UNITED STATES SUPREME COURT CASES ON SENTENCING ISSUES
Apprendi v. New Jersey, 530 U.S. 466 (2000). Opinion by Justice Stevens
In a 5-4 decision, the Supreme Court found unconstitutional a New Jersey statute that increased the maximum penalty of the defendant’s weapon possession offense from 10 to 20 years based on the trial court’s finding by a preponderance of evidence that the defendant committed a “hate crime.” “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
The Court noted that its opinion in Jones “foreshadowed” its resolution of whether constitutional protections of due process and rights to notice and jury trial entitled the defendant to have a jury, not a judge, decide bias beyond a reasonable doubt. The Court rejected the States’s three primary arguments that (1) the biased purpose was a traditional sentencing factor of motive; (2) McMillan authorizes a court to find a traditional sentencing factor using a preponderance of evidence; and (3) under Almendarez-Torres, a judge may sentence beyond the maximum. Merely labeling a provision a crime is perhaps as close as one might hope to come to a core criminal offense “element.’
Recognizing that application of the statute could potentially double the defendant’s sentence, the Court rejected the State’s reliance on McMillan: “When a judge’s finding based on a mere preponderance of the evidence authorizes an increase in the maximum punishment, it is appropriately characterized as “a tail which wags the dog of the substantive offense.'” In rejecting the State’s reliance on Almendarez-Torres, the Court distinguished the recidivist provision from the “biased purpose inquiry, [which] goes precisely to what happened in commission of the offense.” The Court further asserted that “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had . . . the right
to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.” The Court also noted that “it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested,” but that revisiting that decision was not
necessary to resolve the case.
In a concurring opinion, Justice Thomas, joined by Justice Scalia, asserted that “theConstitution requires a broader rule than the Court adopts…. If a fact is by law the basis for imposing or increasing punishment–for establishing or increasing the prosecution’s entitlement–it is an element.”
Justice O’Connor, joined by the Chief Justice, Justice Kennedy, and Justice Breyer dissented, finding that the majority’s “increase in maximum penalty rule” is “unsupported by history and case law” and rests on a “meaningless formalism.” The dissent asserted that the majority was overruling McMillan, and that as a result there will be a significant impact on state and federal determinate sentencing schemes. “The actual principle underlying the Court’s decision may be that any fact (other than prior conviction) that has the effect, in real terms, of increasing the maximum punishment beyond an otherwise applicable range must be submitted to a jury and proved beyond a reasonable doubt. The principle would thus apply not only to schemes . . . under which a factual determination exposes the defendant to a sentence beyond the prescribed statutory maximum, but also to all determinate-sentencing schemes in which the length of a defendant’s sentence within the statutory range turns on specific factual determinations.”
Buford v. United States, 532 U.S. 59 (2001). Opinion by Justice Breyer .
The Supreme Court, in a unanimous decision, held that the appellate court properly reviewed the district’s court’s “functional consolidation” decision deferentially in light of the factbound nature of the decision, the comparatively greater expertise of the district court, and the limited value of uniform Court of Appeals precedent. The Court reviewed the standard of review that applies when determining whether an offender’s prior convictions are consolidated, thus “related,” for the purposes of sentencing. The defendant pleaded guilty to armed bank robbery, a crime of violence, but he also had five prior state convictions, four of which were robberies. The four bank robberies were considered related because the court found that the robberies had been the subject of a single criminal indictment and the defendant had pleaded guilty to all four at the same time in the same court. The fifth conviction was for a drug crime. The defendant argued that all five priors, including the drug crime, were related because they were “functionally consolidated,” without the entry of a formal order of consolidation, because the sentencing judge was the same, and all five cases were sentence at the same time in a single proceeding. The government disagreed stating that the drug offense was handled by a different judge, a different state prosecutor, and with a separate judgement. The district court ruled against the defendant and held that the drug case was unrelated to the robbery cases and had not been consolidated for sentencing, either formally or functionally. The Seventh Circuit stated that in this case “the standard of appellate review may be dispositive” and elected to review the district court’s decision “deferentially” rather than “de novo.” The appellate court affirmed and the defendant appealed.
United States v. Cotton, 535 U.S. 625 (2002). Opinion by Chief Justice Rehnquist .
The Supreme Court, in a unanimous decision, held that defects in an indictment do not automatically require reversal of a conviction or sentence. The respondents were charged with conspiring to distribute and to possess with intent to distribute a “detectable” amount of powder and cocaine base. The respondents were later convicted and received a sentence based on the district court’s drug quantity finding of at least 50 grams of cocaine base. The district court did not sentence the defendants under 21 U.S.C. § 841(b)(1)(C), which would have provided a statutory maximum penalty of 20 years, but instead implicated the enhanced penalties of 21 U.S.C. § 841(b) which provided a sentence up to life imprisonment. Two of the respondents were sentenced to 30 years of imprisonment, while those remaining received life imprisonment. The respondents argued on appeal that the court was deprived of jurisdiction because the indictment was defective due to the omission of a fact that enhanced the statutory maximum. They further argued that their sentences were invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the issue of drug quantity was neither alleged in the indictment nor before the jury. The Fourth Circuit reviewed for plain error and held that the district court had no jurisdiction to sentence based on information not contained in the indictment. The Supreme Court reversed the holding of the Fourth Circuit and noted that the reasoning of the Fourth Circuit was based on ex parte Bain, 121 U.S. 1 (1887), a nineteenth century case that addresses the jurisdiction of the courts to interpret a revised indictment. The Court here overruled Bain and held that (1) a defective indictment does not by its nature deprive a court of jurisdiction, and (2) the omission from a federal indictment of a fact that enhances the statutory maximum sentence does not justify a Court of Appeals’ vacating the enhanced sentence, even though the defendant did not object in the trial court.
Harris v. United States, 536 U.S. 545 (2002). Opinion by Justice Kennedy .
The Supreme Court, in a 5-4 decision, held that as a matter of statutory construction, that “brandishing” is a sentencing factor to be determined by the judge. This case represents the Court’s continued effort in distinguishing between offense elements and sentencing enhancements. In reaching its holding, the Court reiterated that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), accords with its prior decision in McMillan v. Pennsylvania, 477 U.S. 79 (1986). In Apprendi, the Court stated that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. McMillan established that statutory provisions that subject defendants to increased mandatory minimum penalties are sentencing factors that may be determined by the sentencing judge through a preponderance of the evidence. McMillan, 477 U.S. at 91.
Defendant Harris was arrested for selling illegal narcotics out of his pawnshop with an unconcealed semiautomatic pistol at his side. He was charged with violating federal drug and firearm laws, including 18 U.S.C. § 924(c). In drafting the indictment, the Government proceeded on the assumption that section 924(c)(1)(A) sets forth a single crime and that brandishing is a sentencing factor, to be determined by the judge. Thus, brandishing was not charged in the indictment. Harris, 122 S. Ct. at 2410-11. Harris was found guilty after a bench trial. The presentence report recommended a seven-year minimum sentence because he had brandished the firearm. The district court agreed and sentenced Harris accordingly and the Fourth Circuit affirmed. Id.
The Supreme Court first considered the statutory construction of 18 U.S.C. § 924(c) which begins with a principal paragraph listing the basic elements of the offense of carrying or using a gun during and in relation to a violent crime or drug offense. The statute then lists subsections that explain how the defendant shall be sentenced. Finding that this structure sufficiently delineates between the offense elements and sentencing factors (which traditionally involve special features of the manner in which the basic crime was perpetrated), the Court held that Congress did not intend brandishing to be an offense element. Id. at 2412.
After examining several important recent decisions, the Court ultimately concluded that subjecting defendants to increased mandatory minimum penalties via preponderance of the evidence does not violate Apprendi. The Court noted that Apprendi said that “any fact that would extend a defendant’s sentence beyond the maximum authorized by the jury’s verdict would have been considered an aggravated crime . . . by those who framed the Bill of Rights.” Id. at 2414. The Court concluded that facts increasing the mandatory minimum (but not extending the sentence beyond the statutory maximum) are different in that “the jury has authorized the judge to impose the minimum with or without the [fact] finding” at sentencing. Id.
United States v. Booker, 543 U.S. 220 (2005). Opinion by Justice Stevens .
The Supreme Court, in a 5-4 decision, held that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. “The Sixth Amendment, as construed in Blakely, does apply to the Sentencing Guidelines.” A separate majority determined that the remedy was to excise two provisions of the Sentencing Reform Act, rendering the Federal Sentencing Guidelines advisory. Defendant Booker was convicted of possession with intent to distribute cocaine. The defendant’s criminal history and drug quantity resulted in a recommended guidelines range of 210 to 262 months. The sentencing judge later found, by a preponderance of the evidence, that the defendant possessed a greater amount than the jury found and increased the defendant’s sentence. Booker appealed arguing that the sentence enhancement violated his Sixth Amendment right to a jury trial because it permitted the judge to find facts not admitted by the defendant nor found by the jury. The Seventh Circuit held that the sentence enhancement violated the Sixth Amendment because it limited Booker’s right to have a jury find facts. The court affirmed the conviction but overturned the sentence and ruled that the Guidelines violated the Sixth Amendment in cases where they limit the defendant’s right to a jury trial.
The Government raised two issues before the Supreme Court to determine “whether the Apprendi line of cases applies to the Sentencing Guidelines and, if so, what portions of the guidelines remain in effect.” The Court noted that in Apprendi it expressly declined to consider the Guidelines because a statute, not guidelines, was considered in that case. However in Blakely the Court stated that “there was no distinction of the constitutional significance between the federal sentencing guidelines and the Washington procedures at issue.” “The availability of a departure in specified circumstances does not avoid the constitutional issue, just as it did not in Blakely itself.” The Court rejected the government’s argument that there would only be a Sixth Amendment violation if the final sentence exceeded the applicable statutory maximum for the offense. The Court concluded that application of the Federal Sentencing Guidelines violated the Sixth Amendment. Having rejected that argument, the Court turned its attention to answering the question of remedy “by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U.S.C.A. § 3553(b)(1) (Supp.2004), and incompatible with today’s constitutional holding.”
In a separate opinion by Justice Breyer, joined by Chief Justice Rehnquist, Justice O’Connor, Justice Kennedy, and Justice Ginsberg, the Court concluded that “the two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.” The Court concluded that 18 U.S.C.A. § 3553(b)(1) and 3742(e), which depend upon the Guidelines’ mandatory nature, must be severed and excised. “So modified, the Federal Sentencing Reform Act of 1984…, makes the Guidelines effectively advisory.” With this modification, the sentencing courts would be required to consider Guidelines ranges, but also be permitted to tailor the sentence in light of other statutory concerns.
Four dissenting opinions (dissenting in part) were filed. Justice Stevens dissented in part, joined by Justice Souter and Justice Scalia, who joined except for Part III and footnote 17 of the dissenting opinion. Justice Stevens addressed the Court’s decision to excise and sever the two statutory provisions which made the application of the Guidelines mandatory. Justice Stevens asserted that the Court’s decision to do so represented a policy choice that Congress had considered and decisively rejected. “While it is perfectly clear that Congress has ample power to repeal these two statutory provisions if it so desires, this Court should not make that choice on Congress’ behalf.” Justice Stevens recognized the Court’s action as an “extraordinary exercise of authority” that violated “the tradition of judicial restraint that has heretofore limited our power to overturn validly enacted statutes.”
Justice Scalia wrote a dissent, dissenting in part to the excision of the provision governing appellate review of sentences, 18 U.S.C. 3742(e), which had, as its sole purpose, enabling the appellate courts to enforce conformity with the Guidelines. Justice Scalia asserted that “if the Guidelines are no longer binding, one would think that the provision designed to ensure compliance with them would, in its totality, be inoperative.”
Justice Thomas’s dissent concluded that the presumption of severability had not been overcome in Booker. According to Justice Thomas, the question remains “whether the unconstitutional application of certain statutory provisions and guidelines applied to Booker are severable from the constitutional applications of the same provisions to other defendants.” Justice Breyer wrote a dissent, joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy, disagreeing with the Court’s conclusion requiring a jury, not a judge, to find sentencing facts. Justice Breyer stated that he found “nothing in the Sixth Amendment that forbids a sentencing judge to determine (as judges at sentencing have traditionally determined) the manner or way in which the offender carried out the crime of which he was convicted.” “The upshot is that the Court’s Sixth Amendment decisions – Apprendi, Blakely, and today’s – deprive Congress and state legislatures of authority that is constitutionally theirs.”
Rita v. United States, 551 U.S. 338 (2007). Opinion by Justice Breyer .
The Supreme Court, in an 8-1 decision, held that courts of appeals may apply a presumption of reasonableness when reviewing a sentence imposed within the sentencing guideline range, and affirmed the within-guidelines sentence imposed in the case. Writing for the majority, Justice Breyer, joined by Chief Justice Roberts and Justices Stevens, Kennedy, Ginsburg, and Alito, emphasized the close relationship between the guidelines and the section 3553(a) factors.
First, the Court discussed the statutory provisions governing the promulgation of the guidelines and how those provisions mirror the factors that section 3553(a) requires sentencing courts to consider, noting that “… the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.” Second, the Court discussed the process that the Commission used to initially promulgate and subsequently amend the guidelines, concluding that the guidelines “seek to embody the § 3553(a) considerations, both in principle and in practice” and that they “reflect a rough approximation of sentences that might achieve § 3553(a)’s objectives.” In sum, the Court said “. . . [T]he courts of appeals’ “reasonableness” presumption, rather than having independent legal effect, simply recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” The majority also emphasized that circuits are not required to employ a presumption when conducting reasonableness review, and that the presumption is applied on appeal and not by the sentencing judge.
Another important part of the majority opinion is its discussion of the procedural issues raised by the advisory guidelines scheme. Specifically, the Court (and in this it was joined by Justices Scalia and Thomas) examined the district court’s statement at sentencing to determine whether it complied with the requirement in section 3553(c) that the judge “state in open court the reasons for its imposition of the particular sentence.” The Court emphasized that the amount of detail required in such a statement would vary depending on the circumstances of the case, but that the district court “should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Further, the Court said, when imposing a within-guidelines sentence, a brief explanation may be sufficient: “Unless a party contests the Guidelines sentence generally under §3553(a) – that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way – or argues for departure, the judge normally need say no more.” The Court said that, where such arguments are made, the sentencing judge will typically explain why he has rejected them; it noted again, however, that a brief explanation may be sufficient. The Court approved the sentencing judge’ very brief explanation in sentencing Mr. Rita, noting that the judge had clearly heard and considered the arguments relating to Mr. Rita’s military service, his health issues, and his vulnerability in prison, but “simply found [them] insufficient to warrant a sentence” below the guideline range. On this issue, the Court concluded: “Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.”
In dissent, Justice Souter argued that it is impossible, under the current system, to “recognize such a presumption and still retain the full effect of Apprendi in aid of the Sixth Amendment guarantee.” In his view, the proper resolution to the tension between the Sixth Amendment jury trial right and Congressional concerns about uniformity would be for Congress to “reenact the Guidelines law to give it the same binding force it originally had, but with provision for jury, not judicial, determination of any fact necessary for a sentence within an upper Guidelines subrange.” Concurring in part and concurring in the judgment, Justice Scalia (with whom Justice Thomas joined), criticized the Court because, he said, “the Court has failed to establish that every sentence which will be imposed under the advisory Guidelines scheme could equally have been imposed had the judge relied upon no facts other than those found by the jury or admitted by the defendant.” In his view, “reasonableness review cannot contain a substantive component at all,” but procedural reasonableness review can provide some sentencing uniformity. Applying this standard, Justices Scalia and Thomas concluded that the sentence imposed in this case was reasonable. Justice Stevens, joined by Justice Ginsburg, concurred, also concluding that the sentence was reasonable, but emphasized that the presumption was a rebuttable one and that even an outside-the-guidelines sentence would be reviewed “under traditional abuse-of-discretion principles.”
Kimbrough v. United States, 552 U.S. 85 (2007). Opinion by Justice Ginsburg .
In a 7-2 opinion, the Court held that a sentencing judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine when determining a sentencing range. Justice Ginsburg delivered the opinion in which Chief Justice Roberts, Justices Stevens, Scalia, Kennedy, Souter, and Breyer joined. Justice Scalia also filed a concurring opinion; Justices Thomas and Alito filed dissenting opinions.
The Court summarized the history of the crack/powder disparity, noting the circumstances surrounding its inclusion in the Anti-Drug Abuse Act of 1986 (the 1986 Act) and the assumptions that underlay the conclusion that crack offenders should be punished significantly more severely than powder cocaine offenders. The Court observed that, in creating the drug guidelines, the Commission varied from its usual practice of employing an “empirical approach based on data about past sentencing practices,” instead adopting the “weight-driven scheme” used in the 1986 Act, and maintaining the 100-to-1 quantity ratio throughout the drug table. The Court then discussed the Commission’s subsequent criticisms of the ratio, quoting from the various Commission reports to Congress on the issue, and discussed Congress’s previous responses to Commission actions and recommendations. The Court finally discussed the Commission’s 2007 amendments, and observed that the Commission considered them “only . . . a partial remedy” for the problems caused by the disparity.
The Court then discussed the status of the relevant guidelines in light of Booker, examining the government’s arguments that “the Guidelines adopting the 100-to-1 ratio are an exception to the general freedom that sentencing courts have to apply the § 3553(a) factors.” The Court first rejected the government’s grounding of the proposition in the text of the 1986 Act, “declin[ing] to read any implicit directive into [the] congressional silence” on the appropriate length of sentences not dictated by the mandatory minima and maxima in the 1986 Act itself. The Court observed that “[d]rawing meaning from silence is particularly inappropriate here, for Congress has shown that it knows how to direct sentencing practices in express terms,” citing 28 U.S.C. § 994(h)’s direction regarding career offenders. Additionally, the Court looked to its earlier decision in Neal v. United States, 516 U.S. 284 (1996) (infra., p. 6), in which it held that the Commission’s method for calculating the weight of LSD did not dictate the method used for determining the applicable statutory mandatory minium.
Next, the Court rejected the government’s argument that Congress’s 1995 disapproval of the Commission’s implementation of the 1:1 ratio in the guidelines “made clear that the 1986 Act required the Commission (and sentencing courts) to take drug quantities into account, and to sdo so in a manner that respects the 100:1 ratio.” The Court observed that “nothing in Congress’ 1995 reaction to the Commission-proposed 1-to-1 ratio suggested that crack sentences must exceed powder sentences by a ratio of 100 to 1. To the contrary, Congress’ 1995 action required the Commission to recommend a “revision of the drug quantity ratio of crack cocaine to powder cocaine.'” The Court further observed that the 2007 amendments result in a crack/powder ratio that is not consistently 100-to-1, but that Congress did not disapprove the amendments.
Finally, the Court rejected the government’s arguments that consideration of the 100-to-1 ratio would result in unwarranted sentencing disparities in violation of section 3553(a)(6). The two kinds of disparities considered were those arising from “cliffs” in the guideline ranges near and at the mandatory minima, and those arising from different sentencing judges’ opinions regarding the proper relationship between crack offenders and powder cocaine offenders. The Court observed that both are inherent in the guidelines system, and that “advisory Guidelines combined with appellate review for reasonableness will . . . not eliminate variations between district courts, but . . . Booker recognized that some departures from uniformity were a necessary cost of the remedy [Booker] adopted.” The Court finally noted that, if an unwarranted disparity arises, the district court is required to address it under section 3553(a)(6).
The Court then discussed the Commission’s ongoing role in determining sentencing ranges, noting that “while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range “fails properly to reflect § 3553(a) considerations’ even in a mine-run case.” The Court held that the crack cocaine guidelines “do not exemplify the Commission’s exercise of its characteristic institutional role” and noted the Commission’s opinion that the crack cocaine guidelines produce “disproportionately harsh sanctions.” In light of this, “it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence “greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case.”
Applying these principles, the Court concluded that the sentence in the instant case did not constitute an abuse of discretion, and reversed the Fourth Circuit’s order vacating the sentence. In dissent, Justice Thomas expressed his continuing disagreement with the opinion of the Booker remedial majority, and Justice Alito wrote that he would vacate the Fourth Circuit’s decision and remand for reconsideration in light of Booker’s holding that a court of appeals may not “treat the Guidelines’ policy decisions as binding.”
Gall v. United States, 552 U.S. 38 (2007). Opinion by Justice Stevens .
In a 7-2 decision, the Supreme Court held that the abuse of discretion standard of review applies equally to all sentences, rejecting the form of proportionality review employed by the court of appeals in the case. Justice Stevens delivered the opinion of the Court, in which Chief Justice Roberts, Justices Scalia, Kennedy, Souter, Ginsburg, and Breyer joined. Justices Scalia and Souter filed concurring opinions, and Justices Thomas and Alito filed dissenting opinions. The Court held that “while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, the court of appeals must review all sentences — whether inside, just outside, or significantly outside the Guidelines range–under a deferential abuse of discretion standard.” The Court further held that the appellate rule “requiring “proportion’ justifications for departures from the Guidelines range is not consistent with” Booker. The Court also stated: “Our explanation of “reasonableness’ review in the Booker opinion made it pellucidly clear that the familiar abuse of discretion standard of review now applies to appellate review of sentencing decisions.”
In reviewing the reasonableness of a sentence outside the range, the Court said, appellate courts “may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines.” An inappropriate standard of appellate review, the Court said, is one: “that requires “extraordinary’ circumstances to justify a sentence outside the Guidelines range.” The Court also disapproved “the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.” The Court reasoned that such an approach would “come too close to
creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.” The Court also stated that the “mathematical approach also suffers from infirmities of application” and “assumes the existence of some ascertainable method of assigning percentages to various justifications.” The Court also observed that these practices “reflect a practice . . . of applying a heightened standard of review to sentences outside the Guidelines range,” which, the Court said, “is inconsistent with the rule that the abuse of discretion standard of review applies to appellate review of all sentencing decisions – whether inside or outside the Guidelines range.” The Court then discussed the proper analysis for sentencing courts, beginning with proper calculation of the guideline range, followed by consideration of the section 3553(a) factors, and noting that if the court determines that a sentence outside the guideline range is appropriate, the court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” The Court went on to state: “We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.” After making this determination, the Court said, the sentencing court must adequately explain the reasons for the sentence. With respect to appellate review, the Court acknowledged that reviewing courts “will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” In so doing, the Court said, the appellate court “may consider the extent of deviation, but must give due deference to the district court’s decision that the 3553(a) factors, on a whole, justify the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.”
The Court then concluded that, in the case at bar, the Eighth Circuit failed to give the proper deference to the district court’s decision, and reversed the judgment. Justice Alito, dissenting, stated that he would hold that “a district court must give the policy decisions that are embodied in the Sentencing Guidelines at least some significant weight” and would therefore affirm the Eighth Circuit’s decision.
