidelines

range was 92–115 months, and the judge imposed a belowrange sentence of 84 months. Without the career-offender 

predicate in the mix, the Guidelines range drops to 51–

63 months.

Hurlburt and Gillespie appealed 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 

unconstitutionally vague. We held the cases for Johnson and 

reinstated briefing after the Supreme Court issued its opinion. 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 the full court in accordance with 

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

of the court approved. This, 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 consolidated it here. 
6 Nos. 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

In Johnson the Supreme Court held that the ACCA’s residual clause is too vague to satisfy minimum requirements 

of due process. 135 S. Ct. at 2563. Hurlburt and Gillespie 

argue that Johnson’s holding applies to the identically 

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

their cases to increase the base offense level and thus the 

recommended sentencing range under the Guidelines. The 

Johnson argument is new on appeal, so our review is for 

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

(2013); FED. R. CRIM. P. 52(b). Under Rule 52(b) we may 

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

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

affects the fairness, integrity, or public reputation of [the]

judicial proceedings.” Henderson, 133 S. Ct. at 1126–27 (quotation 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 1130. The 

defendants maintain that the Johnson error is plain: The two 

residual clauses are identical, and because the ACCA’s 

residual clause is unconstitutionally vague, it necessarily 

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

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

on the original panel, sitting by designation. We appreciate his willingness to assist the court.
Nos. 14-3611 & 15-1686 7

The logic is compelling, but our decision in Tichenor

stands in the way. Tichenor held that the Guidelines cannot 

be challenged on vagueness grounds. 683 F.3d at 364–65. The 

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

Peugh. The government agrees, so 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 the 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, the 

Sentencing Commission has amended the Guidelines 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 to 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. The 

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

not to hold these cases for Beckles.
8 Nos. 14-3611 & 15-1686

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

The Due Process Clause3 prohibits 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.” Johnson, 135 S. Ct. at 2556.

Johnson addressed persistent vagueness concerns about the 

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

The Act increases the minimum and maximum penalties 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 conduct that presents a serious potential risk of 

physical injury to another ... .

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

residual clause; the residual clause in the career-offender 

guideline 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. CONST.

amend. V.
Nos. 14-3611 & 15-1686 9

The Court began its analysis in Johnson by reaffirming the 

principle that the Constitution’s prohibition 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, the Court first explained

that the residual clause mandates a two-step categorical 

approach for classifying crimes as violent felonies. In the 

first step, the sentencing court must evaluate the predicate 

crime of conviction, hypothesizing “the kind of conduct that 

the crime involves in ‘the ordinary case,’” rather than looking to the actual facts of the underlying case; in the second 

step, the court must assess whether this hypothesized “ordinary” case of the crime “presents a serious potential risk of 

physical injury.” Id.

These two features of the residual clause, the Court said,

“conspire to make it unconstitutionally vague.” Id. First, the 

clause “leaves grave uncertainty about how to estimate the 

risk posed by a crime” because “[i]t ties the judicial assessment 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 statistical 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 denial of rehearing en banc))). Second, 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 much 
10 Nos. 14-3611 & 15-1686

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

residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. The Court 

noted as well that the residual clause had persistently resisted judicial efforts—by the Justices themselves and the lower 

courts—to settle on a stable construction. Id. at 2558–63. This 

interpretive struggle, the Court said, was a “failed enterprise,” id. at 2560, and “the experience of the federal courts 

leaves no doubt about the unavoidable uncertainty and 

arbitrariness of adjudication under the residual clause,” id. at 

2562.

The clause’s “hopeless indeterminacy,” the Court concluded, “both denies fair notice to defendants and invites 

arbitrary enforcement by judges.” Id. at 2557–58. The 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 categorical approach that Johnson found impermissibly indeterminate. See, e.g., United States v. Griffin, 652 F.3d 793, 802 (7th 

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

Cir. 2008). So unless the Guidelines are immune from challenge on vagueness grounds, it follows inexorably from

Johnson that the residual clause in § 4B1.2(a)(2) is also unconstitutionally 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)).
Nos. 14-3611 & 15-1686 11

