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December 11, 2007

Some legal particulars around crack retroactivity implementation

In this official press release, the US Sentencing Commission reviews some of the legal particulars involved in its crack retroactivity decision:

Retroactivity of the crack cocaine amendment will become effective on March 3, 2008.  Not every crack cocaine offender will be eligible for a lower sentence under the decision.  A Federal sentencing judge will make the final determination of whether an offender is eligible for a lower sentence and how much that sentence should be lowered.  That determination will be made only after consideration of many factors, including the Commission’s direction to consider whether lowering the offender’s sentence would pose a danger to public safety.

The statutory overlay to all this come from this intricate statutory text set out in 18 U.S.C. § 3582(c)(2), which provides:

(c) Modification of an Imposed Term of Imprisonment.— The court may not modify a term of imprisonment once it has been imposed except that ... (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

I have added the bold and italics to highlight what seem to be key legal concepts going forward.  Specifically, now that the USSC has made the guidelines retroactive, district courts can entertain what might be called a "modification motions" or a "3582(c)(2) motions" and may reduce a prison term if and when doing so is consistent with the Commission's policy statements (which were apparently issued today and emphasize consideration of public safety).

A few circuit rulings have suggested that full Booker resentencings should be the result of these modification motions, but I am not sure the statutory text supports this view.  That said, though, some defendants may develop creative constitutional or statutory argument to try to max out the possible benefits flowing from the USSC's new guidelines.  Stay tuned.

December 11, 2007 at 07:52 PM | Permalink


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Im assuming that with:
...consider whether lowering the offender’s sentence would pose a danger to public safety
(and factors set forth in section 3553(a),

means utimately only those convicted of simple possession will be the ones to get the reduction.

Posted by: | Dec 11, 2007 8:31:11 PM

It's going to be a huge mess (for the district courts) if appellate courts hold that defendants getting the reduction are entitled to full Booker resentencing.

Posted by: VKR | Dec 11, 2007 8:45:03 PM

(I heard) Has/Is the Commission going to be outlining directions for the courts (including or excluding Booker?)

Posted by: | Dec 11, 2007 8:51:59 PM

where are you?

Posted by: | Dec 11, 2007 8:53:45 PM

Aren't there issues with forced ripping open of judgments? Just a question, so don't bite my head off.

Posted by: federalist | Dec 11, 2007 10:45:59 PM

"Fed": Nothing "forced" about it; the judge "may" modify the sentence (1) after considering all 3553(a) factors, (2) if consistent with applicable policy statements. As for "ripping open of judgments," 3582(c) is precisely a statutory exception to the general rule (3582(b/c)) defining when and in what sense a federal criminal judgment imposing a sentence is final. The argument for something akin to a "Booker resentencing" in these cases is that the statute demands judicial consideration of all the 3553(a) factors, but if the defendant was sentenced before January 2005 a full and fair presentation of those factors is not likely to be found in the existing sentencing record. Since the statute demands their consideration, the Due Process Clause requires a procedure whereby that information can be provided to the court in a reliable manner, including adversarial testing and a right for the defendant to be "heard." That process would, it seems to me, have to be something like a resentencing, although perhaps not by that name.

Posted by: Peter G | Dec 11, 2007 10:58:18 PM

So, correct me if I'm wrong, but the new/revised sentence takes into account 3553(a), and thus must be "sufficient but not greater than necessary..." right? Everyone resentenced due to the USSC's retroactive crack/powder implementation are ultimately going to be resentenced with the parsimony provision as the bottom line. Or am I mistaken?

Posted by: bruce | Dec 12, 2007 11:04:46 AM

Bruce: What you say is not entirely, or not necessarily, right. First of all, as I explained in my previous comment and as the statute says, for a sentence to be "modified" is not the same as a "resentencing." Second, 3582(c) requires consideration of "the factors set forth in" sec 3553(a); it does not require compliance with 3553(a) itself. The parsimony clause is not a "factor set forth in" 3553(a); it is the command of what the judge is to do at a sentencing after taking a number of preliminary steps first (including "considering" various factors). So on a strict reading of 3582(c), I can't say that your suggestion is correct as to what is supposed to happen, much less that it is what *will* happen.

Posted by: Peter G | Dec 12, 2007 11:36:19 AM

So people generally think that the permissive "may" alleviates concerns about Plaut?

Posted by: federalist | Dec 12, 2007 11:40:46 AM

Peter: After re-reading 3582(c), I think you're analysis is (unfortunately) correct. But doesn't that mean these people (at least those sentenced pre-Booker) are having their sentence "modified" under mandatory guidelines in violation of the 6th Amendment?

I'd say if they were sentenced post-Booker they can have the sentence modified, but if they were sentenced pre-Booker, they need to actually be re-sentenced in full.

Posted by: bruce | Dec 12, 2007 11:42:19 AM

Sorry for injecting legal research into these proceedings, but see U.S. v. Hicks, 472 F.3d 1167 (9th Cir. 2007) (reversing and remanding for resentencing where district court did not treat guidelines as only advisory after granting motion for resentencing under 18 U.S.C. 3582(c)(2)).

Posted by: efc | Dec 12, 2007 11:48:31 AM

I am right here. I don't really know how these issues will shake up, but here are some basics:

3582(c) is the relevant statute. This is not a collateral attack.

When people speak of a "finality" interest they are speaking of the finality interest of the sovereign. A sovereign can have a low or high (or no) finality interest. In fact, a sovereign (i.e. a state the federal government) can say, "I am completely comfortable with judgments being revisited for any reason." In this case, the sovereign, via Congress and the executive has explicitly said "Sentences can be revisited if the USSC does something." So, there isn't a finality interest in these circumstances.

As I said earlier, whether 3582(c) requires Bookerization under the law of the Circuit is an open question, and the above poster shows one possible resolution of it. I don't think the issue is as big a deal as people say it is, but I am going to wait for it to shake out a bit before resolving that in my mind.

Posted by: S.cotus | Dec 12, 2007 12:58:57 PM

I expect the common outcome will be imposition of the lengthy mandatory-minimum sentences for defendants who file motions for resentencing. Kimbrough seems to approve of that result.

Posted by: defense attorney | Dec 12, 2007 5:11:06 PM

I've always been disgusted at the "finality" argument made by the government. The government has NO interest in the "finality" of a conviction of an innocent person or a conviction otherwise obtained in violation of the constitution or the defendant's statutory rights. Finality my ass. I've always greatly resented it when the state argues that "regardless of how we've railroaded the defendant and violated his rights, we the state have an interest in the defendant shutting the hell up already and staying in prison."

Posted by: bruce | Dec 12, 2007 6:23:25 PM

Bruce, indeed...

Posted by: ForAllPeople | Dec 13, 2007 9:54:49 AM

Think what Defense Attorney said will probably happen?

Posted by: | Dec 13, 2007 10:00:15 AM

Great post even though I was a little confused at first and thought you are talking about jewels. Anyhow great site and good info to know! More conversation materials for me!

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