June 23, 2011
Defendant barely wins in Freeman, as SCOTUS clarifies/complicates guideline retroactivity rules
The final big federal sentencing case on the Supreme Court docket this term is Freeman v. US concerning the eligibility of some defendants to get the retroactive benefit of the Sentencing Commission reducing guidelines ranges. Today Freeman prevailed, though what seems like a 4-1-4 opinion in his favor likely means few other defendants will benefit from his victory. Here are the basics coming from the start of the first opinion in Freeman:
JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join.
The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retro-active amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guideline amendment is adopted, §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.
The question here is whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage of justice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive Guideline amendments.
Five Members of the Court agree that this judgment must be reversed. The Justices who join this plurality opinion conclude that the categorical bar enacted by the Court of Appeals finds no support in §3582(c)(2), Rule11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea,including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guide-lines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction.
Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove un-justified. There is no reason to deny §3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.
JUSTICE SOTOMAYOR would reverse the judgment on a different ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that § 3582(c)(2) relief is not available in the typical case. But unlike the dissent she would permit the petitioner here to seek a sentence reduction because his plea agreement in express terms ties the recommended sentence to the Guidelines sentencing range.
June 23, 2011 at 10:34 AM | Permalink
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I have no actual knowledge on the subject but I would have assumed that most plea agreements under Rule11(c)(1 would in fact reference the guidelines in the manner set out here. Mostly because a low end of guidelines range recommendation seems like it would be about as favorable as a defendant is likely to get. If my assumption on that point is correct I don't see that the 4-1 split makes much of a difference. More important of course is that the sentencing commission usually doesn't make guideline changes retroactive. That point is going to be the bar to relief for far more offenders than whether the plea agreement references the guidelines or not.
Posted by: Soronel Haetir | Jun 23, 2011 11:40:24 AM
If http://www.arnoldlawfirmllc.com/CM/Custom/FirstDegreeMurder.asp is to be believed (I know not a source I would trust if I were actually trying to prove the point one way or the other but it seems like a reasonable starting point) then in FL a 1st degree murder conviction alone is enough to statutorily expose the offender to a possible sentence of execution.
Posted by: Soronel Haetir | Jun 23, 2011 12:05:03 PM
Here's a source I suspect is more trustworthy http://www.deathpenaltyinfo.org/crimes-punishable-death-penalty
According to that page death eligible offenses in Florida are First-degree murder; felony murder; capital drug trafficking; capital sexual battery
Of course the last two of those aren't actually death eligible due to SCOTUS rulings rather than choices of the FL legislature. I I suspect that there are problems with saying all those convicted of 1st degree murder are death eligible, but I'm not sure it's a Ring problem.
Posted by: Soronel Haetir | Jun 23, 2011 12:10:13 PM
I have not read the decision, but I can suggest, to any federal prosecutors who happen to be reading, how the problem here can be overcome.
Most federal plea agreements already contain a waiver of sentencing appeal provision. AUSA's should add the following sentence to it: "In exchange for the government's concessions in this agreement, the defendant further agrees not to seek review or alteration of his sentence whether or not the statutory minimum or the guidelines range for the offense(s) of conviction changes in the future."
I might add that I was the AUSA who invented and first litigated the waiver of appeal, see United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990).
Posted by: Bill Otis | Jun 23, 2011 1:10:16 PM
And defense lawyers should not agree to the sentence BOTIS suggests be added to plea agreements.
Posted by: reader | Jun 23, 2011 1:51:02 PM
Most of the time, especially at the federal level, the prosecutor is in the drivers seat as far as what the plea agreement is going to contain. It may be in the collective interest of all offenders to put the government to its burden of proof but its not in the individual interest of any offender to do so. If it were as easy as you seem to indicate then the appeals waiver that Bill Otis championed would not have succeeded.
Posted by: Soronel Haetir | Jun 23, 2011 2:10:43 PM
"And defense lawyers should not agree to the sentence BOTIS suggests be added to plea agreements."
That is word-for-word what I heard back in 1990 when I came up with the original appeal waiver. My answer now is the same as it was then: Go for it. Your client has a constitutional right to a trial on all the charges. If that's what he chooses, more power to him.
As Soronel correctly points out, however, most defendants go along with a plea agreement. They do this because they are factually guilty and know the government can prove the case. They'd prefer to avoid the costs, financial and otherwise, of trial. But if they wanted a trial, not one time did I pressure them to take a deal.
Whether, after the verdict, they thought their decision was particularly prudent was, of course, another matter.
