                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3719

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

A NDRE L. JONES,
                                            Defendant-Appellant.


           Appeal from the United States District Court
               for the Central District of Illinois.
            No. 11-cr-30009-1—Richard Mills, Judge.


        A RGUED JUNE 6, 2012—D ECIDED JULY 27, 2012




   Before E ASTERBROOK, Chief Judge, and W OOD and
S YKES, Circuit Judges.
  S YKES, Circuit Judge. Andre Jones was convicted of
unlawfully possessing a firearm as a felon and was sen-
tenced as an armed career criminal based in part on a
prior Illinois conviction for vehicular fleeing, which the
district judge counted as a third violent felony under
the residual clause of the Armed Career Criminal Act
(“ACCA”). See 18 U.S.C. § 924(e)(2)(B)(ii). This classifica-
tion triggered a mandatory minimum sentence of 15 years
2                                                 No. 11-3719

and raised the statutory maximum to life. The judge
sentenced Jones to 184 months, just above the manda-
tory minimum.
  Jones challenges only his sentence, raising a vagueness
challenge to the residual clause. More specifically, he
argues that the residual clause of the ACCA contains no
discernible standard to guide its application and there-
fore permits arbitrary enforcement in violation of the
Due Process Clause of the Fifth Amendment. This posi-
tion has at least one notable proponent. See Sykes v.
United States, 131 S. Ct. 2267, 2284 (2011) (Scalia, J., dis-
senting). But a majority of the Supreme Court has
rejected the argument, albeit only in response to dissents
by Justice Scalia, not in the more formal sense of deciding
an explicit void-for-vagueness challenge. See id. at 2277.
Perhaps Jones can persuade the Court to directly
consider the issue, but our hands are tied. We affirm
Jones’s sentence.


                       I. Background
  On January 3, 2011, police officers in Springfield, Illinois,
initiated a traffic stop of a vehicle in which Jones was
riding as a passenger. As the officers began following the
car, Jones threw a handgun out the window. When the
driver pulled over, the officers obtained consent to
search from both Jones and the driver. Jones had an
empty handgun holster around his waist and 18 grams
of marijuana in his shoe. The officers then retraced
their route and retrieved the handgun from a driveway
a few blocks away where Jones had tossed it. Jones ad-
mitted the gun was his.
No. 11-3719                                               3

  Jones was indicted on several drug and gun charges.
He eventually entered a guilty plea to one count of unlaw-
ful possession of a firearm by a felon in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) and (e), and the government
dismissed the other charges. The felon-in-possession
offense normally carries a ten-year maximum and no
minimum penalty. See 18 U.S.C. § 924(a)(2). But if the
defendant has three prior convictions for “violent felo-
nies” as defined in the ACCA, he is subject to a
mandatory minimum sentence of 15 years in prison
and the maximum penalty is raised to life. See id.
§ 924(e)(1). Jones preserved his right to challenge the
application of the ACCA at sentencing.
   Jones’s presentence report recommended that he be
sentenced as an armed career criminal based on
three qualifying violent felonies: Illinois convictions for
robbery, aggravated robbery, and aggravated vehicular
fleeing from a police officer. Jones conceded that the
first two convictions qualified as violent felonies under
§ 924(e)(2)(B)(i). That subsection defines the term “violent
felony” as any crime punishable by more than one year
in prison that “has as an element the use, attempted use,
or threatened use of physical force against the person
of another.” He also acknowledged that under our deci-
sion in Welch v. United States, 604 F.3d 408, 425 (7th Cir.
2010), his vehicular-fleeing conviction qualified as a
violent felony under the so-called “residual clause” of
§ 924(e)(2)(B)(ii). Under that provision a “violent felony”
includes any crime punishable by more than one year
in prison that “is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
4                                                   No. 11-3719

presents a serious potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).
  Jones argued that Welch notwithstanding, the residual
clause is unconstitutionally vague and thus unenforceable
under the Due Process Clause of the Fifth Amendment.
The judge rejected this argument as implicitly foreclosed
by the Supreme Court’s decision in Sykes and sen-
tenced Jones to 184 months in prison. This sentence fell
just below the advisory guidelines range of 188 to 235
months and just above the ACCA’s mandatory mini-
mum of 180 months.


