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March 4, 2009

Federal sentencing statute day at the Supreme Court

Continuing to work through a docket heavy with federal statutory interpretation cases involving sentencing issue, the Supreme Court today hears these two cases (as described here by SCOTUSblog):

First, the Court will hear argument in Abuelhawa v. United States (08-192), on whether a person who uses a cell phone to buy drugs solely for personal use (a misdemeanor) can be charged with the separate crime of using a phone to facilitate the sale of drugs (a felony).  Sri Srinivasan of O’Melveny & Myers in Washington, DC will argue for Salman Khade Abuelhawa. Assistant Solicitor General Eric Miller will argue for the United States.

At 11 a.m., the Court will hear argument in Dean v. United States (08-5274), involving the ten-year mandatory minimum sentence for discharging a gun during a violent crime.  Scott J. Forster of Calhoun, Georgia, will argue for Christopher Michael Dean.  Assistant Solicitor General Deanne Maynard will argue for the United States.

If both cases produce narrow opinions (which is what I expect), it seems unlikely that either case will prove to be a sentencing blockbuster.  But perhaps one or more Justices will see these cases as an opportunity to address federal statutory sentencing issues more broadly.

March 4, 2009 at 10:04 AM | Permalink


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It seems to me that the idea discussed in the post entitled "Justice Breyer talking up Rule of Lenity when interpreting statutes with mandatory minimum sentencing terms" applies equally to the Dean case. I wonder if Breyer will express similar thoughts at Dean's oral argument. In fact, given the closeness of these two cases’ (Flores-Figueroa and Dean) oral argument and decision date, Breyer may use both cases as an opportunity to develop a type of unique “mandatory minimum rule of lenity.” Of course, I won't hold my breath.

Posted by: DEJ | Mar 4, 2009 11:25:46 AM

Abuelhawa could have wide application. The judges seemed very skeptical of the rote literalistic interpretive approach taken by the government. While it involves the extreme example of a misdemeanor turned felony because a phone is used to order the drugs, it could have application to a wide class of possession of X tool during Y crime cases.

Posted by: ohwilleke | Mar 4, 2009 4:41:00 PM

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