February 23, 2011
SCOTUS considers crack sentence reduction authority and reverses another Ninth Circuit habeas decision
Today's Supreme Court action includes some criminal justice work that ought to interest sentencing fans. This morning brings oral argument in Freeman v. US, which concerns eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) when as sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement (SCOTUSblog coverage here). This new article in the Louisville Courier-Journal, headlined "US Supreme Court to consider Louisville man's crack-cocaine sentence," provides effective background on the case.
In addition, the Justices handed down a unanimous opinion in the habeas case Walker v. Martin (available here). Here is how Justice Ginsburg's opinion for the Court starts and ends:
This case concerns California’s time limitation on applications for postconviction (habeas corpus) relief. The question presented: Does California’s timeliness requirement qualify as an independent state ground adequate to bar habeas corpus relief in federal court?...
For the reasons stated, we find no inadequacy in California’s timeliness rule generally or as applied in Martin’s case. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore Reversed.
February 23, 2011 at 10:46 AM | Permalink
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I attended the Freeman argument this morning, and found the following two points to be suggestive of how this case will be resolved:
1) During petitioner's argument, the justices (except for Ginsburg, and possibly Breyer) seemed to agree that plea agreements are "based on" more than just the Guidelines, even if the Guidelines are the starting point and are explicitly mentioned in the agreement. They seemed to be leaning towards the position that because numerous other factors come into play in determining a C plea, it would not be accurate to say that the Guidelines, being only one factor, are the basis for the sentence.
2) However, things took an interesting turn during the government's argument. Scalia inquired what the effect of Booker is on § 3582, as related to sentences imposed after conviction (rather than pursuant to a plea agreement). Since § 3582 was written when the Guidelines were mandatory, sentences imposed upon conviction were clearly "based on" the mandatory Guidelines range. But what of a sentence imposed after Booker? If the judge imposed a sentence that was within the Guidelines range, was it necessarily "based on" that range? Or was it based on the host of other factors he can consider at sentencing now, i.e. § 3553? Breyer seized on this argument, and commented that since everyone had been approaching the argument under the assumption that § 3582 still applies to Guidelines sentences imposed after conviction, perhaps the Court ought to call for reargument (Scalia chuckled at this).
But I think the point is a good one. Pre-Booker, a sentence imposed after conviction is very clearly "based on" the mandatory Guidelines range. Post-Booker, a sentence imposed after conviction is still heavily influenced by the Guidelines range - but so is a plea agreement. I think it is a tricky distinction to say that plea agreements, which use the Guidelines as a starting point, are not based on the Guidelines, yet sentences, which use the Guidelines as a starting point, are based on the Guidelines.
Nevertheless, I think that many prisoners who were convicted and sentenced post-Booker have already received reductions under § 3582, and these are generally not opposed by the government (is that correct?). If that is correct, then I don't see the justices deciding - certainly not in this case - that those reductions were invalid. Therefore, despite that interesting aside, I think the case will in fact come down to whether you can draw the distinction that post-conviction advisory Guidelines sentences are based on the Guidelines, but plea agreements which specifically contemplated the Guidelines are not. My prediction: the Court accepts the government's argument that a sentence in a C plea situation is based on the plea agreement, not the Guidelines.
Posted by: Tom McKay | Feb 23, 2011 1:08:15 PM
>I think the case will in fact come down to whether you can draw the distinction that post-conviction advisory Guidelines sentences are based on the Guidelines, but plea agreements which specifically contemplated the Guidelines are not.
>> In the case of a post-Booker Rule 11 (C) plea, it will be hard for the Court to rule in the defendants favor, namely, that his sentence was "based on" the post-Booker advisory Guidelines. However, in the case of pre-Booker defendants, those guilty pleas are ALWAYS based on the Guidelines. Even more interesting, what the Court is saying is that all sentences post-Booker are not based on the Guidelines, since the Guidelines are advisory. Meaning no one can file a 3582 motion with a post-Booker sentence, since they are not based on the Guidelines. There's no jurisdiction; the sentence isn't "based on" the Guidelines. So, their ruling will be interesting, to say the least. But, I think your prediction is half wrong. Prisoners with pre-Booker sentences will HAVE to be allowed to file 3582 motions.
>...prisoners who were convicted and sentenced post-Booker have already received reductions under § 3582, and these are generally not opposed by the government (is that correct?)
>>The Government opposes all 3582 motions based on a Rule 11 (C) plea. This has affected defendants in every circuit. I mean think about it: most cases are disposed of by plea agreement. There's a huge split and Freeman is supposed to resolve it. Google "3582 Rule 11" and you will see the tough time judges are having resolving these cases.
Posted by: Anthony Browne | Mar 1, 2011 10:57:51 AM