                        II. Discussion
  Under the ACCA a felon who unlawfully possesses
a firearm in violation of § 922(g)(1) is subject to steeply
enhanced penalties—a minimum sentence of 15 years
and a maximum of life—if he has three prior convictions
“for a violent felony or a serious drug offense.” 18 U.S.C.
§ 924(e)(1). The statute defines a “violent felony” as
    any crime punishable by imprisonment for a term
    exceeding one year . . . that—
        (i) has as an element the use, attempted use, or
        threatened use of physical force against the
        person of another; or
        (ii) is burglary, arson, or extortion, involves use
        of explosives, or otherwise involves conduct
        that presents a serious potential risk of physical
        injury to another.
No. 11-3719                                                 5

Id. § 924(e)(2)(B). The final clause of this definition has
come to be known as the “residual clause.” Subsection (ii)
of the statute lists four specific but disparate crimes
followed by the catchall “residual clause” that sweeps
in any crime that “otherwise involves conduct that pres-
ents a serious potential risk of physical injury to another.”
  The residual clause has eluded stable construction. The
Supreme Court has heard four ACCA residual-clause
cases in fairly rapid succession in an effort to clarify
the open-ended language of the clause and to establish
a framework for how to distinguish crimes that qualify
from crimes that do not. See Sykes, 131 S. Ct. at 2270
(“The instant case is another in a series in which the
Court is called upon to interpret § 924(e) . . . .”); Chambers
v. United States, 555 U.S. 122 (2009); Begay v. United
States, 553 U.S. 137 (2008); James v. United States, 550 U.S.
192 (2007). In Sykes, the latest in the series, the Court
held that to qualify as a violent felony under the
residual clause, a crime must “involve[] a potential risk
of physical injury similar to that presented by burglary,
extortion, arson, and crimes involving the use of explo-
sives.” 131 S. Ct. at 2277. In other words, the defendant
must have been convicted of an offense that carries a
risk of injury similar in kind and degree as the crimes
specifically mentioned in the statute. Id. at 2275 (“In
general, levels of risk divide crimes that qualify from
those that do not.”).
  Applying this “similarity of risk” principle, the Court
held that the Indiana crime of vehicular fleeing qualifies
as a violent felony under the residual clause. Id. at 2277.
To reach this conclusion, the Court undertook what it
6                                                  No. 11-3719

called a “commonsense” comparison of the risk of injury
posed by vehicular fleeing and by the other crimes speci-
fied in the residual clause. Id. at 2273-74. The Court also
looked to statistical data about the rate of injury from
police chases, which, though “not dispositive,” served
to “confirm the commonsense conclusion” that the
crime of vehicular fleeing poses a similar risk of injury
as the offenses listed in the statute. Id. at 2274-75.
   Justice Scalia dissented, at length explaining his con-
clusion that the residual clause “fails to speak with the
clarity that criminal proscriptions require.” Id. at 2288
(Scalia, J., dissenting). The statute’s risk-of-injury require-
ment uses “the word ‘otherwise,’ ” but this connector
is “ ‘preceded by four confusing examples that have
little in common with respect to the supposedly defining
characteristic.’ ” Id. (quoting James, 550 U.S. at 230 n.7
(Scalia, J., dissenting)). He gave the following example
to illustrate the statute’s lack of clarity: “ ‘The phrase
“shades of red,” standing alone, does not generate con-
fusion or unpredictability; but the phrase “fire-engine
red, light pink, maroon, navy blue, or colors that
otherwise involve shades of red” assuredly does so.’ ” Id.
(quoting James, 550 U.S. at 230 n.7 (Scalia, J., dissenting)).
  Justice Scalia then traced the Court’s earlier efforts
to discern a clear standard for deciding residual-
clause cases and noted that the formula kept shifting.1 Id.