Greenlaw v. United States, 554 U.S. 237 (2008). Opinion by Justice Ginsburg .
The Supreme Court, in a 7-2 opinion, held that an appeals court was not permitted to order an increase in a defendant’s sentence where the government did not appeal the sentence. Justice Ginsburg wrote for the majority, in which Chief Justice Roberts and Justices Scalia, Kennedy, Souter and Thomas joined. Justice Breyer wrote separately, concurring in the judgment. Justice Alito dissented; Justice Stevens joined the dissent in full and Justice Breyer joined it in part. The petitioner was convicted of seven counts of an eight-count indictment arising out of his participation in a crack cocaine trafficking scheme. The charges included two § 924(c) counts; the district court, in direct contravention of prior Supreme Court precedent, held over government objection that the second count was not considered a “second or subsequent conviction” because the two counts were charged in the same indictment. As a result, the district court erroneously imposed a sentence of 442 months’ imprisonment, which fell below the required mandatory minimum of 622 months’ imprisonment. Nevertheless, the defendant appealed the sentence; in defending the sentence, the government noted that the sentence was erroneously low, but did not file a cross-appeal of the error. The Eighth Circuit, relying on the “plain error” rule set forth in Fed. R. Crim. P. 52(b), vacated the sentence and remanded to the district court with instructions that it impose the statutorily mandated sentence. The defendant then sought rehearing and rehearing en banc, and the petitions were summarily denied.
The defendant and the United States agreed that the appeals court erred in vacating and remanding the sentence; therefore, the Court invited an amicus brief in support of the Eighth Circuit’s position.
The majority opinion began by noting the general “principle of party presentation” that characterizes the United States’ adversary system in which courts “rely on the parties to frame the issues for decision” and themselves play “the role of neutral arbiter of matters the parties present.” Derived from this principle is the “cross-appeal rule,” which the Court described as an “unwritten but longstanding rule” that “an appellate court may not alter a judgment to benefit a nonappealing party.” The Court noted the split among the circuits regarding the question of whether this rule is “jurisdictional,” and therefore not subject to exception, or a “rule of practice” to which courts may create exceptions. As in previous cases, the Court declined to resolve the circuit split, concluding that resolving the issue was not necessary to deciding the case at bar.
The Court discussed 18 U.S.C. § 3742(b), which provides that the government may not proceed with an appeal of a criminal case “without the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General.” The Court concluded that “[i]t would severely undermine Congress’ instruction were appellate judges to “sally forth’ on their own motion . . . to take up errors adverse to the Government when the designated Department of Justice officials have not authorized an appeal from the sentence the trial court imposed.” The Court said that “[t]hat measure should garner the Judiciary’s full respect.” The Court then addressed the relationship between Fed. R. Crim. P. 52(b) and the crossappeal rule, concluding that no plain-error exception to the cross-appeal rule existed where the error was to the detriment of the government in a criminal appeal.
The Court then rejected the arguments of amicus supporting the Eighth Circuit’s position. In so doing, the Court discussed at some length the argument that 18 U.S.C. § 3742, the part of the Sentencing Reform Act dealing with appellate review standards, supports the Eighth Circuit’s judgment. The argument relies on a comparison of § 3742(f)(1) and (f)(2); the former sets the standard of review for “sentences imposed “in violation of law’ and Guideline application errors” and the latter sets the standard of review for “sentences “outside the applicable Guideline range.'” For sentences outside the range, the provision specifies that remand is proper “only where a departure from the Federal Sentencing Guidelines harms the appellant;” for sentences that are “imposed “in violation of law'” or that result from an erroneous guideline application, no limit is specified. “The inference amicus draws from this distinction is that Congress intended to override the cross-appeal rule for sentences controlled by § 3742(f)(1), i.e., those imposed “in violation of law’ (or incorrectly applying the Guidelines), but not for Guideline departure errors, the category covered by § 3742(f)(2).” The Court rejected this interpretation, instead concluding that, since the cross-appeal rule was well-settled at the time of the Sentencing Reform Act, “Congress was aware of the cross-appeal rule, and framed § 3742 expecting that the new provision would operate in harmony with the “inveterate and certain’ bar to enlarging judgments in favor of an appellee who filed no cross-appeal.” In support of its interpretation, the Court noted that earlier crime control legislation had included a specific exception to the cross-appeal rule, which was repealed by the Sentencing Reform Act. Additionally, the Court noted that “the construction proposed by amicus would draw a puzzling distinction between incorrect applications of the Sentencing Guidelines . . . and erroneous departures from the Guidelines.” In a footnote to this portion of its opinion, the Court noted a disagreement among members of the Court regarding the impact of Booker on § 3742:
In rejecting the interpretation of §§ 3742(e) and (f) proffered by amicus, we take no position on the extent to which the remedial opinion in United States v. Booker, 543 U.S. 220 (2005), excised those provisions. Compare Rita v. United States, 551 U.S. —-, —- (2007) (slip op., at 2) (STEVENS, J., concurring) (Booker excised only the portions of § 3742(e) that required de novo review by courts of appeals), with 551 U.S., at —- (slip op., at 17) (SCALIA, J., concurring in part and concurring in judgment) (Booker excised all of §§ 3742(e) and (f)). See also Kimbrough v. United States, 552 U.S. —-, —- (2007) (slip op., at 3) (THOMAS, J., dissenting) (the Booker remedial opinion, whatever it held, cannot be followed). Finally, the Court supported its application of the cross-appeal rule by discussing what it called the “auxiliary” roles of the Federal Rules of Appellate rocedure in ensuring “fair notice and finality” to permit strategic decisions in appellate litigation. The Court concluded by distinguishing its holding in this case from what it viewed as proper treatment of “sentencing package cases” in which a defendant successfully attacks his sentence on one or some of the multiple counts, and the appellate court vacates “the entire sentence on all counts so that, on remand, the trial court can reconfigure the sentencing plan to assure that it remains adequate to satisfy the sentencing factors in 18 U.S.C. § 3553(a).” This procedure, the Court said, “is not at odds with the cross-appeal rule” and “simply ensures that the sentence “will suit not merely the offense but the individual defendant.'” In concurring in the judgment, Justice Breyer expressed the view that the Eighth Circuit had authority to vacate the sentence, but that its decision to do so in this case was an abuse of discretion because the decision was “based solely on the obviousness of the lower court’s error,” a standard which is explicitly disapproved by prior Supreme Court precedent. In dissent, Justice Alito expressed the view that the cross-appeal rule is not jurisdictional but rather a rule of practice, and therefore subject to exceptions. Further, Justice Alito argued that application of the rule in this instance is not as important to the interests of justice as the majority believed it is, and would in fact “disserve . . . the interest of the Judiciary and the public in correcting grossly prejudicial errors of law that undermine confidence in our legal system.” Because the parties did not brief the issue of whether, if the Eighth Circuit did have such authority, it abused its discretion in the case at bar, Justice Alito noted that he would affirm without reaching the question.
Irizarry v. United States, 553 U.S. 708 (2008). Opinion by Justice Stevens .
The Supreme Court, in a 5-4 opinion, held that a district court was not required to provide advance notice to the parties when imposing a sentence that represents a variance from the guideline range. Justice Stevens delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissent, in which Justices Kennedy, Souter, and Ginsburg joined. Petitioner Richard Irizarry pleaded guilty to one count of making a threatening interstate communication, in violation of 18 U.S.C. § 875(c). Irizarry admitted to sending a number of emails threatening to kill his ex-wife and her new husband, and that his emails were intended to be true threats to kill or injure them. The PSR described the threatening emails and added that the petitioner had asked another inmate to kill his ex-wife’s new husband. As possible grounds for departure, the PSR stated that Irizarry’s criminal history category might not adequately reflect his past criminal conduct or the likelihood that he would commit other crimes. The government noted in its response to the PSR that it intended to call Irizarry’s ex-wife as a witness at the sentencing hearing.
At the hearing, Irizarry’s ex-wife testified regarding incidents of domestic violence, the basis for the restraining order against Irizarry, and the threats he had made against her and her family. A special agent of the FBI also testified, describing documents recovered from Irizarry’s car indicating that he intended to find his ex-wife and their children. And Irizarry’s cellmate testified that Irizarry “was obsessed with the idea of getting rid of” his ex-wife’s husband. Irizarry also testified. After listening to the witnesses and hearing from counsel, the district court concluded “that the maximum time that [the defendant] can be incapacitated is what is best for society, and therefore the guideline range . . . is not high enough.” The court varied upward from the Guidelines range, and sentenced Irizarry to the statutory maximum term of imprisonment. The court’s decision was based on its determination, after hearing Irizarry’s ex-wife testify at the sentencing hearing, that Irizarry “will continue . . . in this conduct regardless of what this court does and regardless of what kind of supervision he’s under.”
Following the court’s imposition of sentence, Irizarry objected, stating that he “didn’t have notice of [the court’s] intent to upwardly depart.” The court overruled this objection, finding that notice was not required now that the U.S. Sentencing Guidelines are advisory. The Court of Appeals for the Eleventh Circuit affirmed, holding that Rule 32(h) did not apply in this case because the above-Guidelines sentence was a variance, not a departure. United States v. Irizarry, 458 F.3d 1208, 1211 (11th Cir. 2006). The Eleventh Circuit joined several other circuits in determining that “[a]fter Booker, parties are inherently on notice that the sentencing guidelines range is advisory and that the district court must consider the factors expressly set out in section 3553(a) when selecting a reasonable sentence between the statutory minimum and maximum.” Id. at 1212. The Supreme Court granted certiorari and affirmed, holding that Rule 32(h) does not apply to a variance from a recommended Guidelines range. The holding of the Court rests on its decision in United States v. Booker, 543 U.S. 220 (2005), “which invalidated the mandatory features of the Guidelines.” According to the Court, “[t]he due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rule set forth in Burns either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(c).” In Burns, the Court held that the text of Rule 32 required “notice of any contemplated departure.” Id. at 5. Justice Souter’s dissent, which argued that the text itself did not require notice, discussed due process concerns. The Court in this case stated that its decision in Burns “applied in a narrow category of cases,” namely, departures “authorized by 18 U.S.C. § 3553(b) which required “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.'” Such departures had to be based on “the sentencing guidelines policy statements, and official commentary of the Sentencing Commission.” Further, the notice requirement set forth in Burns “only applied to the subcategory of those departures that were based on “a ground not identified as a ground . . . for departure either in the presentence report or in a pre-hearing submission.'”
Because, post-Booker, “there is no longer a limit comparable to the one at issue in Burns on the variances from Guidelines ranges,” the Court held that Rule 32(h) does not apply to variances. The Court also voiced more practical concerns that a special notice requirement in such circumstances might “create unnecessary delay.” The Court stated that the proper approach to cases in which “the factual basis for a particular sentence will come as a surprise to a defendant or the Government” is for the “district court to consider granting a continuance when a party has a legitimate basis for claiming that the surprise was prejudicial.”
The dissent (written by Justice Breyer) contended that Rule 32(h) applies to § 3553(a) variances by its terms. The dissent argued that by distinguishing “departures” from “variances” in this context, the Court is “creat[ing] a legal distinction without much of a difference.” According to the dissent, “[s]o-called variances fall comfortably within” the Guidelines’ definition of “departure.” Further, “[v]ariances are also consistent with the ordinary meaning of the term “departure,'” and “conceptually speaking, the substantive difference between” the two terms “is nonexistent.” The majority rejected this argument, stating that “”[d]eparture’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.”
