beckles argued november decided march petitioner beckles convicted possession firearm convicted felon presentence investigation report concluded eligible sentencing enhancement career offender sentencing guideline offense qualified crime violence residual clause district sentenced petitioner career offender eleventh circuit affirmed petitioner filed postconviction motion vacate sentence arguing offense crime violence district denied motion eleventh circuit affirmed petitioner next filed petition writ certiorari petition pending held identically worded residual clause armed career criminal act acca unconstitutionally vague johnson vacated remanded petitioner case light johnson remand eleventh circuit affirmed distinguishing acca unconstitutionally vague residual clause residual clause sentencing guidelines held federal sentencing guidelines including residual clause subject vagueness challenges due process clause pp due process clause prohibits government taking away someone life liberty property criminal law vague fails give ordinary people fair notice conduct punishes standardless invites arbitrary enforcement johnson supra doctrine laws fix permissible sentences criminal offenses must specify range available sentences sufficient clarity batchelder johnson held acca residual clause fixed impermissibly vague way higher range sentences certain defendants advisory guidelines fix permissible range sentences merely guide exercise discretion choosing appropriate sentence within statutory range pp limited scope doctrine context rooted history federal sentencing congress long permitted district courts wide discretion decide whether offender incarcerated long mistretta yet never doubted authority judge exercise broad discretion imposing sentence within statutory range booker suggested defendant successfully challenge vague sentencing statute conferring discretion select appropriate sentence within statutory range even discretion unfettered see batchelder supra pp sentencing reform act departed regime establishing several factors guide district courts exercising sentencing discretion also created sentencing commission charged establishing federal sentencing guidelines guidelines rendered effectively advisory booker supra guide district courts exercising discretion constrain discretion accordingly amenable vagueness challenges system unfettered discretion unconstitutionally vague difficult see present system guided discretion neither implicate twin concerns underlying vagueness doctrine providing notice preventing arbitrary enforcement applicable statutory range establishes permissible bounds sentencing discretion provides notice required similarly guidelines invite arbitrary enforcement within meaning case law permit sentencing prohibit behavior prescribe sentencing ranges available rather advise sentencing courts exercise discretion within bounds established congress pp holding case render advisory guidelines immune constitutional scrutiny see peugh render sentencing procedure entirely immune scrutiny due process clause williams new york holds sentencing guidelines subject challenge doctrine pp holding cast doubt validity factors sentencing courts must consider exercising sentencing discretion see contrary holding however cast serious doubt factors many appear least unclear residual clause rejects government argument individualized sentencing required factors distinguishable required guidelines far obvious residual clause implicates twin concerns vagueness factors neither guidelines factors implicate concerns absence guidance government concedes constitutional pp fed appx affirmed thomas delivered opinion roberts kennedy breyer alito joined kennedy filed concurring opinion ginsburg sotomayor filed opinions concurring judgment kagan took part consideration decision case opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press travis beckles petitioner writ certiorari appeals eleventh circuit march justice thomas delivered opinion time petitioner sentencing advisory sentencing guidelines included residual clause defining crime violence offense involves conduct presents serious potential risk physical injury another sentencing commission guidelines manual ussg held johnson identically worded residual clause armed career criminal act acca unconstitutionally vague petitioner contends guidelines residual clause also void vagueness hold advisory guidelines subject vagueness challenges due process clause reject petitioner argument petitioner travis beckles convicted possession firearm convicted felon according presentence investigation report firearm shotgun petitioner therefore eligible sentencing enhancement career offender sentencing guidelines version guidelines effect petitioner provided defendant career offender defendant least eighteen years old time defendant committed instant offense conviction instant offense conviction felony either crime violence controlled substance offense defendant least two prior felony convictions either crime violence controlled substance offense ussg guidelines defined crime violence offense federal state law punishable imprisonment term exceeding one year element use attempted use threatened use physical force