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June 17, 2010

SCOTUS rules 7-1 against defendant in crack retroactivity case

Fittingly, the Supreme Court this morning has handed down its biggest federal sentencing ruling this Term with a decision against the defendant in Dillon just as the big annual US Sentencing Commission conference gets started. I will comment on the opinion later today, but I am certain that the US Sentencing Commisioners will be pleased with this outcome.

The opinion can be accessed here.

UPDATE: The opinion for the Court draws a clear (and I think justified) distinction between sentence modification proceedings and full sentencing. Once that is done, the Court does not find it too hard to explain why Booker's advisory remedy does not apply to modification proceedings.

June 17, 2010 at 10:07 AM | Permalink


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Concerning the merits of the opinion: I agree with the Court that 3582(c)(2) proceedings are not "resentencings." I agree less with the Court that Booker still does not apply. Personally, I think that even though it is not a "resentencing," Booker's remedy must nevertheless still be applied. I acknowledge, however, that a contrary conclusion is not unreasonable. Further, I think that Stevens' separation of powers discussion is quite interesting. Come the next retroactive amendment, all defendants should be sure to argue it, even though its argument is most potent (for practical purposes) in the context of the crack amendment, as explained below.

That being said, what upsets me about this opinion is that it demonstrates just how un-just Mr. Dillon (and many, many others) have been treated. And it is the Sentencing Commission who could have remedied this problem, but didn't.

Let me explain why:
The USSC has said its own guideline amendment 706 is inadequate. It is “only a partial solution”, “only a partial step” and an "interim measure" to correcting the problem associated with the sentences of crack cocaine offenders. The USSC has described this problem as “urgent and compelling.” Yet, in what can only be described as astonishing, the USSC then inserts into 1B1.10 the crack amendment and simultaneously does everything it can to prevent a district court from further correcting the crack sentencing problem.

Generally speaking, 1B1.10 is premised on the assumption that the amended guideline range is “sufficient to achieve the purposes of sentencing.” 1B1.10 “Background”. But in the context of Amendment 706, 1B1.10 is premised on nothing more than an ADMITTED LIE. In one breath the Commission claims the amended crack guideline range is “sufficient to achieve the purposes of sentencing.” 1B1.10 “Background”. In the very next breath, the Commission reports that the amended guideline continues to “significantly undermine[] various congressional objectives set forth in the Sentencing Reform Act and elsewhere” and is neither “permanent” nor “complete.” Amend. 706 (“Reason for Amendment”).

This is nothing short of a Sentencing Commission, a la Jekyll and Hyde.

Everyone -- the USSC, the DOJ, the Court -- agrees that Mr. Dillon (and others) were sentenced unjustly and that the amended crack guideline still works an injustice. Yet, and I'll repeat it again, the USSC made sure the injustice could not be fully alleviated.

So what could the USSC have done? Well, in light of its own admission on the inadequacy of Amend 706, one option the USSC could and should have followed is to allow, at the dist. ct's discretion, the imposition of a below-amendment-Guideline reduction if the 3582(c)(2) proceeding was based on Amendment 706. As Stevens very correctly explained, this would not have been an overly-burdensome process, and what little extra process it required would be far outweighed by the benefit obtained. And it would be a very practical and effective way for the USSC to acknowledge that Amend 706 is not "sufficient to achieve the purposes of sentencing.”

Instead, we are left with a retroactive Guideline amendment that continues to work an injustice to thousands of imprisoned individuals.

The Sentencing Commission should be ashamed of itself. Since this is the first day of their Conference, and now that we know Dillon's holding, it would be great if they could be asked about 1B1.10's lie in the context of Amend 706.

Posted by: DEJ | Jun 17, 2010 3:34:25 PM

What is old news by now yet I believe an equally unjust circumstance, especially troubling given the Barber ruling last week and now the Dillon ruling, is the furter injustice resulting after receiving a reduced sentence as outlined by the Amendment. From what I recall this matter has received little if no attention. But how is it a JUDGE can enter an order reducing a sentence by 57 months, yet after the BOP's recalculation the individual receives only 50 months? Yet the BOP is allowed to get away with such behavior? The Justices had two opportunities to correct unfair sententces, choose to refuse to grant relief and declined to force the BOP to correct their calcualation method! That is just another bitter pill to swallow for thousands who have already suffered too long from sentences which everyone seems to agree never should have been in the first place.

Posted by: ARS | Jun 18, 2010 10:20:39 AM

you'll notice the court never says a court is required to treat 1B1.10 as mandatory -- it only says that courts are not required to do what Mr. Dillon argues for. The court just doesn't say flat out that 1B1.10 is advisory. Which to me means that 1B1.10 is advisory and courts may treat it as such. Some judge is going to see that. Then we'll have another challenge -- this time by the government. :)

Posted by: = | Jun 18, 2010 11:14:09 AM

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