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May 26, 2009

A few great lines (from the departing Justice) in today's little sentencing case

Though not really a sentencing case as much as a statutory interpretation decision, the Supreme Court's unanimous decision today in Abuelhawa v. United States, No. 08-192 (S. Ct. May 26, 2009) (available here), is fundamentally about sentencing consequences. And the Court's opinion, per Justice Souter, has one comical sentence and one notable footnote that I might highlight here.

First the sentence: "When the statute was enacted, the use of land lines in drug transactions was common, and in these days when everyone over the age of three seems to carry a cellphone, the Government’s interpretation would skew the calibration of penalties very substantially."  Though I happen to know of at least a few folks over the age of three who do not carry a cellphone, I still think the turn of phrase here is wonderful.

Now the footnote:

The Government’s suggestion that a result like this [namely a "twelve-fold quantum leap in punishment for simple drug possessors"] is not anomalous because a prosecutor could exercise his discretion to seek a lower sentence, seeTr. of Oral Arg. 41, simply begs the question.  Of course, Congress legislates against a background assumption of prosecutorial discretion, but this tells us nothing about the boundaries of punishment within which Congress intended the discretion to be exercised; prosecu-torial discretion is not a reason for courts to give improbable breadth tocriminal statutes.  And it ill behooves the Government to invoke discretionary power in this case, with the prosecutor seeking a sentencing potential of 24 years when the primary offense is the purchase of two ounces of cocaine.  For that matter, see id., at 41–43 (concession by Government that current Department of Justice guidelines requireindividual prosecutors who bring charges to charge the maximum crime supported by the facts in a case).

I am not sure this dicta about prosecutorial discretion is of any formal consequence, but I always enjoy when courts sensibly reject self-serving prosecutorial arguments that prosecutorial power should be expanded because prosecutors are unlikely to make too much use of such expanded power.

May 26, 2009 at 12:34 PM | Permalink


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"in these days when everyone over the age of three seems to carry a cellphone"

except Souter himself!

"He also resisted other forms of contemporary technology and convenience, holding out against the cell phone and e-mail and continuing to write his opinions and dissents in longhand, using a fountain pen."


Posted by: . | May 26, 2009 12:52:05 PM

Hey, the Fourth Circuit got slapped down unanimously on a ridiculous decision that made them appear to be a lhasa apso in the lap of the Government. Can we have a string of comments about how the Fourth is the out-of-control, procedurally-obsessed, anti-justice, reactionary, wingnut Cricut? Or does that kind of simplistic analysis only apply when the Ninth gets reversed?

Posted by: Anon | May 26, 2009 12:55:04 PM

Hear, hear!

Posted by: Def. Atty. | May 26, 2009 1:21:56 PM

"ridiculous decision"--I agree with the Supreme Court's disposition here, but go read the 4th Circuit's opinion--it's not awful.

Posted by: federalist | May 26, 2009 2:12:44 PM

"it's not awful"

Is too. Here's the key part of the opinion's reasoning: "[F]or purposes of § 843(b), 'facilitate' should be given its 'common meaning-to make easier'.... The statute does not specify whose felony must be at issue, just that 'a' felony must be facilitated. Cocaine distribution is a felony, 21 U.S.C.A. § 841(a)(1), and Abuelhawa's use of his cell phone undoubtedly made Said's cocaine distribution easier." 523 F.3d 415, 420-21.

Now take the following hypo: Said and Abuelhawa agree to complete a sale at a spot two blocks from Said's place. But then Abuelhawa picks up his cell phone and calls Said to change the meeting place to one that's three blocks away from Said's place, which requires that Said walk one block further than the original plan required. (Stipulate that had Abuelhawa not been able to reach Said, he would have gone to the original spot, as planned.) As such, Abuelhawa has used a "communication facility" to make Said's distribution harder. Hence, no "facilitation." An obviously absurd result, no?

Posted by: Michael Drake | May 26, 2009 5:30:25 PM

Ounces? I don't think so.

Posted by: Kent Scheidegger | May 26, 2009 5:34:51 PM

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