1
   Without belaboring the point, here is a shorthand version of
the decisional history: In James the Court held that a crime
                                                  (continued...)
No. 11-3719                                                       7

at 2284-86 (Scalia, J., dissenting) (discussing James,
Begay, and Chambers). In his view the Court’s latest effort
in Sykes had produced only “a fourth ad hoc judgment
that will sow further confusion.” Id. at 2284 (Scalia, J.,
dissenting). The Court’s “repeated inability to craft a
principled test out of the statutory text” was proof posi-
tive of the statute’s “incurable vagueness.” Id. at 2287
(Scalia, J., dissenting). The time had come, he said, to
“admit that [the] ACCA’s residual provision is a
drafting failure and declare it void for vagueness.” Id. at
2284 (Scalia, J., dissenting); see also Derby v. United States,
131 S. Ct. 2858, 2860 (2011) (Scalia, J., dissenting from
denial of certiorari) (“I would grant certiorari, declare
ACCA’s residual provision to be unconstitutionally


1
   (...continued)
will involve the required level of risk when “the risk posed
by [the crime in question] is comparable to that posed by its
closest analog among the enumerated offenses.” James v. United
States, 550 U.S. 192, 203 (2007). In Begay the Court held that to
qualify under the residual clause, the crime must be “purpose-
ful, violent, and aggressive.” Begay v. United States, 553 U.S. 137,
145 (2008). In Chambers the Court used a combination of these
approaches and also endorsed the use of statistics to prove
the required similarity of risk. Chambers v. United States, 555
U.S. 122, 129 (2009). In Sykes the Court recharacterized the
“purposeful, violent, and aggressive” formula as merely
descriptive of the result in Begay and retreated from the “closest
analog” approach of James in favor of what might best be
described as a “holistic” comparison of the risk posed by the
proposed ACCA predicate and the enumerated offenses.
See Sykes v. United States, 131 S. Ct. 2267, 2273-76 (2011).
8                                                 No. 11-3719

vague, and ring down the curtain on the ACCA farce
playing in federal courts throughout the Nation.”).
   Jones asks us to adopt Justice Scalia’s position and
declare the residual clause unconstitutionally vague
under the Due Process Clause of the Fifth Amendment.
“It is a fundamental tenet of due process that ‘[n]o one
may be required at peril of life, liberty or property to
speculate as to the meaning of penal statutes.’ ” United
States v. Batchelder, 442 U.S. 114, 123 (1979) (quoting
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)). A law “fails
to meet the requirements of the Due Process Clause if
it is so vague and standardless that it leaves the public
uncertain as to the conduct it prohibits.” Giaccio v. Pennsyl-
vania, 382 U.S. 399, 402-03 (1966).
  Vagueness doctrine rests on concerns about fair
notice and arbitrary enforcement. “A conviction or pun-
ishment fails to comply with due process if the statute
or regulation under which it is obtained ‘fails to provide
a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.’ ” FCC
v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012)
(quoting United States v. Williams, 553 U.S. 285, 304
(2008)); see also Skilling v. United States, 130 S. Ct. 2896,
2927-28 (2010) (“ ‘[A] penal statute [must] define the
criminal offense [1] with sufficient definiteness that
ordinary people can understand what conduct is prohib-
ited and [2] in a manner that does not encourage
arbitrary and discriminatory enforcement.’ ” (alterations
in original) (quoting Kolender v. Lawson, 461 U.S. 352,
No. 11-3719                                              9

