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September 21, 2015

Eleventh Circuit panel categorically rejects Johnson vagueness attack on career offender guidelines

In this prior post a few days after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the possibility that Johnson could impact past, present and future sentencings pursuant to the career offender guideline of the US Sentencing Guidelines. 

Since then, I believe that the Department of Justice has consistently conceded Johnson-based constitutional problems with the existing career offender guideline because the key phrase found vague in Johnson is also used in the guideline definition of a career offender.  In addition, as noted in this post from last month, the US Sentencing Commission has proposed amending the career offender guideline to eliminate the Johnson-problematic definition of a crime of violence.   And I believe at least a few appellate rulings have assumed without deciding that Johnson creates problems for existing career offender guideline sentencing.

But today an Eleventh Circuit panel in US v. Matchett, No. 14-10396 (Sept. 21, 2015) (available here), squarely addresses this issue and rules that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.  Here is how the Matchett opinion gets started:

This appeal presents an issue of first impression for this Court: whether the vagueness doctrine of the Due Process Clause of the Fifth Amendment applies to the advisory Sentencing Guidelines.  Calvin Matchett pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and now challenges both the denial of his motion to suppress the firearm and the calculation of his sentence.  Police Officer Jesse Smith stopped Matchett when he saw Matchett carrying a flat-screen television in a residential neighborhood on a weekday morning.  After speaking with Matchett, Officer Smith frisked him based on his confrontational demeanor and the risk that he had a burglary tool that could be used as a weapon.  When Officer Smith found a loaded handgun in Matchett’s pocket, Matchett fought with Officer Smith for over three minutes in an attempt to flee.  The district court did not err when it denied Matchett’s motion to suppress.  It also correctly determined that Matchett’s previous convictions for burglary of an unoccupied dwelling were crimes of violence and that Matchett’s resistance created a substantial risk of death or bodily injury in the course of fleeing from a law enforcement officer.  We reject Matchett’s argument that the definition of “crime of violence” in the Sentencing Guidelines is unconstitutionally vague in light of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).  The vagueness doctrine applies only to laws that prohibit conduct and fix punishments, not advisory guidelines.  We affirm.

Some prior related posts:

September 21, 2015 at 01:53 PM | Permalink


"The vagueness doctrine applies only to laws that prohibit conduct and fix punishments, not advisory guidelines. We affirm."


Any excuse will serve a tyrant. The quoted statement is so preposterous that all one can do is laugh.

Posted by: Daniel | Sep 21, 2015 3:05:12 PM

Umm, burglary is one of the enumerated offenses anyway, no? Did Johnson actually toss the entire ACCA and not just the residual clause?

Posted by: Soronel Haetir | Sep 21, 2015 3:28:05 PM

So many things wrong with this opinion, including the underlying reasons for the void for vagueness doctrine. One of the reasons, perhaps the main reason, for the result in Johnson was not fair notice; it was arbitrary application. The courts haven't done any better at interpreting the career offender provision than they did the ACCA. In addition, we all know that in many districts, the Sentencing Guidelines are the single most important factor on how much punishment one receives, so to pretend the Guidelines don't actually set punishment seems a bit unrealistic.

Posted by: Shon Hopwood | Sep 21, 2015 5:55:43 PM

It is the Eleventh Circuit after all. It's difficult to understand what laws are vague. If this were easy, valid or clear would there be split opinions?

Posted by: beth | Sep 21, 2015 6:38:47 PM


Under burglary statutes that do not require an occupied dwelling or an unprivileged entry (as in California), residential burglaries have been brought in as crimes of violence under the residual clause, as they are not a categorical match for the federal Taylor generic burglary.

Posted by: USPO | Sep 21, 2015 6:55:48 PM

This would seem to contradict at least the spirit of Peugh v. United States, which held that the Guidelines are still sufficiently statute-like and play a sufficient role in the fixing of punishment to implicate the ex post facto clause.

Posted by: Jonathan Edelstein | Sep 22, 2015 12:53:32 PM

Shon, but arbitrary application is not usually considered a constitutional problem in sentencing. No one on the current Supreme Court thinks there would be a problem if Congress just said that a judge should fix a sentence somewhere between a stern warning and 30 year prison sentence while giving basically no guidance at all as to how to go about choosing the sentence, or just giving the very vague guidance in 18 U.S. Code § 3553.

Posted by: Jr | Sep 2, 2016 6:49:54 AM

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