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Pepper v United States

Resentencing hearings: evidence of post-sentencing rehabilitation may be considered and this may support a downward variance from the Sentencing Guidelines.

Pepper v. United States 131 S. Ct. 1229 (2011).

Decided March 2, 2011 Supreme Court of the United States

Issue: Whether a district court is entitled to consider evidence of a defendant’s post-sentencing rehabilitation at a resentencing hearing and whether such evidence was a factor to consider in granting a downward variance from the Guideline range.

Holding: In situations where a defendant’s sentence has been set aside and referred for resentencing, a district court on resentencing may consider evidence of post-sentencing rehabilitation and such evidence may support a downward variance from the Sentencing Guidelines range. The “law of the case” doctrine does not require the resentencing court to apply the same percentage departure from the Guidelines range as had been applied at the defendant’s prior sentencing.

Facts: In 2003, petitioner Pepper pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. s846. At trial the Government moved for a 15% downward departure from the Sentencing Guidelines based on Pepper’s substantial assistance. Pepper actually received a 24 month sentence plus five years supervised release – i.e. a 75% departure from the lower end of the range. The Government appealed. At re-sentencing in 2006 (while Pepper was serving his term of supervised release), Pepper recounted having undergone successful drug rehabilitation to the extent that he was now clean. He had also enrolled at community college and was working part time. The District Court granted a 40% downward departure from the bottom of the Guideline range and granted a further 59% variance based on his rehabilitation since initial sentencing. His sentence was therefore reduced to 24 months with the Judge commenting to the effect that to send the defendant back to prison would serve no practical purpose.

A further appeal from the Government followed. The Eighth Circuit resentenced Pepper to a 65-month prison term – stating that it was inappropriate to consider post-sentencing rehabilitation in granting a downward variance from the advisory guidelines. The US Supreme Court reversed this.

Legal Analysis: The court was keen to underline the importance of judicial discretion in sentencing. Giving the lead opinion, Justice Sotomayor noted that the Supreme Court had adopted a generally consistent approach in recognizing that trial judges ought to be afforded wide discretion – including “the fullest information possible concerning the defendant’s life and characteristics”. The earlier US Supreme Court case of United States v. Booker had already determined that the Sentencing Guidelines are advisory (although the test of reasonableness will always be applied to any decision – and particular scrutiny will be applied where there is a marked departure from the (now advisory) Guidelines).

The Court was not of the opinion that Congress intended to preclude consideration of post-conviction rehabilitation when a district court conducts a resentencing hearing after an appeal. In particular, the Sentencing Reform Act in which the Sentencing Guidelines were introduced, makes no distinction between sentencing and resentencing in so far as the factors a court ought to take into consideration are concerned. What’s more, given that the earlier decision of Booker had ruled that the Sentencing Guidelines were advisory, if the Supreme Court was then to tie the hands of district courts and preclude them from considering post-sentencing rehabilitation, this would in practical terms have the effect of confining courts to those Guidelines in a way which is likely to be contrary not just to Booker but also to a defendant’s Sixth Amendment rights.

Freeman v United States

Plea agreements and subsequent eligibility for reduced sentences: defendants may be eligible to a reduced sentence following retroactive revision of the Sentencing Guidelines – despite the existence of a plea agreement

Freeman v. United States 131 S. Ct. 2685 (2011).

Decided June 23, 2011 Supreme Court of the United States

Issue: Whether a defendant is eligible to a sentence reduction under 18 U.S.C. s3582 (c) (2) (which generally permits a defendant to move for a sentence reduction following a lowering of the sentencing range for the offense in question where the reduction has been specified to apply retroactively); despite the fact that the defendant had, at the time of his original trial, entered into a Federal Rule of Criminal Procedure 11 (c) (1) (C) agreement (in which the parties agree that a specific sentence or sentencing range is appropriate and which subsequently binds the court once accepted by the judge).

Holding: The majority held that the defendant’s original sentence was based on the Sentencing Guidelines. Defendants who enter into plea agreements recommending a particular sentence as a condition of the guilty plea may be eligible to apply for a reduced sentence in the event of a subsequent modification to the sentencing range.

Facts: Petitioner Freeman was indicted in 2005 for various crimes – including possessing with intent to supply cocaine base – 21 U.S.C. ss 841 (a)(1); (b)(1)(C). Under a Category C plea agreement he agreed to plead guilty to all charges. Crucially the agreement stated that “both parties have independently reviewed the Sentencing Guidelines applicable in this case” and that “a sentence of 106 months’ incarceration is the appropriate disposition of this case”. Furthermore the agreement stipulated that the defendant “agrees to have his sentence determined pursuant to the Sentencing Guidelines”. This was a 106 month sentence which reflected the parties’ expectation that the appropriate range for the cocaine base-related offense would be 46 to 57 months (in addition to a 60 month mandatory minimum for possessing a firearm in furtherance of a drug-trafficking crime). The sentence was therefore at the bottom of the applicable range.

