Beckles v. United States

(Slip Opinion) OCTOBER TERM, 2016 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BECKLES v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT

No. 15–8544. Argued November 28, 2016—Decided March 6, 2017
Petitioner Beckles was convicted of possession of a firearm by a convict-
ed felon, 18 U. S. C. §922(g)(1). His presentence investigation report
concluded that he was eligible for a sentencing enhancement as a
“career offender” under United States Sentencing Guideline
§4B1.1(a) because his offense qualified as a “crime of violence” under
§4B1.2(a)’s residual clause. The District Court sentenced petitioner
as a career offender, and the Eleventh Circuit affirmed. Petitioner
then filed a postconviction motion to vacate his sentence, arguing
that his offense was not a “crime of violence.” The District Court de-
nied the motion, and the Eleventh Circuit affirmed. Petitioner next
filed a petition for a writ of certiorari from this Court. While his peti-
tion was pending, this Court held that the identically worded residu-
al clause in the Armed Career Criminal Act of 1984 (ACCA),
§924(e)(2)(b), was unconstitutionally vague, Johnson v. United States,
576 U. S. ___. The Court vacated and remanded petitioner’s case in
light of Johnson. On remand, the Eleventh Circuit affirmed again,
distinguishing the ACCA’s unconstitutionally vague residual clause
from the residual clause in the Sentencing Guidelines.
Held: The Federal Sentencing Guidelines, including §4B1.2(a)’s residu-
al clause, are not subject to vagueness challenges under the Due Pro-
cess Clause. Pp. 4–13.
(a) The Due Process Clause prohibits the Government from “taking
away someone’s life, liberty, or property under a criminal law so
vague that it fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary enforcement.”
Johnson, supra, at ___–___. Under the void-for-vagueness doctrine,
laws that fix the permissible sentences for criminal offenses must
specify the range of available sentences with “sufficient clarity.”
2 BECKLES v. UNITED STATES

Syllabus

United States v. Batchelder, 442 U. S. 114, 123. In Johnson, this
Court held that the ACCA’s residual clause fixed—in an impermissi-
bly vague way—a higher range of sentences for certain defendants.
But the advisory Guidelines do not fix the permissible range of sen-
tences. They merely guide the exercise of a court’s discretion in
choosing an appropriate sentence within the statutory range. Pp. 4–
10.
(1) The limited scope of the void-for-vagueness doctrine in this
context is rooted in the history of federal sentencing. Congress has
long permitted district courts “wide discretion to decide whether the
offender should be incarcerated and for how long.” Mistretta v. Unit-
ed States, 488 U. S. 361, 363. Yet this Court has “never doubted the
authority of a judge to exercise broad discretion in imposing a sen-
tence within a statutory range,” United States v. Booker, 543 U. S.
220, 233, nor suggested that a defendant can successfully challenge
as vague a sentencing statute conferring discretion to select an ap-
propriate sentence from within a statutory range, even when that
discretion is unfettered, see Batchelder, supra, at 123, 126. Pp. 6–7.
(2) The Sentencing Reform Act of 1984 departed from this regime
by establishing several factors to guide district courts in exercising
their sentencing discretion. It also created the United States Sen-
tencing Commission and charged it with establishing the Federal
Sentencing Guidelines. Because the Guidelines have been rendered
“effectively advisory” by this Court, Booker, supra, at 245, they guide
district courts in exercising their discretion, but do not constrain that
discretion. Accordingly, they are not amenable to vagueness chal-
lenges: If a system of unfettered discretion is not unconstitutionally
vague, then it is difficult to see how the present system of guided dis-
cretion could be. Neither do they implicate the twin concerns under-
lying vagueness doctrine—providing notice and preventing arbitrary
enforcement. The applicable statutory range, which establishes the
permissible bounds of the court’s sentencing discretion, provides all
the notice that is required. Similarly, the Guidelines do not invite
arbitrary enforcement within the meaning of this Court’s case law,
because they do not permit the sentencing court to prohibit behavior
or to prescribe the sentencing ranges available. Rather, they advise
sentencing courts how to exercise their discretion within the bounds
established by Congress. Pp. 7–10.
(b) The holding in this case does not render the advisory Guidelines
immune from constitutional scrutiny, see, e.g., Peugh v. United
States, 569 U. S. ___, or render “sentencing procedure[s]” entirely
“immune from scrutiny under the due process clause,” Williams v.
New York, 337 U. S. 241, 252, n. 18. This Court holds only that the
Sentencing Guidelines are not subject to a challenge under the void-
 Cite as: 580 U. S. ____ (2017) 3

Syllabus

for-vagueness doctrine. Pp. 10–11.
(c) Nor does this holding cast doubt on the validity of the other fac-
tors that sentencing courts must consider in exercising their sentenc-
ing discretion. See §§3553(a)(1)–(3), (5)–(7). A contrary holding,
however, would cast serious doubt on those other factors because
many of them appear at least as unclear as §4B1.2(a)’s residual
clause. This Court rejects the Government’s argument that the indi-
vidualized sentencing required by those other factors is distinguisha-
ble from that required by the Guidelines. It is far from obvious that
§4B1.2(a)’s residual clause implicates the twin concerns of vagueness
more than the other factors do, and neither the Guidelines nor the
other factors implicate those concerns more than the absence of any
guidance at all, which the Government concedes is constitutional.
Pp. 11–13.
616 Fed. Appx. 415, affirmed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. KENNEDY, J., filed
a concurring opinion. GINSBURG, J., and SOTOMAYOR, J., filed opinions
concurring in the judgment. KAGAN, J., took no part in the considera-
tion or decision of the case.
 Cite as: 580 U. S. ____ (2017) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 15–8544
_________________

TRAVIS BECKLES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[March 6, 2017]

JUSTICE THOMAS delivered the opinion of the Court.
At the time of petitioner’s sentencing, the advisory
Sentencing Guidelines included a residual clause defining
a “crime of violence” as an offense that “involves conduct
that presents a serious potential risk of physical injury to
another.” United States Sentencing Commission, Guide-
lines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). This Court
held in Johnson v. United States, 576 U. S. ___ (2015),
that the identically worded residual clause in the Armed
Career Criminal Act of 1984 (ACCA), 18 U. S. C.
§924(e)(2)(B), was unconstitutionally vague. Petitioner
contends that the Guidelines’ residual clause is also void
for vagueness. Because we hold that the advisory Guide-
lines are not subject to vagueness challenges under the
Due Process Clause, we reject petitioner’s argument.
I
Petitioner Travis Beckles was convicted in 2007 of pos-
session of a firearm by a convicted felon, §922(g)(1). Ac-
cording to the presentence investigation report, the fire-
arm was a sawed-off shotgun, and petitioner was therefore
eligible for a sentencing enhancement as a “career of-
fender” under the Sentencing Guidelines. The 2006 version of
2 BECKLES v. UNITED STATES