B. Tichenor

Tichenor held that the Guidelines are immune from 

vagueness challenges, but that conclusion is on shaky 

ground after Johnson and Peugh. Our decision in Tichenor 

rested on two premises. First, we reasoned that vagueness 

doctrine doesn’t apply to the Guidelines because they do not 

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

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

(quoting United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 

1990)). The second premise overlaps the first: We reasoned

that vagueness doctrine doesn’t apply because United States 

v. Booker, 543 U.S. 220 (2005), demoted the Guidelines from 

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

omitted). Because the Guidelines 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. Citing 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 Tichenor but dismissed it as 

irrelevant, construing its reference to “vague sentencing 

provisions” as “mere dictum.” 683 F.3d at 365. We now 

know the Supreme Court sees things differently; the Constitution’s protection against vague laws is not limited to laws 

defining criminal liability. As far as vagueness doctrine is 

concerned, it makes no difference that the Guidelines deal 

exclusively with sentencing.
12 Nos. 14-3611 & 15-1686

Tichenor’s second rationale has been fatally undermined 

by the Court’s decision in Peugh. There the Court held that

the Guidelines, 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 calculated Peugh’s sentencing range under the version of the Guidelines in effect at the time of sentencing, 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, arguing that applying

the harsher version of the Guidelines promulgated after he 

committed the crime violated his rights under the Ex Post 

Facto Clause. Based on our circuit precedent, the district 

judge rejected the argument, and we affirmed. United States 

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

v. Demaree, 459 F.3d 791 (7th Cir. 2006)). The 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.)). 

The “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 covered crimes.” Id. at 2082 (internal quotation marks omitted).

As the Court explained in Peugh, the Ex Post Facto Clause 

“ensures that individuals have fair warning of applicable 

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 fundamental 
Nos. 14-3611 & 15-1686 13

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) (explaining that the 

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

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

meaning until explicitly changed”) (internal quotation 

omitted)).

Crucially here, the government argued in Peugh that because the post-Booker Guidelines 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 Guidelines are too 

much like guideposts and not enough like fences to give rise 

to an ex post facto violation.”). The Court emphatically rejected that argument, explaining that “[t]he post-Booker federal 

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. This “anchoring” 

effect, the Court said, is enough to implicate the concerns 

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

discretion to sentence outside the Guidelines range “[does] 

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

The Court explicitly listed the procedural rules and appellate-review standards that give the post-Booker Guidelines 

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

facto concerns. Id. at 2086. District judges must begin their
14 Nos. 14-3611 & 15-1686

sentencing analysis with the Guidelines and correctly calculate the applicable sentencing range. Id. at 2083 (citing Gall v. 

United States, 552 U.S. 38, 50 (2007)). Failure to correctly 

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

Gall, 552 U.S. at 51). Variances above or below the range 

must be specifically justified, and more justification is needed as the variance increases. Id. In short, even though “a

district court may ultimately sentence a given defendant 

outside the ... range,” the Guidelines retain “force” as the 

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

incorrect Guidelines calculation is procedural error ensures 

that they remain the starting point for every sentencing 

calculation ... .” Id.

And perhaps most importantly, reviewing courts may 

presume that a within-Guidelines sentence 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 these formal procedural requirements, the postBooker Guidelines, though ultimately advisory, are not

“merely a volume that the district court reads with academic 

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

2087. To the contrary, the Guidelines have real-world consequences despite their demotion to advisory status. Peugh 

pointed to “considerable empirical evidence” establishing

that the Guidelines continue to have “the intended effect of 

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

Data from the Sentencing Commission “indicate that when a 

Guidelines range moves up or down, offenders’ sentences 
Nos. 14-3611 & 15-1686 15

move with it.” Id. As the Court put it very recently, “[t]hese 

sources confirm that the Guidelines are not only the starting 

point for most federal sentencing proceedings but also the 

lodestar.” Molina-Martinez v. United States, 136 S. Ct. 1338,

1346 (2016).

This combination of formal legal requirements and realworld effects led the Court to conclude that the Guidelines, 

though advisory, are not immune from Ex Post Facto Clause 

scrutiny. Peugh, 133 S. Ct. at 2084. The 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 second premise—that the Guidelines’ advisory status insulates 

them from vagueness challenges—did not survive Peugh. 

The Court held, after all, that the Guidelines are sufficiently 

law-like to trigger Ex Post Facto protection. If the Guidelines

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 

prohibition against vague laws. We see no principled way to 

distinguish Peugh on doctrinal grounds: The two constitutional protections share the same underlying concerns about

fair notice and arbitrary governmental action.

