In Beckles, SCOTUS Perpetuates the Advisory Guidelines Fantasy
March 8, 2017 (Fault Lines) – The United States Supreme Court ruled on a major federal sentencing guidelines case this week. For the last decade plus, since the Supreme Court’s 2005 decision in Booker, the guidelines have been advisory rather than mandatory. But most lawyers know the idea of “advisory” sentencing guidelines sounds great, but doesn’t always play out so well. With the opinion in Beckles v. United States, the Supreme Court keeps holding on to the fantasy that the guidelines are just advice, not rules.
Beckles considered a due process challenge to the advisory sentencing guidelines.
This Court has held that 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.”
The specific guideline at issue in Beckles was the career offender enhancement, which usually takes a regular harsh federal sentence and doubles it or triples it based on a defendant’s prior record. More importantly for this case, the guideline turns on the crime of conviction. Drug distribution and crimes of violence trigger the enhancement.
What exactly constitutes a crime of violence has given courts fits for years, including the Supreme Court. But in Beckles, the justices seemed certain in their belief that even though no one seems to be able to clearly identify a crime of violence, the federal train to prison shouldn’t slow down.
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.” This Court held in Johnson v. United States that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA) was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness. Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument. [Citations omitted.]
One can imagine the havoc a lawyer, either a prosecutor or a defense lawyer, can wreak with the wishy-washy idea of “serious potential risk of physical injury to another.”
It wasn’t just the residual clause that Beckles and Johnson had in common. The important facts were almost identical. Johnson involved a felon charged with possession of a gun. One of his prior legal run-ins involved the possession of a sawed-off shotgun. If prosecutors could prove that prior possession was a crime of violence, they could give Johnson a 15-to-life sentence, instead of the cupcake 0 to 10 years he faced without the enhancement.
The career offender guidelines in Beckles’ case contained identical language to the ACCA’s residual clause. Beckles ran into this enhancement when he was prosecuted for, wait for it, possession of a sawed-off shotgun. When Johnson came out, Beckles surely breathed a sigh of relief that his sawed-off shotgun couldn’t be any more violent than Johnson’s sawed-off shotgun.
Seems like an easy case. Identical language. Identical crime. Identical challenge. In fact, the government even agreed with the defense in Beckles. But this is law, and what fun would it be if it worked out that neatly?
Why did Beckles come out opposite the Johnson decision? Despite the nearly identical challenges, the Supreme Court claimed one major difference set Beckles apart from Johnson.
The Court’s opinion was all about discretion. Because the guidelines are advisory, they are only intended to guide the sentencing court’s discretion, not rule it. They are a starting point, a benchmark, a lodestar. But definitely not a rule.
The Beckles opinion reveals a deep distrust of federal sentencing judges. Apparently, if there weren’t any guidelines, all federal judges would be off sentencing everybody willy-nilly depending on whatever whimsy struck them as they sat down behind the bench. Both Justices Alito and Kennedy, at oral argument, raised the idea that judges need guidance at sentencing to avoid arbitrariness. But they still have their discretion.
The Supreme Court’s 12-page opinion indulges the fantasy that the guidelines are a helpful tool for determining an individualized sentence. A decade or so ago they were the gold standard for sentencing. What the Book said, the defendant got.
Then they weren’t the gold standard. Judges needed to sentence humans with some humanity, as opposed to the number assigned from a book. So they became advisory. With this caveat: “You don’t have to follow the guidelines. But if you do, you will probably be right. And if you don’t, we will probably reverse you in an embarrassing opinion printed in the annals of legal history for all to read.”
Now they are just the standard. Maybe not gold, but every sentencing judge knows the easiest way to only deal with a case one time is to sentence within the guidelines range. And that makes the guidelines a whole lot more than advisory. Even if you call them advisory.
The Supreme Court was careful to say the holding in Beckles doesn’t completely shield federal sentencing from a due process challenge. A defendant could bring one if the court extensively relied on false evidence to sentence a defendant. It’s nice to know the Supreme Court wouldn’t make you do a bunch of time in jail if someone just made up a bunch of stuff against you.
Federal criminal statutes often have wide ranges, like zero to 30 years, or ten years to life. It seems a variety of different people commit a variety of different crimes for a variety of different reasons. And that means a variety of sentences could be appropriate.
What isn’t appropriate is to advise federal judges at gunpoint how to sentence someone. Possession of a sawed-off shotgun is a crime that could be violent, or not violent, or somewhere in between. Mainly because pure possession doesn’t offer a lot of insight into motivation. Ordering Advising a sentencing judge that it is always violent creates an arbitrary rule.
Even worse, it means a crime that isn’t necessarily violent is a crime of violence. When a defendant thinks he is committing this crime non-violently, the Big Book of Sentencing is going to surprise him with a sentence that doubles based on his non-violent crime of violence. Sounds a little vague. At least to anyone not on the Supreme Court.
Chances are you don’t much care about this, because you don’t have a sawed-off shotgun. Good for you. But there are an estimated 4500 federal crimes and hundreds of thousands of federal regulations that carry criminal penalties on the books. Which means you probably should care that the Supreme Court figured out a way to take judges’ discretion away in the same breath it used to take your ability to protect yourself from that lack of discretion. All under the pretense that judges are free to ignore the Book.
 This is a summary of thousands of post-Booker appellate opinions.
 Unless, of course, your case came to them on habeas review and all the made-up stuff was reasonable. Then they wouldn’t want to disturb finality, obviously.