BECKLES v. UNITED STATES, 580 U.S. ___ (2017)

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Concurrence (Ginsburg)

Contents

SUPREME COURT OF THE UNITED STATES

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No. 15?8544

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TRAVIS BECKLES, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eleventh circuit

[March 6, 2017]

Justice Ginsburg, concurring in the judgment.

This case has a simple solution. When Travis Beckles was convicted in 2007 of violating 18 U.?S.?C. ?922(g)(1), the official commentary to the career-offender Sentencing Guideline expressly designated his offense of conviction?possessing a sawed-off shotgun as a felon?a ?crime of violence.? See ante, at 1?3; United States Sentencing Commission, Guidelines Manual ?4B1.2(a), comment., n.?1 (Nov. 2006). Harmonious with federal law and the text of ?4B1.2(a), that commentary was ?authoritative.? Stinson v. United States, 508 U.?S. 36, 38 (1993) .1 *

Beckles therefore cannot, and indeed does not, claim that ?4B1.2(a) was vague as applied to him. And because his conduct was ?clearly proscribed,? he also ?cannot complain of the vagueness of the [guideline] as applied to the conduct of others.? Holder v. Humanitarian Law Project, 561 U.?S. 1 ?19 (2010) (internal quotation marks omitted) (rejecting vagueness challenge to terrorism material-support statute, 18 U.?S.?C. ?2339B). I would accordingly defer any more encompassing ruling until a case we have agreed to take up requires one.

Footnotes

1. *?Beckles protests that the commentary is ?inconsistent with? ?4B1.2(a), and thus inoperative, once the residual clause is stricken from the Guideline as impermissibly vague. Brief for Petitioner 49; see Stinson, 508 U.?S., at 38. But excising the problematic provision first and considering illustrative language second ?flip[s] the normal order of operations in adjudicating vagueness challenges.? Brief for United States 55. This Court has routinely rejected, in a variety of contexts, vagueness claims where a clarifying construction rendered an otherwise enigmatic provision clear as applied to the challenger. See Bell v. Cone, 543 U.?S. 447 ?458 (2005) (per curiam) (capital aggravating factor clarified by state-court precedent); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.?S. 489 ?502, and n.?18 (1982) (quasi-criminal ordinance clarified by licensing guidelines); Red Lion Broadcasting Co. v. FCC, 395 U.?S. 367, 395 (1969) (federal regulation clarified by agency adjudications).