After Johnson, the big question is whether we can challenge Guidelines for vagueness. The affected guidelines would seem to be 4B1.1, 2K2.1, 2L1.2, and 7B1.2. A number of Circuits have considered whether guidelines are subject to vagueness challenges. Results are mixed.
The Tenth Circuit has “assume[d] without deciding that a vagueness challenge to the guidelines would be appropriate.” United States v. Bennett, 329 F.3d 769, 777 n. 6 (10th Cir. 2003). So has the Second. United States v. Johnson, 221 F.3d 83, 99 (2nd Cir 2003).
The Ninth Circuit has “countenanced such challenges.” United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997). The Third Circuit has assumed the same conclusion. United States v. Maurer, 639 F.3d 72, 79 (3rd Cir. 2011).
Four other Circuits have resolved vagueness challenges on substantive grounds. US v. Van Meade, 773 F.3d 429, 438 n. 7 (2nd Cir. 2014) (rejecting vagueness challenge to 4B1.2(a)(2) on the basis of Sykes); US v. Martin, 753 F.3d 485 (4th Cir. 2014) (same); US v. Spencer, 724 F.3d 1133 (9th Cir. 2013) (which makes sense considering Circuit precedent); US v. Cowan, 696 F.3d 706, 708 (8th Cir. 2012) (same).
The Seventh Circuit has found that guidelines cannot be challenged for vagueness. US v. Tichenor, 683 F.3d 358 (7th Cir. 2012). The Eighth Circuit has reached the same conclusion, seemingly in conflict with Spencer. US v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990). The Sixth Circuit agrees. US v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996). So does the Fifth, though a bit more obliquely. US v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990).
The remaining question is the vitality of this precedent after Peugh v. United States, 133 S.Ct. 2072 (2013). The question in that case was the survival of the ex post facto clause for Guidelines purposes, post-Booker . The Government defended the case by contending that, “the Sentencing Guidelines lack sufficient legal effect to attain the status of a 'law’”. Id. at 2085. The Court disagreed. It held that the ex post facto clause forbids the Government to “enhance the measure of punishment by altering the substantive formula used to calculate the applicable guideline range.” Id. at 2088. Put in our terms, Peugh recognized that the sentencing guidelines, even post-Booker, operate as a law. A law which cannot be vague.
I suspect that Peugh will influence the DOJ position on how Johnson will be applied to the guidelines. Plus, the Supreme Court GVR'd 4B1.1, 2K2.1, and 7B1.2 cases in the wake of Johnson. Just be aware that circuit decisions denying vagueness challenges to the guidelines may no longer be good law.