Opinion of the Court

the Guidelines, which were in effect when petitioner was
sentenced,1 provided that “[a] defendant is a career of-
fender if
“(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of vio-
lence or a controlled substance offense.” USSG
§4B1.1(a).
The Guidelines defined “crime of violence” as
“any offense under federal or state law, punishable by
imprisonment for a term exceeding one year that—
“(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
“(2) is burglary of a dwelling, arson, or extortion, in-
volves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury
to another.” §4B1.2(a) (emphasis added).
The clause beginning with “or otherwise” in this definition
is known as the residual clause.
The commentary to the career-offender Guideline pro-
vided that possession of a sawed-off shotgun was a crime
of violence. See §4B1.2, comment., n. 1 (“Unlawfully
possessing a firearm described in 26 U. S. C. §5845(a) (e.g.,
a sawed-off shotgun . . . ) is a ‘crime of violence’ ”); §5845(a)
(“The term ‘firearm’ means (1) a shotgun having a barrel
or barrels of less than 18 inches in length”).
——————
1 Withone exception not relevant here, 18 U. S. C. §3553(a)(4)(A)
instructs sentencing courts to consider the Guidelines ranges that “are
in effect on the date the defendant is sentenced.” Accordingly, refer-
ences in this opinion to the Guidelines are to the 2006 version.
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Opinion of the Court

The District Court agreed that petitioner qualified as a
career offender under the Guidelines. Petitioner was over
18 years of age at the time of his offense, and his criminal
history included multiple prior felony convictions for
controlled substance offenses. Furthermore, in the Dis-
trict Court’s view, petitioner’s §922(g)(1) conviction quali-
fied as a “crime of violence.” Because he qualified as a
career offender, petitioner’s Guidelines range was 360
months to life imprisonment. The District Court sen-
tenced petitioner to 360 months. The Court of Appeals
affirmed petitioner’s conviction and sentence, and this
Court denied certiorari. United States v. Beckles, 565
F. 3d 832, 846 (CA11), cert denied, 558 U. S. 906 (2009).
In September 2010, petitioner filed a motion to vacate
his sentence under 28 U. S. C. §2255, arguing that his
conviction for unlawful possession of a firearm was not a
“crime of violence,” and therefore that he did not qualify as
a career offender under the Guidelines. The District Court
denied the motion, and the Court of Appeals affirmed.
Petitioner then filed a second petition for certiorari in
this Court. While his petition was pending, the Court
decided Johnson, holding that “imposing an increased
sentence under the residual clause of the [ACCA]”—which
contained the same language as the Guidelines’ residual
clause—“violate[d] the Constitution’s guarantee of due
process” because the clause was unconstitutionally vague.
576 U. S., at ___ (slip op., at 15). We subsequently granted
his petition, vacated the judgment of the Court of Ap-
peals, and remanded for further consideration in light of
Johnson. Beckles v. United States, 576 U. S. ___ (2015).
On remand, petitioner argued that his enhanced sen-
tence was based on §4B1.2(a)’s residual clause, which he
contended was unconstitutionally vague under Johnson.
The Court of Appeals again affirmed. It noted that peti-
tioner “was sentenced as a career offender based not on
the ACCA’s residual clause, but based on express lan-
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Opinion of the Court

guage in the Sentencing Guidelines classifying [his] of-
fense as a ‘crime of violence.’ ” 616 Fed. Appx. 415, 416
(2015) ( per curiam). “Johnson,” the Court of Appeals
reasoned, “says and decided nothing about career-offender
enhancements under the Sentencing Guidelines or about
the Guidelines commentary underlying [petitioner]’s sta-
tus as a career-offender.” Ibid. The Court of Appeals
denied rehearing en banc.
Petitioner filed another petition for certiorari in this
Court, again contending that §4B1.2(a)’s residual clause is
void for vagueness. To resolve a conflict among the Courts
of Appeals on the question whether Johnson’s vagueness
holding applies to the residual clause in §4B1.2(a) of the
Guidelines,2 we granted certiorari. 579 U. S. ___ (2016).
Because the United States, as respondent, agrees with
petitioner that the Guidelines are subject to vagueness
challenges, the Court appointed Adam K. Mortara as
amicus curiae to argue the contrary position. 579 U. S.
___ (2016). He has ably discharged his responsibilities.
II
This Court has held that the Due Process Clause prohib-
its the Government from “taking away someone’s life,
liberty, or property under a criminal law so vague that it
fails to give ordinary people fair notice of the conduct it
punishes, or so standardless that it invites arbitrary en-
forcement.” Johnson, 576 U. S., at ___–___ (slip op., at 3–
4) (citing Kolender v. Lawson, 461 U. S. 352, 357–358
——————
2 Compare United States v. Matchett, 802 F. 3d 1185, 1193–1196

(CA11 2015) (holding that the Guidelines are not subject to due process
vagueness challenges), with, e.g., United States v. Townsend, 638 Fed.
Appx. 172, 178, n. 14 (CA3 2015) (declining to follow Matchett); United
States v. Pawlak, 822 F. 3d 902, 905–911 (CA6 2016) (holding that the
Guidelines are subject to due process vagueness challenges); United
States v. Hurlburt, 835 F. 3d 715, 721–725 (CA7 2016) (en banc) (same);
United States v. Madrid, 805 F. 3d 1204, 1210–1211 (CA10 2015)
(same).
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Opinion of the Court

(1983)). Applying this standard, the Court has invalidated
two kinds of criminal laws as “void for vagueness”: laws
that define criminal offenses and laws that fix the permis-
sible sentences for criminal offenses.
For the former, the Court has explained that “the void-
for-vagueness doctrine requires that a penal statute define
the criminal offense with sufficient definiteness that ordi-
nary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Id., at 357. For the latter,
the Court has explained that “statutes fixing sentences,”
Johnson, supra, at ___ (slip op., at 4) (citing United States
v. Batchelder, 442 U. S. 114, 123 (1979)), must specify the
range of available sentences with “sufficient clarity,” id.,
at 123; see also United States v. Evans, 333 U. S. 483
(1948); cf. Giaccio v. Pennsylvania, 382 U. S. 399 (1966).
In Johnson, we applied the vagueness rule to a statute
fixing permissible sentences. The ACCA’s residual clause,
where applicable, required sentencing courts to increase a
defendant’s prison term from a statutory maximum of 10
years to a minimum of 15 years. That requirement thus
fixed—in an impermissibly vague way—a higher range of
sentences for certain defendants. See Alleyne v. United
States, 570 U. S. ___, ___ (2013) (describing the legally
prescribed range of available sentences as the penalty
fixed to a crime).
Unlike the ACCA, however, the advisory Guidelines do
not fix the permissible range of sentences. To the contrary,
they merely guide the exercise of a court’s discretion in
choosing an appropriate sentence within the statutory
range. Accordingly, the Guidelines are not subject to a
vagueness challenge under the Due Process Clause. The
residual clause in §4B1.2(a)(2) therefore is not void for
vagueness.
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Opinion of the Court