Posted by: Bill Otis | Jun 23, 2011 3:14:24 PM
"[M]ost defendants go along with a plea agreement."
Sure, most defendants end up entering into a plea agreement, but not on terms dictated unilaterally by the AUSA - at least not in my office. We negotiate plea agreements zealously - and often get what we want either put in or taken out. And, yes, we're perfectly willing to go to trial - and often do - particularly when, as is often the case, the only thing there is to lose is an accceptance-of-responsibility reduction. Many clients are willing to assume that risk.
Posted by: reader | Jun 23, 2011 6:23:43 PM
I accept your account of what goes on in your office, but I can tell you that when I was in the EDVA, we insisted on the appeal waiver every time. If the defendant refused, fine -- go to trial. I can also tell you that I do not recall a single defendant who refused on that ground, principally because (1) they were (justifiably) pretty sure they were getting the low end of the guidelines anyway, and preserving sentencing appeal rights was thus going to be worthless; and (2) they knew they were dead to rights, and thus ultimately worse off, going to trial.
Posted by: Bill Otis | Jun 23, 2011 6:52:12 PM
"I might add that I was the AUSA who invented and first litigated the waiver of appeal"
Is this your "claim to fame" and something to be bragging about??????????
Some might consider it just another intimidation tactic. Take the deal or face the full weight of my boss the US Government who has no heart, unlimited time, the taxpayers money and is willing to let me, the prosecutor,spend as much of either as is required to break you and win.
Posted by: Thomas | Jun 23, 2011 10:13:50 PM
lol i was kind of thinking the same thing thomas. talk about BLACKMAIL! do what i want when i want HOW I WANT or i will bury you in new outlandash charges a mile high and then use my ability to PRINT MONEY to tigh you up in court forver where we all know once a jury is faced with 100 charges no matter how retarded or stupid or illegal....THEY WILL CONVICT ON SOMETHING!
Posted by: rodsmith | Jun 24, 2011 12:15:38 AM
It's only "intimidation" if the government threatens something it has no legal right to do. What the defendant was "threatened" with was the exercise of HIS CONSTITUTIONAL RIGHT TO TRIAL -- a right guaranteed to him by the Framers, not as a tool of government intimidation, but as the main bulwark AGAINST such intimidation.
If the defendant wanted what he regarded as the better overall disposition of a plea agreement, it was there for him. Most of them dealing with my Office took it. If he wanted instead to have the trial the Constitution guarantees him the right to put on, it was fine with me.
It's mighty curious that you and others view a plea agreement waiving the right to an appeal to be something thuggish, when plea agreements for decades before, and by definition, WAIVED THE RIGHT TO THE TRIAL ITSELF. The right to trial is, of course, secured by the Constitution, which says absolutely nothing about a right to appeal, much less to a sentencing appeal.
So are ALL plea agreements thuggish? Blackmail? Intimidation? Why, then, are so many defendants breaking down the door to get one?
Hint: Because they're guilty as hell of some pretty nasty crime that they'd just as soon not have spelled out day after day in front of the judge who's going to sentence them.
As anyone who actually practices knows, the FIRST reason the defendant is where he is is because of HIS behavior. If you don't want to wind up choosing between a trial and a deal, here are some suggestions: Don't rob the bank, swindle Grandma, molest the ten year-old, sell meth to a middle schooler, barter the machine gun to the local gang, etc., etc., etc.
People who do these things understandably want to blame everyone and everything else. But juries shouldn't and don't buy it. And that's the real reason they want plea deals.
Posted by: Bill Otis | Jun 24, 2011 9:52:59 AM
The waiver of appeal is nothing more than another weapon in the limitless arsenal afforded the federal prosecutor. Of course, Bill, like most "inventors/developers" of weapons never consider the collateral damage caused if the "weapon" falls into the hands of someone who is not as ethical as is the inventor.
There is no doubt that Bill Otis, with his high ethical, and moral standards would never misuse any of the weapons available to the federal prosecutor. Bill has told us so on many occasions.
However, not all federal prosecutors, or prosecutors in general, have Bill's high standards and self discipline. Therefore, these prosecutors will use any weapon at hand, including this one, to further their win at any cost approach to what they call "justice". They care not at all for the collateral damage.
Bill asks "Why, then, are so many defendants breaking down the door to get one?" and then continues, "Hint: Because they're guilty as hell of some pretty nasty crime that they'd just as soon not have spelled out day after day in front of the judge who's going to sentence them."