Three years later, the Sentencing Commission issued a retroactive amendment to reduce the sentencing range for cocaine base offenses. The applicable range for Freeman’s cocaine base offense was therefore 37 to 46 months (on top of the 60 months mandatory minimum for the drug and firearm offense). Freeman’s subsequent application for a reduction was refused. The Court of Appeals affirmed on the basis that a sentence agreed on the basis of a plea agreement was binding except in cases of miscarriage of justice or mutual mistake. The US Supreme Court reversed this.

Legal analysis: Between the five Justices who agreed that the petitioner ought to be entitled to relief, there was a split as to the reasons why.

18 USC s3582 c 2 permits a sentence to be reduced following a retrospective amendment of the Sentencing Guidelines if the original sentence was “based on” the earlier guidelines. When considering whether to accept the recommended sentence within a plea agreement, the trial judge must nevertheless be satisfied that the sentence is appropriate. The Sentencing Guidelines specifically state that when doing this, he must give due consideration to the appropriate sentencing range. For this reason, Justice Kennedy giving the majority opinion, took the view that the original sentence was indeed “based on” the earlier Guidelines and that therefore the petitioner was eligible to have his sentence reviewed.

Justice Sotomayer’s approach was different. She took the view that where a plea agreement is entered into, the sentence ought properly be regarded as being “based on” the agreement rather than the Guidelines. However, because (as in Freeman’s situation) the prison term has been agreed with express reference to the range in the Guidelines, the sentence can be quite properly  regarded as being based upon those Guidelines and the defendant ought still be entitled to a review.

De Pierre v United States

The term ‘cocaine base’ under the Anti-Drug Abuse Act of 1986 (ADAA) refers to all forms of cocaine base – not just “crack cocaine”.

DePierre v. United States 131 S. Ct. 2225 (2011).

Decided June 9, 2011 Supreme Court of the United States

Issue: The Anti-Drug Abuse Act of 1986 Provides for a mandatory 10-year minimum sentence for certain drug offenses involving “(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of (ii)cocaine , its salts … [or] (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base”. 21 U.S.C. s841 b 1 A.  The petitioner DePierre argued that the jury ought to be instructed that in order to find him guilty of distribution of “cocaine base”, it must find that his offense involved crack cocaine. The issue was whether, taken in context, the term “cocaine base” was intended by Congress to refer to crack cocaine only or whether it referred more broadly to cocaine in its chemically basic form.

Holding: Affirming the District Court and First Circuit Decisions, “cocaine base” as used in s841 (b) (1) is not limited to crack cocaine and applies to all forms of cocaine base.

Facts: After selling two bags of drugs (weighing 55.1 grams) to a Government informant in April 2005, petitioner DePierre was indicted on a charge of distributing 50 grams or more of cocaine base under ss 841 (a) (1) and (b) (1) A (iii). At trial, the People adduced scientific evidence that the substance was cocaine base although given that no sodium bicarbonate was identified, it was not possible to show that this was crack cocaine. DePierre referred to a set of amended Sentencing Guidelines – (issued in 1993 and therefore postdating ADAA) which gave a definition: “cocaine base for the purposes of this guideline, means crack…”. ADAA had left the term ‘cocaine base’ undefined. DePierre’s proposed jury instruction at his trial gave the same definition of ‘cocaine base’ as these Guidelines. His proposed jury instruction was rejected in favor of the all-encompassing, literal reading of “cocaine base”. The US Supreme Court essentially affirmed the decision of the trial judge and the Court of Appeals Majority decision.

Legal analysis: the four key arguments of the petitioner were rejected by Justice Sotomayor in the opinion. One argument was that Congress, at the time the Statute was passed, obviously had crack cocaine in mind. The Supreme Court took the view that although public and congressional concern over crack in the mid eighties had instigated the statute, the starting point should always be interpretation of the statutory text – and that text was clearly referring to all forms of cocaine base. There was no reasonable indication that Congress intended to restrict the relevant mandatory sentencing solely to a specific form of cocaine base. An additional argument advanced by DePierre was that it would be absurd to interpret cocaine base as referring to chemically base cocaine as this would mean that an offense involving 5 grams of natural, unprocessed coca leaves would technically give rise to a mandatory 5 year minimum sentence even though the leaves would produce a miniscule amount of cocaine. This was rejected on the basis that in reality a prosecutor would in fact be unable to prove that coca leaves contain “cocaine” in its base form and therefore this hypothetical situation simply would not occur. The Supreme Court also rejected the argument that it should give due deference to the 1993 Sentencing Guidelines Amendment when interpreting the earlier statute. It had been well established that such deference was not appropriate when considering statute. The petitioner’s final argument was that the degree of ambiguity over interpretation of the statute was such that the rule of lenity required it to be interpreted in his favor. The situation so far as the Supreme Court was concerned was clear. There was no ambiguity over the wording of the relevant statue to warrant the rule of lenity being applied here. 

McNeill v United States

The question of whether an offense is a “serious drug offense” for the purposes of the Armed Career Criminal Act, should be determined with reference to the maximum term of imprisonment applicable at the time of conviction

McNeill v. United States 131 S. Ct. 2218 (2011).