A
The limited scope of the void-for-vagueness doctrine in
this context is rooted in the history of federal sentencing.
Instead of enacting specific sentences for particular fed-
eral crimes, Congress historically permitted district courts
“wide discretion to decide whether the offender should be
incarcerated and for how long.” Mistretta v. United States,
488 U. S. 361, 363 (1989). For most crimes, Congress set
forth a range of sentences, and sentencing courts had
“almost unfettered discretion” to select the actual length of
a defendant’s sentence “within the customarily wide
range” Congress had enacted. Id., at 364; see also, e.g.,
Apprendi v. New Jersey, 530 U. S. 466, 481–482 (2000);
Williams v. New York, 337 U. S. 241, 247–248 (1949).
That discretion allowed district courts to craft individual-
ized sentences, taking into account the facts of the crime
and the history of the defendant. As a result, “[s]erious
disparities in sentences . . . were common.” Mistretta,
supra, at 365.
Yet in the long history of discretionary sentencing, this
Court has “never doubted the authority of a judge to exer-
cise broad discretion in imposing a sentence within a
statutory range.” United States v. Booker, 543 U. S. 220,
233 (2005); see also, e.g., Apprendi, supra, at 481
(“[N]othing in this history suggests that it is impermissi-
ble for judges to exercise discretion . . . in imposing a
judgment within the range prescribed by statute”); Giac-
cio, supra, at 405, n. 8 (“[W]e intend to cast no doubt
whatever on the constitutionality of the settled practice of
many States to leave to juries finding defendants guilty of
a crime the power to fix punishment within legally pre-
scribed limits”).
More specifically, our cases have never suggested that a
defendant can successfully challenge as vague a sentenc-
ing statute conferring discretion to select an appropriate
sentence from within a statutory range, even when that
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Opinion of the Court

discretion is unfettered. In fact, our reasoning in Batchel-
der suggests the opposite. This Court considered in that
case the constitutionality of two overlapping criminal
provisions that authorized different maximum penalties
for the same conduct. 442 U. S., at 115–116. The Court
held that the sentencing provisions were not void for
vagueness because they specified the “penalties available”
and defined the “punishment authorized” upon conviction
for each crime. Id., at 123. “Although the statutes cre-
ate[d] uncertainty as to which crime may be charged and
therefore what penalties may be imposed, they d[id] so to
no greater extent than would a single statute authorizing
various alternative punishments.” Ibid. (emphasis added).
By specifying “the range of penalties that prosecutors and
judges may seek and impose,” Congress had “fulfilled its
duty.” Id., at 126 (citing Evans, supra, at 483; emphasis
added). Indeed, no party to this case suggests that a
system of purely discretionary sentencing could be subject
to a vagueness challenge.
B
The Sentencing Reform Act of 1984 departed from this
regime by establishing several factors to guide district
courts in exercising their traditional sentencing discretion.
18 U. S. C. §3553. Congress in the same Act created the
United States Sentencing Commission and charged it with
establishing guidelines to be used for sentencing. Mis-
tretta, supra, at 367. The result of the Commission’s work is
the Federal Sentencing Guidelines, which are one of the
sentencing factors that the Act requires courts to consider.
§3553(a)(4).
The Guidelines were initially binding on district courts,
Booker, 543 U. S., at 233, but this Court in Booker ren-
dered them “effectively advisory,” id., at 245. Although
the Guidelines remain “the starting point and the initial
benchmark” for sentencing, a sentencing court may no
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Opinion of the Court

longer rely exclusively on the Guidelines range; rather,
the court “must make an individualized assessment based
on the facts presented” and the other statutory factors.
Gall v. United States, 552 U. S. 38, 49, 50 (2007). The
Guidelines thus continue to guide district courts in exer-
cising their discretion by serving as “the framework for
sentencing,” Peugh v. United States, 569 U. S. ___, ___
(2013) (slip op., at 11), but they “do not constrain th[at]
discretion,” id., at ___ (THOMAS, J., dissenting) (slip op.,
at 2).
Because they merely guide the district courts’ discretion,
the Guidelines are not amenable to a vagueness challenge.
As discussed above, the system of purely discretionary
sentencing that predated the Guidelines was constitution-
ally permissible. If a system of unfettered discretion is not
unconstitutionally vague, then it is difficult to see how the
present system of guided discretion could be.
The advisory Guidelines also do not implicate the twin
concerns underlying vagueness doctrine—providing notice
and preventing arbitrary enforcement. As to notice, even
perfectly clear Guidelines could not provide notice to a
person who seeks to regulate his conduct so as to avoid
particular penalties within the statutory range. See, e.g.,
Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).
That is because even if a person behaves so as to avoid an
enhanced sentence under the career-offender guideline,
the sentencing court retains discretion to impose the
enhanced sentence. See, e.g., Pepper v. United States, 562
U. S. 476, 501 (2011) (“[O]ur post-Booker decisions make
clear that a district court may in appropriate cases impose
a non-Guidelines sentence based on a disagreement with
the Commission’s views”). As we held in Irizarry v. United
States, 555 U. S. 708 (2008), “[t]he due process concerns
that . . . require notice in a world of mandatory Guidelines
no longer” apply. Id., at 714; see id., at 713 (“Any expecta-
tion subject to due process protection . . . that a criminal
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Opinion of the Court

defendant would receive a sentence within the presump-
tively applicable Guidelines range did not survive our
decision in [Booker], which invalidated the mandatory
features of the Guidelines”). All of the notice required is
provided by the applicable statutory range, which estab-
lishes the permissible bounds of the court’s sentencing
discretion.
The advisory Guidelines also do not implicate the
vagueness doctrine’s concern with arbitrary enforcement.
Laws that “regulate persons or entities,” we have ex-
plained, must be sufficiently clear “that those enforcing
the law do not act in an arbitrary or discriminatory way.”
FCC v. Fox Television Stations, Inc., 567 U. S. 239, 253
(2012); see also Grayned, supra, at 108–109 (“A vague law
impermissibly delegates basic policy matters” to judges
“for resolution on an ad hoc and subjective basis”). An
unconstitutionally vague law invites arbitrary enforce-
ment in this sense if it “leaves judges and jurors free to
decide, without any legally fixed standards, what is pro-
hibited and what is not in each particular case,” Giaccio,
382 U. S., at 402–403, or permits them to prescribe the
sentences or sentencing range available, cf. Alleyne, 570
U. S., at ___ (slip op., at 11) (“[T]he legally prescribed
range is the penalty affixed to the crime”).
The Guidelines, however, do not regulate the public by
prohibiting any conduct or by “establishing minimum and
maximum penalties for [any] crime.” Mistretta, 488 U. S.,
at 396 (Sentencing Guidelines “do not bind or regulate the
primary conduct of the public”). Rather, the Guidelines
advise sentencing courts how to exercise their discretion
within the bounds established by Congress. In this case,
for example, the District Court did not “enforce” the career-
offender Guideline against petitioner. It enforced 18
U. S. C. §922(g)(1)’s prohibition on possession of a firearm
by a felon—which prohibited petitioner’s conduct—and
§924(e)(1)’s mandate of a sentence of 15 years to life im-
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Opinion of the Court

