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October 14, 2014

Three Justices dissent from denial of certiorari in Jones/Ball acquitted conduct case

I am very disappointed to have to report that this morning the Supreme Court denied certiorari review in the notable federal drug sentencing case from DC involving Antwan Ball and his co-defendants concerning judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal.  As I noted in this post last week, Jones v. US, No. 13-10026, was relisted by the Justices after their "long conference."  Now today's SCOTUS order list has at the very end the news that cert has been denied in Jones v. US, No. 13-10026, with a three-page dissent from that decision authored by Justice Scalia and joined by Justices Thomas and Ginsburg.  Mega-bummer!!!

Here is the bulk of Justice Scalia's dissent from the denial of cert in Jones (with emphasis in the original): 

A jury convicted petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball of distributing very small amounts of crack cocaine, and acquitted them of conspiring to distribute drugs. The sentencing judge, however, found that they had engaged in the charged conspiracy and, relying largely on that finding, imposed sentences that petitioners say were many times longer than those the Guidelines would otherwise have recommended.

Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been “substantively unreasonable” and therefore illegal.  See Rita v. United States, 551 U.S. 338, 372 (2007) (SCALIA, J., joined by THOMAS, J., concurring in part and concurring in judgment).  If so, their constitutional rights were violated.  The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.”  Alleyne v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 483, n. 10, 490 (2000), and “must be found by a jury, not a judge,” Cunningham v. California, 549 U. S. 270, 281 (2007).  We have held that a substantively unreasonable penalty is illegal and must be set aside.  Gall v. United States, 552 U.S. 38, 51 (2007).  It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable — thereby exposing the defendant to the longer sentence — is an element that must be either admitted by the defendant or found by the jury.  It may not be found by a judge.

For years, however, we have refrained from saying so.  In Rita v. United States, we dismissed the possibility of Sixth Amendment violations resulting from substantive reasonableness review as hypothetical and not presented by the facts of the case.  We thus left for another day the question whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness.  551 U.S., at 353; see also id., at 366 (Stevens, J., joined in part by GINSBURG, J., concurring) (“Such a hypothetical case should be decided if and when it arises”).  Nonetheless, the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range....

This has gone on long enough.  The present petition presents the nonhypothetical case the Court claimed to have been waiting for.  And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.  Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs.  The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. The Guidelines, petitioners claim, recommend sentences of between 27 and 71 months for their distribution convictions.  But in light of the conspiracy finding, the court calculated much higher Guidelines ranges, and sentenced Jones, Thurston, and Ball to 180, 194, and 225 months’ imprisonment.  

On petitioners’ appeal, the D. C. Circuit held that even if their sentences would have been substantively unreasonable but for judge-found facts, their Sixth Amendment rights were not violated.  744 F. 3d 1362, 1369 (2014).  We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.

I am especially disappointed that Justice Scalia and his joiners here could not garner one more vote to grant cert from any of the newer Justices who came on the Court after Blakely and Booker became the Sixth Amendment law of the land.  Of course, Justice Alito has frequently shown his disaffinity for expanding the Sixth Amendment rights recognized in those cases.  But Chief Justice Roberts joined the Blakely gang in applying (and arguably expanding) Sixth Amendment rights in Cunningham v. California and Justices Sotomayor and Kagan have "shown empathy" for defendants seeking expanded applications of the Sixth Amendment in more recent cases such as Alleyne.  As I will explain in a future post, anyone (like me) hoping that Justices Sotomayor and Kagan might end up being even more committed to defendants' procedural rights at sentencing has to be deeply troubled by their disinclination to provide a fourth vote for granting cert in Jones.

Previous related posts on this case and acquitted conduct sentencing enhancements:

October 14, 2014 at 09:58 AM | Permalink


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One vote short of the four votes needed to grant Certiorari.

Posted by: Jim Gormley | Oct 14, 2014 10:00:49 AM

I understand Breyer's intransigence since he's been locked into acquitted conduct as the cornerstone of the USSG since the very beginning, but I'm totally at a loss to understand where Sotomayor and Kagan are on this. The split of the Justices (and seeming lack of courage and intellectual honesty) here is beyond ironic.

Posted by: Stan Adelman | Oct 14, 2014 10:27:47 AM

Perhaps someone's (or some-two's) worried about how a vote on the merits would come out . . .

Posted by: SH | Oct 14, 2014 10:37:46 AM

I think you are right, SH, but just elevating the debate by having this before SCOTUS would be very valuable and might even "shame" Justices like Kennedy or even Roberts to reconsider Watts.