The dissent also found the majority’s concerns about delay to be “exaggerated,” noting that in most cases in which the district court varies outside the Guidelines range, the PSR or the parties have identified the ground for the variance. In other cases, the parties might be able to address the “unconsidered” issue at the hearing without the need for a continuance. In all other cases, according to the dissent, “fairness justifies notice regardless” of “burdens and delay.”
Spears v. United States, 129 S. Ct. 840 (Jan. 21, 2009). Per curiam .
The Supreme Court, in a 5-4 per curiam opinion, granted certiorari and summarily reversed and remanded this crack cocaine case to the Eighth Circuit Court of Appeals. Justice Kennedy disagreed with this approach, preferring to grant review and schedule the case for oral argument. Justice Thomas dissented without comment, and Chief Justice Roberts, joined by Justice Alito, wrote a dissenting opinion.
The defendant was convicted of conspiring to distribute crack and powder cocaine; in determining his sentence, the district court declined to impose a sentence within the guideline range, concluding that the 100:1 crack to powder ratio inherent in that range produced too long a sentence. Instead, the district court determined what the defendant’s guideline range would be if the drug guideline contained a 20:1 crack to powder ratio, and imposed a sentence near the middle of that range. The en banc Eighth Circuit, prior to the Supreme Court’s opinion in Kimbrough, held that this sentence was unreasonable because, in its view, 18 U.S.C. § 3553(a) and Booker did not permit district courts to substitute a different ratio. The Supreme Court concluded that this decision was inconsistent with its opinion in Kimbrough.
Discussing Kimbrough, the Supreme Court explained that it “holds that with respect to the crack cocaine Guidelines, a categorical disagreement with and variance from the Guidelines is not suspect.” In fact, the Court said, this “was indeed the point of Kimbrough: a recognition of district courts’ authority to vary from the crack cocaine Guidelines based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.” It necessarily follows from this authority, the Court held, that a district court also has authority to substitute “a different ratio which, in his judgment, corrects the disparity.” The Court noted that, in this case, the election of the 20:1 ratio “was based upon two well-reasoned decisions by other courts, which themselves reflected the Sentencing Commission’s expert judgment that a 20:1 ratio would be appropriate in a mine-run case.”
Chief Justice Roberts, in dissent, expressed disagreement with the Court’s decision to summarily reverse the Eighth Circuit’s opinion, though acknowledging that the majority’s holding “may well” follow from Kimbrough.
Dillon v. United States, – S. Ct. -, No. 09-6338 (June 17, 2010). Opinion by Justice Sotomayor .
The Supreme Court, in a 7-1 opinion with Justice Alito recused, considered what the impact of its Booker decision should be on sentence reductions under 18 U.S.C. § 3582(c)(2). The Court concluded that Booker does not apply to proceedings under section 3582(c)(2) and that §1B1.10 is binding on courts reducing sentences under that provision.
The Court began its analysis of the case by addressing the petitioner’s argument that proceedings under section 3582(c)(2) are “resentencing” proceedings, concluding that the plain language of the statute does not support this characterization. The Court also noted that the statute only applies to those prisoners whose guideline range was subsequently reduced by the Commission. These two factors, the Court concluded, demonstrate Congress’s intent that such proceedings not be complete resentencings. The Court went on to state, however, that “[t]he substantial role Congress gave the Commission with respect to sentence-modification proceedings further supports this conclusion,” stating that both 28 U.S.C. §§ 994(o) and (u) “constrain” a district court’s power under section 3582(c)(2).
The statute, the Court stated, requires a two-step approach in such cases: in the first step, the court must “follow the Commission’s instructions in §1B1.10 to determine the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized.” In the second step, the court must “consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by reference to the policies relevant at step one is warranted in whole or in part under the particular circumstances of the case.” The Court further stated: “Because reference to § 3553(a) is appropriate only at the second step of this circumscribed inquiry, it cannot serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.
The Court held that section 3582(c)(2) proceedings do not implicate the Sixth Amendment right at issue in Booker because they “represent a congressional act of lenity intended to give prisoners the benefit of later enacted adjustments to the judgments reflected in the Guidelines.” The Court also held that the remedial Booker opinion does not apply to section 3582(c)(2) proceedings, rejecting the Ninth Circuit’s opinion in United States v. Hicks, 472 F.3d 1167, 1170 (2007). The Court again distinguished section 3582(c)(2) proceedings from other sentencing proceedings, concluding that “requiring courts to honor §1B1.10(b)(2)’s instruction not to depart from the amended Guidelines range at [section 3582(c)(2)] proceedings will create none of the confusion or unfairness that led us in Booker to reject the Government’s argument for a partial fix.”
The Court finally addressed Dillon’s argument that the district court should have corrected his criminal history calculation, holding that because §1B1.10(b)(1) instructs the court to leave other guideline application decisions unchanged, the district court correctly declined to do so. In dissent, Justice Stevens set forth his view that Booker’s remedial opinion should apply to section 3582(c)(2) proceedings, conceding that “[a]s a matter of textual analysis, divorced from judicial precedent, it is certainly reasonable for the Court to find that the Commission can set mandatory limits on sentence reductions under § 3582(c)(2)” but disagreeing that this analysis is sufficient to decide the case. Justice Stevens expressed his view that “[t]he only fair way to read the Booker majority’s remedy is that it eliminated the mandatory features of the Guidelines-all of them.” Additionally, Justice Stevens expressed his view that the majority’s decision raises separation-of-powers and delegation concerns.
RECENT OPINIONS ON RELATED SENTENCING ISSUES
18 U.S.C. § 924
Deal v. United States, 508 U.S. 129 (1993). Opinion by Justice Scalia . The Supreme Court, in a 6-3 decision, upheld the defendant’s sentence under 18 U.S.C. § 924(c) to a five-year prison term for his first conviction, and five 20-year sentences for five additional section 924(c) convictions, to be served consecutively (105 years total). The defendant had committed six bank robberies on six different dates, using a gun each time, but was convicted and sentenced for all of the offenses in one proceeding. The Court was not persuaded by the defendant’s assertion that th e language of section 924(c) requiring a 20-year sentence for a “second or subsequent conviction” was ambiguous and should be construed under the rule of lenity in his favor. The court held that the use of the word “conviction” refers to the finding of guilt that necessarily precedes the entry of a final judgment of conviction. Each subsequent conviction carried a 20-year term. This is unlike statutes that have been interpreted to impose an enhanced sentence for “subsequent offenses” only if the subsequent offense was committed after the sentence for the previous offense had become final. Nor could the rule of lenity be invoked based on the total length of the sentence, which the defendant characterized as “glaringly unjust.” Whether the defendant was convicted of six counts in one proceeding, or in six separate trials, the result mandated by the statute would be a 105-year total sentence.
Smith v. United States, 508 U.S. 223 (1993). Opinion by Justice O’Connor.
The Supreme Court, in a 6-3 decision, held that the exchange or barter of a gun for illegal drugs constitutes “use” of a firearm for purposes of the provisions of 18 U.S.C. § 924(c)(1) which sets penalties for offenses where a defendant “during and in relation to any crime of violence or drug trafficking crime[,] uses or carries a firearm.” The Supreme Court agreed with the opinion of the Court of Appeals for the Eleventh Circuit that the plain language of the statute “imposes no requirement that the firearm be used as a weapon.” Rather, any use of the weapon to in any way facilitate the commission of the offense is sufficient. United States v. Smith, 957 F.2d 835, 837 (11th Cir. 1992). In United States v. Harris, 959 F.2d 246, 261-62 (per curiam) (D.C. Cir.), cert. denied, 113 S. Ct. 362 (1992), the Court of Appeals for the District of Columbia Circuit so held, but the Court of Appeals for the Ninth Circuit in United States v. Phelps, 877 F.2d 28 (1989), held that trading the gun for drugs could not constitute “use,” and the Supreme Court decided this issue to resolve the conflict among the circuits.
Bailey v. United States, 516 U.S. 137 (1995). Opinion by Justice O’Connor.
The Supreme Court, in a unanimous opinion, held that 18 U.S.C. § 924(c)(1) “requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” According to the Court, the term “use” connotes more than mere possession or storage of a firearm by a person who commits a drug offense.
United States v. Gonzales, 520 U.S. 1 (1997). Opinion by Justice O’Connor.
The Supreme Court, in a 7-2 decision, held that the plain language of 18 U.S.C. § 924(c) requires a federal district court to direct that the five-year sentence run consecutive with a state or federal prison term. The defendants were convicted in New Mexico state court and sentenced to prison terms on state charges arising from the use of guns by two of the defendants to hold up undercover police officers during a drug sting operation. After they began to serve their state sentences, the defendants were convicted of drug charges and of using firearms during their crimes in violation of section 924(c). The district court directed that the 60-month sentence required under section 924(c) to run consecutive to the federal and state sentence. The Tenth Circuit reversed, holding that the firearm sentences should have run concurrently with the state prison terms. The Supreme Court reversed the Tenth Circuit, holding that section 924(c)’s plain language forbids concurrent sentence. Section 924(c) states: “the sentence . . . under this subsection [shall not] run concurrently with any other term of imprisonment.” The Court added that the word “any” has an expansive meaning that is not limited to federal sentences, and so must be interpreted as referring to all “terms of imprisonment,” including those imposed by state courts. Thus, the firearm sentence must be consecutive to the state sentences.
Muscarello v. United States, 524 U.S. 125 (1998). Opinion by Justice Breyer.
The Supreme Court, in a 5-4 decision, held that the phrase “carries a firearm” in 18 U.S.C. § 924(c) applies to a person who knowingly possesses and conveys a firearm in a vehicle-including in a locked glove compartment or in the trunk of the car-in relation to a drug trafficking offense. In affirming the decisions of the First and Fifth Circuits, the Court noted that the Federal Circuit Courts of Appeals have unanimously concluded that the word “carry” “is not limited to the carrying of weapons directly on the person but can include their carriage in a car.” The Court examined the legal question of whether Congress intended to limit the scope of the word “carry” to instances in which a gun is carried “on the person,” and concluded that “neither the statute’s basic purpose nor its legislative history support circumscribing the scope of the word In response to the Supreme Court’s decision in Bailey, Congress amended 18 U.S.C. §924(c) so that it would apply when a defendant merely “possesses” a firearm “in furtherance of” a drug trafficking crime. See Act of Nov. 13, 1998, Public Law 105-386, § 1(a), 112 Stat. 3469 (amending 18 U.S.C. § 924).
The Court addressed the dissent’s argument that the rule of lenity should be applied because there is ambiguity in the statute. In disagreeing with the dissent, the majority noted that for the rule of lenity to apply, a court must conclude that there is “grievous ambiguity or uncertainty” in the statute, such that the court could make “no more than a guess as to what Congress intended.”
Castillo v. United States, 530 U.S. 120 (2000). Opinion by Justice Breyer.
The Supreme Court, in an 8-1 decision, held that a statute prohibiting the use or carrying of a “firearm” in relation to a crime of violence that subsequently increased the penalty when the weapon used or carried was a “machinegun,” used the word “machinegun” and similar words to state an element of a separate, aggravated crime. The Court stated that the statute’s structure strongly favored the “new crime” interpretation. The Court further stated that the structure of the statute seems to suggest that the difference between the act of using or carrying a “firearm” and the act of using or carrying a “machinegun” is both substantive and substantial-a conclusion that supports a “separate crime” interpretation. Finally, the Court determined that the length and severity of an added mandatory sentence that turns on the presence or absence of a “machinegun” (or any of the other listed firearm types) weighs in favor of treating such offense-related words as referring to an element. The Court noted that these considerations make this a stronger “separate crime” case than either United States v. Jones or United States v. Almendarez-Torres -cases in which the Court was closely divided as to Congress’s likely intent. The Court concluded that Congress intended the firearm type-related words used in section 924(c)(1) to refer to an element of a separate, aggravated crime.