prisonment—which fixed the permissible range of peti-
tioner’s sentence. The court relied on the career-offender
Guideline merely for advice in exercising its discretion to
choose a sentence within those statutory limits.
JUSTICE SOTOMAYOR’s concurrence suggests that judges
interpreting a vague sentencing Guideline might rely on
“statistical analysis,” “gut instinct,” or the judge’s “own
feelings” to decide whether a defendant’s conviction is a
crime of violence. Post, at 6 (opinion concurring in judg-
ment) (internal quotation marks omitted). A judge granted
unfettered discretion could use those same approaches
in determining a defendant’s sentence. Indeed, the con-
currence notes that federal judges before the Guidelines
considered their own “view[s] of proper sentencing policy,”
among other considerations. Post, at 11. Yet we have
never suggested that unfettered discretion can be void for
vagueness.
Accordingly, we hold that the advisory Sentencing
Guidelines are not subject to a vagueness challenge under
the Due Process Clause and that §4B1.2(a)’s residual
clause is not void for vagueness.
III
Our holding today does not render the advisory Guide-
lines immune from constitutional scrutiny. This Court
held in Peugh, for example, that a “retrospective increase
in the Guidelines range applicable to a defendant” violates
the Ex Post Facto Clause. 569 U. S., at ___ (slip op., at
13). But the void-for-vagueness and ex post facto inquiries
are “analytically distinct.” See id., at ___ (slip op., at 19)
(distinguishing an ex post facto inquiry from a Sixth
Amendment inquiry). Our ex post facto cases “have fo-
cused on whether a change in law creates a ‘significant
risk’ of a higher sentence.” Ibid. A retroactive change in
the Guidelines creates such a risk because “sentencing
decisions are anchored by the Guidelines,” which establish
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Opinion of the Court

“the framework for sentencing.” Id., at ___, ___ (slip op.,
at 10, 11). In contrast, the void-for-vagueness doctrine
requires a different inquiry. The question is whether a
law regulating private conduct by fixing permissible sen-
tences provides notice and avoids arbitrary enforcement
by clearly specifying the range of penalties available. The
Government’s rebuttal that both doctrines are concerned
with “ ‘fundamental justice,’ ” Reply Brief for United States
7, ignores the contours of our precedents.
The Court has also recognized “in the Eighth Amend-
ment context” that a district court’s reliance on a vague
sentencing factor in a capital case, even indirectly, “can
taint the sentence.” Brief for United States 43 (citing
Espinosa v. Florida, 505 U. S. 1079, 1082 (1992) ( per
curiam); emphasis added). But our approach to vagueness
under the Due Process Clause is not interchangeable with
“the rationale of our cases construing and applying the
Eighth Amendment.” Maynard v. Cartwright, 486 U. S.
356, 361 (1988). Our decision in Espinosa is thus inappo-
site, as it did not involve advisory Sentencing Guidelines
or the Due Process Clause.
Finally, our holding today also does not render “sentenc-
ing procedure[s]” entirely “immune from scrutiny under
the due process clause.” Williams, 337 U. S., at 252, n. 18;
see, e.g., Townsend v. Burke, 334 U. S. 736, 741 (1948)
(holding that due process is violated when a court relies on
“extensively and materially false” evidence to impose a
sentence on an uncounseled defendant). We hold only that
the advisory Sentencing Guidelines, including §4B1.2(a)’s
residual clause, are not subject to a challenge under the
void-for-vagueness doctrine.
IV
In addition to directing sentencing courts to consider the
Guidelines, see §3553(a)(4)(A), Congress has directed them
to consider a number of other factors in exercising their
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sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The
Government concedes that “American judges have long
made th[e] sorts of judgments” called for by the §3553(a)
factors “in indeterminate-sentencing schemes, and this
Court has never understood such discretionary determina-
tions to raise vagueness concerns.” Brief for United States
42. Because the §3553 factors—like the Guidelines—do
not mandate any specific sentences, but rather guide the
exercise of a district court’s discretion within the applica-
ble statutory range, our holding today casts no doubt on
their validity.
Holding that the Guidelines are subject to vagueness
challenges under the Due Process Clause, however, would
cast serious doubt on their validity. Many of these other
factors appear at least as unclear as §4B1.2(a)’s residual
clause. For example, courts must assess “the need for the
sentence imposed” to achieve certain goals—such as to
“reflect the seriousness of the offense,” “promote respect
for the law,” “provide just punishment for the offense,”
“afford adequate deterrence to criminal conduct,” and
“provide the defendant with needed educational or voca-
tional training . . . in the most effective manner.”
§3553(a)(2). If petitioner were correct that §4B1.2(a)’s
residual clause were subject to a vagueness challenge, we
would be hard pressed to find these factors sufficiently
definite to provide adequate notice and prevent arbitrary
enforcement.
The Government tries to have it both ways, arguing that
the individualized sentencing required by the other
§3553(a) factors is different in kind from that required by
the Guidelines. “An inscrutably vague advisory guide-
line,” it contends, “injects arbitrariness into the sentencing
process that is not found in the exercise of unguided dis-
cretion in a traditional sentencing system.” Reply Brief
for United States 10–11. But it is far from obvious that
the residual clause implicates the twin concerns of vague-
 Cite as: 580 U. S. ____ (2017) 13

Opinion of the Court

ness any more than the statutory command that sentenc-
ing courts impose a sentence tailored, for example, “to
promote respect for the law.” §3553(a)(2)(A). And neither
the Guidelines nor the other §3553 factors implicate those
concerns more than the absence of any guidance at all,
which the Government concedes is constitutional.
The Government also suggests that the Guidelines are
not like the other §3553(a) factors “because they require a
court to decide whether the facts of the case satisfy a legal
standard in order to derive a specific numerical range.”
Id., at 22. But that does not distinguish the other sentenc-
ing factors, which require courts to do the same thing.
Section 3553(a) states that district courts “shall impose a
sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in [§3553(a)(2)].” In
fact, the Guidelines generally offer more concrete advice in
imposing a particular sentence and make it easier to
review whether a court has abused its substantial discre-
tion. There is no sound reason to conclude that the Guide-
lines—but not §3553(a)’s other sentencing factors—are
amenable to vagueness review.
* * *
Because the advisory Sentencing Guidelines are not
subject to a due process vagueness challenge, §4B1.2(a)’s
residual clause is not void for vagueness. The judgment of
the Court of Appeals, accordingly, is affirmed.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or
decision of this case.
 Cite as: 580 U. S. ____ (2017) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 15–8544
_________________

TRAVIS BECKLES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[March 6, 2017]