357 (1983))). The concerns about notice and arbitrary en-
forcement arise not only in challenges to statutes de-
fining substantive criminal liability but also in chal-
lenges to penalty provisions like the ACCA. See, e.g.,
Batchelder, 442 U.S. at 123 (“[V]ague sentencing provisions
may pos[e] constitutional questions if they do not state
with sufficient clarity the consequences of violating a
given criminal statute.”); United States v. Evans, 333
U.S. 483, 486-87 (1948).
  A threshold difficulty for Jones’s vagueness claim is
that at the time of his offense, we had already held that
the Illinois crime of aggravated vehicular fleeing
qualifies as a violent felony under the residual clause of
the ACCA. See Welch, 604 F.3d at 425 (“[W]e stand with
the majority of circuits that have held that intentional
vehicular fleeing is a violent felony within the meaning
of the ACCA.”). Our decision in Welch thus gave Jones
“a reasonable opportunity to know” of his career-
offender status under the residual clause, and also
served to “prevent arbitrary and discriminatory enforce-
ment” of the statute—at least in prosecutions for
conduct, like Jones’s, committed after the decision was
issued. United States v. Plummer, 581 F.3d 484, 488 (7th
Cir. 2009) (quotation marks omitted).
  Jones acknowledges Welch but argues that his chal-
lenge must be evaluated by reference to the statutory
text alone, not judicial precedent interpreting and
applying it. To be sure, the focus of any due-process
vagueness challenge is statutory clarity. See Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972) (“[A]n enactment
10                                                 No. 11-3719

is void for vagueness if its prohibitions are not clearly
defined.”); United States v. L. Cohen Grocery Co., 255 U.S.
81, 89 (1921); Todd v. United States, 158 U.S. 278, 282
(1895) (“[B]efore a man can be punished, his case must
be plainly and unmistakably within the statute.” (emphasis
added) (quotation marks omitted)). But it is well-estab-
lished that “clarity at the requisite level may be
supplied by judicial gloss on an otherwise uncertain
statute.” United States v. Lanier, 520 U.S. 259, 266 (1997); see
also Skilling, 130 S. Ct. at 2931 n.43 (“[C]ases ‘paring
down’ federal statutes to avoid constitutional shoals
are legion.”). Stated differently, a vague statute may be
saved by a “reasonable narrowing interpretation,” Skilling,
130 S. Ct. at 2931 n.43, provided that the limiting inter-
pretation is “fairly possible,” Boos v. Barry, 485 U.S. 312,
331 (1988), and not “plainly contrary to the intent of
Congress,” Edward J. DeBartolo Corp. v. Fla. Gulf Coast
Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
  Still, “there are limits beyond which we cannot go in
finding what Congress has not put into so many words
or in making certain what it has left undefined or too
vague for reasonable assurance of its meaning.” Evans,
333 U.S. at 486. This principle is a necessary feature of
the separation of powers, and in this context, it reinforces
the rule that there are no common-law crimes. “In our
system, so far at least as concerns the federal powers,
defining crimes and fixing penalties are legislative, not
judicial, functions.” Id.; see also Lanier, 520 U.S. at 267 n.6
(“Federal crimes are defined by Congress, not the
courts . . . .”). But “the margin between the necessary
and proper judicial function of construing statutes and
No. 11-3719                                                    11

that of filling gaps so large that doing so becomes es-
sentially legislative, is necessarily one of degree.”
Evans, 333 U.S. at 486-87.
  What’s important for our purposes, however, is that
Welch settled the question whether the Illinois crime of
vehicular fleeing is a violent felony under the ACCA
before Jones was caught with a gun. “The root of the
vagueness doctrine is a rough idea of fairness,” Colten v.
Kentucky, 407 U.S. 104, 110 (1972), and one who violates
a “settled interpretation[]” of a statute is “ ‘certainly . . . in
no position to say that [he] had no adequate advance
notice that [he] would be visited with punishment,’ ”
Lanier, 520 U.S. at 267 (quoting Screws v. United States,
325 U.S. 91, 105 (1945)).
  That alone might be enough to resolve the matter.
Vagueness challenges are normally evaluated in light of
the particular facts of the case, not in general. See Holder
v. Humanitarian Law Project, 130 S. Ct. 2705, 2718-19
(2010); Chapman v. United States, 500 U.S. 453, 467 (1991);
Maynard v. Cartwright, 486 U.S. 356, 361 (1988); Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 495 (1982); United States v. Powell, 423 U.S. 87,
92 (1975); Parker v. Levy, 417 U.S. 733, 757 (1974). “Ob-
jections to vagueness under the Due Process Clause rest
on the lack of notice, and hence may be overcome in
any specific case where reasonable persons would know
that their conduct is at risk.” Maynard, 486 U.S. at 361.
This principle is often stated in language describing
the form of the claim. For example, the Supreme Court
has said that when a statute is challenged on vague-
12                                                 No. 11-3719

