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Case: 14-10396 Date Filed: 09/13/2016 Page: 1 of 88




No. 14-10396


D.C. Docket No. 1:13-cr-20630-KMM-1


Plaintiff - Appellee,



Defendant - Appellant.


Appeal from the United States District Court for the Southern District of Florida ________________________



A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Case: 14-10396 Date Filed: 09/13/2016 Page: 2 of 88 Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

Case: 14-10396 Date Filed: 09/13/2016 Page: 3 of 88 WILLIAM PRYOR, Circuit Judge, joined by JULIE CARNES, Circuit Judge,

respecting the denial of rehearing en banc:

A majority of the Court has voted not to rehear en banc our decision in this appeal, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that the advisory sentencing guidelines cannot be challenged as void for vagueness. As members of the panel (and coincidentally the only members of this Court to have served on the United States Sentencing Commission), we write to explain why we agree with that decision.

We divide our discussion in two parts. First, we explain that Matchett is correct because the vagueness doctrine applies only to laws that regulate the primary conduct of private citizens. Advisory sentencing guidelines regulate judges, not private individuals; they guide judicial discretion within a statutory range. Advisory sentencing guidelines do not define crimes or fix punishments.

Second, we explain that Matchett is not worthy of en banc rehearing.

A. Matchett Is Correct.

Our opinion held that advisory sentencing guidelines cannot be void for vagueness under the Due Process Clause of the Fifth Amendment. See id. at 1193–

96. We reaffirm that holding. To explain why, we begin with a brief history of the federal sentencing guidelines.

Before the Civil War, Congress enacted very few criminal laws and “crime

control was left largely to the states.” Sara Sun Beale, Federalizing Crime:

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Assessing the Impact on the Federal Courts, 543 Annals Am. Acad. Pol. & Soc.

Sci. 39, 40 (1996). The states “uniformly followed the common-law practice of making death the exclusive and mandatory sentence for certain specified offenses.” Woodson v. North Carolina, 428 U.S. 280, 289 (1976); see also Williams v. New York, 337 U.S. 241, 247–48 (1949). All crimes “had a defined punishment,” and “the period of incarceration was generally prescribed with specificity by the legislature.” Ilene H. Nagel, Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, 80 J. Crim. L. & Criminology 883, 892 (1990).

After the Civil War, this system of fixed sentencing was gradually replaced with individualized sentencing. See id. at 893–95; United States v. Grayson, 438 U.S. 41, 45–46 (1978). Legislatures enacted broad statutory ranges, and judges began tailoring sentences to individual defendants by considering “the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 (1937); see also Pepper v. United States, 562 U.S. 476, 487–88 (2011). “So long as sentencing judges stayed within the statutory boundaries, they had unbridled discretion to arrive at any sentence they pleased.” United States v. Irey, 612 F.3d 1160, 1180 (11th Cir. 2010) (en banc). As Judge Marvin Frankel described the state of sentencing in 1973, “The sentencing powers of the judges [were]... so far unconfined that, except for frequently monstrous maximum [statutory] limits, they

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[were] effectively subject to no law at all.” Marvin E. Frankel, Criminal Sentences:

Law Without Order 8 (1973).

Although individualized sentencing was less draconian than fixed sentencing, it produced new problems. Because sentencing judges had unbridled discretion and no real standards to guide them, “[s]erious disparities in sentences... were common.” Mistretta v. United States, 488 U.S. 361, 365 (1989). “[J]udges of widely varying attitudes on sentencing, administering statutes that confer[red] huge measures of discretion, mete[d] out widely divergent sentences where the divergences [were] explainable only by the variations among the judges, not by material differences in the defendants or their crimes.” Frankel, supra, at 21. And because sentencing judges focused on the individual history and characteristics of each offender, “the offender’s race, sex, religion, income, education, occupation and other status characteristics were found to influence judicial outcomes.” Nagel, supra, at 895.

Despite its flaws, individualized sentencing remains perfectly constitutional.

“[L]egislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases....” Lockett v. Ohio, 438 U.S.

586, 603 (1978). The Supreme Court has “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” United States v. Booker, 543 U.S. 220, 233 (2005).

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Because of the disparities associated with individualized sentencing, see Koon v. United States, 518 U.S. 81, 92 (1996), and following a massive expansion of federal criminal law in the twentieth century, see Beale, supra, at 41–43, Congress enacted the Sentencing Reform Act of 1984, which created the United States Sentencing Commission and empowered it to promulgate federal sentencing guidelines, see 28 U.S.C. §§ 991, 994. The first guidelines came into effect in

1987. See United States Sentencing Guidelines Manual (Nov. 1987). They calculated a narrow sentencing range by assigning numeric values to the type of offense, the characteristics of the offense, the offender’s criminal history, and other factors. See id. The initial guidelines were also mandatory: district judges were required to impose a sentence within the guideline range, subject to limited departures, see 18 U.S.C. § 3553(b)(1), and appellate courts reviewed departures from the guidelines de novo, see id. § 3742(e).