Ultimately, as I will say in a coming post, I think Justices like Breyer, Kennedy and Roberts realize that taking up a case like this --- especially if/when the ruling below might be affirmed --- would give the court a(nother) black eye. I suspect Breyer Kennedy and Roberts, perhaps at the same time they made Sotomayor and Kagan happy by denying cert in the SS marriage cases, requested that Sotomayor and Kagan vote to deny in this case for the time being.

Posted by: Doug B. | Oct 14, 2014 11:18:32 AM

This may seem puzzling to many, at least those not SCOTUS-philes, with regard to the political makeup of the justices involved in the cert-denial / dissent of cert denial scuffle.

Scalia is not, last I heard, pro criminal, and Kagen / Sotomayor / Breyer were not heavy sentencing afficianados. What gives here?

The point I've been trying to make is that there is a "Constitutional Interpretation" split among the justices, and NOT a conservative/liberal split. For the most part, those who have followed rigid constitutional authority have been more aligned with the right (Thomas, Alito, Scalia) than the left (Kagan, Sotomayor, Breyer, Ginsburg). The left is more open to a "fluid" or "evolving" constitutional jurisprudence. (Notable was Kagan's preference for a foreign Constitution over the US Constitution which should frankly disqualify ANY judge, not just a Supreme Court justice, but I digress).

Scalia's remonstrance was indicative of providing one of those moments where people, if they get past the "What the Fudge?" reaction, realize the true nature of how Constitutional helps everyone, not just those of a particular political bent.

Posted by: Eric Knight | Oct 14, 2014 11:38:35 AM

This issue shows the complexity of the divisions of the USSC, which does not always come down on a strict liberal/conservative axis. Take a look at the Blakely break-down:

Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Breyer, J., joined, and in which Rehnquist, C. J., and Kennedy, J., joined except as to Part IV—B. Kennedy, J., filed a dissenting opinion, in which Breyer, J., joined. Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined.

We saw something similar in certain Confrontation Clause rulings -- on certain issues, Scalia/Thomas (not always voting the exact same way) see certain constitutional clear lines that have pro-criminal rights results. Roberts/Alito are less formalist in various cases. This means, given Breyer's past actions, Sotomayor/Kagan is key here and might be more hesitant in expanding past cases than their predecessors.

The reference to the SSM denials seem a bit stretched though both probably have prudential elements. I agree the matter is due to be taken & the "black eye" concern seems overblown. But, the author is a lot more knowledgeable on the subject than I.

Posted by: Joe | Oct 14, 2014 12:19:31 PM

ETA: SCOTUSBlog has a post on this denial and also referenced Dunlap v. Idado.


Posted by: Joe | Oct 14, 2014 12:21:12 PM

"Scalia is not, last I heard, pro criminal"

Scalia voted for the defendant in *every* Fourth Amendment case last term. Breyer, of course, voted against. One problem is that a line of argument that gets Scalia's vote inevitably loses Breyer, and vice versa.

The Justices are a bit more complicated than the popular media portrayal, especially, as noted by Joe above, on the Confrontation Clause and right to trial by jury.

Posted by: John Thacker | Oct 14, 2014 1:37:06 PM

I wasn't certain Scalia would be in Ball's camp here. Since he was (and Thomas too) the fact that at least Sotomayor wasn't interested suggests to me that they didn't think they could get five votes. A dissent from denial of cert is much better than a dissent in an opinion on the merits.

Posted by: Erik M | Oct 14, 2014 2:20:56 PM

Thomas wrote Peugh vs. US, which Scalia dissented from, so he's less surprising, I agree. But this was *the* best case to test this proposition, since the jury explicitly found the defendants not guilty and the judge essentially reversed. It really was the perfect test cases.

Note too, as Scalia does, that the lower courts have essentially been interpreting the Court's silence as consent to these kind of enhancements.

Posted by: John Thacker | Oct 14, 2014 4:22:05 PM

what this so-called issue proves is this group of retards now holding the bench of the USSC are both a joke and a criminal gang involved in destroying the United States Constitution.

Posted by: rodsmith | Oct 14, 2014 10:52:09 PM

John, just a point of clarification. Sotomayor wrote Peugh, to which Thomas dissented. But I agree that this was a very good test case. The only thing that would have made it better was if the acquitted conduct was less-directly related factually to the jury's finding of guilt. Here, you had three guys selling drugs together who were acquitted of conspiracy. Not disagreeing with the jury finding, but you can imagine the judge easily getting over the preponderance hurdle on the facts.

Peugh v. U.S.: Reversed and remanded, 5-4, in an opinion by Justice Sotomayor on June 10, 2013. Justice Ginsburg, