No IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. UNITED STATES OF AMERICA, Plaintiff-Appellee,

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1 Case: Date Filed: 10/15/2015 Page: 1 of 4 No IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CALVIN MATCHETT, Defendant-Appellant. On Appeal from the United States District Court Court for the Southern District of Florida D.C. Docket No. 1:13-cr KMM-1 MOTION FOR LEAVE TO FILE AMICUS BRIEF IN SUPPORT OF PETITION FOR REHEARING EN BANC Carissa Byrne Hessick Douglas A. Berman S.J. Quinney College of Law Moritz College of Law University of Utah The Ohio State University 383 South University Street 55 West 12th Avenue Salt Lake City, UT Columbus, OH David Oscar Markus Markus/Moss PLLC 40 N.W. Third Street, Ph. One Miami, Florida Counsel for Amicus Curiae Law Professors

2 Case: Date Filed: 10/15/2015 Page: 2 of 4 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT United States v. Calvin Matchett No Amici Curiae file this Certificate of Interested Persons and Corporate Disclosure Statement, as required by Local Rules , 28-1(b), and Neither Carissa Byrne Hessick nor Douglas A. Berman, Amicus Curiae, is a wholly owned subsidiary or publicly traded company. No publicly held corporation owns any stock in Amicus Curiae. C-1 of 1

3 Case: Date Filed: 10/15/2015 Page: 3 of 4 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES OF AMERICA, Appellee, v. CALVIN MATCHETT, Appellant. / CASE NO: MOTION FOR LEAVE TO FILE AMICUS BRIEF IN SUPPORT OF PETITION FOR REHEARING EN BANC PURSUANT TO FEDERAL RULE OF APPELLATE PROCEDURE 29 Amici law professors, Carissa Byrne Hessick and Douglas A. Berman, file this Motion for Leave to File a Brief of Amicus Curiae pursuant to Eleventh Circuit Rule That Rule permits the filing of an amicus brief in support of a petition for rehearing en banc with leave of court. In addition, as the Rule requires, the motion is accompanied by the proposed brief. Amici Carissa Byrne Hessick and Douglas A. Berman teaching and research interests include federal sentencing and the void-for-vagueness doctrine. In this capacity, Amici take a professional interest in the development of federal sentencing jurisprudence and the vagueness doctrine. Amici have an important interest in this case because they are concerned that the panel decision misunderstands and misapplies several U.S. Supreme Court decisions. -1-

4 Case: Date Filed: 10/15/2015 Page: 4 of 4 As law professors, Amici are able to bring a different perspective to this case. In particular, they are able to examine the panel s decision against a backdrop of not only relevant cases, but also the academic literature in this area. Amici file this brief as individuals and not as representatives of any institutions with which they are affiliated. Counsel for Calvin Matchet, Brenda Bryn, has no objection to the instant motion. Counsel for the United States, Emily Smachetti, also has no objection. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed this 15th day of October 2015, and served on all appropriate parties through that system. Respectfully submitted, MARKUS/MOSS PLLC 40 N.W. Third Street Penthouse One Miami, Florida Tel: (305) Fax: (305) markuslaw.com By: /s/ David Oscar Markus DAVID OSCAR MARKUS Florida Bar Number dmarkus@markuslaw.com -2-

5 Case: Date Filed: 10/15/2015 Page: 1 of 21 No IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CALVIN MATCHETT, Defendant-Appellant. On Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:13-cr KMM-1 BRIEF OF LAW PROFESSORS AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLANT Carissa Byrne Hessick Douglas A. Berman S.J. Quinney College of Law Moritz College of Law University of Utah The Ohio State University 383 South University Street 55 West 12 th Avenue Salt Lake City, UT Columbus, OH David Oscar Markus Markus/Moss PLLC 40 N.W. 3 rd Street, PH1 Miami, FL Counsel for Amicus Curiae Law Professors