To the extent that Tichenor relied on Irizarry, Peugh explicitly considered and rejected the analogy. Irizarry held that 

district judges are not required to give notice before imposing an above-Guidelines sentence based on the sentencing 

factors in 18 U.S.C. § 3553(a). 553 U.S. at 713. Peugh distinguished Irizarry this way:
16 Nos. 14-3611 & 15-1686

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

States, 553 U.S. 708, 713–714 ... , that a defendant does not have an “expectation subject to 

due process protection” that he will be sentenced within the Guidelines range. But ... the 

Ex Post Facto Clause does not merely protect reliance 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 “fundamental justice” captures the Ex Post Facto 

Clause’s concern about arbitrary governmental action. 

Vagueness doctrine reflects the same concerns. Indeed, in

Johnson the Court concluded that the ACCA’s residual clause 

both denies fair notice and invites arbitrary enforcement. But 

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 essentially ad 

hoc and arbitrary.

Irizarry is also distinguishable for another reason. It addressed a question about procedural notice: Must the sentencing court give the defendant notice and an opportunity to 

respond before imposing an above-Guidelines sentence

under § 3553(a)? 553 U.S. at 712–13. Vagueness doctrine and 

the Ex Post Facto Clause enforce a different notice principle:

the substantive requirement that the law must give clear 

notice of the conduct that it prohibits and the consequences 

that attach to a violation. See United States v. Pawlak, 822 F.3d 

902, 909 (6th Cir. 2016) (explaining the difference between 
Nos. 14-3611 & 15-1686 17

“adversarial notice” and “ex ante notice”). For this additional 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, which applies to all crimes. See Dissent at pp. 27–28. 

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 is not just its use of 

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

regard to real-world facts. Johnson, 135 S. Ct. at 2557–58. The 

Court could not have been clearer on this point: It’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 categorical 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, after Peugh we can no longer say, as we did 

in Tichenor, that because the Guidelines are “advice” rather 

than “rules,” they are immune from challenge on vagueness

grounds. Because Tichenor 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 residual 
18 Nos. 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 government’s concession without further discussion or assumed 

without deciding that Johnson applies to the career-offender 

guideline. 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 172, 178 & n.14 (3d. Cir. 

2015) (invalidating the Guidelines’ residual clause after 

Johnson without extended discussion of whether the vagueness doctrine applies). One circuit has declined to apply 

Johnson to the Guidelines. See United States v. Matchett, 

802 F.3d 1185, 1194–95 (11th Cir. 2015).4

C. Remedy

For both Hurlburt and Gillespie, the Johnson error produced a Guidelines range that was too high. That’s ordinarily 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 1029080 (U.S. June 27, 2016) 

(No. 15-8544). The Beckles panel followed Matchett, the Eleventh Circuit’s 

precedent on this question. 
Nos. 14-3611 & 15-1686 19

review. To establish that the error affected their substantial 

rights, the defendants must show “a reasonable probability 

that, but for the error, the outcome of the proceeding would 

have been different.” Molina-Martinez, 136 S. Ct. at 1343, 

(internal quotation marks omitted). “When a defendant is 

sentenced under an incorrect Guidelines range[,] ... the error 

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

1345 (emphasis added). This is because the Guidelines 

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

appropriate sentence. In the usual case, then, the systemic 

function of the selected Guidelines range will affect the 

sentence.” Id. at 1346.

Hurlburt’s 72-month sentence fell below the original 

Guidelines range but is above the correctly calculated range 

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

Gillespie’s 84-month sentence. The defendants request full 

remand for resentencing.

The government argues for a limited remand akin 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 resentence) 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 defendant’s 

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

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

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

choice of sentence, unless he says otherwise.” United States v. 
20 Nos. 14-3611 & 15-1686

Adams, 746 F.3d 734, 743 (7th Cir. 2014). Neither judge said 

otherwise here.

Accordingly, we VACATE the defendants’ sentences and 

REMAND for resentencing.
Nos. 14‐3611 & 15‐1686 21

HAMILTON, Circuit Judge, joined by POSNER, FLAUM, and

EASTERBROOK, 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. Judge
22 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 held
Nos. 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 extensive
24 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 notrequire 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 mustresult 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 which
26 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 considered
Nos. 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.

Irecognize that the Guidelines have a special, elevated sta‐

tus among those other available sources of advice, but they do
Nos. 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.