JUSTICE KENNEDY, concurring.
As sentencing laws and standards continue to evolve,
cases may arise in which the formulation of a sentencing
provision leads to a sentence, or a pattern of sentencing,
challenged as so arbitrary that it implicates constitutional
concerns. In that instance, a litigant might use the word
vague in a general sense—that is to say, imprecise or
unclear—in trying to establish that the sentencing deci-
sion was flawed. That something is vague as a general
matter, however, does not necessarily mean that it is
vague within the well-established legal meaning of that
term. And it seems most unlikely that the definitional
structure used to explain vagueness in the context of fair
warning to a transgressor, or of preventing arbitrary
enforcement, is, by automatic transference, applicable to
the subject of sentencing where judicial discretion is in-
volved as distinct from a statutory command. See John-
son v. United States, 576 U. S. ___ (2015).
The existing principles for defining vagueness cannot be
transported uncritically to the realm of judicial discretion
in sentencing. Some other explication of the constitutional
limitations likely would be required.
These considerations inform my reading of the Court’s
opinion, in which I join.
 Cite as: 580 U. S. ____ (2017) 1

GINSBURG, J., concurring in judment

SUPREME COURT OF THE UNITED STATES
_________________

No. 15–8544
_________________

TRAVIS BECKLES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[March 6, 2017]

JUSTICE GINSBURG, concurring in the judgment.
This case has a simple solution. When Travis Beckles
was convicted in 2007 of violating 18 U. S. C. §922(g)(1),
the official commentary to the career-offender Sentencing
Guideline expressly designated his offense of conviction—
possessing a sawed-off shotgun as a felon—a “crime of
violence.” See ante, at 1–3; United States Sentencing
Commission, Guidelines Manual §4B1.2(a), comment., n. 1
(Nov. 2006). Harmonious with federal law and the text of
§4B1.2(a), that commentary was “authoritative.” Stinson
v. United States, 508 U. S. 36, 38 (1993).*
Beckles therefore cannot, and indeed does not, claim
that §4B1.2(a) was vague as applied to him. And because
——————
* Beckles protests that the commentary is “inconsistent with”
§4B1.2(a), and thus inoperative, once the residual clause is stricken
from the Guideline as impermissibly vague. Brief for Petitioner 49; see
Stinson, 508 U. S., at 38. But excising the problematic provision first
and considering illustrative language second “flip[s] the normal order of
operations in adjudicating vagueness challenges.” Brief for United
States 55. This Court has routinely rejected, in a variety of contexts,
vagueness claims where a clarifying construction rendered an other-
wise enigmatic provision clear as applied to the challenger. See Bell v.
Cone, 543 U. S. 447, 453, 457–458 (2005) (per curiam) (capital aggra-
vating factor clarified by state-court precedent); Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U. S. 489, 500–502, and n. 18
(1982) (quasi-criminal ordinance clarified by licensing guidelines); Red
Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 (1969) (federal
regulation clarified by agency adjudications).
2 BECKLES v. UNITED STATES

GINSBURG, J., concurring in judgment

his conduct was “clearly proscribed,” he also “cannot com-
plain of the vagueness of the [guideline] as applied to the
conduct of others.” Holder v. Humanitarian Law Project,
561 U. S. 1, 18–19 (2010) (internal quotation marks omit-
ted) (rejecting vagueness challenge to terrorism material-
support statute, 18 U. S. C. §2339B). I would accordingly
defer any more encompassing ruling until a case we have
agreed to take up requires one.
 Cite as: 580 U. S. ____ (2017) 1

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 15–8544
_________________

TRAVIS BECKLES, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[March 6, 2017]

JUSTICE SOTOMAYOR, concurring in the judgment.
JUSTICE GINSBURG explains why the Court’s holding
today is unnecessary. See ante, at 1–2 (opinion concurring
in judgment). Petitioner Travis Beckles was sentenced to
30 years in prison on the basis of commentary promul-
gated by the U. S. Sentencing Commission interpreting a
sentencing provision identical to the “residual clause” we
held unconstitutionally vague two years ago in Johnson v.
United States, 576 U. S. ___ (2015). But Johnson affords
Beckles no relief, because the commentary under which he
was sentenced was not unconstitutionally vague. Had the
majority limited itself to this conclusion, I would have
joined its opinion. Instead, the majority reaches far be-
yond what is necessary to resolve this case and announces
that the U. S. Sentencing Guidelines as a whole are im-
mune from vagueness challenges.
I write separately to explain why that holding is not
only unnecessary, but also deeply unsound. The Guide-
lines anchor every sentence imposed in federal district
courts. They are, “ ‘in a real sense[,] the basis for the
sentence.’ ” Molina-Martinez v. United States, 578 U. S.
___, ___ (2016) (slip op., at 9) (quoting Peugh v. United
States, 569 U. S. ___, ___ (2013) (slip op., at 11); emphasis
deleted). The Due Process Clause requires that rules this
weighty be drafted “with sufficient definiteness that ordi-
nary people can understand” them, and “in a manner that
2 BECKLES v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

does not encourage arbitrary and discriminatory enforce-
ment.” Kolender v. Lawson, 461 U. S. 352, 357 (1983).
Because I cannot agree with the majority’s conclusion to
the contrary, I respectfully concur in the judgment only.
I

A

The Due Process Clause prohibits the Government from
“taking away someone’s life, liberty, or property under a
criminal law so vague that it fails to give ordinary people
fair notice of the conduct it punishes, or so standardless
that it invites arbitrary enforcement.” Johnson, 576 U. S.,
at ___ (slip op., at 3). The prohibition against vagueness
in criminal proceedings is “a well-recognized requirement,
consonant alike with ordinary notions of fair play and the
settled rules of law.” Connally v. General Constr. Co., 269
U. S. 385, 391 (1926). The doctrine rests on two justifica-
tions. First, it ensures that people receive “fair notice of
what is prohibited.” United States v. Williams, 553 U. S.
285, 304 (2008). Second, it safeguards the integrity of the
judicial system by ensuring that criminal adjudications
are not conducted in an arbitrary manner and that terms
of imprisonment are not imposed “on an ad hoc and sub-
jective basis.” Grayned v. City of Rockford, 408 U. S. 104,
109 (1972).
“These principles apply not only to statutes defining
elements of crimes, but also to statutes fixing sentences.”
Johnson, 576 U. S., at ___ (slip op., at 4). Just two Terms
ago, we struck down a sentencing law—the Armed Career
Criminal Act’s (ACCA) residual clause, 18 U. S. C.
§924(e)(2)(B)—as unconstitutionally vague. See 576 U. S.,
at ___ (slip op., at 15). We spent little time on whether the
vagueness doctrine applied to such provisions. Id., at ___
(slip op., at 4). And for good reason: A statute fixing a
sentence imposes no less a deprivation of liberty than does
a statute defining a crime, as our Sixth Amendment juris-
 Cite as: 580 U. S. ____ (2017) 3