Leocal v. Ashcroft, 543 U.S. 1 (2004). Opinion by Chief Justice Rehnquist.
In this unanimous opinion the Supreme Court reversed the Eleventh Circuit’s decision in Le v. United States Attorney General, 196 F.3d 1352 (11th Cir. 1999) which held that a conviction under the Florida DUI statute qualified as a crime of violence. In doing so, the Court resolved a split among the circuits on the question whether state DUI offenses similar to Florida’s, which either require only a showing of negligence or do not have a mens rea requirement, can qualify as a crime of violence. The petitioner, a Haitian citizen, was a lawful permanent resident of the United States convicted under Florida law of DUI and causing serious bodily injury. He was ordered deported after his DUI conviction was classified as a “crime of violence” under 18 U.S.C. § 16 and therefore deemed an “aggravated felony” under the Immigration and Nationality Act (INA). The Supreme Court disagreed. “Many states have enacted similar statutes, criminalizing DUI causing serious bodily injury or death without requiring proof of any mental state, or, in some states, appearing to require only proof that the person acted negligently in operating the vehicle.” 526 U.S. 227, 119 S. Ct. 1215 (1999) (provisions of carjacking statute that established higher penalties to be imposed when offense resulted in serious bodily injury or death set forth additional elements of the offense, not mere sentencing considerations). 523 U.S. 224, 118 S. Ct. 1219 (1998) (recidivism treated merely as a sentencing factor rather than as an element of the offense).
“The critical aspect of § 16(a) is that a crime of violence is one involving the “use… of physical force against the person or property of another.” “The key phrase in § 16(a) – the “use..of physical force against the person or property of another’ – most naturally suggests a higher degree of intent than negligent or merely accidental conduct.” The Court concluded that petitioner’s DUI offense, a third-degree felony, did not require proof of any particular mental state and thus would not qualify as a “crime of violence” under § 16(a) or (b). However the Court did conclude that an underlying offense requiring proof of a reckless use of force would qualify as a crime of violence under 18 U.S.C. § 16. Logan v. United States, 552 U.S. 23 (2007). Opinion by Justice Ginsburg.
The Supreme Court, in a unanimous opinion, held that, under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), a violent felony offense for which the defendant’s civil rights were never revoked is not excluded from qualifying as a predicate for an enhanced sentence. Such a prior offense, the Court ruled, does not fall into the category of those offenses “for which a person has had civil rights restored.” 18 U.S.C. § 921(a)(20). The case addressed a circuit split arising . . . out of two main cases: McGrath v. United States, 60 F.3d 1005 (2d Cir. 1995), holding that such convictions are not excluded, and United States v. Indelicato, 97 F.3d 627 (1st Cir. 1996), holding the opposite. In the case at bar, the Seventh Circuit adopted the McGrath analysis.
The petitioner pleaded guilty in the Western District of Wisconsin to a violation of 18 U.S.C. § 922(g)(1), the felon-in-possession statute. His sentence was enhanced pursuant to the ACCA, and the district court imposed the relevant 15-year mandatory minimum. The court based the enhancement on the petitioner’s three Wisconsin misdemeanor battery convictions, each punishable by up to three years’ imprisonment. Although these convictions would otherwise count as “violent felonies” for ACCA purposes pursuant to 18 U.S.C. § 921(a)(20)(B), the petitioner argued that, because none of them caused the revocation of his civil rights, they were exempt pursuant to 18 U.S.C. §921(a)(20). That statute excludes from the relevant definition of a qualifying predicate offense:
Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored… unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
In support of his position that the term “restored” should be construed to include offenses for which civil rights were never revoked, the petitioner argued inter alia that the McGrath construction would contravene the purpose of the statute and produce absurd results. He argued that the purpose of the statute was to expand the reach of the exemption provision and to permit its application to be dictated by state law. He further argued that less serious offenders (i.e., those whose offenses did not result in the revocation of civil rights) would receive harsher treatment than more serious offenders (i.e., those whose offenses did result in revocation, but whose civil rights were later restored). In response, the government relied largely on textualist arguments, emphasizing the plain meaning of the term “restored” and its implication that something never lost may not be restored.
The Supreme Court examined Congressional intent, and summarized it as follows: Congress framed §921(a)(20) to serve two purposes. It sought to qualify as ACCA predicate offenses violent crimes that a State classifies as misdemeanors yet punishes by a substantial term of imprisonment, i.e., more than two years. Congress also sought to defer to a State’s dispensation relieving an offender from disabling effects of a conviction. Had Congress included a retention-of-rights exemption, however, the very misdemeanors it meant to cover would escape ACCA’s reach. (Internal citations omitted.) The Supreme Court further observed that the petitioner’s reading of the statute would also produce absurd or anomalous results, noting that Maine does not revoke any offender’s civil rights, and so offenders who committed the most dangerous offenses in Maine would receive less punishment than offenders who committed less serious offenses in other states.
The Supreme Court also noted that Congress must have been aware that allowing state laws, which vary, to dictate application of the ACCA would produce some anomalous results. Ultimately, the Supreme Court held that it had “no warrant” to move beyond the plain language of the provision and observed: “We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights; nor can we recast §921(a)(20) in Congress’ stead.”
Watson v. United States, 552 U.S. 74 (2007). Opinion by Justice Souter .
In a unanimous opinion, the Supreme Court held that, for purposes of 18 U.S.C. § 924(c)(1)(A), a person who receives a firearm in a drugs-for-firearms transaction does not “use” the firearm “during and in relation to … [a] drug trafficking crime.” The Court observed that a circuit conflict had arisen regarding the construction of the term “use” in this context, and reversed the Fifth Circuit’s ruling in this case, remanding for proceedings consistent with the opinion. The Court began by noting that section 924(c)(1)(A) prescribes a mandatory minimum sentence for a defendant who “during and in relation to any crime of violence or drug trafficking crime[,] . . . uses or carries a firearm,” but does not define the term “uses.” The court further observed that it had addressed the definition of the term in two earlier cases, Smith v. United States, 508 U.S. 223 (1993) and Bailey v. United States, 516 U.S. 137 (1995). In Smith, the Court held that a person who trades a firearm for drugs does “use” the firearm for purposes of the statute; the Watson court observed that this ruling relied mostly on the “ordinary or natural meaning” of the term “use” in the context of the statute. In Bailey, the Court held that possessing a firearm when the firearm was stored near the scene of drug trafficking did not constitute “use” for purposes of section 924(c)(1). The Watson court again observed that this construction relied on the “ordinary or natural” meaning of the term and held that the statute “requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.”
The Court observed that neither Smith nor Bailey answered the question presented in the case at bar, and stated: With no statutory definition or definitive clue, the meaning of the verb “uses” has to turn on the language as we normally speak it; there is no other source of a reasonable inference about what Congress understood when writing or what its words will bring to the mind of a careful reader. (Internal citations omitted.) The Court concluded that “regular speech would not say that” the person in these circumstances had “used” the item received in the barter.
The Court then turned to the government’s arguments for a different construction of the term, rejecting each in turn. The government’s first argument asked the Court to read section 924(c)(1)(A) in conjunction with section 924(d), arguing that the Smith court’s observation that section 924(d) supported its reading of 924(c) means that the Court must construe the two provisions to give the same meaning to the term “use” in both sections. The Court rejected this reading of Smith, and concluded that the differences between the two provisions render section 924(d) unhelpful in this case. This is because, the Court said, “[section 924(d)] tells us a gun can be “used’ in a receipt crime, but not whether both parties to a transfer use the gun, or only one, or which one.” Since the two provisions operate at different levels of specificity, the Court held, construing them differently does not bring them into conflict.
The government’s second argument was, the Court said, essentially a policy argument; the government characterized the ordinary meaning of the statute as leading to “unacceptable asymmetry” with Smith. The Court held that if Congress concluded that the asymmetry was unacceptable, it could amend the statute, noting that “law depends on respect for language and would be better served by a statutory amendment . . . than by racking statutory language to cover a policy it fails to reach.”
Justice Ginsburg concurred in the judgment and wrote separately to observe that distinguishing between the two parties to the gun-for-drugs transaction “makes scant sense,” but that she joined the judgment because she had since concluded that Smith was wrongly decided and would overrule it, holding that the term “use” in section 924(c)(1) was limited to using the firearm “as a weapon, not . . . in a bartering transaction.”
Begay v. United States, 553 U.S. 137 (2008). Opinion by Justice Breyer.
The Supreme Court, in a 6-3 opinion, held that a conviction for felony driving under the influence (DUI) is not a “violent felony” that can trigger the mandatory 15-year minimum under the Armed Career Criminal Act. Justice Breyer wrote for the majority, in which Chief Justice Roberts and Justices Stevens, Kennedy, Souter, and Ginsburg joined. Justice Scalia, writing separately, concurred in the judgment; Justice Alito, joined by Justices Souter and Thomas, dissented. The Court was asked to construe the “residual clause” of 18 U.S.C. § 924(e)(2)(B)(ii),
which defines a “violent felony” as, inter alia, a crime punishable by more than one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The petitioner challenged the enhancement of his sentence on the basis of the prior DUI, arguing that the “otherwise” clause of the above provision was not intended to encompass DUI. The government argued that, because DUI presents a serious potential risk of physical injury to another, it falls within the scope of the statute and therefore qualified the petitioner for the enhanced sentence. The district court accepted the government’s view of the statute and applied the enhancement, and the court of appeals upheld the sentence.
The Supreme Court concluded that the lower courts had erroneously construed the statute, holding that a prior conviction for DUI should not expose a defendant to the 15-year mandatory minimum. The Court began with the presumption that “the lower courts were right in concluding that DUI involves conduct that “presents a serious potential risk of physical injury to another.'” The Court then faced the issue of why Congress included the enumerated offenses (burglary, arson, extortion, and offenses involving “use of explosives”) in the provision. The Court rejected the government’s argument that the examples were intended “to demonstrate no more than the degree of risk sufficient to bring a crime within the statute’s scope,” concluding that “the examples are so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress’ only reason for including them.” Rather, the Court concluded, “we should read the examples as limiting the crimes . . . to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves.” The Court held that the legislative history of the ACCA supported this conclusion. Applying this standard, the Court concluded that DUI does not sufficiently resemble the enumerated crimes to bring it within the ambit of the statute. The most significant distinction, according to the Court, is the fact that DUI offenses are essentially strict liability crimes, whereas the enumerated offenses typically involve “purposeful, violent, and aggressive conduct . . . [which] makes it more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim.”
In a separate concurrence, Justice Scalia followed the analysis set forth in his dissent in James v. United States, a case from last term in which the Court addressed whether attempted burglary fell within the statute. Under this analysis, Justice Scalia concluded that, without further evidence, he could not find that DUI “pose[s] at least as serious a risk of physical injury to another as burglary” and that the rule of lenity therefore required the conclusion that the defendant’s sentence could not be enhanced under the ACCA.
In dissent, Justice Alito argued that the text of the statute requires only the analysis of whether the offense in question presents a serious risk of physical injury to another, and concluded that the DUI in this case did pose such a risk.
United States v. Rodriquez, 553 U.S. 377 (2008). Opinion by Justice Alito.
The Supreme Court, in a 6-3 opinion, held that a previous offense for which the statutory maximum sentence was 10 years’ imprisonment only because the defendant was a repeat offender qualified as a predicate offense under the Armed Career Criminal Act (ACCA). Justice Alito, writing for Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Breyer concluded that the recidivism enhancement applied under state law should be used to calculate the “maximum term of imprisonment” for ACCA purposes. Justice Souter authored a dissenting opinion, which was joined by Justices Stevens and Ginsburg.
In the case at bar, the defendant had two California burglary convictions and three convictions in Washington state for delivery of a controlled substance. The district court, in sentencing the defendant on a federal felon-in-possession charge, declined to apply the ACCA enhancement because the defendant was subject to the ten-year maximum in Washington state only because he was a repeat offender; under that law, first offenders face only a statutory maximum of five years. The Ninth Circuit affirmed, noted that its holding on this issue was in conflict with law from the Seventh Circuit and “in tension” with precedent from the Fourth and Fifth Circuits.
The Court held that the government’s interpretation of the ACCA was the correct one, focusing on the statute’s definition of three terms: “offense,” “law,” and “maximum term.” The Court said:
The “offense” in each of the drug-delivery cases was a violation of §§69.50.401(a)(ii)–(iv). The relevant “law” is set out in both that provision, which prescribes a “maximum term” of five years for a first “offense,” and §69.50.408(a), which prescribes a “maximum term” of 10 years for a second or subsequent “offense.” Thus, in this case, the maximum term prescribed by Washington law for at least two of respondent’s state drug offenses was 10 years. The Ninth Circuit’s approach, the Court said, “contorts ACCA’s plain terms” and was “inconsistent with the way in which the concept of the “maximum term of imprisonment’ is customarily understood by participants in the criminal justice process.”
Addressing the respondent’s arguments, the Court rejected the argument that the term “offense” as used in the ACCA should be defined as the elements of the offense, of which a recidivism enhancement (at least of the kind in this case) is not one. The Court held that this reading added a limitation to the ACCA that was not part of the plain language of that statute. Additionally, the court rejected the respondent’s argument that the government’s reading contradicted the “manifest purpose” of the ACCA. The respondent argued that, since the sentence length was used essentially as a proxy for the seriousness of the offense (thus limiting application of the ACCA enhancement to those convicted of more serious prior offenses), including recidivism enhancements skews this measurement. The Court stated that “[t]his argument rests on the erroneous proposition that a defendant’s prior record of convictions has no bearing on the seriousness of an offense,” instead noting that “an offense committed by a repeat offender is often thought to reflect greater culpability and thus to merit greater punishment” and that “a second or subsequent offense is often regarded as more serious because it portends greater future danger and therefore warrants an increased sentence for purposes of deterrence and incapacitation.” Additionally, the Court observed that “the ACCA itself is a recidivist statute,” concluding that this fact “bolster[ed]” its reading of the statute in that “Congress must have had such provisions in mind and must have understood that the “maximum penalty prescribed by [state] law’ in some cases would be increased by state recidivism provisions.”
Finally, the Court rejected the respondent’s arguments that the Court’s prior decisions in LaBonte and Taylor, as well as the policy and practical implications of the government’s reading, support the respondent’s interpretation of the statute. With respect to LaBonte, the Court rejected the respondent’s argument that Congress’s decision not to make reference to a “category of offenders” in the ACCA as it did in 18 U.S.C. § 994(h) (which the Court interpreted in LaBonte) supported his interpretation of the ACCA. The Court said: “Respondent does not explain how 18 U.S.C. § 924(e)(2)(A) could have easily been reworded to mirror 28 U.S.C. § 994(h). But in any event, the language used in ACCA, for the reasons explained above, is more than clear enough.”
The Court similarly rejected the respondent’s argument that the Court’s decision in Taylor, adopting the categorical approach, supported his interpretation, finding “no connection . . . between the issue in Taylor . . . and the issue here….”
In dissent, Justice Souter argued that the majority “chooses one reading of the [ACCA] over another that would make at least as much sense of the statute’s ambiguous text and would follow the counsel of a tradition of lenity in construing perplexing criminal laws” and that the majority’s interpretation “promises hard times for the trial courts that will have to make the complex sentencing calculations this decision demands.”
Chambers v. United States, 129 S. Ct. 687 (Jan. 13, 2009). Opinion by Justice Breyer.
The Supreme Court, in a 9-0 decision, reversed the Seventh Circuit’s opinion upholding the district court’s conclusion that the defendant’s prior offense of failure to report for periodic incarceration qualified as a “violent felony” for purposes of the Armed Career Criminal Act. Justice Breyer authored the opinion; Justice Alito wrote a separate concurring opinion, in which Justice Thomas joined.
The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), requires a 15-year minimum term of imprisonment if an individual convicted of being a felon in possession of a firearm has three prior convictions “for a violent felony or a serious drug offense, or both….” The issue before the district court was whether the defendant’s prior conviction for failing to report to a penal institution qualified as a “violent felony” as that term is used in the ACCA because it “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” The district court held that the failure to report was a type of escape, which qualified as a violent felony under the ACCA. The Seventh Circuit affirmed this classification, and the Supreme Court granted review in light of conflicting case law on this point among the circuits. The Court reaffirmed the use of the categorical approach in applying the ACCA, stating that “[t]he nature of the behavior that likely underlies a statutory phrase matters in this respect.” The Court referred back to its opinion in Shepard v. United States, 544 U.S. 13 (2005), in which it examined a Massachusetts statute that combined various breaking and entering offenses into one section and “found that the behavior underlying, say, breaking into a building, differs so significantly from the behavior underlying, say, breaking into a vehicle, that for ACCA purposes a sentencing court must treat the two as different crimes.” The Court took a similar approach to the Illinois statute at issue, separating the “failure to report” sections of the statute from the sections involving escape from secured custody or from the physical custody of a law enforcement officer on one hand, and the failure to abide by conditions of home detention on the other. For ACCA purposes, then, the Court said, the Illinois statute involved “at least two separate crimes”: escape from secured custody or physical custody of a law enforcement officer, which would qualify as a violent felony; and failure to report, which would not qualify as a violent felony. The Court further observed that the statute (1) “lists escape and failure to report separately (in its title and its body);” and (2) “places the behaviors in two different felony classes (Class Two and Class Three) of different degrees of seriousness.”
As so defined, the Court held that the crime of failure to report does not qualify as a violent felony under the ACCA:
Conceptually speaking, the crime amounts to a form of inaction, a far cry from the “purposeful, “violent,’ and “aggressive’ conduct” potentially at issue when an offender uses explosives against property, commits arson, burgles a dwelling or residence, or engages in certain forms of extortion. [Begay v. United States, 553 U.S. —, — (2008)] (slip op., at 7). While an offender who fails to report must of course be doing something at the relevant time, there is no reason to believe that the something poses a serious potential risk of physical injury. Cf. James [v. United States], 550 U.S. , at 203-204. To the contrary, an individual who fails to report would seem unlikely, not likely, to call attention to his whereabouts by simultaneously engaging in additional violent and unlawful conduct. In so holding, the Court rejected the government’s argument “that a failure to report reveals the offender’s special, strong aversion to penal custody” and that this aversion suggests that this presents a serious potential risk of physical injury. The Court disagreed, citing a Commission report that it said “helps provide a conclusive, negative answer” to the question of whether this connection exists. The Court discussed the information provided in the report, concluding that it “strongly supports the intuitive belief that failure to report does not involve a serious potential risk of physical injury.” As a result, the Court reversed the Seventh Circuit’s judgment and remanded the case.
Justice Alito, joined by Justice Thomas, wrote a separate concurring opinion, noting continuing disagreement with the use of the categorical approach in these cases, but recognizing the precedential value of earlier cases on the issue. Additionally, Justice Alito emphasized the view that action from Congress is required to properly address the issue.
Johnson v. United States, 130 S. Ct. 1265 (Mar. 2, 2010). Opinion by Justice Scalia.
The Supreme Court, in a 7-2 decision, held that the petitioner’s prior conviction under Florida law for the felony offense of battery by “[a]ctually and intentionally touch[ing]” another person did not constitute a violent felony for purposes of the ACCA. The defendant’s ACCA sentencing enhancement was based, in part, on a 2003 conviction for battery in violation of Fla. Stat. § 784.03(1). The government may prove a battery under that statute “in one of three ways…. It can prove that the defendant “[i]ntentionally caus[ed] bodily harm,’ that he “intentionally str[uck]’ the victim, or that he merely “[a]ctually and intentionally touche[d]’ the victim.” In determining whether the battery conviction was a “violent felony” for the purpose of the ACCA, the Supreme Court applied the “modified categorical approach,”
whereby the court may “determine which statutory phrase was the basis for the conviction by consulting the trial record.” In this case, the record did not provide a basis for this determination. Therefore, the Court was required to determine whether a conviction for the least of the acts enumerated in the Florida battery statute (actually and intentionally touching another person) had as an element the use of force against the person of another.
The Court held that it does not. First, the Court held that it was bound by the Florida Supreme Court’s interpretation of the elements of the battery statute, and that that court had held that “the element of “actually and intentionally touching’ . . . is satisfied by any intentionally physical contact, “no matter how slight.'” The Court went on to reason that, absent a definition within the ACCA of “physical force,” it must give the term its ordinary meaning, and that the ordinary meaning of “force” “suggest[s] a degree of power that would not be satisfied by the merest touching.” The Court then held that although force was an element of common law battery (which itself encompassed “even the slightest offensive touching”), in the context of §924(e)(1)(B)(i), “physical force” must mean “violent force-that is, force capable of causing physical pain or injury to another person.”
In his dissent, Justice Alito, joined by Justice Thomas, argued that the Court should look to the traditional, common law definition of battery, which includes the element of physical force. Since battery may encompass even slight touching, Alito reasoned, slight touching must therefore involve the element of physical force, and battery under the Florida statute must be a violent felony.
United States v. O’Brien, 130 S. Ct. 2169 (May 24, 2010). Opinion by Justice Kennedy.
The Supreme Court unanimously held that, under 18 U.S.C. § 924(c), which prohibits the use of a firearm in relation to or in furtherance of a crime of violence, the fact that the firearm is a machinegun is an element of the offense that must be proved to a jury. The Court considered this issue in an earlier case, Castillo v. United States, 530 U.S. 120 (2000), interpreting an earlier version of the statute, and held that the machinegun provision was an element of the offense. The Court reconsidered the issue in light of changes made to section 924(c) in 1998.
In this case, the defendant was charged with the attempted robbery of an armored car. Among the weapons recovered by authorities was a pistol that allegedly operated as a fully automatic weapon. The defendant disputed whether this pistol was in fact a machinegun. Under 18 U.S.C. § 924(c), the defendant would be subject to a 30-year mandatory minimum sentence if the gun were determined to be a machinegun.
The district court ruled that the machine gun provision of section 924(c) was an element of the offense. The First Circuit affirmed, basing its decision on Castillo. The First Circuit held that even though Castillo had been decided using an earlier version of the statute, the changes to the statute simply amounted to breaking up a lengthy sentence into subparagraphs that were easier to read, and the changes in no way altered the meaning of the statute.