person another burglary dwelling arson extortion involves use explosives otherwise involves conduct presents serious potential risk physical injury another emphasis added clause beginning otherwise definition known residual clause commentary guideline provided possession shotgun crime violence see unlawfully possessing firearm described shotgun term means shotgun barrel barrels less inches length district agreed petitioner qualified career offender guidelines petitioner years age time offense criminal history included multiple prior felony convictions controlled substance offenses furthermore district view petitioner conviction qualified crime violence qualified career offender petitioner guidelines range months life imprisonment district sentenced petitioner months appeals affirmed petitioner conviction sentence denied certiorari beckles cert denied september petitioner filed motion vacate sentence arguing conviction unlawful possession firearm crime violence therefore qualify career offender guidelines district denied motion appeals affirmed petitioner filed second petition certiorari petition pending decided johnson holding imposing increased sentence residual clause acca contained language guidelines residual clause violate constitution guarantee due process clause unconstitutionally vague slip subsequently granted petition vacated judgment appeals remanded consideration light johnson beckles remand petitioner argued enhanced sentence based residual clause contended unconstitutionally vague johnson appeals affirmed noted petitioner sentenced career offender based acca residual clause based express language sentencing guidelines classifying offense violence fed appx per curiam johnson appeals reasoned says decided nothing enhancements sentencing guidelines guidelines commentary underlying petitioner status ibid appeals denied rehearing en banc petitioner filed another petition certiorari contending residual clause void vagueness resolve conflict among courts appeals question whether johnson vagueness holding applies residual clause granted certiorari respondent agrees petitioner guidelines subject vagueness challenges appointed adam mortara amicus curiae argue contrary position ably discharged responsibilities ii held due process clause prohibits government taking away someone life liberty property criminal law vague fails give ordinary people fair notice conduct punishes standardless invites arbitrary enforcement johnson slip citing kolender lawson applying standard invalidated two kinds criminal laws void vagueness laws define criminal offenses laws fix permissible sentences criminal offenses former explained doctrine requires penal statute define criminal offense sufficient definiteness ordinary people understand conduct prohibited manner encourage arbitrary discriminatory enforcement latter explained statutes fixing sentences johnson supra slip citing batchelder must specify range available sentences sufficient clarity see also evans cf giaccio pennsylvania johnson applied vagueness rule statute fixing permissible sentences acca residual clause applicable required sentencing courts increase defendant prison term statutory maximum years minimum years requirement thus fixed impermissibly vague way higher range sentences certain defendants see alleyne describing legally prescribed range available sentences penalty fixed crime unlike acca however advisory guidelines fix permissible range sentences contrary merely guide exercise discretion choosing appropriate sentence within statutory range accordingly guidelines subject vagueness challenge due process clause residual clause therefore void vagueness limited scope doctrine context rooted history federal sentencing instead enacting specific sentences particular federal crimes congress historically permitted district courts wide discretion decide whether offender incarcerated long mistretta crimes congress set forth range sentences sentencing courts almost unfettered discretion select actual length defendant sentence within customarily wide range congress enacted see also apprendi new jersey williams new york discretion allowed district courts craft individualized sentences taking account facts crime history defendant result erious disparities sentences common mistretta supra yet long history discretionary sentencing never doubted authority judge exercise broad discretion imposing sentence within statutory range booker see also apprendi supra othing history suggests impermissible judges exercise discretion imposing judgment within range prescribed statute giaccio supra intend cast doubt whatever constitutionality settled practice many leave juries finding defendants guilty crime power fix punishment within legally prescribed limits specifically cases never suggested defendant successfully challenge vague sentencing statute conferring discretion select appropriate sentence within statutory range even discretion unfettered fact reasoning batchelder suggests opposite considered case constitutionality two overlapping criminal provisions authorized different maximum penalties conduct held sentencing provisions void vagueness specified penalties available defined punishment authorized upon conviction crime although statutes create uncertainty crime may charged therefore penalties may imposed id greater extent single statute authorizing various alternative punishments ibid emphasis added specifying range penalties prosecutors judges may seek impose congress fulfilled duty citing evans supra emphasis added indeed party case suggests system purely discretionary sentencing subject vagueness challenge sentencing reform act departed regime establishing several factors guide district courts exercising traditional sentencing discretion congress act created sentencing commission charged establishing guidelines used sentencing tretta supra result commission work federal sentencing guidelines one sentencing factors act requires courts consider guidelines initially binding district courts booker booker rendered effectively advisory although guidelines remain starting point initial benchmark sentencing sentencing may longer rely exclusively guidelines range rather must make individualized assessment based facts presented statutory factors gall guidelines thus continue guide district courts exercising discretion serving framework sentencing peugh slip constrain th discretion thomas dissenting slip merely guide district courts discretion guidelines amenable vagueness challenge discussed system purely discretionary sentencing predated guidelines constitutionally permissible system unfettered discretion unconstitutionally vague difficult see present system guided discretion advisory guidelines also implicate twin concerns underlying vagueness doctrine providing notice preventing arbitrary enforcement notice even perfectly clear guidelines provide notice person seeks regulate conduct avoid particular penalties within statutory range see grayned city rockford even person behaves avoid enhanced sentence guideline sentencing retains discretion impose enhanced sentence see pepper ur decisions make clear district may appropriate cases impose sentence based disagreement commission views held irizarry due process concerns require notice world mandatory guidelines longer apply see expectation subject due process protection criminal defendant receive sentence within presumptively applicable guidelines range survive decision booker invalidated mandatory features guidelines notice required provided applicable statutory range establishes permissible bounds sentencing discretion advisory guidelines also implicate vagueness doctrine concern arbitrary enforcement laws regulate persons entities explained must sufficiently clear enforcing law act arbitrary discriminatory way fcc fox television stations see also grayned supra vague law impermissibly delegates basic policy matters judges resolution ad hoc subjective basis unconstitutionally vague law invites arbitrary enforcement sense leaves judges jurors free decide without legally fixed standards prohibited particular case giaccio permits prescribe sentences sentencing range available cf alleyne slip legally prescribed range penalty affixed crime guidelines however regulate public prohibiting conduct establishing minimum maximum penalties crime mistretta sentencing guidelines bind regulate primary conduct public rather guidelines advise sentencing courts exercise discretion within bounds established congress case example district enforce guideline petitioner enforced prohibition possession firearm felon prohibited petitioner conduct mandate sentence years life imprisonment fixed permissible range petitioner sentence relied guideline merely advice exercising discretion choose sentence within statutory limits justice sotomayor concurrence suggests judges interpreting vague sentencing guideline might rely statistical analysis gut instinct judge feelings decide whether defendant conviction crime violence post opinion concurring judgment internal quotation marks omitted judge granted unfettered discretion use approaches determining defendant sentence indeed concurrence notes federal judges guidelines considered view proper sentencing policy among considerations post yet never suggested unfettered discretion void vagueness accordingly hold advisory sentencing guidelines subject vagueness challenge due process clause residual clause void vagueness iii holding today render advisory guidelines immune constitutional scrutiny held peugh example retrospective increase guidelines range applicable defendant violates ex post facto clause slip ex post facto inquiries analytically distinct see slip distinguishing ex post facto inquiry sixth amendment inquiry ex post facto cases focused whether change law creates risk higher sentence ibid retroactive change guidelines creates risk sentencing decisions anchored guidelines establish framework sentencing slip contrast doctrine requires different inquiry question whether law regulating private conduct fixing permissible sentences provides notice avoids arbitrary enforcement clearly specifying range penalties available government rebuttal doctrines concerned justice reply brief ignores contours precedents also recognized eighth amendment context district reliance vague sentencing factor capital case even indirectly taint sentence brief citing espinosa florida per curiam emphasis added approach vagueness due process clause interchangeable rationale cases construing applying eighth amendment maynard cartwright decision espinosa thus inapposite involve advisory sentencing guidelines due process clause finally holding today also render sentencing procedure entirely immune scrutiny due process clause williams see townsend burke holding due process violated relies extensively materially false evidence impose sentence uncounseled defendant hold advisory sentencing guidelines including residual clause subject challenge doctrine iv addition directing sentencing courts consider guidelines see congress directed consider number factors exercising sentencing discretion see government concedes american judges long made th sorts judgments called factors schemes never understood discretionary determinations raise vagueness concerns brief factors like guidelines mandate specific sentences rather guide exercise district discretion within applicable statutory range holding today casts doubt validity holding guidelines subject vagueness challenges due process clause however cast serious doubt validity many factors appear least unclear residual clause example courts must assess need sentence imposed achieve certain goals reflect seriousness offense promote respect law provide punishment offense afford adequate deterrence criminal conduct provide defendant needed educational vocational training effective manner petitioner correct residual clause subject vagueness challenge hard pressed find factors sufficiently definite provide adequate notice prevent arbitrary enforcement government tries ways arguing individualized sentencing required factors different kind required guidelines inscrutably vague advisory guideline contends injects arbitrariness sentencing process found exercise unguided discretion traditional sentencing system reply brief far obvious residual clause implicates twin concerns vagueness statutory command sentencing courts impose sentence tailored example promote respect law neither guidelines factors implicate concerns absence guidance government concedes constitutional government also suggests guidelines like factors require decide whether facts case satisfy legal standard order derive specific numerical range distinguish sentencing factors require courts thing section district courts shall impose sentence sufficient greater necessary comply purposes set forth fact guidelines generally offer concrete advice imposing particular sentence make easier review whether abused substantial discretion sound reason conclude guidelines sentencing factors amenable vagueness review advisory sentencing guidelines subject due process vagueness challenge residual clause void vagueness judgment appeals accordingly affirmed ordered justice kagan took part consideration decision case kennedy concurring travis beckles petitioner writ certiorari appeals eleventh circuit march justice kennedy concurring sentencing laws standards continue evolve cases may arise formulation sentencing provision leads sentence pattern sentencing challenged arbitrary implicates constitutional concerns instance litigant might use word vague general sense say imprecise unclear trying establish sentencing decision flawed something vague general matter however necessarily mean vague within legal meaning term seems unlikely definitional structure used explain vagueness context fair warning transgressor preventing arbitrary enforcement automatic transference applicable subject sentencing judicial discretion involved distinct statutory command see johnson existing principles defining vagueness transported uncritically realm judicial discretion sentencing explication constitutional limitations likely required considerations inform reading opinion join ginsburg concurring judgment travis beckles petitioner writ certiorari appeals eleventh circuit march justice ginsburg concurring judgment case simple solution travis beckles convicted violating official commentary sentencing guideline expressly designated offense conviction possessing shotgun felon crime violence see ante sentencing commission guidelines manual harmonious federal law text commentary authoritative stinson beckles therefore indeed claim vague applied conduct clearly proscribed also complain vagueness guideline applied conduct others holder humanitarian law project internal quotation marks omitted rejecting vagueness challenge terrorism statute accordingly defer encompassing ruling case agreed take requires one sotomayor concurring judgment travis beckles petitioner writ certiorari appeals eleventh circuit march justice sotomayor concurring judgment justice ginsburg explains holding today unnecessary see ante opinion concurring judgment petitioner travis beckles sentenced years prison basis commentary promulgated sentencing commission interpreting sentencing provision identical residual clause held unconstitutionally vague two years ago johnson johnson affords beckles relief commentary sentenced unconstitutionally vague majority limited conclusion joined opinion instead majority reaches far beyond necessary resolve case announces sentencing guidelines whole immune vagueness challenges write separately explain holding unnecessary also deeply unsound guidelines anchor every sentence imposed federal district courts real sense basis sentence slip quoting peugh slip emphasis deleted due process clause requires rules weighty drafted sufficient definiteness ordinary people understand manner encourage arbitrary discriminatory enforcement kolender lawson agree majority conclusion contrary respectfully concur judgment due process clause prohibits government taking away someone life liberty property criminal law vague fails give ordinary people fair notice conduct punishes standardless invites arbitrary enforcement johnson slip prohibition vagueness criminal proceedings requirement consonant alike ordinary notions fair play settled rules law connally general constr doctrine rests two justifications first ensures people receive fair notice prohibited williams second safeguards integrity judicial system ensuring criminal adjudications conducted arbitrary manner terms imprisonment imposed ad hoc subjective basis grayned city rockford principles apply statutes defining elements crimes also statutes fixing sentences johnson slip two terms ago struck sentencing law armed career criminal act acca residual clause unconstitutionally vague see slip spent little time whether vagueness doctrine applied provisions slip good reason statute fixing sentence imposes less deprivation liberty statute defining crime sixth amendment jurisprudence makes plain see apprendi new jersey instead analyzed residual clause light ine years experience trying derive meaning slip declared experiment failure invoking shapeless provision condemn someone prison years life held comport constitution guarantee due process ibid question us principles apply sentencing guidelines congress established sentencing commission order address undamental widespread dissatisfaction regime discretionary sentencing mistretta see sentencing reform act stat charged commission reducing great variation among sentences imposed different judges upon similarly situated offenders resulting uncertainty time offender spend prison mistretta sentencing guidelines product mandate guidelines establish framework set inputs specific given case particular characteristics offense offender yiel predetermined output range months within defendant sentenced peugh slip guidelines ensure uniformity sentencing imposed different federal courts similar criminal conduct proportionality sentencing system imposes appropriately different sentences criminal conduct different severity rita internal quotation marks omitted guidelines today play central role federal sentencing although longer binding federal courts see booker guidelines nonetheless provide framework tens thousands federal sentencing proceedings occur year slip district must begin sentencing proceedings correctly calculating applicable guidelines range gall must entertain parties arguments consider factors set forth possible grounds deviation guidelines range may presume range reasonable must explain deviation range record must ensure justification sufficiently compelling support degree variance ibid see peugh slip district incorrectly calculates guidelines range commits reversible procedural error see gall district imposes sentence within correct guidelines range contrast may afforded presumption sentence imposed reasonable see rita importance guidelines process explained last term makes starting point federal sentencing proceedings also lodestar slip cases range set guidelines minimum maximum term imprisonment set statute specifies number years defendant spend prison district courts impose sentence within guidelines guidelines based government motion time ibid see annual report sourcebook federal sentencing statistics ed figure online http last visited guidelines ranges change guidelines change informed error made applying sentences change see slip peugh slip therefore exaggeration say guidelines real sense basis imposed district slip quoting peugh slip emphasis deleted follows central role guidelines play sentencing susceptible vagueness challenges due process clause contrary majority conclusion inscrutably vague guideline implicates concerns animating prohibition vagueness first district reliance guideline deprives ordinary person fair notice consequences actions see johnson slip defendant entitled understand legal rules determine sentence vague guideline definition impossible understand take guideline issue explained johnson identically worded provision acca created pervasive disagreement among courts imposing sentences nature inquiry required conduct slip result law impossible apply consistently ibid quoting chambers alito concurring judgment ordinary person expected understand consequences shapeless provision second importantly district reliance vague guideline creates serious risk arbitrary enforcement see johnson slip set although guidelines bind district formal matter functional matter anchor district discretion appellate review process peugh slip introduces unacceptable degree arbitrariness sentencing proceedings begin applying rule vague efforts interpret boil guesswork intuition johnson slip one judge may conduct statistical analysis decide defendant crime conviction crime violence another may rely gut instinct conclude still third may throw opinions air frustration give free rein feelings making decision derby scalia dissenting denial certiorari importantly decision end ballgame criminal defendant although may ask judge vary downward guidelines range must take range starting point request may ask month month negotiating baseline control predict result sentencing proceeding hopelessly skewed outset unpredictability arbitrariness johnson slip due process clause tolerate proceeding consider way example hypothetical version beckles sentencing proceeding commentary played clarifying role beckles convicted possessing firearm convicted felon violation sentenced months prison sentence sat bottom end applicable guidelines range factoring guideline months life guideline applied beckles guidelines range calculated district significantly lower months see beckles civ sd mar app absent guideline beckles sentenced fewer months prison district admitted much explaining guideline applied imprisoned beckles months prison emphasis deleted years beckles life thus turned solely whether guideline applied meaningful way guideline exerted less effect beckles sentence statute setting minimum maximum terms imprisonment indeed guidelines statute fix ed beckles sentenc every meaningful way johnson slip nothing substance words distinguishes guidelines kind laws held susceptible vagueness challenges johnson law guideline alike operate extend time person spends prison due process clause apply equally ii majority brushes past logic decision shield guidelines vagueness challenges casts sentencing jurisprudence doubt upends law nearly every appeals considered none explanations justify novel sweeping conclusion majority first reasons guidelines susceptible vagueness challenges fix permissible range sentences ante merely guide district courts exercising discretion ante embraced formalism majority provides coherent justification decision indeed refused apply exactly formalistic distinction majority embraces espinosa florida per curiam held state capital aggravating factor drafted manner vague leave sentencer without sufficient guidance determining presence absence factor violated eighth amendment factor unconstitutional explained notwithstanding fact jury judge instructed factor judge jury made final decision sentence defendant death judge required defer jury recommendation kind indirect weighing invalid aggravating factor explained creates potential arbitrariness direct weighing invalid aggravating factor effectively rejected argument majority embraces advisory guidelines lack kind binding legal effect subject constitutional scrutiny doubt advisory sentencing guidelines subject constitutional limits dispelled peugh held guidelines amenable challenges ex post facto clause see slip government argued advisory nature guidelines rendered immune claims slip rejected argument federal system explained adopts procedural measures intended make guidelines lodestone sentencing considerable empirical evidence indicate guidelines intended effect slip declined government invitation limit ex post facto jurisprudence rules formal matter increase maximum sentence defendant eligible slip explained rule may exert legal effect procedural rules standards appellate review combination encourag district courts sentence within guidelines slip true concluded guidelines much like guideposts enough like fences ibid instead guidelines fencelike enough lawlike enough shielded constitution reach principle dictate result case guidelines carry sufficient legal weight warrant scrutiny eighth amendment ex post facto clause enough warrant scrutiny due process clause cf hurlburt en banc see principled way distinguish peugh doctrinal grounds majority offers convincing answer asserts due process clause requires different inquiry provisions ante explain views relevant constitutional status guidelines considering challenge criminal statute ex post facto clause apply different legal standard considering vagueness challenge statute make statute less susceptible constitutional challenge one context opinion peugh particularly difficult majority escape given ex post facto clause like due process clause prohibition vagueness rooted concerns fair warning fairness plurality opinion slip majority musters persuasive explanation concerns less force context one none majority next posits courts long sentenced defendants purely discretionary regimes vagueness concern system like guidelines regime sets guideposts exercise discretion ante argument fundamentally misunderstands problem caused reliance vague sentencing guideline true enough many years federal courts relied system indeterminate sentencing criminal cases mistretta see also stith cabranes fear judging sentencing guidelines federal courts scheme sentencing judge considers full range relevant aggravating mitigating facts circumstances well view proper sentencing policy imposes sentence light considerations see koon uniform constant federal judicial tradition sentencing judge consider every convicted person individual every case unique study human failings sometimes mitigate sometimes magnify crime punishment ensue majority notes party