SOTOMAYOR, J., concurring in judgment

prudence makes plain. See Apprendi v. New Jersey, 530
U. S. 466, 490 (2000). We instead analyzed the residual
clause in light of “[n]ine years’ experience trying to derive
meaning from” it, 576 U. S., at ___ (slip op., at 10), and
declared the experiment a failure. “Invoking so shapeless
a provision to condemn someone to prison for 15 years to
life,” we held, “does not comport with the Constitution’s
guarantee of due process.” Ibid.
B
The question before us is how these principles apply to
the U. S. Sentencing Guidelines.
Congress established the U. S. Sentencing Commission
in 1984 in order to address “[f]undamental and wide-
spread dissatisfaction” with the then-prevailing regime of
discretionary sentencing. Mistretta v. United States, 488
U. S. 361, 365–366 (1989); see Sentencing Reform Act of
1984, §217(a), 98 Stat. 2017. It charged the Commission
with reducing “the great variation among sentences im-
posed by different judges upon similarly situated offend-
ers” and the resulting “uncertainty as to the time [each]
offender would spend in prison.” Mistretta, 488 U. S., at
366. The Sentencing Guidelines are the product of that
mandate. The Guidelines establish a framework “under
which a set of inputs specific to a given case (the particu-
lar characteristics of the offense and offender) yiel[d] a
predetermined output (a range of months within which the
defendant [can] be sentenced).” Peugh, 569 U. S., at ___
(slip op., at 4). In doing so, the Guidelines ensure “uni-
formity in sentencing . . . imposed by different federal
courts for similar criminal conduct” and “proportionality in
sentencing through a system that imposes appropriately
different sentences for criminal conduct of different sever-
ity.” Rita v. United States, 551 U. S. 338, 349 (2007) (in-
ternal quotation marks omitted).
The Guidelines today play a central role in federal
4 BECKLES v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

sentencing. Although no longer binding on federal courts,
see United States v. Booker, 543 U. S. 220, 245 (2005), the
Guidelines nonetheless “provide the framework for the
tens of thousands of federal sentencing proceedings that
occur each year,” Molina-Martinez, 578 U. S., at ___ (slip
op., at 2). A district court must “begin all sentencing
proceedings by correctly calculating the applicable Guide-
lines range.” Gall v. United States, 552 U. S. 38, 49–50
(2007). The court must entertain the parties’ arguments
and consider the factors set forth in 18 U. S. C. §3553(a) as
possible grounds for deviation from the Guidelines range,
552 U. S., at 49–50, and “may not presume the . . . range is
reasonable,” id., at 50. But it must explain any deviation
from the range on the record, and it must “ensure that the
justification is sufficiently compelling to support the de-
gree of the variance.” Ibid.; see Peugh, 569 U. S., at ___–
___ (slip op., at 17–18). A district court that incorrectly
calculates the Guidelines range commits reversible proce-
dural error, see Gall, 552 U. S., at 51; a district court that
imposes a sentence within the correct Guidelines range, by
contrast, may be afforded a presumption that the sentence
it has imposed is reasonable, see Rita, 551 U. S., at 347.
The importance of the Guidelines in this process, as we
explained last Term, makes them “not only the starting
point for most federal sentencing proceedings but also the
lodestar.” Molina-Martinez, 578 U. S., at ___ (slip op., at
10). In most cases, it is the range set by the Guidelines,
not the minimum or maximum term of imprisonment set
by statute, that specifies the number of years a defendant
will spend in prison. District courts impose a sentence
within the Guidelines (or below the Guidelines based on a
Government motion) over 80% of the time. Ibid.; see 2015
Annual Report and 2015 Sourcebook of Federal Sen-
tencing Statistics (20th ed.) (Figure G), online at http://
www.ussc.gov/sites/default/files/pdf/research-and-publications/
annual-reports-and-sourcebooks/2015/FigureG.pdf (as last
 Cite as: 580 U. S. ____ (2017) 5

SOTOMAYOR, J., concurring in judgment

visited Feb. 27, 2017). And when Guidelines ranges
change—because the Guidelines themselves change, or
because the court is informed of an error it made in apply-
ing them—sentences change, too.1 See Molina-Martinez,
578 U. S., at ___ (slip op., at 10); Peugh, 569 U. S., at ___
(slip op., at 13). It is therefore no exaggeration to say that
the Guidelines are, “ ‘in a real sense[,] the basis for the
sentence’ ” imposed by the district court. Molina-Martinez,
578 U. S., at ___ (slip op., at 9) (quoting Peugh, 569 U. S.,
at ___ (slip op., at 11); emphasis deleted).
C
It follows from the central role that the Guidelines play
at sentencing that they should be susceptible to vagueness
challenges under the Due Process Clause.
Contrary to the majority’s conclusion, an inscrutably
vague Guideline implicates both of the concerns animating
the prohibition on vagueness. First, a district court’s
reliance on such a Guideline deprives an ordinary person
of “fair notice” of the consequences of his actions. See
Johnson, 576 U. S., at ___ (slip op., at 3). A defendant is
entitled to understand the legal rules that will determine
his sentence. But a vague Guideline is by definition im-
possible to understand. Take the career-offender Guide-
line at issue here. We explained in Johnson that the
identically worded provision in the ACCA created “perva-
sive disagreement” among courts imposing sentences as to
“the nature of the inquiry” that they were required to
——————
1 The evidence before us suggests that the same is true of the career-

offender Guideline at issue here. Given the near consensus among the
lower courts that this Guideline is unconstitutionally vague, see n. 3,
infra, some courts have proceeded to resentence defendants whose
sentences were originally enhanced under the Guideline. See App. to
Reply Brief 1–14. In these resentencings, “every defendant but one
received a sentence lower than the sentence originally imposed,” and
the average defendant received a sentence “more than [three] years
lower than the original sentence.” Reply Brief 12.
6 BECKLES v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

conduct. Id., at ___ (slip op., at 9). The result was a law
that was “ ‘nearly impossible to apply consistently.’ ” Ibid.
(quoting Chambers v. United States, 555 U. S. 122, 133
(2009) (ALITO, J., concurring in judgment)). An ordinary
person cannot be expected to understand the consequences
that such a shapeless provision will have on his sentence.2
Second, and more importantly, a district court’s reliance
on a vague Guideline creates a serious risk of “arbitrary
enforcement.” See Johnson, 576 U. S., at ___ (slip op., at
3). As set out above, although the Guidelines do not bind
a district court as a formal matter, as a functional matter
they “anchor both the district court’s discretion and the
appellate review process.” Peugh, 569 U. S., at ___ (slip
op., at 18). It introduces an unacceptable degree of arbi-
trariness into sentencing proceedings to begin by applying
a rule that is so vague that efforts to interpret it boil down
to “guesswork and intuition.” Johnson, 576 U. S., at ___
(slip op., at 8). One judge may conduct a statistical analy-
sis to decide that a defendant’s crime of conviction is not a
crime of violence. Another may rely on gut instinct to
conclude that it is. Still a third may “throw [our] opinions
into the air in frustration, and give free rein to [her] own
feelings” in making the decision. Derby v. United States,
564 U. S. 1047, 1049 (2011) (Scalia, J., dissenting from
denial of certiorari). Importantly, that decision is the end
of the ballgame for a criminal defendant. Although he
may ask the judge to vary downward from the Guidelines
range, he must take the range as the starting point for his
——————
2 Our
decision in Irizarry v. United States, 553 U. S. 708 (2008), is not
to the contrary. In Irizarry we held that Federal Rule of Criminal
Procedure 32(h) does not require a judge to inform a defendant, in
advance of a sentencing proceeding, of his intent to vary above the
Guidelines range. Id., at 715–716. That narrow decision has no
bearing on the broader question whether ordinary people are entitled to
fair notice, under the Due Process Clause, of the rules that will dictate
their punishment.
 Cite as: 580 U. S. ____ (2017) 7