ness grounds, “the statute is judged on an as-applied
basis.” Id.; see also Humanitarian Law Project, 130 S. Ct. at
2718-19 (“We consider whether a statute is vague as
applied to the particular facts at issue . . . .”); Chapman, 500
U.S. at 467 (A vagueness claim “must be evaluated as
the statute is applied to the facts of th[e] case.”); Plummer,
581 F.3d at 488 (vagueness challenges “are analyzed as-
applied”). On the strength of this line of cases, the gov-
ernment maintains that because Welch gave Jones fair
notice that the residual clause would apply to him, his
vagueness challenge fails “as applied” and he cannot
bring a “facial” challenge to the statute.
  This makes sense as a matter of the form and structure
of the claim. A due-process claim usually challenges
executive enforcement action. See Nicholas Quinn
Rosenkranz, The Objects of the Constitution, 63 S TAN. L.
R EV. 1005, 1041-43 (2011). “As a matter of grammar
and structure, the Due Process Clause is not an absolute
restriction on legislative power, like the First Amendment;
it is, at least at its core, a conditional check on execu-
tive power . . . .” Id. at 1042-43 (emphases added). Cf.
Nathan S. Chapman & Michael W. McConnell, Due
Process as Separation of Powers, 121 Y ALE L.J. 1672, 1722
(2012) (explaining that “the Due Process Clause was
originally understood to apply to legislative as well as
executive and judicial acts”). In a vagueness claim, the
challenger contends that a legislative enactment is too
vague and standardless to be enforced as law; applying
the vague statute to him deprives him of his liberty or
property without due process of law. Thus, the Supreme
Court has held that “[o]ne to whose conduct a statute
No. 11-3719                                                 13

clearly applies may not successfully challenge it for
vagueness.” Parker, 417 U.S. at 756. Putting the point
slightly differently, a person “ ‘who engages in some
conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of
others.’ ” Humanitarian Law Project, 130 S. Ct. at 2719
(quoting Hoffman Estates, 455 U.S. at 495).
  And yet the Supreme Court regularly decides due-
process vagueness claims without regard to the facts of
the case. See, e.g., Skilling, 130 S. Ct. at 2925-34; City of
Chicago v. Morales, 527 U.S. 41, 55-64 (1999); Kolender,
461 U.S. at 357-62; Smith v. Goguen, 415 U.S. 566, 572-78
(1974); Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971);
L. Cohen Grocery Co., 255 U.S. at 89-91. These cases are
hard to reconcile with the rule that vagueness chal-
lenges must be evaluated “as applied” and that “facial”
vagueness challenges are improper. The key point in
this line of cases seems to be that a criminal statute
that “simply has no core” and lacks “any ascertainable
standard for inclusion and exclusion” is impermissibly
vague regardless of the application facts in the case.
Goguen, 415 U.S. at 578. Such a statute is vague “not in
the sense that it requires a person to conform his
conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of
conduct is specified at all.” Coates, 402 U.S. at 614.
  This raises a substantive point about the nature of the
claim. The Due Process Clause “is essentially a separa-
tion of powers provision.” Rosenkranz, The Objects of
the Constitution, 63 S TAN. L. R EV. at 1043. “The clause
14                                                No. 11-3719

