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February 24, 2010

Oral argument transcript finally available for in O'Brien/Burgess case

I am pleased to finally be able to report that the Supreme Court now has posted here the transcript for Tuesday morning's oral argument in United States v. O'Brien and Burgess, the combined cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. ยง 924(c).  I have heard from multiple source that Blakely fans will want to give this a close read, and that's my plan as I jump on a plane this afternoon to head to Miami (more on that later).  I hope to have comments on the argument in a future post, but I hope readers do not wait for me to opine on this argument's merits (or demerits).

Some recent related posts:

February 24, 2010 at 01:51 PM | Permalink


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I think the Court will ultimately affirm and is unlikely to directly address Harris, just because I thought there was general agreement that Castillo plus the minor changes to the statute don't dictate another result. But the argument was interesting. A couple highlights (there were several):

"JUSTICE BREYER: To make your life a little more complicated and difficult, though perhaps it makes it easier, we reach the questions that Justice Scalia was raising, I think, and they are important only if you win, only if we say that it is a sentencing factor. If it is a new crime, we don't have any problem, because if it's a new crime, the jury has to find the fact. But if it's a sentencing factor, then we get into the problem of Harris v. Apprendi. And then you have to decide whether it's maximum, minimum, et cetera. But in Harris, I said that I thought Apprendi does cover mandatory minimums, but I don't accept Apprendi. Well, at some point I guess I have to accept Apprendi, because it's the law and has been for some time.

So if and in fact, unfortunately for everyone I was -- I was 5-4 in that, I think, so my vote mattered, and I don't know what other people think but in -- on this Court. But if that becomes an issue, if that should become an issue about whether mandatory minimums are treated like the maximums for Apprendi purposes, should we reset the case for argument? Or do you feel, in your opinion that -- that you have had enough of an argument because you devoted two or three pages to this topic?

MR. HORWICH: Well, to answer -- well, first of all, there certainly has not been in -- in the briefing or argument here any opportunity for this Court to consider what it would need to consider to overrule McMillan. We are not talking about overruling Harris. We are talking about overruling McMillan.

JUSTICE BREYER: Well, I think basically Apprendi did significantly change McMillan, but -MR.

HORWICH: Well, and that -- and that would be my -- my second point, is that -- is that since -- I think it has been become clearer since Harris that the rule in McMillan and the rule in Apprendi coexist quite well, and coexist in a principled fashion, and that there is -- and that there is no -- Harris was correct in light of Apprendi, which is -- which is in the following respect.

JUSTICE BREYER: Does the government believe that it's sufficiently argued this, or would you suggest on the government's behalf that if it becomes an issue it's set for reargument? That was really my question.

MR. HORWICH: Well, yes, we would certainly want to set it for reargument -JUSTICE

SCALIA: That's the right answer.

MR. HORWICH: -- obviously.



JUSTICE SOTOMAYOR: Isn't a minimum always a maximum?


SOTOMAYOR: To the person who would otherwise, at a judge's discretion, qualify for a lower sentence, doesn't it become that person's maximum once you have discretion?

MR. HORWICH: I disagree with that because the principle -- the background -- the basic principle behind Apprendi and our criminal law is that what you can rely on is what Congress has said in the statute or in -- as Booker holds -

JUSTICE SOTOMAYOR: What you can rely on in an indeterminate sentencing regime without a minimum is that you have got a statutory maximum, whatever it may be, but a judge's discretion to start from zero. If that judge was inclined to give you zero, isn't the minimum then your statutory maximum? You're -- because that's what the judge has to give you.

MR. HORWICH: I disagree with that, because it is not the only thing the judge can give you. The full range of punishment above those minimums is available. I was indicating earlier -

Posted by: MJG | Feb 24, 2010 2:44:35 PM

A cynic would now point out that these robed nitwits have painted themselves in a corner by creating a new "right" for jury determination at sentencing out of whole cloth from Apprendi on down. I'm sure they'll figure out a way not to apply this to man mins - for if they DID they'd paint a much bigger group of nitwits who reside across the street from them into a corner that will result in stiff legislated sentences that will, once and for all, show the members of the defense bar who laud Booker what a mistake it all has been. Congress has decided, so far, that a response to Booker is not needed while 85% of the sentences remain w/i the guidelines or sponsored by the government. If SCOTUS rips the man min rug out from under Congress I can hear the squeals from Republicans now about "letting gun criminals run free!" as they pass 924(c) fixes faster than you can say "goodbye Democratic majority."

Posted by: Ferris Bueller | Feb 24, 2010 3:07:11 PM

Ferris, they have already made Apprendi apply to mandatory minimums. See Harris.

Posted by: PD | Feb 24, 2010 4:29:35 PM

Oh, I see what you're saying. It's the opposite of what I thought.

Posted by: PD | Feb 24, 2010 4:30:18 PM

Breyer was the determining vote in Harris, but only because Scalia split off from the Apprendi majority (instead of joining the others in the Thomas dissent). The Kennedy plurality opinion emphasizes the implied maximum of life -- but on p.15 of the transcript, Scalia questions that conclusion. The plurality opinion holds that brandishing and discharging are sentencing factors -- but on p.29 of the transcript, Scalia thinks the Government is conceding the opposite.

Has he forgotten which side he took in Harris?

Posted by: B.J. Priester | Feb 24, 2010 8:03:53 PM

I'm predicting they affirm on statutory interpretation grounds. And, in my mind, that's disappointing because I think there are 5 votes on this Court to overturn Harris, which needs to be done.

Posted by: DEJ | Feb 24, 2010 11:01:30 PM

Whether by re-hearing in Harris or a subsequent cert. grant, I think this does make clear that there is a good chance of Harris being re-visited and Apprendi properly applied to mandatory minimums.

Posted by: Mark Osler | Feb 25, 2010 9:36:42 AM

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