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March 28, 2012

Fascinating and surprising opinion from SCOTUS in Setser

The Supreme Court this morning handed down an interesting sentencing opinion in Setser v. US, No. 10-7387  (S. Ct. March 28, 2012) (available here), with Justice Scalia authoring the opinion of the Court and Justice Breyer issuing a dissenting opinion (in which Justices Kennedy and Ginsburg joined).  The 6-3 outcome (with all four of the newer Justices along for the ride with Justice Scalia) showcases, yet again, that the Supreme Court's work in sentencing cases is always intriguing and defies the usual left-right divide that often defines the Court's work in other areas.  But the ruling is especially surprising because the Court rejected the position advocated by both the defendant and the US government, and it is especially fascinating because the opinions have a lot more "sentencing dicta" than I had expected this little case to produce.

To understand the Setser basics, here is the concluding paragraph of the majority opinion and the dissenting opinion:

Opinion in Setser:  Because it was within the District Court’s discretion to order that Setser’s sentence run consecutively to his anticipated state sentence in the probation revocation proceeding; and because the state court’s subsequent decision to make that sentence concurrent with its other sentence does not establish that the District Court abused its discretion by imposing an unreasonable sentence; we affirm the judgment of the Court of Appeals.

Dissent in Setser:  Because the Court does not ask why the “multiple sentencing” provision leaves out the authority at issue — concerning the not-yet-imposed sentence — it reaches what I believe is the wrong result.  Consequently, with respect, I dissent.

As these final sentiments highlight, it may be only hard-core sentencing geeks like me who see reason to get worked up about this Setser ruling.  Still, I recommend even the casual federal sentencing fan to take the time to review these opinions closely; it seems to me that there is a lot of "there there" upon careful reading.

March 28, 2012 at 01:07 PM | Permalink


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Indeed, an decision (and dissenting opinion) that only we sentencing geeks can love. But I wish Breyer's dissent hadn't veered off so sharply to sing the praises of "real crime" sentencing (an abomination IMHO). That part of his dissent once again reveals Breyer as the "Godfather" of the USSG, which clouds his usually better and more dispassionate judgment.

Posted by: Prof. Stan Adelman | Mar 28, 2012 1:27:30 PM

Hearty congratulations to Evan Young of Baker, Botts who briefed, argued and won this case after the Department of Justice turned its back on it. I am honored to have been among those who participated in Evan's moot court.

You really have to wonder when DOJ abandons a correct position it had taken previously in order to line up with the criminal.

Posted by: Bill Otis | Mar 28, 2012 2:45:42 PM

Bill, that's probably because the Court's decision today is generally not going to be good for the Executive Branch. DOJ would much rather have the decision on this issue in the hands of BOP (which is part of the Executive Branch, of course) than in the hands of a sentencing judge. There's no mystery why the government took the position it did. In most cases, criminal defendant would rather that federal judges make this decision on the front end rather than have BOP make the decision on the back end.

Posted by: anon | Mar 28, 2012 4:53:54 PM

anon --

All of what you say was, of course, known to DOJ when it took the opposite position in the Fifth Circuit. Still, your point has some merit, and was made to me by none other than Mr. Young himself when he e-mailed me this morning.

Also, from what I've heard, DOJ's switch was not prompted by the concerns you note; it was that the current crew thought today's dissenters had the better reading of the statutory language. Now I can't say this for sure, because I am not in the present DOJ. But it makes sense.

Posted by: Bill Otis | Mar 28, 2012 5:43:16 PM

And as you well know, AUSAs typically argue in the courts of appeals whatever they can to get the lower court judgment affirmed. AUSAs aren't thinking about the bigger picture when they take litigating positions before the courts of appeals. It's just the reality of their jobs. The SG, as you know, does.

So, do you take back your statement that you have to "wonder when DOJ abandons a correct position it had taken previously in order to line up with the criminal" as cheap point scoring? It's very obvious to anyone who knows anything about criminal appellate practice here (including you), and you don't really need to "wonder" anything.

Posted by: anon | Mar 28, 2012 5:56:40 PM

anon --

The answer to your question is no; I don't need your wisdom about how DOJ and AUSA's interact; and I tend not to be pushed around by people who won't sign their name.

You are usually better than this.

Posted by: Bill Otis | Mar 28, 2012 6:10:51 PM

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