protects individual rights by assigning and channeling
federal power.” Id. On this understanding, due-process
vagueness doctrine guards against impermissible delega-
tions of lawmaking authority. See Chapman & McConnell,
Due Process as Separation of Powers, 121 Y ALE L.J. at 1806
(“Vague statutes have the effect of delegating lawmaking
authority to the executive.”); L. Cohen Grocery Co.,
255 U.S. at 86-87 (a vague statute “amount[s] to a delega-
tion by Congress of legislative power to courts and
juries to determine what acts should be held to be
criminal and punishable”). Seen in this light, Jones’s
vagueness challenge does not depend on the particular
facts of his case. The residual clause, he asserts, is so
vague and standardless that Congress has impermissibly
delegated the legislative power to “defin[e] crimes and
fix[] penalties.” Evans, 333 U.S. at 486. With no ascer-
tainable legislative standard, judicial decisions about
which crimes count as violent felonies and which do
not—including our decision in Welch—are essentially
ad hoc and arbitrary.
  The doctrine surrounding the “facial” and “as applied”
forms of judicial review is “currently a subject of hot
debate, both in the Supreme Court and among commenta-
tors.” Richard H. Fallon, Jr., Fact and Fiction About Facial
Challenges, 99 C ALIF . L. R EV. 915, 917 (2011). See also Doe
v. Reed, 130 S. Ct. 2811, 2817 (2010); Nicholas Quinn
Rosenkranz, The Subjects of the Constitution, 62 S TAN. L.
R EV. 1209, 1227-35 (2010); Luke Meier, Facial Challenges
and Separation of Powers, 85 IND. L. J. 1557 (2010); Gillian E.
Metzger, Facial and As-Applied Challenges Under the
Roberts Court, 36 F ORDHAM U RB. L.J. 773 (2009); David L.
No. 11-3719                                              15

Franklin, Looking Through Both Ends of the Telescope:
Facial Challenges and the Roberts Court, 36 H ASTINGS
C ONST. L.Q. 689 (2009). See generally Symposium, The
Roberts Court: Distinguishing As-Applied Versus Facial
Challenges, 36 H ASTINGS C ONST. L.Q. 563 (2009). We do not
need to weigh in on the debate here. Even if we set Welch
to one side, as an intermediate appellate court in the
judicial hierarchy, we cannot sustain Jones’s vagueness
challenge to the residual clause.
  Although the Supreme Court has not formally consid-
ered the issue, it has twice responded to Justice Scalia’s
argument that the residual clause is unconstitutionally
vague. In James the Court said this:
    While ACCA requires judges to make sometimes
    difficult evaluations of the risks posed by different
    offenses, we are not persuaded by Justice Scalia’s
    suggestion—which was not pressed by James or his
    amici—that the residual provision is unconstitutionally
    vague. See post, at 230 [(Scalia, J., dissenting)]. The
    statutory requirement that an unenumerated crime
    “otherwise involv[e] conduct that presents a serious
    potential risk of physical injury to another” is not
    so indefinite as to prevent an ordinary person
    from understanding what conduct it prohibits. See
    Kolender v. Lawson, 461 U.S. 352, 357 (1983).
550 U.S. at 210 n.6. And just last year, in Sykes, the Court
said that although the residual clause may sometimes be
“difficult for courts to implement,” it nonetheless “states
an intelligible principle,” “provides guidance that allows
a person to ‘conform his or her conduct to the law,’ ” and
16                                                 No. 11-3719

“is within congressional power to enact.” 131 S. Ct. at 2277
(quoting Morales, 527 U.S. at 58 (plurality opinion)).
  Jones points out that the Supreme Court has never
received briefing on the vagueness issue. True, but the
Court’s statements in James and Sykes are direct, and
because Justice Scalia so thoroughly developed the argu-
ment, we are reluctant to treat the Court’s responsive
statements as mere dicta. Indeed, they are not dicta in
the traditional sense. The question presented in James
and Sykes required the Court to decide both the kind
and degree of risk necessary for a conviction to fall
within the scope of the residual clause. A possible
answer in both cases was that the residual clause is an
irreparable drafting failure and too vague to be enforced.
See id. at 2284 (Scalia, J., dissenting); James, 550 U.S. at 230
(Scalia, J., dissenting). For us to say that the residual
clause is unconstitutionally vague—essentially, that it
lacks a coherent, ascertainable standard—would be to
say that the Supreme Court failed to ascertain and
apply a standard in James, Begay, Chambers, and Sykes.
Justice Scalia may be right, but attributing failure to the
Supreme Court is not within our authority. Jones must
seek relief from the high court.
                                                    A FFIRMED.




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