The mandatory guidelines were quickly challenged as unconstitutional. The Supreme Court rebuffed a separation-of-powers challenge to the guidelines in Mistretta v. United States, 488 U.S. 361 (1989). The Court concluded that the mandatory guidelines were not an impermissible exercise of the legislative power

because they do not regulate primary conduct:

Although the Guidelines are intended to have substantive effects on public behavior (as do the rules of procedure), they do not bind or regulate the primary conduct of the public or vest in the Judicial Branch the legislative responsibility for establishing minimum and Case: 14-10396 Date Filed: 09/13/2016 Page: 7 of 88 maximum penalties for every crime. They do no more than fetter the discretion of sentencing judges to do what they have done for generations—impose sentences within the broad limits established by Congress.

Id. at 396 (emphasis added). The mandatory guidelines were challenged again in United States v. Booker, 543 U.S. 220 (2005)—this time under the Fifth and Sixth Amendments. A majority of the Supreme Court held that the mandatory guidelines were unconstitutional because they allowed judges to find facts, by a preponderance of the evidence, that increased a defendant’s sentence. See id. at 230–44. Other than prior convictions, “[a]ny fact that, by law, increases the penalty for a crime” must be admitted by the defendant or found by a jury beyond a reasonable doubt because such facts are not mere sentencing provisions; they are elements of the crime. Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013); see also Apprendi v. New Jersey, 530 U.S. 466, 476–90 (2000). To remedy this constitutional defect, a different majority of the Booker Court invalidated the statutory provisions that made the guidelines mandatory. Booker, 543 U.S. at 245.

What remained were guidelines that are “effectively advisory.” Id.

Now that the guidelines are advisory, they continue to play an important role in sentencing, but they do not and cannot play a decisive one. On the one hand, the guidelines are the “starting point” for sentencing and the “lodestar.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1346 (2016). District courts must calculate the guideline range correctly, Gall v. United States, 552 U.S. 38, 51

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(2007), and the failure to do so can constitute plain error because “[i]n the usual case... the selected Guidelines range will affect the sentence,” Molina-Martinez, 136 S. Ct. at 1346. And appellate courts can presume that a sentence within the guideline range is reasonable, Rita v. United States, 551 U.S. 338, 347 (2007), although this Court does not do so, United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). On the other hand, the guidelines are just one factor among many to be balanced against six other statutory sentencing factors, 18 U.S.C. § 3553(a). See Pepper, 562 U.S. at 490; see also 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). District courts commit reversible error if they “treat[] the Guidelines as mandatory,” Gall, 552 U.S. at 51, and they cannot “presume that a sentence within the applicable Guidelines range is reasonable,” Nelson v. United States, 555 U.S. 350, 352 (2009). Appellate courts cannot presume that a deviation from the guideline range is unreasonable. Rita, 551 U.S. at 354–55. A district judge may even refuse to follow the guidelines “based on [a] policy disagreement” with the Sentencing Commission, Spears v. United States, 555 U.S. 261, 264 (2009) (citing Kimbrough v. United States, 552 U.S. 85 (2007)).

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The question presented in this appeal was whether the advisory guidelines can be void for vagueness. The vagueness doctrine states that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926). As the decisions of the Supreme Court make clear, the vagueness doctrine applies only to laws that regulate private conduct—laws that define crimes, e.g., City of Chicago v. Morales, 527 U.S. 41 (1999); Kolender v. Lawson, 461 U.S. 352 (1983); Colautti v. Franklin, 439 U.S.

379 (1979); Smith v. Goguen, 415 U.S. 566 (1974); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Winters v. New York, 333 U.S. 507 (1948);

Lanzetta v. New Jersey, 306 U.S. 451 (1939); Cline v. Frink Dairy Co., 274 U.S.

445 (1927); United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921); Int’l Harvester Co. of Am. v. Kentucky, 234 U.S. 216 (1914); laws that fix sentences, e.g., Johnson v. United States, 135 S. Ct. 2551 (2015); laws that restrict speech, e.g., FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012); Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360 (1964); Cramp v. Bd.

of Pub. Instruction of Orange Cty., 368 U.S. 278 (1961); and laws that regulate businesses, e.g., A.B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233 (1925).

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The vagueness doctrine reflects two “connected but discrete” concerns:

notice and arbitrary enforcement. Fox Television Stations, 132 S. Ct. at 2317.

Notice means that a law does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Arbitrary enforcement means that a law leaves government actors “free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.” Giaccio v. Pennsylvania, 382 U.S. 399, 402–03 (1966). The guidelines implicate neither of these concerns. See United States v. Hurlburt, No. 14-3611, slip op. at 22 (7th Cir. Aug. 29, 2016) (en banc) (Hamilton, J., dissenting) (“After all, how can non-binding advice be unconstitutionally vague?”).

With respect to notice, the advisory guidelines cannot notify a defendant of what sentence he will receive because they are just that—advisory. Consider a person who is thinking about committing a federal crime and wants to know what punishment he will receive if he gets caught. He can identify a hard ceiling (the statutory maximum sentence) and a hard floor (the statutory minimum sentence).

But he cannot identify the sentence he will receive within the statutory range. He could calculate his guideline range, but the guidelines are just one of seven sentencing factors that the sentencing judge will consider. The other six include factors like “the history and characteristics of the defendant”; the need to “promote

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