The Supreme Court did not interpret the statute anew, but rather asked only if the analysis of Castillo must change in light of the 1998 restructuring of the statute. In Castillo, the Court examined five factors to determine whether Congress intended the machinegun provision to be an element or a sentencing factor: (1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history. The Court held that the main effect of the 1998 changes “was to divide what was once a lengthy principal sentence into separate subparagraphs.” This change, the Court held, would change the analysis only as to the first Castillo factor. The Court described the 1998 version as making three main changes to the statute, two of which it called substantive and the last structural. The substantive changes were: 1) what were once mandatory sentences became mandatory minimum sentences; and 2) the revised statute added the word “possesses” to “uses or carries”, and added mandatory minimums for the acts of brandishing and discharging the firearm. The third change, which the Court called structural, consisted of moving the machinegun provision from the main paragraph of the statute to a separate subsection. The Court held that this change “does not provide a clear indication that Congress meant to alter its treatment of machineguns as an offense element.” Rather, the Court determined, Congress more likely sought to break up a lengthy paragraph before adding the substantive changes.
As for the other Castillo factors, the Court held that the second-legal tradition and past congressional practice-was unaffected by the 1998 changes, noting that “[s]entencing factors traditionally involve characteristics of the offender-such as recidivism, cooperation with law enforcement or acceptance of responsibility …. Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.'” (quoting Castillo). The Court rejected the government’s argument that the Sentencing Reform Act, and thus the sentencing guidelines, treat possession of a firearm as a sentencing factor, and that whether a firearm is a machinegun should likewise be treated as a sentencing factor. The Court pointed out that the SRA was enacted before the original section 924(c) was enacted, and thus would already have been considered in Castillo.
Next, the court held that the third Castillo factor, potential unfairness, was not changed by the 1998 amendments. The Castillo court noted that a judge might not be aware of which among many firearms a jury had determined a defendant had used in the course of a crime, and that thus a judge’s sentencing determination could be at odds with a jury’s factfinding. The Court in the present case held that this holding of Castillo remained unaffected. The Court further held that the restructuring of the statute had no effect on the fourth factor in Castillo, the potential severity of the sentence. In each instance, the shift from a mandatory minimum of five years to one of thirty years represents “a drastic, sixfold increase that strongly suggests a separate substantive crime.”
The fifth Castillo factor was legislative history, and in both Castillo and the present case, the Court held that the legislative history was “of little help” in resolving the question presented. Given that four out of five Castillo factors were unaffected, and that there was no strong support for changing the analysis of the first factor, the Court reached the same conclusion that it had in Castillo: whether the firearm possessed or used under 18 U.S.C. § 924(c) was a machinegun is an element of the offense and not a sentencing factor.
Justice Stevens authored a concurring opinion, in which he wrote that the principles of Apprendi should apply with equal force to statutes that trigger mandatory minimums. Stevens contended that a preferable solution to the issue presented “would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense.” This would mean overruling the Court’s earlier holdings in McMillan v. Pennsylvania, 477 U.S. 79 (1986) and Harris v. United States, 536 U.S. 545 (2002). Justice Thomas concurred in the judgment. Justice Thomas cited his own dissent in Harris, writing, “it is ultimately beside the point whether as a matter of statutory interpretation [the machinegun enhancement] is a sentencing factor…. [A]s a constitutional matter, because it establishes a harsher range of punishments, it must be treated as an element of a separate, aggravated offense that is submitted to a jury and proved beyond a reasonable doubt.” Fed. R. Crim. P. 16(a)(1)(C) – Selective Prosecution United States v. Armstrong, 517 U.S. 456 (1996). Opinion by Chief Justice Rehnquist.
The Supreme Court, in an 8-1 decision, held that Rule 16(a)(1)(C) of the Federal Rules of Criminal Procedure “authorizes defendants to examine Government documents material to the preparation of their defense against the Government’s case-in-chief, but not to the preparation of selective prosecution claims.” The defendants moved for discovery or dismissal of the indictment, asserting that they were singled out for prosecution under the much more stringent statutes and sentencing guidelines in Federal Court on crack and firearms violations because they are black. In support of their motion, they offered an affidavit from a paralegal in the Office of the Public Defender stating that the defendant was black in every one of the cases prosecuted to completion during 1991 under 21 U.S.C. §§ 841 and 846. The district court granted the discovery motion, and upon the Government’s notice that it would not comply, dismissed the case. To meet the threshold showing of materiality necessary to obtain such discovery, the defendant must “produce some evidence of differential treatment of similarly situated members of other races or protected classes.” “A selective prosecution claim asks a court to exercise judicial power over a “special province’ of the Executive.” Heckler v. Chaney, 470 U.S. 821, 832 (1985). Because the Attorney General and United States Attorneys have been designated by statute as the President’s delegates to help him discharge his constitutional duty to see that “the Laws be faithfully executed,” they have broad discretion to enforce federal criminal laws. There is a strong presumption of regularity supporting a prosecutor’s decisions, and a claimant of selective prosecution “must demonstrate that the federal prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.'” “The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such claim.”
Mitchell v. United States, 526 U.S. 314 (1999). Opinion by Justice Kennedy.
The Supreme Court, in a 5-4 decision, held that a defendant could plead guilty, assert the privilege against self-incrimination at the sentencing hearing, and not have a judge draw an adverse inference from the defendant’s sentence. The defendant had refused to testify at a sentencing hearing about her involvement in a cocaine conspiracy. The judge sentenced the defendant to ten years’ imprisonment, stating that he drew a negative inference from the defendant’s refusal to discuss the details of the crime. The Third Circuit affirmed the district court’s decision, but the Supreme Court reversed. The Supreme Court held that neither the defendant’s guilty plea nor her statements at a plea colloquy functioned as a waiver of her right to remain silent at sentencing. Furthermore, the Court held that the defendant should have been allowed to remain silent without it being held against her. The Court relied on Griffin v. California, 380 U.S. 609 (1995), in which the Court held that it was constitutionally impermissible for the prosecutor or judge to comment on a criminal defendant’s refusal to testify. The majority concluded that there is no reason not to apply this rule to sentencing hearings.
Apprendi v. New Jersey, 530 U.S. 466 (2000). See above
Ring v. Arizona, 536 U.S. 584 (2002). Opinion by Justice Ginsberg.
The Supreme Court, in a 7-2 decision, following Apprendi v. New Jersey, 530 U.S. 466 (2000), held that the Sixth Amendment entitles defendants in capital cases to a jury determination of any aggravating factors that increase their maximum punishment from life imprisonment to death. The Court overruled its prior decision in Walton v. Arizona, 497 U.S. 639 (1990), which had upheld the Arizona state capital sentencing scheme. In Ring, the jury found the defendant guilty of first-degree felony murder. The sentencing judge then conducted a sentencing hearing and found the existence of aggravating factors beyond a reasonable doubt, and sentenced the defendant to death. The Supreme Court noted that the defendant could not receive the death penalty unless the court found the existence of at least one aggravating factor beyond a reasonable doubt; therefore, such a finding increases the maximum punishment from life imprisonment to death. The Court held that, because Arizona’s enumerated aggravating factors operate as the “functional equivalent of an element of a greater offense,” the Sixth Amendment requires that they be found by a jury.
Justice Scalia filed a concurring opinion, joined by Justice Thomas. Justice Scalia makes the point that he never agreed with the line of cases beginning with Furman v. Georgia, 408 U.S. 238 (1972), that invalidated the death penalty and caused states to enact death penalty schemes with aggravating factors. His concurrence here is based on the holding of Apprendi that the jury must find facts that are used to increase the sentence beyond what is authorized by the jury’s verdict.
Justice Kennedy filed a brief concurrence noting that he still believes Apprendi was wrongly decided, but that Apprendi and Walton cannot stand together. Thus, Justice Kennedy joins in the majority holding.
Justice Breyer filed an opinion concurring in the judgment but not the opinion of the majority. Justice Breyer concurs because he believes that jury sentencing in capital cases is mandated by the Eighth Amendment and not by the Sixth Amendment analysis of the majority
(Justice Breyer dissented in Apprendi). Justice Breyer speaks of the continued difficulty of justifying capital punishment and concludes that the “danger of unwarranted imposition of the penalty cannot be avoided” unless a jury makes the determination. Justice O’Connor, joined by Chief Justice Rehnquist, filed a dissenting opinion. Justice O’Connor states that the decision in Apprendi “was a serious mistake.” Justice O’Connor does not agree that the Constitution requires that any fact that increases the maximum penalty must be treated as an element and found by a jury. Justice O’Connor speaks of the increase in habeas filings and the disruption of the criminal justice system caused by Apprendi.
Blakely v. Washington, 542 U.S. 296 (2004). Opinion by Justice Scalia.
The Supreme Court, in a 5-4 decision, held that the defendant’s sentence violated his Sixth Amendment right to a jury trial, because the sentencing judge increased his sentence above the prescribed guideline range based on an aggravating factor found by the judge and not admitted by the defendant in his guilty plea. The State of Washington charged defendant Ralph Blakely with first-degree kidnaping. Blakely pleaded guilty to second-degree kidnaping for which the statutory maximum sentence was ten years of imprisonment. Under the state’s sentencing guidelines, the “standard sentencing range”or presumptive sentence for the kidnaping charge was 49 to 53 months. Under the Washington guidelines, the sentencing court must impose a sentence within the standard sentencing range, unless the court finds aggravating or mitigating circumstances by a preponderance of the evidence that justify an “exceptional sentence.” After conducting a sentencing hearing, the judge found that Blakely acted with deliberate cruelty, one of the specified statutory aggravating factors, and sentenced Blakely to 90 months of imprisonment. The Supreme Court found that this increase beyond the presumptive range was unconstitutional.
The Court held that any fact, other than a prior conviction, that raises the penalty beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” The Court defined “statutory maximum” as the “maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” In other words, the Court said, “the relevant “statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings” beyond what the jury found in its verdict or what was admitted by the defendant The majority did not address the application of the case to the federal sentencing guidelines. See 124 S. Ct. at 2538 n.9.
Three dissenting opinions were filed. Justice O’Connor wrote a dissent joined by Justice Breyer in its entirety, and by Chief Justice Rehnquist and Justice Kennedy, except as to the section addressing the possible impact on the federal guidelines. Justice O’Connor warned that the majority’s opinion may bring an end to 20 years of sentencing reform. Prior to the enactment of the Washington guidelines, there was unguided discretion that resulted in racial disparity and a general lack of uniformity in sentencing. The new system “placed meaningful restraints on discretion” and eliminated parole. Justice O’Connor noted that the sentencing system sought uniformity, transparency, and accountability, and that it had largely met those goals. Justice O’Connor also wrote of the far-reaching impact the decision could have on other states’ sentencing guideline systems and the federal sentencing guidelines.
Justice Kennedy wrote a brief separate dissent joined by Justice Breyer. Justice Kennedy portrays sentencing as a collaborative process between the legislatures and the courts. Justice Kennedy cites Mistretta v. United States, 488 U.S. 361 (1989), as recognizing that this interchange among the branches of government “is consistent with the Constitution’s structural protections.” Justice Breyer also wrote separately in dissent joined by Justice O’Connor. Justice Breyer stated that this holding “threatens the fairness of our traditional criminal justice system” and distorts historical sentencing practices. Justice Breyer concludes that, as a result of this opinion, the legislatures will have several options for sentencing systems in the future, and he outlines these approaches. Justice Breyer concludes, however, that these alternative approaches are problematic because they shift power to the prosecutor, they lack uniformity, or they are too complex and expensive to implement. Lastly, Justice Breyer questions whether it will be possible to distinguish the federal sentencing guidelines from the Washington system.