You know what, he is right in many but far from all respects and there lies the rub. The typical one size fits all approach to justice. While there is no doubt that many offenders grab a plea deal for the reasons Bill mentions and are probably getting a break they don't deserve, there are many more who do it as a result of the aforementioned threats, intimidation, stacking of charges, by prosecutors who, because of their absolute immunity, have no fear of prosecutorial misconduct sanctions. They agree to a plea because they do not have the resources to fight, from the almost certainty that, as Rod says, given enough choices, a jury will convict on something and out of fear for the collateral damage to their family.
Posted by: Thomas | Jun 24, 2011 1:33:37 PM
yea bill just like for decades people have caved and offered money they could not afford for "protection" when the italian guys in the $1,000 suits walked in nicely into their business...becasue they KNEW if they refused the next group would not be NICE and probably be holding guns, chains, dynamite, or firebombs
Posted by: rodsmith | Jun 24, 2011 2:39:58 PM
You really think Eric Holder and his group are like the Mafia? Really?
Posted by: Bill Otis | Jun 24, 2011 4:46:53 PM
One more thing I forgot. I said before, "It's mighty curious that you and others view a plea agreement waiving the right to an appeal to be something thuggish, when plea agreements for decades before, and by definition, WAIVED THE RIGHT TO THE TRIAL ITSELF. The right to trial is, of course, secured by the Constitution, which says absolutely nothing about a right to appeal, much less to a sentencing appeal. So are ALL plea agreements thuggish? Blackmail? Intimidation?"
I would be curious about your response to that question.
Posted by: Bill Otis | Jun 24, 2011 4:52:18 PM
"They [plead out] because they are factually guilty and know the government can prove the case."
Often times, that's true. Other times, it's more the crim law equivalent of paying nuisance value. Alas, constitutional concerns for the "in terrorem" pressures of settlement apparently only accrue in the civil context, when a defendant's life and liberty aren't actually at stake.
Posted by: Michael Drake | Jun 24, 2011 5:39:46 PM
Michael Drake --
"Other times, it's more the crim law equivalent of paying nuisance value."
When you had the practice I had -- federal felony prosecutions -- there is no such thing as "paying nuisance value" because the stakes are a lot higher than "nuisance."
Posted by: Bill Otis | Jun 24, 2011 6:12:44 PM
Bill: "It's only "intimidation" if the government threatens something it has no legal right to do. "
and "You really think Eric Holder and his group are like the Mafia? Really?"
The mafia operates outside the law. A better comparison would be between the government of the US and the KGB. Both do whatever they wish and it is perfectly legal. Being legal doesn't make it right.
Posted by: anon2 | Jun 25, 2011 2:02:21 PM
"So are ALL plea agreements thuggish? Blackmail? Intimidation?"
dont' know about that but they are CERTAINLY unconstutional!
Posted by: rodsmith | Jun 25, 2011 3:30:46 PM
as for this!
You really think Eric Holder and his group are like the Mafia? Really?"
actualy i have MORE respect for the Mafia! at least they are honest about being a bunch of lieing crooked a-holes!
which is more than i can say for our justice departmetn and ESPECIALY for mr. nazi wannabe eric holder!
Posted by: rodsmith | Jun 25, 2011 3:32:22 PM
"So are ALL plea agreements thuggish? Blackmail? Intimidation?"
Not sure about that. but they are certainly UNCONSTUTIONAL as required by our constution.
Posted by: rodsmith | Jun 25, 2011 3:33:42 PM
For those claiming there is no anti-Americanism on this site, I refer you to anon2 | Jun 25, 2011 2:02:21 PM.
Posted by: Bill Otis | Jun 25, 2011 3:55:25 PM
Not sure what anti-Americanism is. Is it disagreeing with the direction of the country? Is it disagreeing with you? I thought you could disagree with the actions of this country and its minions without being Anti-American.
I think your definition of being anti-American and my definition are quite different.
Posted by: anon2 | Jun 25, 2011 5:13:56 PM
BTW, Bill, welcome back from Italy! Missed your provocative remarks.
Posted by: anon2 | Jun 25, 2011 5:19:44 PM
Thanks for the welcome back. Italy is a beautiful and charming country.
Disagreeing with me is not anti-American. Saying that the Unites States operates as the KGB operated assuredly IS anti-American (in addition to being preposterous).
Posted by: Bill Otis | Jun 25, 2011 6:32:30 PM
Saying the US is operating (specifically Law Enforcement including the DOJ) like the KGB is anti-American but saying the US and the mafia operate similarly is not anti-American. Is that right? I understand you disagree with both comparisons, just trying to clarify your definition of anti-American.
