Supreme Court Rules That Void-for-Vagueness Doctrine Does Not Apply to Federal Sentencing Guidelines

INTRODUCTION

On March 6, 2017, the Supreme Court of the United States issued a decision titled Beckles v. United States, No. 15-8544 (2017) [PDF version]. Beckles is not an immigration case and is unlikely to have a direct effect on immigration law. However, it is tangentially related to the Supreme Court decision in Johnson v. United States, 576 U.S. __ (2015) [PDF version]. We discussed Johnson in an article [see article] and broadly in the context of the ongoing litigation surrounding the Ninth Circuit decision in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) [see article], which is now before the Supreme Court as Sessions v. Dimaya, 15-1498 [see article; oral argument recap].

As a matter of interest, we will review the Beckles decision in brief and explain how it is related to Johnson.

BRIEF OVERVIEW OF BECKLES

In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminals Act (ACCA) was void for vagueness under the Due Process Clause of the Fifth Amendment. The ACCA is a sentence-enhancement statute. In Johnson, the residual clause had necessitated the imposition of a harsher sentence if certain predicate convictions existed.

Beckles addressed the same predicate conviction as did Johnson. However, the issue at hand in Beckles was whether the federal sentencing guidelines may be challenged on vagueness grounds. The sentencing guideline at issue in Beckles is worded identically to the ACCA's residual clause that was held unconstitutionally vague in Johnson. However, the holding in Johnson, finding a criminal sentence-enhancement statute void for vagueness, did not result in the identically worded sentencing guidelines being susceptible to a vagueness challenge.

In Beckles, the Supreme Court rejected the appellant's vagueness challenge 7-0. However, while the Justices were unanimous in the result, they were not all in accord in the reasoning.

Associate Justice Clarence Thomas wrote the opinion of the court, which was joined by Chief Justice John Roberts and Associate Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito. Writing for the five-Justice majority, Justice Thomas took the position that the void for vagueness doctrine does not apply to sentencing guidelines. The opinion distinguished sentencing guidelines, which “merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range,” from a statute that mandate a “specific sentence.” However, while holding that sentencing guidelines are immune from the void-for-vagueness doctrine, Justice Thomas made clear that sentencing guidelines are not immune from constitutional scrutiny in general. The decision notes that sentencing guidelines may be, under certain circumstances, scrutinized under the due process clause.

Justice Anthony Kennedy authored a concurring opinion which stated that cases may arise “in which the formulation of a sentencing provision leads to a sentence, or pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns.” While taking the position that “[t]he existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing,” Justice Kennedy did not seem to categorically foreclose the idea that sentencing guidelines could be challenged for arbitrariness, albeit “[s]ome other expliciation of the constitutional limitations would likely be required.”[1]

Associate Justices Ruth Bader Ginsburg and Sonia Sotomayor each wrote opinions concurring in the judgment only. This means that they agreed with the result in the specific case only. Both Justices Ginsburg and Sotomayor found it unnecessary for the majority to reach a decision on the applicability of the void-for-vagueness doctrine to federal sentencing guidelines. Justice Sotomayor went even further, stating that she found the Court's decision regarding the inapplicability of void-for-vagueness doctrine to federal sentencing guidelines to be “deeply unsound.” Justice Ginsburg took the position that the Court should have deferred consideration of whether the void-for-vagueness doctrine applies to federal sentencing guidelines until a case that requires a ruling on the issue comes before the Court.

Please note that Associate Justice Elena Kagan took no part in the consideration of Beckles.

CONCLUSION

Although Beckles is unlikely to implicate immigration law as directly as Johnson, it is an interesting look at how the Court considered Johnson with regard to federal sentencing guidelines. The decision constitutes binding precedent on all courts and administrative adjudicators across the United States. In limited contexts, where the length of a sentence is determinative of whether immigration penalties attach, Beckles eliminates one avenue for challenging federal sentencing guidelines. The decision is relatively short and well worth reading for those who want to see the detailed analysis of Justice Thomas, Justice Kennedy (wrote a concurring opinion), Justice Ginsburg, and Justice Sotomayor.