6 Case: Date Filed: 10/15/2015 Page: 2 of 21 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE United States v. Matchett No Amici Curiae file this Certificate of Interested Persons and Corporate Disclosure Statement, as required by Local Rules , 28-1(b), and Neither Carissa Byrne Hessick nor Douglas A. Berman, Amicus Curiae, is a wholly owned subsidiary or publicly traded company. No publicly held corporation owns any stock in Amicus Curiae. /s/ David Oscar Markus i

7 Case: Date Filed: 10/15/2015 Page: 3 of 21 INTEREST OF AMICUS CURIAE Amici Carissa Byrne Hessick and Douglas A. Berman are law professors whose teaching and research interests include federal sentencing and the void-forvagueness doctrine. Amici file this brief as individuals and not as representatives of any institutions with which they are affiliated. I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of the Supreme Court of the United States or the precedents of this circuit and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court: FCC v. Fox Television Stations, 132 S. Ct (2012) Johnson v. United States, 135 S. Ct (2015) Georgia Pac. Corp. v. Occupational Safety & Health Review Comm'n, 25 F.3d 999 (11th Cir. 1994) Kolender v. Lawson, 461 U.S. 352 (1983) Peugh v. United States, 133 S. Ct (2013) Stinson v. United States, 508 U.S. 36 (1993) /s/ David Oscar Markus ii

8 Case: Date Filed: 10/15/2015 Page: 4 of 21 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE... i INTEREST OF AMICUS CURIAE... ii TABLE OF CITATIONS... iv STATEMENT OF THE ISSUES... 1 ARGUMENT... 2 I. The Panel s Decision Conflicts with the Supreme Court s Decisions on the Vagueness Doctrine and the Sentencing Guidelines... 2 II. The Panel s Decision is Inconsistent with the Current Structure of Federal Sentencing III. Few Guidelines Will be Susceptible to Vagueness Attack CONCLUSION iii

9 Case: Date Filed: 10/15/2015 Page: 5 of 21 TABLE OF CITATIONS CASES Alleyne v. United States, 133 S. Ct (2013)... 8 Boyce Motor Lines v. United States, 342 U.S. 337 (1952)... 3 FCC v. Fox Television Stations, 132 S. Ct (2012)... 3 Gentile v. State Bar of Nevada, 501 U.S (1991)... 3 Georgia Pac. Corp. v. Occupational Safety & Health Review Comm'n, 25 F.3d 999 (11th Cir. 1994)... 4 Grayned v. City of Rockford, 408 U.S. 104 (1972)...5, 11 Irizarry v. United States, 553 U.S. 708 (2008)...9, 10 Johnson v. United States, 135 S. Ct (2015)... 1, 2, 3, 4, 5, 7, 8, 13, 14 Kimbrough v. United States, 552 U.S. 85 (2007)... 11, 12 Kolender v. Lawson, 461 U.S. 352 (1983)...4, 5 Lanzetta v. New Jersey, 306 U.S. 451 (1939)... 9 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950)... 9 Peugh v. United States, 133 S. Ct (2013)... 6, 7, 11 Rita v. United States, 551 U.S. 338 (2007)... 6, 12, 14 Stinson v. United States, 508 U.S. 36 (1993)... 4 United States v. Booker, 543 U.S. 220 (2005)... 1, 10, 11, 12 United States v. Matchett, No , slip op. (11th Cir. Sept. 21, 2015). iv

10 Case: Date Filed: 10/15/2015 Page: 6 of 21 2, 3, 4, 7, 8, 12, 13 United States v. Summers, 176 F.3d 1328 (11th Cir. 1999) United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)... 8 United States v. Williams, 553 U.S. 285 (2008)... 2 STATUTES 18 U.S.C. 3553(a) U.S.C. 924(e)(2)(B)... 1 GUIDELINES U.S.S.G. 2B1.1(b)(10)...13 U.S.S.G. 3B1.2(b)...13 U.S.S.G. 4B1.2(a)(2)... passim REGULATIONS 80 Fed. Reg. 49, OTHER AUTHORITIES Carissa Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 NOTRE DAME L. REV. 187 (2014)... 9 Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1 (1988)... 12, 13 v

11 Case: Date Filed: 10/15/2015 Page: 7 of 21 STATEMENT OF THE ISSUES The U.S. Sentencing Guidelines dramatically increase a defendant s sentencing range if she has at least two prior convictions for a crime of violence, which U.S.S.G. 4B1.2(a)(2) defines to include crimes that involve[] conduct that presents a serious potential risk of physical injury to another. As the panel in this case acknowledged, that definition is identical to the definition in 18 U.S.C. 924(e)(2)(B), which the Supreme Court in Johnson v. United States, 135 S. Ct (2015), found to be unconstitutionally vague in violation of the Due Process Clause. Nevertheless, the panel in this case held that 4B1.2(a)(2) is not unconstitutionally vague, reasoning that the vagueness doctrine does not apply to the now-advisory Sentencing Guidelines. That conclusion is inconsistent with Supreme Court decisions on the vagueness doctrine and the Sentencing Guidelines. The panel s decision also upsets the careful balance that the Supreme Court has struck between uniformity and discretion in federal sentencing after United States v. Booker, 543 U.S. 220 (2005). Finally, the panel decision fails to appreciate that it faced a unique situation in which a Guideline contains language identical to a federal statute declared void for vagueness by the Supreme Court. Both the narrow basis for that decision, as well as ordinary Commission practice of reviewing and revising the Sentencing Guidelines, ensure that few Guidelines will become 1

12 Case: Date Filed: 10/15/2015 Page: 8 of 21 susceptible to serious vagueness challenges. This Court accordingly should grant en banc review. ARGUMENT I. THE PANEL S DECISION CONFLICTS WITH THE SUPREME COURT S DECISIONS ON THE VAGUENESS DOCTRINE AND THE SENTENCING GUIDELINES 1. The Due Process Clause prohibits the enforcement of overly vague criminal laws. A criminal law is unconstitutionally vague if it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement. Johnson v. United States, 135 S. Ct. 2551, 2556 (2015); see United States v. Williams, 553 U.S. 285, 304 (2008) (stating a law is vague if it fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement ). These rules apply not only to statutes defining elements of crimes, but also to statutes fixing sentences. Johnson, 135 S. Ct. at As the panel in this case recognized, 4B1.2(a)(2) is identical to language that the Supreme Court struck down as unconstitutionally vague in Johnson. United States v. Matchett, No , slip op. at 13 (11th Cir. Sept. 21, 2015). But the panel concluded that Johnson did not control the outcome in this case. It stated that the holding in Johnson is limited to criminal statutes that define 2

13 Case: Date Filed: 10/15/2015 Page: 9 of 21 elements of a crime or fix punishments. Matchett, slip op. at 14. The panel reasoned that 4B1.2(a)(2) does not fit this definition because it is the U.S. Sentencing Guidelines are only advisory. According to the panel, a vague Sentencing Guideline does not unconstitutionally deprive defendants of notice because the Guideline does not dictate a sentence; instead it provides merely the starting point and the initial benchmark designed to assist the sentencing judge in determining a sentence. Matchett, slip op. at 14. This conclusion is inconsistent with various decisions of the Supreme Court. 2A. Although Johnson indicated that the void for vagueness doctrine applies to statutes defining elements of crimes and statutes fixing sentences, Johnson, 135 S. Ct. at 2557, the Supreme Court has repeatedly held that the vagueness doctrine is not limited to those statutes. It has held that regulations, as opposed to statutes, may be subject to vagueness attacks. See, e.g., FCC v. Fox Television Stations, 132 S. Ct. 2307, 2319 (2012) (finding unconstitutionally vague regulations on indecency); Boyce Motor Lines v. United States, 342 U.S. 337, (1952) (evaluating a regulation promulgated by the Interstate Commerce Commission under the vagueness doctrine). Nor is the doctrine limited to criminal laws. See, e.g., Gentile v. State Bar of Nevada, 501 U.S (1991) (finding Nevada Supreme Court Rule void for vagueness). This Court has likewise applied the doctrine to civil regulations, and it has previously found regulations to be 3

14 Case: Date Filed: 10/15/2015 Page: 10 of 21 unconstitutionally vague. E.g., Georgia Pac. Corp. v. Occupational Safety & Health Review Comm'n, 25 F.3d 999, (11th Cir. 1994). As the Supreme Court has explained, the guidelines are the equivalent of legislative rules adopted by federal agencies. Stinson v. United States, 508 U.S. 36, 45 (1993). Because the vagueness doctrine indisputably applies to those rules, it also applies to the Sentencing Guidelines. Nothing in Johnson suggests that it meant to overrule those cases and limit the vagueness doctrine to only criminal statutes. Thus, the panel s decision that the vagueness doctrine does not apply to Sentencing Guidelines was contrary to both Supreme Court precedent and precedent of this Court. 2B. The panel based its decision not to apply the vagueness doctrine to the Sentencing Guidelines on an assumption that the vagueness doctrine rests on a lack of notice. Matchett, slip op. at 15 (internal quotation marks omitted). In focusing exclusively on whether the Sentencing Guidelines provide adequate notice, the panel in this case disregarded the Supreme Court s admonition that the more important aspect of vagueness doctrine is... the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U.S. 352, (1983) (internal quotation marks omitted). A vague law risks arbitrary and discriminatory enforcement because it delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and 4

15 Case: Date Filed: 10/15/2015 Page: 11 of 21 subjective basis. Grayned v. City of Rockford, 408 U.S. 104, (1972). That is why in Kolender v. Lawson, 461 U.S. 352 (1983), the Supreme Court struck down as impermissibly vague a statute requiring people to provide credible and reliable identification when requested by a police officer. Vesting such broad discretion in law enforcement, the Court reasoned, furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit their displeasure. Id. at 360 (internal quotation marks omitted). As Johnson makes clear, arbitrary and discriminatory enforcement remains a concern at sentencing even when the primary individual charged with applying a vague law is a federal judge. Johnson v. United States, 135 S. Ct. 2551, 2557 (2015) ( We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause... invites arbitrary enforcement by judges. ). The uncertainty of 4B1.2(a)(2) presents significant opportunities for arbitrary and discriminatory enforcement. Consider a judge who dislikes a particular defendant. Instead of explaining on the record why she is inclined to vary from the Sentencing Guidelines to impose a higher sentence, she may construct an interpretation of 4B1.2(a)(2) that would permit the higher sentence. As the Supreme Court has recognized, a sentence that is consistent with the Sentencing Guidelines is more likely to be upheld than a sentence that is outside of 5

16 Case: Date Filed: 10/15/2015 Page: 12 of 21 the Guidelines range. Rita v. United States, 551 U.S. 338, 347 (2007) ( [B]y the time an appeals court is considering a within-guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case... [which] significantly increases the likelihood that the sentence is a reasonable one. ) (emphasis in original); see also Peugh v. United States, 133 S. Ct. 2072, 2083 (2013) (noting that the Guidelines remain a meaningful benchmark through the process of appellate review ). As a result, the vagueness of 4B1.2(a)(2) makes a higher sentence based on arbitrary or discriminatory criteria more likely to be upheld on appeal. Nor is the potential for abuse limited to sentencing judges. For example, if a defendant behaved rudely towards a probation officer during the presentence interview, the probation officer could seek to retaliate against the defendant by recommending that 4B1.2(a)(2) apply. To be sure, the sentencing judge may exercise her discretion to impose a below-guidelines sentence, or she might disregard the probation officer s recommendation. But that exercise of judicial discretion does not cure the harm resulting from the discriminatory enforcement at the hands of the probation officer. The Supreme Court has never indicated that the subsequent discretion of another criminal justice actor is sufficient to counteract the danger of arbitrary and discriminatory enforcement. 6

17 Case: Date Filed: 10/15/2015 Page: 13 of 21 2C. The panel decided to exempt the Sentencing Guidelines from the vagueness doctrine based on a faulty analysis of notice. Matchett, slip op. at 15 (internal quotation marks omitted). But the panel s discussion of notice sorely misunderstands several Supreme Court cases. The panel concluded that 4B1.2(a)(2) s vagueness does not unconstitutionally fail to give a defendant notice because it is only the starting point to assist a sentencing judge in determining sentence. 1 Matchett, slip op. at This is not an accurate description of the role of the Sentencing Guidelines. As the Supreme Court has explained, although the Guidelines are not mandatory, they have considerable influence on sentencing determinations because of the procedures courts must follow in imposing sentence. Peugh v. United States, 133 S. Ct. 2072, 2083 (2013). District courts must begin their analysis with the 1 The panel also concluded that an advisory Sentencing Guideline cannot be unconstitutionally vague, because the Supreme Court has held that purely indeterminate sentencing systems, such as the pre-sentencing Reform Act federal system, comply with due process. Matchett, slip op. at That reasoning is faulty. Although indeterminate schemes may comply with due process, Johnson makes clear that, if a sentencing system cabins a judge s discretion at sentencing by adopting sentencing criteria, those criteria must comply with the vagueness doctrine. Johnson involved a statute imposing a mandatory minimum sentence, which is one method through which a legislature can limit a judge s sentencing discretion. Although they are advisory, the U.S. Sentencing Guidelines still cabin judges discretion in imposing sentence. See Peugh v. United States, 133 S. Ct. 2072, 2084 (2013) (noting that the federal system s procedural rules... impose a series of requirements on sentencing courts that cabin the exercise of [their] discretion ). The Sentencing Guidelines accordingly must also comply with the vagueness doctrine. 7

18 Case: Date Filed: 10/15/2015 Page: 14 of 21 Guidelines and remain cognizant of them throughout the sentencing process. Id. Incorrectly calculating the Guidelines range constitutes procedural error, and if a district court imposes a non-guidelines sentence it must provide a justification sufficiently compelling to support the degree of the variance. Id. Moreover, appellate courts assess the reasonableness of sentences by reference to the Guidelines. 2 Id. Because of their significant effect on sentences, the Sentencing Guidelines must provide adequate notice to defendants of the conduct that may result in an enhancement. It is of no moment that defendants cannot rely on [the Sentencing Guidelines] to communicate the sentence that the district court will impose. Matchett, slip op. at 15 (quoting United States v. Tichenor, 683 F.3d 358, 365 (7th Cir. 2012)). Statutes defining mandatory minimums do not communicate the sentence that the district court will impose, and yet there is no doubt that those statutes are subject to the vagueness doctrine after Johnson. Requiring specificity for statutes setting mandatory minimum sentences merely allows a defendant to better predict her punishment. See Alleyne v. United States, 133 S. Ct. 2151, 2161 (2013). The same holds true for advisory Sentencing Guidelines. The panel also misunderstood the significance of the Supreme Court s 2 The Court also noted that some circuits have adopted a presumption of reasonableness for within-guideline sentences. That presumption is not critical to the Court s analysis, because as the Court was aware, not all circuits have adopted the presumption. 8

19 Case: Date Filed: 10/15/2015 Page: 15 of 21 decision in Irizarry v. United States, 553 U.S. 708 (2008). Contrary to the panel s conclusion, Irizarry does not establish that the text of the Sentencing Guidelines need not provide notice of the grounds for enhancements to avoid being unconstitutionally vague. The Irizarry decision resolved a notice question that is irrelevant to the notice inquiry under the vagueness doctrine. The Due Process Clause imposes two separate notice requirements. See Carissa Byrne Hessick & F. Andrew Hessick, Procedural Rights at Sentencing, 90 NOTRE DAME L. REV. 187, 210 (2014) (discussing the two types of notice). First, due process requires that the law inform the public, ex ante, of what conduct is prohibited and the consequences for engaging in that conduct. See, e.g., Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) ( No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. ). Second, even if the law clearly notifies the public about prohibited conduct and penalties, due process requires certain procedural protections during adjudication. This adversarial notice requires the government to provide a defendant with notice of the allegations against her and an opportunity to respond to those allegations. See, e.g., Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) ( Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that 9

20 Case: Date Filed: 10/15/2015 Page: 16 of 21 deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. ). The void for vagueness doctrine derives from the first kind of notice. It requires that the law adequately notify the public at large of what conduct is prohibited and the penalties for engaging in that conduct. Irizarry involved the second kind of notice the sort of notice that is required during adjudication. There, the Court held that, after United States v. Booker, a sentencing court is not required to notify a particular defendant in a particular case that it is contemplating imposing a sentence above the guideline range. See, e.g., Irizarry, 553 U.S. at 715 ( Sound practice dictates that judges in all cases should make sure that the information provided to the parties in advance of the hearing, and in the hearing itself, has given them an adequate opportunity to confront and debate the relevant issues. ). Irizarry did not address the first type of notice what degree of notice a Sentencing Guideline must provide ex ante to comply with the Due Process Clause. Thus, the panel was incorrect to conclude that the notice question at issue in vagueness cases is settled by the Supreme Court s decision in Irizarry. II. THE PANEL S DECISION IS INCONSISTENT WITH THE CURRENT STRUCTURE OF FEDERAL SENTENCING The panel decision is not only inconsistent with the vagueness doctrine, it also ignores the structure underlying post-booker federal sentencing. The Booker 10

21 Case: Date Filed: 10/15/2015 Page: 17 of 21 sentencing remedy seeks to achieve two independent goals adherence to the Guidelines and district court discretion. Adherence to the Guidelines promotes sentencing uniformity, while district court discretion avoids the Sixth Amendment problems identified in Booker v. United States, 543 U.S. 220 (2005). See Peugh v. United States, 133 S. Ct. 2072, 2088 (2013) ( The Booker remedy was designed, and has been subsequently calibrated... to promote sentencing uniformity while avoiding a Sixth Amendment violation. ). Prohibiting vagueness challenges to the Sentencing Guidelines will undermine this balance because vague Guidelines lead to inconsistent application and thus a lack of uniformity. If a rule is vague, then it does not indicate how it ought to be interpreted. A vague Sentencing Guideline will require probation officers and judges to interpret it on an ad hoc and subjective basis. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). There is every reason to believe that those interpretations will differ, resulting in similar offenders being treated dissimilarly under the Guidelines. One might argue that the panel s decision furthers judicial sentencing discretion because it allows judges to construe vague Sentencing Guidelines. But the discretion contemplated by the Booker remedy is not discretion to interpret the Guidelines, rather it is the discretion to tailor [a defendant s] sentence in light of other statutory concerns listed in 18 U.S.C. 3553(a). Kimbrough v. United 11

22 Case: Date Filed: 10/15/2015 Page: 18 of 21 States, 552 U.S. 85, 101 (2007). Even after Booker, the task of revising and refining the Guidelines remains with the Sentencing Commission. See Rita v. United States, 551 U.S. 338, 350 (2007). Because allowing vague Sentencing Guidelines to persist decreases uniformity without any appropriate increase in sentencing judge discretion, it upsets the balance between uniformity and discretion that the Supreme Court has struck in the Booker remedy. III. FEW GUIDELINES WILL BE SUSCEPTIBLE TO VAGUENESS ATTACK The panel in this case overstated the likely effect of vagueness review on federal sentencing. The panel stated that [h]olding that an advisory guideline can be void for vagueness... would upend our sentencing regime. Matchett, slip op. at 18. In particular, the panel expressed a concern that such a holding would create instability because many of the current U.S. Sentencing Guidelines could be described as vague. Matchett, slip op. at This concern is misplaced. The U.S. Sentencing Guidelines are premised on the idea that offenders should be sentenced based on their real conduct that is, the manner in which different defendants commit the same offense in different ways. See Booker v. United States, 543 U.S. 220, 250 (2005); Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 12

