« Seeking Sunday federal sentencing speculations | Main | "Disparities Seen in Federal Securities Fraud Sentences" »

March 23, 2009

A strong pitch to SCOTUS to have Booker apply to crack sentence reductions

Late last week, a prominent group of SCOTUS gurus filed a cert petition in US v. Dunphy making a full-throated argument for judges to have broad resentencing authority when ruling on motions to reduce previously imposed crack sentences.  The cert petition can be downloaded below, and here is its summary statement of reasons for granting the writ:

Federal courts across the country are divided over whether federal district courts must treat amended sentencing guidelines ranges as binding when imposing new sentences under 18 U.S.C. § 3582, or whether this Court’s holding in United States v. Booker, 543 U.S. 220 (2005), requires that they be treated as only advisory.  This question is important and arises frequently, particularly in the context of the amended guidelines for crack cocaine offenses.  This is such a case and is an ideal vehicle for resolving the split of authority.

The Fourth Circuit’s holding that district courts must treat the Guidelines as binding in 18 U.S.C. § 3582 proceedings also is wrong.  This Court held in Booker that the Guidelines violate the Sixth Amendment when they require a longer sentence than is otherwise allowed based on the elements of the crime of conviction. Id. at 244.  Such is the case here. Furthermore, treating the Guidelines as binding when constructing a new sentence flouts Booker’s mandate that binding guidelines are “no longer an open choice.”  Booker, 543 U.S. at 263; accord United States v. Spears, 129 S. Ct. 840, 842 (2009) (per curiam) (Guidelines are “advisory only”) (quoting Kimbrough v. United States, 128 S. Ct. 558, 560 (2007)).

It is no answer to claim, as the Fourth Circuit does and the Sentencing Commission suggests, that proceedings under Section 3582 do not constitute “full” resentencings. Pet. App. 8a-9a, 11a, 15a.  That is just a label. District courts impose new sentences under Section 3582 the same way they conduct other resentencings. And whenever a court reopens a sentence and constructs a new one, it must do so in accordance with the law that exists at the time the new sentence is imposed, not just with (retroactive) sentencing guidelines.  Booker is the law; this Court should instruct the federal courts of appeals again that they must follow it.

Download Dunphy Cert Petition

March 23, 2009 at 09:28 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A strong pitch to SCOTUS to have Booker apply to crack sentence reductions:


I promise I don't have a dog in this fight, but the NYU Supreme Court clinic, along with Jones Day, filed a cert. petition to the CA7 two days before this one, in Cunninghum.

A race to the courthouse! May the best vehicle win.

Posted by: med | Mar 23, 2009 2:31:54 PM

I'd put money on any case filed by Akin Gump and Howe & Russell to be taken over pretty much any other entity other than the SG's office.

Posted by: da_2_b | Mar 23, 2009 6:24:31 PM

I'd put money on the Supreme Court denying cert on this issue.

Posted by: Da Man | Mar 23, 2009 10:44:43 PM

Even if the Supremes do grant cert., I'd say the odds of petitioners prevailing pretty much mirrors the circuit court split, i.e., one out of seven.

Posted by: anon | Mar 24, 2009 7:46:43 AM

I don't know. I always thought that Akin Gump wasn't as detail-oriented as the NYU Clinic. On the other hand, Jones Day tend to be more professional and dress better. So, it is not clear which one will get the cert. grant.

Posted by: S.cotus | Mar 24, 2009 2:57:13 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB