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March 30, 2010

Sentencing day at the US Supreme Court

This morning the Supreme Court will hear oral argument on two fascinating and important "back end" sentencing cases: Dillon v. US (09-6338) and Barber v. Thomas (09-5201).

Because I was surprised that the Justices now took up the long-simmering issues in these two cases, I am chary about making any predictions about how the arguments will go. But I hope later this week to be able to offer commentary on what various Justices seem to be thinking in these cases. In the meantime, here are terrific previews of the cases from SCOTUSblog:

I welcome and encourage reader thoughts about either or both of these cases (especially now that comments seem to be working again).

March 30, 2010 at 09:58 AM | Permalink


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I think the Justices should say ok, its 85%
the feds and the BOP seem to take 24 yrs
to change the most obvious of things... Lets get something done for these pour souls.....
Be even better if they could say the rate served is 65%, but that would be far too simple...

Posted by: Goodyr | Mar 30, 2010 2:14:08 PM

There were three avenues/rationale that could result in a win for Dillon:
1) 3582(c)(2) proceedings result in new sentences, so there is a 6th Amend. problem with mandatory guidelines under 1B1.10.
2) Even if a new sentence does not result, the “if such a reduction” clause of 3582(c)(2) must still be interpreted in light of Booker. This does not require 3582(c)(2) proceedings to be de novo resentencings but rather, only asks how to interpret the statute given Booker's holding.
3) Disregarding Booker all together, 3582(c)(2) did not authorize the Commission to issue a binding policy statement. This is purely a statutory interpretation question.

(Note: The government summarizes arguments 1) and 2) on page 30, lines 8-17 of the transcript).

I have always thought that if Dillon is going to win, it would be on grounds 2) or 3) above, and I think the oral argument confirmed that belief.

Based on the transcript, I saw no question-asking Justice really believing that 3582(c)(2) proceedings result in new sentences. (i.e. Roberts, Ginsburg, Breyer, Sotomayor, and Kennedy). I have always thought that this was the weakest argument, and I was disappointed it was stressed so much (in fact, almost exclusively), even though the Justices were responding to the “new sentence” rationale with great resistance.

There was virtually no discussion of grounds 2) or 3). However, I believe Scalia and Stevens might agree with ground 2). See Oral Arg. Transcript at 20-21, 35 (Scalia); 30-31 (Stevens). Regarding ground 3), it was never discussed until Dillon's red light was on, and even then it was only by referencing the briefs. See id. at 46.

Based on the transcript, I don’t see Dillon winning. I hope I'm wrong. Given that arguments 2) and 3) were barely touched upon, I hold out hope that a majority of Justices could agree with those rationales. However, if so, you wouldn't have known it based on the oral argument.

Posted by: DEJ | Mar 30, 2010 4:46:41 PM

Two more points on the Dillon argument.

First, I think Prof. Berman will be pleased to see that Justice Kennedy stressed the usefulness of the commutation/pardon power in cases like Mr. Dillon, where rehabilitation of the individual is not contested. Oral Arg. Transcript at 39. Unfortunately, he may have just been signaling that the Court won't provide Dillon any more relief, but he should try with the executive.

Second, in their amicus brief, the USSC argued that if Dillon wins it is unlikely to make any other guideline amendments retroactive. The govt. argues this at oral argument too. This is a thinly veiled threat to the Court: Don't do it or else. Aside from the audacity of the argument, it's baseless. The further we get away from Booker, the fewer active sentences there are that were done contrary to Booker. Once the pipeline is removed of Booker-problematic sentences, there should be no concern about a Dillon win. Simply put, if the original sentence was done under an advisory GL system, then there should be no administrative concern about a 3582(c)(2) proceeding done under an advisory GL system. Further, it escapes me how giving the district court discretion to go lower than the amended GL range imposed additional "administrative burdens" on the courts.

Posted by: DEJ | Mar 30, 2010 5:03:05 PM

Attended both arguments this morning. On Dillon, the Justices were clearly addressing each other on their questions to petitioner's counsel. Found the most telling line of questioning to be (paraphrasing) "Well, since we've found Booker is not retroactive, why would it be fair for ONLY crack defendants to receive new resentencings under an ADVISORY Guideline system?" On Barber, Justices Alito and Scalia were almost hostile to petitioner's argument, Breyer put the lie to the notion that USSC somehow had the authority OR the intention to require 15% Good Time rate ("When I was on the commission, we knew the Guidelines would only APPROXIMATE prior sentences, and the introduction to the USSG shows that we did not have an expectation of 15%"), Sotomayor "got" the rationale of the BOP's position, and Roberts wasn't particularly sympathetic. Kennedy rather quiet and hard to read, Stevens and, to a lesser extent, Ginsburg both fairly active. Funniest moment of the hour: Justice Stevens "How could Congress understand this complicated calculation method?" Asst. S.G. "Well, your honor, Justice Breyer got it in about 5 minutes." My prediction - at least 6-3 upholding the Circuit Court. Oh, and to poster Goodyr? Desiring a policy outcome is one thing, applying the law is quite another. Do you really think the Supreme Court can, by fiat, impose a 35% Good Time rate?

Posted by: anon | Mar 30, 2010 7:45:45 PM

I also attended the arguments this morning on Dillon (the 3582(c) case) and Barber (the good time case). I posted some comments on TalkLeft. I wouldn't be as negative as "anon," although certainly not predicting a win for Dillon. Barber, maybe. Interesting article here, also.

Posted by: Peter G | Mar 30, 2010 9:42:21 PM

"Well, since we've found Booker is not retroactive, why would it be fair for ONLY crack defendants to receive new resentencings under an ADVISORY Guideline system?"

First, SCOTUS has never held Booker is not retroactive. They granted cert in a Blakely retroactivity case, but did not reach the issue.

Second, this line of argument is entirely unpersuasive to me. The only reason holdings are not automatically retroactive is because of an interest in finality. When Congress allows for a sentence to be modified, any finality interest is significantly lessened. It is not unfair to only allow for defendants whose sentences are subject to modification (and therefore have low finality interest) to obtain the benefit of Booker.

Posted by: DEJ | Mar 30, 2010 10:17:27 PM

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