Decided June 6, 2011 Supreme Court of the United States

Issue: ACCA stipulates that a felon unlawfully in possession of a firearm is subject to a 15-year minimum sentence if he has three prior convictions for a “violent felony or serious drug offense”. A serious drug offense is defined as one “for which the maximum term of imprisonment of ten years or more is prescribed by law,” (s924 (e) (2) (A) (ii).) The issue was whether a prior offense in respect of which the maximum sentence was formerly ten years ought still be regarded as a “serious offense” where the maximum term has since been reduced to less than ten years.

Holding: Held unanimously, the question as to whether an offense under State law is a “serious drug offense” is calculated with reference to the “maximum term of imprisonment” at the time of the defendant’s conviction of that offense.

Facts: In 2008 petitioner McNeill pleaded guilty to unlawful possession of a firearm by a felon, 18 U.S.C. s922(g) (1) and possession with intent to distribute cocaine base 21 U.S.C. s841(a)(1). In respect of the firearm offense, the North Carolina District Court sought to apply a 15 year minimum prison sentence under the Armed Career Criminal Act on the basis that he had two convictions for “violent felonies” and one conviction for a “serious drug offense”. McNeill did not dispute that two of the prior convictions – namely assault with a deadly weapon and robbery were “violent felonies”. He did however argue that none of his six state drug trafficking convictions were for “serious drug offenses”.  When he had been convicted of them, the maximum sentence was 10 years (the sentence that he did in fact receive). In October 1994, after McNeill’s conviction, North Carolina reduced the maximums to 38 months for selling cocaine and 30 months for possession with intent to supply.

At his 2008 trial, McNeill argued that the prior drugs offenses should not be regarded as serious drugs offenses because they no longer carry 10 year maximum sentences. The District Court refused to look at current state sentencing law and concluded that the offenses should be regarded as serious drugs offenses because of the maximum sentence they carried at the time of conviction. The Court of Appeals and subsequently the Supreme Court affirmed.

Legal analysis: With Justice Clarence Thomas giving the opinion on what was a unanimous decision, the Court firstly considered the wording of the relevant statutory provision. A serious drug offense is one “for which a maximum term of imprisonment of ten years or more is prescribed by law”. The Court rejected the petitioner’s argument that the use of the present tense in the phrase; “is prescribed by law” suggests that the current applicable maximum should be considered. On basic reading of the statute, it requires a court to determine whether a previous conviction was a serious drug conviction; and therefore it is a “backward-looking question”. A district court ought not to be concerned with the current treatment of the offense so far as sentencing is concerned, but rather on what the position was at the time of conviction. To do otherwise could give rise to unsatisfactory results; e.g. in those situations where a state revised its definition of an offense so that technically (if it were to be considered from the ‘present tense’ perspective as McNeill argued) it could potentially be regarded as no longer “existing”.

People v. Spencer

The erroneous exclusion of relevant evidence will not necessarily lead to a conviction being overturned on appeal.

The People v. Spencer 2101 N Y Slip Op 08567

Decided: December 13 2012 New York Court of Appeals

Issue: Whether the improper preclusion of evidence adduced by the Defendant which was wrongly assessed as “collateral”, ought to give grounds for the original conviction and sentence being overturned.

Holding: On the facts, no. The trial judge was wrong to categorize the evidence in question as collateral but nevertheless, the weight of evidence against the Defendant was such that the error was “harmless beyond a reasonable doubt”. 

Facts: Defendant was charged with one count of criminal possession of a weapon in the second degree and other related charges. Witnesses testified that Defendant had been involved in a street level altercation with a third party on the evening in question. Shortly afterwards, the Complainant, an off-duty police officer arrived at the scene. Complainant and other witnesses gave evidence that the Defendant assaulted the Complainant and brandished a firearm. The evidence upon which the Defendant wished to rely was his own testimony to the effect that the third party and the Police Officer Complainant were close friends and that the Complainant permitted the third party to deal drugs directly outside his home. This evidence was precluded by Supreme Court on the basis it was “collateral”. The Court of Appeals gave the opinion that this categorization was incorrect and the Defendant ought to have had the opportunity to rely on it. Given the weight of other evidence against the Defendant however, the original conviction of second-degree criminal possession of a weapon and 15 year sentence was upheld.

Analysis: The case illustrates how an irregularity or omission will not necessarily give rise to a conviction being overturned. Even taking into account the principle that “trial courts have broad discretion to keep the proceeding within manageable limits and to curtail the exploration of collateral matters” (People v Hudy 73 NY2d 40, 56 [1988]), it was nevertheless the case that the evidence in question – (i.e. relating to the Complainant’s alleged connection with the third party) could rightly be categorized as “tending to establish a reason to fabricate” and ought not to have been regarded as collateral. After all, a defendant has the constitutional right “to present a complete defense” California v Trombetta 467 US [1984]. Despite this, the strength of the evidence against the Defendant (notably eyewitness testimony and 911 calls) was such that essentially the wrongful preclusion of this evidence would not have made any difference to the outcome. The lack of material prejudice to the Defendant meant that the conviction was not overturned.