Over dissent, SCOTUS refuses to take up Johnson challenge to then-mandatory career-offender guidelines

The Supreme Court had recently relisted a set of cases concerning whether and how the Court's vagueness ruling in Johnson applied to a key provision of the career-offender sentencing guideline when that guideline was still mandatory before the Booker ruling. (Sentencing gurus know that the Justices in Beckles decided that Booker melted away any constitutional vagueness problems when it make the guidelines advisory.) Today, via this new order list, the Court denied cert on all these cases.

I am a bit surprised and a lot disappointed by these cert denials, largely for reasons expressed by Justice Sotomayor in this dissent joined by Justice Ginsburg in Brown v. US, No. 17–9276.  Here is how the four-page dissent from the denial of certiorari starts and ends:

Today this Court denies petitioners, and perhaps more than 1,000 like them, a chance to challenge the constitutionality of their sentences.  They were sentenced under a then-mandatory provision of the U.S. Sentencing Guidelines, the exact language of which we have recently identified as unconstitutionally vague in another legally binding provision.  These petitioners argue that their sentences, too, are unconstitutional.  This important question, which has generated divergence among the lower courts, calls out for an answer.  Because this Court’s decision to deny certiorari precludes petitioners from obtaining such an answer, I respectfully dissent....

The question for a petitioner like Brown, then, is whether he may rely on the right recognized in Johnson to challenge identical language in the mandatory Guidelines. Three Courts of Appeals have said no.  See 868 F.3d 297 (CA4 2017) (case below); Raybon v. United States, 867 F.3d 625 (CA6 2017); United States v. Greer, 881 F.3d 1241 (CA10 2018).  One Court of Appeals has said yes.  See Cross v. United States, 892 F.3d 288 (CA7 2018).  Another has strongly hinted yes in a different posture, after which point the Government dismissed at least one appeal that would have allowed the court to answer the question directly.  See Moore v. United States, 871 F.3d 72, 80–84 (CA1 2017); see also United States v. Roy, 282 F. Supp. 3d 421 (Mass. 2017); United States v. Roy, Withdrawal of Appeal in No. 17–2169 (CA1).  One other court has concluded that the mandatory Guidelines themselves cannot be challenged for vagueness.  See In re Griffin, 823 F.3d 1350, 1354 (CA11 2016).

Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people.  That sounds like the kind of case we ought to hear. See this Court’s Rules 10(a), (c).  Because the Court nevertheless declines to do so, I respectfully dissent.