Posted by: anon2 | Jun 25, 2011 9:44:12 PM
Bill, the practice you had presumably doesn't change the meaning of words. Nuisance value is simply what a defendant is willing to pay for economic reasons rather than for reasons of factual responsibility or guilt. See, e.g., Black's Law Dictionary 1497 (9th ed.) (defining "nuisance settlement"). And since there is, after all, such a thing as an innocent defendant who will plead guilty in a federal felony prosecution to avoid the marginal cost of maintaining innocence, there is such a thing as paying nuisance value in a federal felony prosecution.
Posted by: Michael Drake | Jun 26, 2011 10:34:28 AM
Michael Drake --
In federal court, in the Rule 11 (i.e., plea taking) proceeding, there is a standard colloquy. It goes in part much like this:
Judge: Are you pleading guilty today because you are, in fact, guilty?
Judge: The plea agreement states that you [and then the judge has the prosecutor read the statement of facts attached to the plea agreement]. Is that in fact what you did?
D: Yes, it is.
Judge: Mr. Defense Counsel, have you gone over the charges with your client, and are you satisfied that his decison to plead reflects the facts of his behavior?
Defense Counsel: Yes.
Judge: Mr. Defendant, other than for the representations in the agreement about what the government has agreed to, are there any other or undisclosed pomises or inducements that are leading you to enter this plea today?
D: No, your Honor. ###
And you're saying all this is perjury???
I'm sorry, Michael. There might be occasional freak exceptions (as there are occasional freak exceptions to everything), but the real reason defendants admit they're guilty is that they're guilty.
Posted by: Bill Otis | Jun 26, 2011 12:06:29 PM
You said, Jun 25, 2011 2:02:21 PM, that the government of the US and the KGB both do whatever they wish. That statement is anti-American in addition to being absurd.
Posted by: Bill Otis | Jun 26, 2011 12:12:30 PM
"And you're saying all this is perjury???"
One of the statements is perjury, sure. (So no, I'm not saying "all this is perjury.") Do you think a defendant who commits such perjury should be prosecuted?
Posted by: Michael Drake | Jun 26, 2011 12:27:37 PM
Bill, my statement was not anti-american. I think I'm still entitled to an opinion even if it is different than yours.
Posted by: anon2 | Jun 26, 2011 5:46:51 PM
Your second sentence is correct, unlike your first one.
Posted by: Bill Otis | Jun 26, 2011 6:12:25 PM
Which statement do you think is perjury?
Posted by: Bill Otis | Jun 26, 2011 6:15:03 PM
Bill, the defendant's first two answers are both perjury. (I'm revising my count.)
Posted by: Michael Drake | Jun 26, 2011 9:38:50 PM
That may be your experience; it certainly isn't mine.
I might add that if the first two answers are indeed perjury, then the criminal justice system is in bigger trouble than anyone has previously thought. Roughly 90% of criminal cases are resolved through plea bargains. If key questions at the Rule 11 proceeding get perjured answers, it simply cannot be used anymore, and every case will have to go to trial.
If people are to be left free to lie because it serves their interest, NO system can operate. ANY system must be allowed to require the truth on pain of very significant consequences to those who would do otherwise.
I personally did not and would not participate in a plea proceeding laced with lying, and I doubt you would or did either.
Posted by: Bill Otis | Jun 27, 2011 1:24:00 PM
"I personally did not and would not participate in a plea proceeding laced with lying..."
Bill, I absolutely believe that you've never knowingly pressured an innocent person into pleading guilty. But your personal knowledge isn't the issue. The question is only about the hypothetical innocent defendant and what he knows. So: do you think he should be prosecuted for the perjury?
Posted by: Michael Drake | Jun 28, 2011 12:26:38 AM
I never even pressured a GUILTY person into taking a deal. But it's something of an optical illusion: I was chief of appeals, so I very seldom dealt with stuff going on in distrrict court no matter what it was.
As to your question, I'm going to have to go lawyer on you: It would depend. It's well known that the USAO does not prosecute anything close to all prosecutable cases. I will say that my bias would be toward prosecuting. The amount of perjury that goes on is astounding, and almost all of it gets a pass. This always rubbed me the wrong way.
Lastly, I have seen enough of your commentary to believe pretty firmly that you would not participate in sending an innocent person to jail via a less-than-truthful plea bargain. I just think you'd gag on it.
Since you use your real name and have an identifiable job, I'm not going to ask you to say one way or the other, but I just don't see it. Your idealism would rebel.
Posted by: Bill Otis | Jun 28, 2011 12:46:29 AM