23 Case: Date Filed: 10/15/2015 Page: 19 of 21 1, 8-12 (1988). Most of the Guidelines direct judges to make certain quantitative and qualitative determinations about how a defendant committed her crime, and then to adjust the offense level accordingly. These real conduct Guidelines are likely to survive a vagueness attack. The Johnson Court specifically stated that we do not doubt the constitutionality of laws that call for the application of a qualitative standard... to real world conduct. Johnson v. United States, 135 S. Ct. 2552, 2561 (2015). Each of the Guidelines that the panel opinion identified as examples of potentially vague Guidelines require the sentencing judge to apply a qualitative standard to the underlying facts of the defendant s offense. See Matchett, slip op. at (discussing U.S.S.G. 2B1.1(b)(10)) and U.S.S.G. 3B1.2(b)). In other words, they are precisely the sort of provisions that the Johnson Court indicated are not likely to be found vague. Both the ACCA and 4B1.2(a)(2) are susceptible to a vagueness challenge because they require[] application of the serious potential risk standard to an idealized ordinary case of the crime. Johnson, 135 S. Ct. at Requiring judges to apply a qualitative standard to the ordinary case rather than to the particular conduct in which the defendant engaged is the exception, rather than the rule under the Guidelines real conduct approach. Thus, the panel s concern that allowing vagueness challenges to the U.S. Sentencing Guidelines would upend our sentencing regime is unfounded. 13

24 Case: Date Filed: 10/15/2015 Page: 20 of 21 What is more, even if there are current or future Guidelines that are insufficiently precise, the Commission is well-situated to resolve that ambiguity. As the Supreme Court has noted, the Sentencing Commission s work is ongoing. Rita v. United States, 551 U.S. 338, 350 (2007). It regularly amends the Sentencing Guidelines in response to evolving concerns, including disagreement about how to interpret and apply certain guidelines. See, e.g., United States v. Summers, 176 F.3d 1328, 1334 (11th Cir. 1999) (Carnes, J., dissenting) ( When an ambiguity... results in differing applications of the same guideline, the Commission has the authority, perhaps the duty, to clarify matters. ). Indeed, the Commission has already taken action to amend 4B1.2(a)(2) in the wake of United States v. Johnson; it has given notice and requested public comment on a proposed amendment to delete the residual clause and replace it with a finite list of predicate offenses. Sentencing Guidelines for the United States Courts, 80 Fed. Reg. 49,314 (2015). If this amendment takes effect, 4B1.2(a)(2) will be sufficiently precise so as to avoid any vagueness concerns. Consequently, a decision that 4B1.2(a)(2) is unconstitutionally vague would hardly upend our sentencing regime. Rather it would be entirely consistent with what the Sentencing Commission has already acknowledged that 4B1.2(a)(2) is flawed and should not continue to inform the Guidelines calculation in its current form. 14

25 Case: Date Filed: 10/15/2015 Page: 21 of 21 CONCLUSION The panel s decision is inconsistent with a number of U.S. Supreme Court cases involving the vagueness doctrine and the U.S. Sentencing Guidelines. Accordingly, this Court should grant en banc review. CERTIFICATE OF SERVICE I certify that that on October , this Amicus Curiae brief was served electronically upon all counsel of record. Respectfully submitted, MARKUS/MOSS PLLC 40 N.W. Third Street Penthouse One Miami, Florida Tel: (305) Fax: (305) markuslaw.com By: /s/ David Oscar Markus DAVID OSCAR MARKUS Florida Bar Number dmarkus@markuslaw.com 15