Please continue to follow our site for more news about new Supreme Court decisions and immigration law, including the upcoming decision in Sessions v. Dimaya.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Nora Demleitner at SCOTUSblog took the position that Justice Kennedy “sought to keep the door ajar for possible challenge” to a sentence of pattern of sentencing that implicates constitutional concerns for arbitrariness. Demleitner suggests that this view is at tension with Justice Thomas's opinion. See Demleitner, Nora, “Opinion analysis: Court immunizes advisory sentencing guidelines against vagueness challenges,” scotusblog.com, (Mar. 7, 2017)

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A Troubling Speech on the Nature of the ISIS Threat

On March 2, 2017, Hannah Ellis-Petersen of The Guardian posted an article titled “Riz Ahmed warns lack of diversity on TV will drive young to ISIS” [PDF version].[1]

The article discusses a speech delivered to the House of Parliament in London by Riz Ahmed, a Pakistani-British actor and rapper, on the subject of diversity in film and television.[2] Ahmed spoke broadly of encouraging diversity in film and television, and he was critical of the United Kingdom for being, in his opinion, behind the United States in this area. However, Ahmed made an interesting argument regarding what he perceived as the power of diversity in film and television to prevent young people from joining ISIS. While this portion of his speech has received much attention and acclaim, I will explain why I find it quite troubling, given my strong interest in immigration issues.

The Guardian quotes Ahmed as saying that, “[i]f we fail to represent [in the media], we are in danger of losing people to extremism.” Ahmed continued:

“In the mind of the [ISIS] recruit, he's the next James Bond right? Have you seen some of those [ISIS] propaganda videos, they are cut like action moves. Where is the counter narrative? Where are we telling these kids they can be heroes in our stories, that they valued?”

The Telegraph then quoted a later passage of Ahmed's speech, where he made his troubling argument most clearly:

“If we don't step up and tell a representative story … we are going to start losing British teenagers to the story that the next chapter in their lives is written in Syria. We are going to see the murder of more MP's like Jo Cox because we've been mis-sold a story that is so narrow about who we are and who we should be.”

Ahmed's argument is anything but poignant or inspiring. I cannot say what his intent was in making the claims that he made in his speech, but I will explain why he was wrong to argue his point in this way and why his argument has very troubling implications.

Firstly, I will start by noting that I have no opinion on the state of diversity in the UK media. Certainly, it is to the benefit of everyone that talented actors and actresses obtain leading roles in movies and on television. There is certainly no reason to begrudge Ahmed for arguing that talented actors and actresses are being overlooked in the United Kingdom.

However, Ahmed's decision to tie the goal of increasing the representation of Muslims in movies and television to preventing people from the UK from joining ISIS is both ignorant and perverse.

Firstly, Ahmed is taking an issue that may well be worthy of discussion and attempting to stifle discussion and debate over solutions by conflating it with counter-terrorism. Even if he has correctly diagnosed a problem with the UK television and film industry and his call for more diverse and representative casting is entirely warranted, the issue has nothing to do with preventing the assassination of UK public officials, discouraging recruitment by and support of ISIS, or otherwise preventing people from engaging in rape and murder in the name of Islam in the Middle East.

Secondly, Ahmed implicitly attempts to separate ISIS from its ideological basis. ISIS, like other Islamist groups, is based on a specific reading of Islamic scripture that conflates religious practice with an oppressive political system. Many of these groups are also willing to use extreme violence to achieve their ends. ISIS and other similar groups such as Al Qaeda, Hezbollah, and Hamas, must be acknowledged and confronted as ideological movements. It is wish casting to separate the ideology from the movements and to portray their sponsored activities as random violent “extremism” with no ideological basis or objective.

Ahmed is correct in noting that ISIS uses social media to appeal to the sensibilities of foreign youths. However, it is borderline insulting and remarkably patronizing to argue that the only thing standing between thousands of young Muslims in the UK and suicide bombings, torture, rape, and murder in the Middle East is whether Ahmed or some other actor gets cast in a movie. As Ben Shapiro noted in the Daily Wire, “I didn't see a lot of Orthodox Jews on television growing up. Somehow, I didn't end up a member of the Neturei Karta.”[3]

Ahmed's speech also has sweeping — albeit likely unintended — anti-immigration consequences if it is taken to its logical conclusion. Followers of my blog will be aware that while I was critical of much of now-President Donald Trump's rhetoric on immigration during the campaign [see blog], I have broadly supported his call for “extreme vetting” [see blog] and for the temporary suspension of immigration from terror-prone countries [see blog]. I support these measures in recognition of the fact that the United States faces a particular threat from Islamist terror, and that the first priority of our immigration system should be ensure that immigration does not harm the security and the national interest of the United States.

Many have argued that the policies I support are not reasonable but drastic. However, if what Ahmed says is true, that would seem to call for far more drastic proposals regarding the suspension of immigration and surveillance than what I have proposed. As the headline to Shapiro's article on the issue in the Daily Wire summarized the speech — correctly — “'Rogue One' Actor: If You Don't Put Muslim Actors On TV, Muslims Will Join ISIS.” If Ahmed is correct in contending that Muslims are so susceptible to the lure of Islamist terror that television casting will drive them into waging a holy war in Syria, one would have to consider some very dramatic solutions that go far beyond who stars in Dr. Who, Downton Abbey, or the next James Bond movie.

Fortunately, Ahmed is wrong in his diagnosis of the Islamist terror threat and on his typecasting of millions of young Muslims in western countries. Once we understand terrorism as the primarily ideological issue that it is, we can create vetting protocols to best guard against those with dangerous ideologies from entering the United States, and guard against those who wish to do us harm on behalf of ISIS or other similar groups [see blog]. By improving vetting and taking into account country conditions in making immigration policy, the United States and European countries can better ensure that they do not allow entry to people who allegedly may only be prevented from mass murder in the name of Islam by being satisfied by the racial and religious demographics of the Academy Awards. The situation only becomes as dangerous as Ahmed seems to believe it is when we ignore the nature of the Islamist threat and the proliferation of dangerous ideologies from unstable regions of the world.

By appropriately distinguishing Muslims who mean to do harm based on particular readings of Islamic scripture from the millions of non-violent and non-Islamist adherents to Islam, we can create a sound immigration policy that takes into account the Islamist threat without gratuitously insulting and patronizing a broader swath of Muslims like Ahmed did in his address.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Ellis-Petersen, Hannah. “Riz Ahmed warns lack of diversity on TV will drive young to Isis,” theguardian.com (Mar. 2, 2017)
2. Renshaw, David, “Watch Riz Ahmed Speech To U.K. Parliament About The Importance of Diversity On TV,” thefader.com, (Mar. 3, 2017)
3. Shapiro, Ben, “'Rogue One' Actor: If You Don't Put Muslim Actors On TV, Muslims Will Join ISIS,” dailywire.com, (Mar. 3, 2017)

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USCIS Meets the Congressionally Mandated 65,000 H1B Cap for FY 2018

On April 7, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it had reached the congressionally mandated 65,000 visa H1B cap for fiscal year (FY) 2018 [link]. The USCIS also announced that it had received a sufficient number of H1B petitions to meet the 20,000 visa U.S. advanced degree exception.

Because the congressionally mandated FY 2018 H1B cap has been reached, the USCIS will reject and return filing fees for any unselected cap-subject H1B petitions that are not duplicate filings.

The USCIS will continue to process H1B petitions that are otherwise exempt from the H1B cap. The USCIS reminded stakeholders that it suspended premium processing for H1B petitions effective April 3, 2017. That suspension includes cap-exempt H1B petitions. Please see our full article on the temporary suspension of premium processing of H1B petitions to learn more [see article].

The USCIS explained that petitions filed on behalf of H1B workers who have already been counted previously against the annual H1B cap, and who still retain their cap numbers, will not be counted toward the congressionally mandated FY 2018 H1B cap. Accordingly, the USCIS will continue to accept and process H1B petitions that are filed to:

• Extend the amount of time a current H1B worker may remain in the United States;
• Change the terms of employment for H1B workers;
• Allow current H1B workers to change employers; and
• Allow current H1B workers to work concurrently in a second H1B position.

The USCIS announcement marks the end of a busy filing season for H1B petitions subject to the congressionally mandated FY 2018 H1B cap. H1B petitioners, employers, and workers should always consult with an experienced immigration attorney in the field of employment immigration regarding any issues relating to the H1B program.

Please see our selection of articles on the H1B program to learn more [see category].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

USCIS to Begin Accepting Cap-Subject H1B Petitions for the FY-2018 Cap on April 3, 2017

On March 15, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it will begin accepting H1B petitions subject to the FY-2018 cap on April 3, 2017 [link]. Any H1B cap-subject H1B petitions for the FY-2018 cap filed before April 3, 2017, will be rejected.

The USCIS recently announced that premium processing for H1B petitions will be suspended effective April 3, 2017, and that the suspension may remain in place for up to six months. Please see our full post to learn more about what the suspension of premium processing for H1B petitions means [see article].

The USCIS notes that the filing fee for the Form I-129, Petition for a Nonimmigrant Worker has increased to $460 [see article]. Furthermore, it explains that petitioners will no longer have 14 days to correct a dishonored payment. If any filing fee payments are not honored by the bank or financial institution, the USCIS will reject the entire H1B petition without providing the petitioner with the option of correcting the payment.

Petitioners seeking to file H1B Form I-129 petitions should refer to the Form M-735, Optional Checklist for Form I-129 H-1B Filings [PDF version] to learn how to complete the Form I-129 for a FY-2018 H1B petition. A petitioner seeking to file an H1B petition should always consult with an experienced immigration attorney for guidance throughout the complicated process.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com