suggests system purely discretionary sentencing subject vagueness challenge ante majority reasons guidelines limit sentencing judge discretion otherwise enjoyed must therefore also immune vagueness attacks ibid majority misapprehends nature constitutional infirmity occurs sentencing judge relies inscrutably vague guideline defendant sentenced purely discretionary regime face prospect arbitrary enforcement sentencing judge kolender rather faces determination informed exercise reasoned judgment defendant sentenced pursuant impossibly vague guideline contrast put untenable position lodestone sentence baseline district assess characteristics conduct set rule impossible understand proceeding antithesis due process see giaccio pennsylvania implicit due process premise law must one carries understandable meaning legal standards courts must enforce reliance discretion makes sentencing regime vague reliance impenetrable rule baseline exercise discretion reliance rule kind whether set statute guideline comport notions fair play johnson slip majority ends speculating permitting vagueness attacks guidelines call question validity many guidelines even factors congress instructed courts consider imposing sentences see ante majority resuscitates arguments already considered dismissed johnson confronted rejected version argument government contended dozens federal state criminal laws use terms like risk risk risk terms view indistinguishable residual clause issue case slip rejected argument explaining rules call ed application qualitative standard risk conduct law full instances man fate depends estimating rightly matter degree ibid quoting nash rendered acca residual clause unconstitutionally vague explained required gauging riskiness conduct individual defendant engages particular occasion required application ambiguous standard idealized ordinary case crime slip holding residual clause unconstitutionally vague words cast doubt dozens laws elsewhere code requiring application general standards particular conduct true sentencing factors described majority bear similarity categorical risk analysis held unconstitutionally vague johnson statutes previously found vague congress instruction district courts consider instance nature circumstances offense history characteristics defendant bears little resemblance statutes requiring subjective determinations whether conduct annoying unjust see coates cincinnati cohen grocery extent majority concern subjecting sentencing factors due process clause prohibition vagueness risk demise discretionary sentencing regimes prospect unlikely reasons already explained violates due process clause condemn someone prison basis sentencing rule shapeless resist interpretation slip decision today permits exactly result respect concur judgment footnotes one exception relevant instructs sentencing courts consider guidelines ranges effect date defendant sentenced accordingly references opinion guidelines version compare matchett holding guidelines subject due process vagueness challenges townsend fed appx declining follow matchett pawlak holding guidelines subject due process vagueness challenges hurlburt en banc madrid footnotes beckles protests commentary inconsistent thus inoperative residual clause stricken guideline impermissibly vague brief petitioner see stinson excising problematic provision first considering illustrative language second flip normal order operations adjudicating vagueness challenges brief routinely rejected variety contexts vagueness claims clarifying construction rendered otherwise enigmatic provision clear applied challenger see bell cone per curiam capital aggravating factor clarified precedent hoffman estates flipside hoffman estates ordinance clarified licensing guidelines red lion broadcasting fcc federal regulation clarified agency adjudications footnotes evidence us suggests true guideline issue given near consensus among lower courts guideline unconstitutionally vague see infra courts proceeded resentence defendants whose sentences originally enhanced guideline see app reply brief resentencings every defendant one received sentence lower sentence originally imposed average defendant received sentence three years lower original sentence reply brief decision irizarry contrary irizarry held federal rule criminal procedure require judge inform defendant advance sentencing proceeding intent vary guidelines range narrow decision bearing broader question whether ordinary people entitled fair notice due process clause rules dictate punishment see hurlburt en banc guidelines subject vagueness challenges calabretta sheffield cadc pawlak madrid see matchett adherence formalistic distinction mandatory advisory rules least leaves open question whether defendants sentenced terms imprisonment decision booker period guidelines fix permissible range sentences ante may mount vagueness attacks sentences see brief scholars criminal law federal courts sentencing amici curiae question presented case like majority take position appropriate resolution indeed ninth circuit held decades guidelines subject vagueness challenges see helmy yet government represents never found guideline unconstitutionally vague see reply brief