SOTOMAYOR, J., concurring in judgment

request. He may ask for a month here or a month there,
but he is negotiating from a baseline he cannot control or
predict. The result is a sentencing proceeding hopelessly
skewed from the outset by “unpredictability and arbitrari-
ness.” Johnson, 576 U. S., at ___ (slip op., at 6). The Due
Process Clause does not tolerate such a proceeding.
Consider, by way of example, a hypothetical version of
Beckles’ own sentencing proceeding in which the commen-
tary played no clarifying role. Beckles was convicted of
possessing a firearm as a convicted felon, in violation of 18
U. S. C. §922(g)(1), and sentenced to 360 months in prison.
That sentence sat at the bottom end of the applicable
Guidelines range, factoring in the career-offender Guide-
line: 360 months to life. But had the career-offender
Guideline not applied to Beckles, the Guidelines range
calculated by the District Court would have been signifi-
cantly lower: 262 to 327 months. See Beckles v. United
States, Civ. No. 10–23517 (SD Fla., Mar. 4, 2013), App.
129–130. Absent that Guideline, Beckles would have been
sentenced to between 33 and 98 fewer months in prison.
The District Court admitted as much, explaining that had
the Guideline not applied, she “would not have imprisoned
Beckles to 360 months” in prison. Id., at 149 (emphasis
deleted). Years of Beckles’ life thus turned solely on
whether the career-offender Guideline applied. There is
no meaningful way in which the Guideline exerted less
effect on Beckles’ sentence than did the statute setting his
minimum and maximum terms of imprisonment; indeed,
it was the Guidelines, not just the statute, that “fix[ed]”
Beckles’ “sentenc[e]” in every meaningful way. Johnson,
576 U. S., at ___ (slip op., at 4). Nothing of substance, in
other words, distinguishes the Guidelines from the kind of
laws we held susceptible to vagueness challenges in John-
son; both law and Guideline alike operate to extend the
time a person spends in prison. The Due Process Clause
should apply equally to each.
8 BECKLES v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

II

The majority brushes past this logic in its decision to
shield the Guidelines from vagueness challenges. In doing
so, it casts our sentencing jurisprudence into doubt and
upends the law of nearly every Court of Appeals to have
considered this question.3 None of its explanations justify
its novel and sweeping conclusion.
A
The majority first reasons that the Guidelines are not
susceptible to vagueness challenges because they “do not
fix the permissible range of sentences,” ante, at 5, but
merely “guide district courts in exercising their discre-
tion,” ante, at 8. But we have not embraced such formal-
ism before, and the majority provides no coherent justifi-
cation for its decision to do so here.
Indeed, we have refused before to apply exactly the
formalistic distinction that the majority now embraces. In
Espinosa v. Florida, 505 U. S. 1079, 1081 (1992) ( per
curiam), we held that a state’s capital aggravating factor
that was drafted in a manner “so vague as to leave the
sentencer without sufficient guidance for determining the
presence or absence of the factor” violated the Eighth
Amendment. The factor was unconstitutional, we ex-
plained, notwithstanding the fact that only the jury, not
the judge, was instructed on the factor; that the judge, not
the jury, made the final decision to sentence the defendant
to death; and that the judge, in doing so, was not required
——————
3 See
United States v. Hurlburt, 835 F. 3d 715, 721–725 (CA7 2016)
(en banc) (the Guidelines are subject to vagueness challenges); United
States v. Calabretta, 831 F. 3d 128, 136–137 (CA3 2016) (same); United
States v. Sheffield, 832 F. 3d 296, 312–313 (CADC 2016) (same); United
States v. Pawlak, 822 F. 3d 902, 905–911 (CA6 2016) (same); United
States v. Madrid, 805 F. 3d 1204, 1210–1211 (CA10 2015) (same). But
see United States v. Matchett, 802 F. 3d 1185, 1193–1196 (CA11 2015)
(they are not).
 Cite as: 580 U. S. ____ (2017) 9

SOTOMAYOR, J., concurring in judgment

to defer to the jury’s recommendation. “This kind of indi-
rect weighing of an invalid aggravating factor,” we ex-
plained, “creates the same potential for arbitrariness as
the direct weighing of an invalid aggravating factor.” Id.,
at 1082. In doing so, we effectively rejected just the argu-
ment the majority now embraces: that advisory guidelines
lack the kind of binding legal effect that subject them to
constitutional scrutiny.
If there were any doubt that advisory sentencing guide-
lines are subject to constitutional limits, we dispelled it in
Peugh, where we held that the Guidelines are amenable to
challenges under the Ex Post Facto Clause. See 569 U. S.,
at ___ (slip op., at 1). There, the Government argued that
the “advisory” nature of the Guidelines rendered them
immune from such claims. Id., at ___ (slip op., at 8). But
we rejected such an argument. “The federal system,” we
explained, “adopts procedural measures intended to make
the Guidelines the lodestone of sentencing,” and “consid-
erable empirical evidence indicate[s] that the . . . Guide-
lines have the intended effect.” Id., at ___–___ (slip op., at
12–13). We declined the Government’s invitation to limit
our ex post facto jurisprudence to rules that, as a formal
matter, “increase[d] the maximum sentence for which a
defendant is eligible.” Id., at ___ (slip op., at 8). And we
explained that a rule may exert “ ‘binding legal effect’
through . . . procedural rules and standards for appellate
review that, in combination, encourag[e] district courts to
sentence within the guidelines.” Id., at ___ (slip op., at
16). It was not true, we concluded, that “the Guidelines
are too much like guideposts and not enough like fences,”
ibid.; instead, the Guidelines were just fencelike enough—
just lawlike enough—that they cannot be shielded from
the Constitution’s reach.
The same principle should dictate the same result in
this case. How can the Guidelines carry sufficient legal
weight to warrant scrutiny under the Eighth Amendment
10 BECKLES v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

