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January 7, 2013

SCOTUS cert grant and argument in cases (only?) hard-core sentencing fans should love

After its usual lengthy holiday recess, the US Supreme Court is back in action this week with a full slate of oral arguments and with plans to issue opinions in cases argued earlier this Term on both Tuesday and Wednesday.  And, as well covered here at SCOTUSblog, the Justices got all the new year action off to a running start with a trio of cert grants which included a plea practices case:

The Supreme Court agreed on Friday to rule on the rights of non-Indian couples to adopt an Indian child over the objection of a parent who is a tribal member.   That was one of three newly granted cases. The others deal with the remedy if a federal judge has some role in plea bargaining discussions, and a dispute among states over sharing the waters of a river that flows between them....

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal.  The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out.   The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.

If the issue that the Justices have now taken up in Davila is not intricate enough to scratch the procedural itch of hard-core sentencing fans, today's first scheduled SCOTUS oral argument should provide the perfect balm. Dan Richman provides at SCOTUSblog a great preview of the case in this post with the metaphysical title "When is a burglary a 'burglary'?". Here is how the post starts:

Because its application brings some of the federal system’s harshest mandatory penalties, and requires federal courts to categorize a diverse range of prior state convictions (most of which arose out of guilty pleas on undeveloped records), the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), has provided the Court with considerable business (and a fair amount of exasperation).  Descamps v. United States, 11-9540, set for argument on Monday, January 7, presents the Court with yet another categorization exercise that highlights the tension between such exercises and the Court’s developing constitutional doctrine about when judges can find facts in criminal proceedings.

These paragraphs from Dan's terrific preview spotlights why anyone who enjoys (or hates) visiting Apprendi-land should keep an eye on Descamps:

While the issue is pitched as one of statutory interpretation, substantial constitutional concerns lurk just beneath the surface.   As the Court explained in Cunningham v. California, under the Apprendi line of cases, the Sixth Amendment right to jury trial prohibits “a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.”  The doctrine’s focus on statutory maximums (which are rarely imposed), but not mandatory minimums (which always are) is an artifact of a line of cases that, on January 14, 2013, will, once again, be up for reconsideration when the Court hears argument in Alleyne v. United States.  But the rule’s carve-out reflects the continued vitality of Almendarez-Torres v. United States, which held that fact-finding as to the existence of prior convictions can be done by judges, not juries, even when such findings can increase a defendant’s statutory maximum.  Because this carve-out is a glaring exception from the constitutional rule, the Court has patrolled it carefully, in cases like Shepard v. United States, which limited the universe of materials a sentencing court can consult to determine what the jury in the prior case was actually required to find, or what the defendant necessarily admitted....

Although the Court specifically refused to grant that part of Descamps’s petition asking for Almendarez-Torres to be overruled, it will be interesting to see whether hostility to that case drives oral argument.  By Justice Thomas’s tally in Shepard v. United States, “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.”  So look for the Justices to limit the Almendarez-Torres carve-out by making inquiries into the nature of prior offenses as mechanistic as possible.  Given the warnings by lower courts of the practical and constitutional difficulties raised by the Ninth Circuit’s outlier approach, we should expect the government to face an uphill battle.  And, for all its technical aspects, it is one worth watching, as the heaviness with which the federal hand comes down on a lot of defendants depends on how their prior criminal convictions get categorized.

UPDATE The oral argument trascript in Descamps is now available at this link.  I will blog about anything interesting I find within it if/when I have time this evening (in other words, if the National Championship game gets boring).

January 7, 2013 at 11:20 AM | Permalink


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How silly can you get? This is another cat chasing is own tail.

Posted by: Tom McGee | Jan 7, 2013 2:42:13 PM

I'm a big fan of SCOTUSblog, but I don't think the description above is all that clear about what's really at stake in Descamps.

Simply put the issue is: whether the modified categorical appraoch may be used to find non-element facts about a prior conviction.

That issue has far-reaching implications for federal sentencing law. Why? Because the modified categorical approach is such a frequently-used concept in examining prior convictions -- and not just under the ACCA.

Posted by: DEJ | Jan 7, 2013 3:15:11 PM

Not knowing the exact facts of the case, the risk of dicta in Davilla worries me. While technically the case only involves the federal rules, it is likely that some will try to argue that the holding has some due process elements.

The reality of life in state courts is that, on the difficult cases, at some point one of the two parties will suggest talking to the judge in chambers to get her temperature about whether she would accept the plea agreement or what the likely sentence would be on an open plea. While there is a certain point at which the judge goes too far, I don't think a judge saying that he does not take Alford pleas on a sex case or that she would want a sentencing report before even considering probation on a homicide charge is the type of thing that runs afoul of any reasonable interpretation of the ban on a judge getting involved in negotiations.

Posted by: tmm | Jan 7, 2013 5:02:24 PM

I hear what you are saying tmm but certainly that is not the fact pattern in Davila. The government's position in that case is basically that the judge can get involved in plea negotiations so long as the judge dishes out "good advice". That position is offensive to people of good will for two reasons. First, it totally ignores the fact that the judge is supposed to be a neutral party and when the judge steps out of that role the impartiality of the court is scorned. Second, it ignores the fact that the judge is in a position of power over both the defendant and the prosecution and no matter what advice the judge gives it can and will be seen as powerful and mostly likely decisive.

In saying that I don't question the good will of the judges but strongly feel that whatever their good intentions it's simply not their job to be getting involved in plea negotiations. I recognize that a bright and harsh line where the judge is prevented from even doing the minor things you suggest is bothersome as a day to day reality IMO that might just be the necessary price to pay.

Posted by: Daniel | Jan 8, 2013 2:17:50 AM

One exchange I found interesting (even if it merely confirms what we already knew). Justice Breyer wanted to simplify the case and simply hold that that the prior CA conviction was a "violent felony" under the ACCA's residual clause, regardless of whether it could be classified as generic burglary. He asks both sides why they haven't argued the residual clause.

I think the best answer (which neither side gave) was that arguing the residual clause was outside the scope of the issue the Court granted cert on.

Regardless, Scalia's retort was entertaining:

Maybe they haven't argued it [i.e. the residual clause] because there's some serious constitutional doubt about whether the statute which makes it a crime to engage in conduct which creates a serious risk of physical injury is constitutional. That's such a vague standard, you go to prison for 30 years if you engage in conduct, quote, "that creates a serious risk of physical injury." I'm not about to buy into that one.

Transcript at 27-28.

Posted by: DEJ | Jan 8, 2013 1:09:06 PM

to me, not only is the residual clause perhaps vague, the SCT law so far has failed to give meaning to the plain language. the clause captures offenses that present a "serious" potential risk of injury. james says 3% satisfies the residual caluse, but did not consider what the word serious means. surely we don't think 3% is a serious risk. if the weatherman said there was a serious risk of 6 inches of snow and meant there was a 3% chance, we'd laugh at him. surely a serious risk must be at least 15 or 20 %

Posted by: big bad wolf | Jan 8, 2013 9:53:45 PM

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