United States v. Matchett

• Decision Date: 13 September 2016
• Docket Number: No. 14-10396,14-10396
• Citation: 837 F.3d 1118 (Mem)
• Parties: United States of America, Plaintiff–Appellee, v. Calvin Matchett, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

837 F.3d 1118 (Mem)

United States of America, Plaintiff–Appellee,
v.
Calvin Matchett, Defendant–Appellant.

No. 14-10396

United States Court of Appeals, Eleventh Circuit.

Date Filed: September 13, 2016

Phillip Drew DiRosa, U.S. Attorney's Office, Fort Lauderdale, FL, Kathleen Mary Salyer, Timothy J. Abraham, Wifredo A. Ferrer, Emily M. Smachetti, Vanessa Sisti Snyder, U.S. Attorney's Office, Miami, FL, for the Plaintiff–Appellee.

837 F.3d 1119

Brenda Greenberg Bryn, Andrew L. Adler, Federal Public Defender's Office, Fort Lauderdale, FL, Aimee Ferrer, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

David Oscar Markus, Markus & Markus, PLLC, Miami, FL, as Amicus Curiae.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

BY THE COURT:

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 Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.

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: 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, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ; see also Williams v. New York , 337 U.S. 241, 247–48, 69 S.Ct. 1079, 93 L.Ed. 1337 (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, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). Legislatures enacted broad statutory ranges, and judges began tailoring sentences to individual defendants by considering “the circumstances of the offense

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together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe , 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43 (1937) ; see also Pepper v. United States , 562 U.S. 476, 487–88, 131 S.Ct. 1229, 179 L.Ed.2d 196 (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 [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, 109 S.Ct. 647, 102 L.Ed.2d 714 (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, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Because of the disparities associated with individualized sentencing, see Koon v. United States , 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (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, 109 S.Ct. 647, 102 L.Ed.2d 714 (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

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(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 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, 109 S.Ct. 647 (emphasis added). The mandatory guidelines were challenged again in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 125 S.Ct. 738. 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 , –––U.S. ––––, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013) ; see also Apprendi v. New Jersey , 530 U.S. 466, 476–90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, 125 S.Ct. 738. 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...