and the Ex Post Facto Clause, but not enough to warrant
scrutiny under the Due Process Clause? Cf. United States
v. Hurlburt, 835 F. 3d 715, 724 (CA7 2016) (en banc) (“We
see no principled way to distinguish Peugh on doctrinal
grounds”). The majority offers no convincing answer. It
asserts that the Due Process Clause “requires a different
inquiry” than these provisions do. Ante, at 10. But it does
not explain why it views this as relevant to the constitu-
tional status of the Guidelines. A court considering a
challenge to a criminal statute under the Ex Post Facto
Clause will apply a different legal standard than will a
court considering a vagueness challenge to the same stat-
ute; that does not make the statute more or less suscepti-
ble to constitutional challenge in one context than the
other. Our opinion in Peugh is particularly difficult for
the majority to escape, given that the Ex Post Facto
Clause, like the Due Process Clause’s prohibition against
vagueness, is rooted in concerns about “fair warning” and
“ ‘fundamental fairness.’ ” 569 U. S., at ___ (plurality
opinion) (slip op., at 13). The majority musters no persua-
sive explanation for why those concerns would have less
force in this context than in that one. That is because
none exists.4
B
The majority next posits that because courts have long
sentenced defendants under purely discretionary regimes,
there can be no vagueness concern with any system that,
——————
4 The Court’s adherence to the formalistic distinction between manda-

tory and advisory rules at least leaves open the question whether
defendants sentenced to terms of imprisonment before our decision in
United States v. Booker, 543 U. S. 220 (2005)—that is, during the
period in which the Guidelines did “fix the permissible range of sen-
tences,” ante, at 5—may mount vagueness attacks on their sentences.
See Brief for Scholars of Criminal Law, Federal Courts, and Sentencing
as Amici Curiae 33–34. That question is not presented by this case and
I, like the majority, take no position on its appropriate resolution.
 Cite as: 580 U. S. ____ (2017) 11

SOTOMAYOR, J., concurring in judgment

like the Guidelines regime, sets guideposts on the exercise
of discretion. Ante, at 6–7. But this argument fundamen-
tally misunderstands the problem caused by a court’s
reliance on a vague sentencing guideline.
True enough, for many years, federal courts relied on “a
system of indeterminate sentencing” in criminal cases.
Mistretta, 488 U. S., at 363; see also K. Stith & J.
Cabranes, Fear of Judging: Sentencing Guidelines in the
Federal Courts 9–14 (1998). Under such a scheme, a
sentencing judge considers the full range of relevant ag-
gravating and mitigating facts and circumstances, as well
as his view of proper sentencing policy, and then imposes
a sentence in light of those considerations. See Koon v.
United States, 518 U. S. 81, 113 (1996) (“It has been uni-
form and constant in the federal judicial tradition for the
sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human
failings that sometimes mitigate, sometimes magnify, the
crime and the punishment to ensue”). As the majority
notes, no party here “suggests that a system of purely
discretionary sentencing could be subject to a vagueness
challenge.” Ante, at 7. The majority reasons that the
Guidelines—which limit the sentencing judge’s discretion
from what he otherwise would have enjoyed—must there-
fore also be immune from vagueness attacks. Ibid.
But the majority misapprehends the nature of the con-
stitutional infirmity that occurs when a sentencing judge
relies on an inscrutably vague guideline. A defendant who
is sentenced under a purely discretionary regime does not
face the prospect of “arbitrary enforcement” by the sen-
tencing judge, Kolender, 461 U. S., at 358; rather, he faces
a fact- and context-sensitive determination informed by
the exercise of reasoned judgment. A defendant sentenced
pursuant to an impossibly vague Guideline, by contrast, is
put in an untenable position. The “lodestone” of his sen-
tence—the baseline against which the district court will
12 BECKLES v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

assess his characteristics and his conduct—is set by a rule
that is impossible to understand. Such a proceeding is the
antithesis of due process. See Giaccio v. Pennsylvania,
382 U. S. 399, 403 (1966) (“Implicit in [due process] is the
premise that the law must be one that carries an under-
standable meaning with legal standards that courts must
enforce”). It is not reliance on discretion that makes a
sentencing regime vague; it is reliance on an impenetrable
rule as a baseline for the exercise of that discretion. Reli-
ance on a rule of this kind, whether set out in a statute or
in a Guideline, does not comport with “ ‘ordinary notions of
fair play.’ ” Johnson, 576 U. S., at ___ (slip op., at 4).
C
The majority ends by speculating that permitting
vagueness attacks on the Guidelines would call into ques-
tion the validity of many Guidelines, and even the factors
that Congress has instructed courts to consider in impos-
ing sentences. See ante, at 11–12. In doing so, the major-
ity once more resuscitates arguments we have already
considered and dismissed.
Johnson confronted and rejected a version of this argu-
ment. There, the Government contended that “dozens of
federal and state criminal laws use terms like ‘substantial
risk,’ ‘grave risk,’ and ‘unreasonable risk,’ ” terms that—in
its view—were indistinguishable from the residual clause
at issue in that case. 576 U. S., at ___ (slip op., at 12). We
rejected the argument, explaining that such rules “call[ed]
for the application of a qualitative standard such as ‘sub-
stantial risk’ to real-world conduct; ‘the law is full of in-
stances where a man’s fate depends on his estimating
rightly . . . some matter of degree.’ ” Ibid. (quoting Nash v.
United States, 229 U. S. 373, 377 (1913)). What rendered
the ACCA’s residual clause unconstitutionally vague, we
explained, was not that it required “gauging the riskiness
of conduct in which an individual defendant engages on a
 Cite as: 580 U. S. ____ (2017) 13

SOTOMAYOR, J., concurring in judgment

particular occasion,” but that it required the application of
an ambiguous standard “to an idealized ordinary case of
the crime.” 576 U. S., at ___ (slip op., at 12). Holding the
residual clause unconstitutionally vague, in other words,
cast no doubt on the dozens of laws elsewhere in the U. S.
Code requiring the application of general standards to
particular conduct.
The same is true here. The sentencing factors described
by the majority bear no similarity to the categorical risk
analysis that the Court held unconstitutionally vague in
Johnson, nor to any other statutes it has previously found
vague. Congress’ instruction to district courts to consider,
for instance, “the nature and circumstances of the offense
and the history and characteristics of the defendant,”
§3553(a)(1), bears little resemblance to statutes requiring
subjective determinations as to whether conduct is “an-
noying” or “unjust.” See Coates v. Cincinnati, 402 U. S.
611, 615–616 (1971); United States v. L. Cohen Grocery
Co., 255 U. S. 81, 89 (1921).5 And to the extent that the
majority’s concern is that subjecting sentencing factors
to the Due Process Clause’s prohibition on vagueness
would risk the demise of discretionary sentencing regimes,
that prospect is unlikely, for the reasons I have already
explained.
* * *
It violates the Due Process Clause “to condemn someone
to prison” on the basis of a sentencing rule “so shapeless”
as to resist interpretation. 576 U. S., at ___ (slip op., at
10). But the Court’s decision today permits exactly that
result. With respect, I concur only in the judgment.
——————
5 Indeed, the Ninth Circuit has held for decades that the Guidelines

are subject to vagueness challenges, see United States v. Helmy, 951
F. 2d 988, 993 (CA9 1991), yet the Government represents that that
court has never found a Guideline unconstitutionally vague. See Reply
Brief for United States 20.