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June 23, 2011

Another take on the consequences of SCOTUS crack retroactivity work in Freeman

A thoughtful reader sent me and allowed me to post here his take on today's Freeman ruling by the Supreme Court (basics here, opinion here), which seeks to counter my first-cut, from-the-gut reaction that that because of the 4-1-4 split of the Justices "few other defendants will benefit from [Freeman's] win." Here is that take:

In Freeman v. U.S., (plurality opinion) (available here), the Supreme Court reversed the Sixth Circuit’s ruling that a defendant who entered into a Rule 11(c)(1)(C) plea agreement was ineligible for a reduction of sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines that lowered the Guideline range.

The plurality reasoned that because, even in cases where the sentence imposed varies from the Guideline range, a sentencing judge is required to consider the Guidelines when deciding whether to accept and impose the specific sentence agreed upon by the parties in an 11(c)(1)(C) plea, an 11(c)(1)(C) sentence is "based on" the Guidelines.  Because § 3582(c)(2) applies in cases when a sentence was "based on" a subsequently amended Guideline range, an 11(c)(1)(C) defendant is therefore eligible for § 3582(c)(2) relief.

[Note: Justice Sotomayor provided the decisive fifth vote in a separate concurrence, based on different grounds from the plurality opinion: Justice Sotomayor concluded that Freeman was entitled to § 3582(c)(2) relief because his plea agreement expressly provided that his sentence was based on the Guidelines.  Justice Sotomayor stated that in the future, "[n]othing prevents the Government from negotiating with a defendant to secure a waiver of his statutory right to seek sentence reduction under § 3582(c)(2), just as it often does with respect to a defendant’s rights to appeal and collaterally attack the conviction and sentence."  In the future, citing Marks v. U.S., 430 U.S. 188, 193 (1977), the government may invoke Justice Sotomayor’s concurrence (and her view that § 3582(c)(2) rights are waivable) as expressing Freeman’s holding, on the ground that her concurrence expressed the "narrowest grounds" for the decision.

The Supreme Court, however, has questioned MarksSee, e.g. Nichols v. U.S., 511 U.S. 738, 745 (1994) (declining to follow Marks’ approach).  The "narrowest ground" approach is arguably inapposite in cases like Freeman, where, as Justice Sotomayor’s concurrence states, the conclusions "differ as to the reason why," that is, the rationales for the plurality and the concurrence are not "nested" within one another like "Russian dolls."  See Note, Plurality Decisions in the Supreme Court of the United States, A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 113 (2007) (citing King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991) (en banc)).  Arguably, in cases like Freeman, "lower courts should treat plurality decisions as binding only for the result that a majority of the court would support based on their stated rationales." Id. at 130 (citing Rapanos v. U.S., 547 U.S. 715, 810 (2006) (Stevens, J., dissenting). In Freeman, the majority agreed only to reject the dissenters’ view that 11(c)(1)(C) defendants are categorically ineligible for § 3582(c)(2) relief.  Whether some of these defendants might be ineligible on the separate grounds stated by Justice Sotomayor (because there is no mention of Guidelines in their plea agreement, or because there is an express waiver of § 3582(c)(2) in their plea agreements) remains an open question.]

June 23, 2011 at 06:07 PM | Permalink


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