Matchett: Vagueness does not apply to Sentencing Guidelines

In U.S. v. Matchett, No. 14-10396 (Sept. 21, 2015) (Pryor, J. Carnes & Siler), the Court rejected the argument that the defendant was stopped in violation of the Fourth Amendment, and rejected the argument that the Guideline’s residual clause definition of a “crime of violence” was unconstitutionally vague in light of Johnson v. U.S. A police officer stopped Matchett when he saw him walking down a residential street holding an unboxed flat-screen television during the morning of a weekday. The Court held that because residential burglaries were common during work hours, commonly involved flat-screen tvs, and common in this neighborhood, the police officer had sufficient reasonable suspicion of illegal activity to stop Matchett. The officer also had reason to frisk Matchett once Matchett’s demeanor changed, and he looked left and right as if he was going to flee, and Matchett, while going through his pockets looking for identification, never touched his right front pocket (where he had a gun). Turning to sentencing, the Court affirmed the district court’s ruling that Matchett’s two prior convictions for burglary of an unoccupied dwelling were “crime[s] of violence” because they “involve[d] conduct that presents a serious potential risk of physical injury to another,” the residual clause of the Guidelines’ career offender provision. The Court explained that because the Guidelines are merely advisory, they cannot violate a defendant’s right to due process by being vague. The Court rejected the analogy to the Ex Post Facto Clause, which applies to the Guidelines, finding that it “in no way” informed the Due Process vagueness analysis. The Court noted the policy argument against applying a residual clause that “lacks precise meaning,” stating that this argument “is properly addressed to the Sentencing Commission.” The Court noted that no other Circuit has held that the Guidelines can be unconstitutionally vague [citing cases that all preceded the Supreme Court’s 2013 in Peugh, which held that the Ex Post Facto Clause applied to the advisory Guidelines]. The Court held that burglary of a dwelling creates the kind of risk that qualifies as a “crime of violence.” Finally, the Court affirmed the imposition of a two-level enhancement under U.S.S.G. § 3C1.2 for recklessly creating a substantial risk of death or substantial bodily injury, based on Matchett’s struggle with the police officer while a handgun was in his pocket. The Court noted the risk that the gun could have gone off accidentally. [Query: Was the panel correct that Ex Post Facto principles “in no way” guide the Due Process analysis, or could one reason that, since the Ex Post Facto Clause requires notice of advisory Guideline punishment at the time an offense is committed, the Due Process Clause in turn requires that this advance notice be clear?]