A majority of the Court has voted not to rehear en banc our decision in this appeal, United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that the advisory sentencing guidelines cannot be challenged as void for vagueness. As members of the panel (and coincidentally the only members of this Court to have served on the United States Sentencing Commission), we write to explain why we agree with that decision.But as members of the U.S. Sentencing Commission, should they have recused? Andrew Hessick argues in this post that they should have:
We divide our discussion in two parts. First, we explain that Matchett is correct because the vagueness doctrine applies only to laws that regulate the primary conduct of private citizens. Advisory sentencing guidelines regulate judges, not private individuals; they guide judicial discretion within a statutory range. Advisory sentencing guidelines do not define crimes or fix punishments. Second, we explain that Matchett is not worthy of en banc rehearing.
Judge Pryor does not have a personal interest at stake in the case, but he does have an interest in his capacity as a member of the Commission. Holding that the vagueness doctrine does not apply to sentencing guidelines protects his work on the Commission from future challenges of that sort.
His participation in the decision also raises separation of powers concerns. The sentencing guidelines are legislative in nature. A judge who both sits on the Commission and rules on the Commission’s guidelines acts as both judge and legislator. Of course, judges sit on committees that create all sorts of rules―evidence, civil procedure, etc. But those committees prescribe rules for the administration of the courts. Sentencing guidelines are different. They prescribe terms of imprisonment. Anxiety about deprivations of liberty at the hands of the government is a major reason the Constitution separates powers.