Schriro v. Summerlin, 542 U.S. 348 (2004). Opinion by Justice Scalia.
The Supreme Court, in a 5-4 decision, held that Ring v. Arizona, 536 U.S. 584 (2002), did not apply retroactively to death penalty cases already final on direct review, because it was a procedural rule rather than a substantive rule and because Ring did not announce a watershed rule of criminal procedure. When the Supreme Court announced Ring, it established a new rule that applied to all criminal cases still pending on direct review. The Court held that Ring established a procedural rule because it allocated decisionmaking authority by demanding that a jury rather than a judge make findings regarding aggravating factors in death penalty cases. However, new rules of procedure generally do not apply retroactively to cases already final on direct review. The exception is that “watershed rules of criminal procedure” that implicate the fundamental fairness and accuracy of the criminal proceeding will be applied retroactively. The Court did not find that this was a watershed rule because judicial factfinding did not so seriously diminish the accuracy of the proceeding so at to create an impermissibly large risk of punishing conduct inappropriately.
Justice Breyer filed a dissenting opinion joined by Justices Stevens, Souter, and Ginsberg. The dissenters view the right to have jury sentencing in the capital context as both a “fundamental aspect of constitutional liberty and also significantly more likely to produce an accurate assessment of whether death is the appropriate sentence.” Justice Breyer states that juries are more capable of making community-based value judgments that are important in death penalty cases, that retroactivity assures more uniformity among similarly situated defendants, that death is different so greater accuracy is needed, and that giving this rule retroactive effect would not inordinately burden the criminal justice system because of the small number of prisoners affected (approximately 110 persons on death row).
Shepard v. United States, 544 U.S. 13 (2005). Opinion by Justice Souter.
In Shepard v. United States, the Supreme Court, in a plurality decision (5-1-2), held that a sentencing court cannot look to police reports in making a “generic burglary” decision under the Armed Career Criminal Act.
The ACCA mandated a fifteen-year minimum sentence for any person found to have committed certain federal firearms violations if that person had three prior convictions for “violent felonies.” Congress specified that the term “violent felony” included “burglary,” and the Court in Taylor v. United States held that the ACCA’s use of the term “burglary” encompasses only “generic burglary.” A “burglary” was considered a “generic burglary” if three elements were present: “[i] unlawful or unprivileged entry into, or remaining in, [ii] a building or structure, [iii] with intent to commit a crime.” In Taylor, the Court stated that a sentencing court, in determining whether a previous trial-based conviction is for a “generic burglary,” can look to the statutory definition, charging documents and jury instructions. Taylor, therefore, does not require that recidivism be proved beyond a reasonable doubt for the purposes of sentencing under the ACCA.
The Court in Shepard, however, did not expand Taylor to allow a sentencing court to examine the police record and complaint to determine whether an earlier guilty plea to burglary counts as a “generic burglary,” and thus considered a “violent felony,” for the purposes of sentencing pursuant to the ACCA.
Justice Souter, delivering the opinion of the Court, except as to Part III, concluded that judicial enquiry under the ACCA, as to whether a guilty plea to burglary is a “violent felony,” “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” In Part III of the plurality opinion, Justice Souter attempted to distinguish the situation found in Shepard from all other situations where a jury need not find the factor of recidivism beyond a reasonable doubt. Justice Souter, joined by Justice Stevens, Justice Scalia, and Justice Ginsburg, explained that the fact of a prior conviction in the Shepard context “is too far removed from the conclusive significance of a prior judicial record” because the sentencing judge would have to “make a disputed finding of fact about what the defendant and the state judge must have understood as the factual basis of the prior plea.”
United States v. Booker, 543 U.S. 220 (2005). See above
Taylor v. United States, 495 U.S. 575 (1990).
Washington v. Recuenco, 548 U.S. 212 (2006). Opinion by Justice Thomas.
In this 7-2 decision, the Supreme Court reversed the Supreme Court of Washington. The Court held that failure to submit a sentencing factor to the jury is not “structural” error which always invalidates a conviction. Rather, Blakely violations may be subject to harmless error review.
Recuenco was convicted of second-degree assault based on the jury’s finding that he was armed with a “deadly weapon.” Rather than requesting the one-year enhancement corresponding to a finding of the involvement of a deadly weapon, the state sought a mandatory three-year enhancement because the defendant was armed with a firearm. Under Washington law, a firearm qualifies as a deadly weapon, but the jury form did not require the jury to make the specific finding that a firearm was used. The trial court found that the weapon was a firearm and imposed the higher penalty. The state conceded before the Washington Supreme Court that a Sixth Amendment violation occurred under Blakely. The Washington Supreme Court refused to apply harmless-error analysis to the Blakely error, vacated the sentence, and remanded for sentencing based on the deadly weapon enhancement.
In reversing the state court, the Court noted that it has repeatedly recognized that “commission of a constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead, most constitutional errors can be harmless.”
Cunningham v. California, 549 U.S. 270 (2007). Opinion by Justice Ginsburg.
The Supreme Court in a 6-3 opinion struck down California’s Determinate Sentencing Law (DSL) on grounds that it violated the Sixth Amendment’s jury trial right, as interpreted by the Supreme Court in the Apprendi line of cases. The specific question presented in the case was: “Whether California’s Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments.” The Court concluded that it did, holding that the relevant stautory maximum for Sixth Amendment purposes under California’s DSL was the middle term sentence because a judge was required to find no facts beyond the jury’s verdict to impose it. In so holding, the Court overruled a California Supreme Court case, People v. Black, 113 P.3d 534 (Cal. 2005), which had determined that the DSL did not violate Blakely.
James v. United States, 550 U.S. 192 (2007). Opinion by Justice Alito.
The Supreme Court in a 5-4 opinion upheld the Eleventh Circuit’s determination that a conviction for attempted burglary under Florida law is a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The issue was whether “overt conduct directed toward unlawfully entering or remaining in a dwelling, with the intent to commit a felony therein, is “conduct that presents a serious potential risk of physical injury to another.'” The Court said that “[t]he main risk of burglary arises not from the simple physical act or wrongfully entering onto another’s property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party – whether an occupant, a police officer, or a bystander – who comes to investigate.” Attempted burglary, the Court said, “poses the same kind of risk.” The Court also noted that, because attempted burglaries that give rise to convictions are typically those that were interrupted by such a third party, attempted burglaries that are ACCA predicates may actually pose a greater risk than completed burglaries. The Court concluded: “As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of” the ACCA.
Rita v. United States, 551 U.S. 338 (2007). See above
Kimbrough v. United States, 552 U.S. 85 (2007). See above
Gall v. United States, 552 U.S. 38 (2007). See above.
Dillon v. United States, – S. Ct. -, No. 09-6338 (June 17, 2010). See above
United States v. Johnson, 529 U.S. 53 (2000). Opinion by Justice Kennedy.
The Supreme Court, in a unanimous decision, held that under 18 U.S.C. § 3624(e), a supervised release term does not commence until an individual “is released from imprisonment.” Therefore, the length of supervised release is not reduced by excess time served in prison. The defendant had two of his convictions declared invalid, pursuant to Bailey v. United States, 516 U.S. 137 (1995), and had served 24 months extra prison time. The defendant was released from prison, but a three-year term of supervised release was yet to be served on the remaining convictions. The defendant filed a motion to reduce his supervised release term by the amount of extra prison time he served. The district court denied the relief, explaining that supervised release commenced upon respondent’s actual release from incarceration, not before. The Sixth Circuit reversed and held that his supervised release term commenced not on the day he left prison, but when his lawful term of imprisonment expired. The Supreme Court, in its decision to reverse the Sixth Circuit, resolved a circuit split over whether the excess prison time should be credited to the supervised release term. Compare United States v. Blake, 88 F.3d 824 (9th Cir. 1996) (supervised release commences on date defendants should have been released, not dates of actual release) with United States v. Jeanes, 150 F.3d 483 (5th Cir. 1998) (supervised release cannot run during any period of imprisonment); United States v. Joseph, 109 F.3d 34 (1st Cir. 1997) (same); United States v. Douglas, 88 F.3d 533 (8th Cir. 1996) (same).
The Supreme Court examined the text of section 3624(e) which states: “[t]he term of supervised release commences on the day the person is released from imprisonment.” The Court concluded that the ordinary commonsense meaning of release is to be freed from confinement. The Court found additional support in 18 U.S.C. § 3583(a) which authorizes the imposition of a “term of supervised release after imprisonment.”
Furthermore, the objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release. Congress intended supervised release to assist individuals in their transition to community life.
United States v. Johnson, 529 U.S. 694 (2000). Opinion by Justice Souter.
The Supreme Court, in an 8-1 decision, resolved a split in the circuits by holding that postrevocation penalties relate to the original offense, and under the Ex Post Facto Clause, a law “burdening private interests” cannot be applied to a defendant whose original offense occurred before the effective date of the statute. Compare United States v. Johnson, 181 F.3d 105 (6th Cir. 1999) (unpublished); United States v. Sandoval, 69 F.3d 531 (1st Cir.)(unpublished), cert. denied, 519 U.S. 821 (1996); United States v. St. John, 92 F.3d 761 (8th Cir. 1996) (no ex post facto violation in applying section 3583(h) to a defendant whose offense occurred before date statute enacted) with United States v. Dozier, 119 F.3d 239 (3d Cir. 1997); United States v. Lominac, 146 F.3d 308 (4th Cir. 1998); United States v. Eske, 189 F.3d 536 (7th Cir. 1999), United States v. Collins, 118 F.3d 1394 (9th Cir. 1997); and United States v. Meeks, 25 F.3d 1117 (2d Cir. 1994) (because revocation penalties punish the original offense, retroactive application of section 3583(h) violates Ex Post Facto Clause). Absent a clear indication by Congress that a statute applies retroactively, a statute takes effect the day it is enacted.
In the case below, the Sixth Circuit held that application of section 3583(h) (explicitly authorizing reimposition of supervised release upon revocation of supervised release) did not violate the Ex Post Facto Clause even though the defendant’s original offense occurred in 1993, a year before the statute was enacted. The lower court held that revocation penalties punish a defendant for the conduct leading to the revocation, not the original offense. Thus, because the statute was enacted before the defendant violated his supervised release, there was no ex post facto violation. United States v. Johnson, 181 F.3d 105 (6th Cir. 1999). The government disavowed the position taken by the lower court of appeal, and “wisely so” opined the Supreme Court “in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release.” Johnson, 120 S. Ct. at 1800.
In addition to making the determination that ex post facto analysis for revocation conduct relates to the date of the original offense, the Supreme Court found that no ex post facto analysis was necessary in the defendant’s case because Congress gave no indication that section 3583(h) applied retroactively. The statute could not be applied to the defendant because it did not become effective until after the defendant committed the original offense. Nevertheless, the version of section 3583(e)(3) in effect at the time of the original offense authorized a court to reimpose a term of supervised release upon revocation. Congress’s unconventional use of the term “revoke” rather than “terminate” would not preclude additional supervised release, and this reading is consistent with congressional sentencing policy.
The Supreme Court’s finding that the pre-Crime Bill version of section 3583(e)(3) authorizes supervised release as part of a revocation sentence resolved another split in the Circuits. The Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits held that section 3583(e)(3) did not authorize a court to impose an additional term of supervised release following revocation and imprisonment. The First and Eighth Circuits held that section 3583(e)(3) did grant a court such authority. See Johnson, 120 S. Ct. at 1800 (n.2) (2000) (citing cases)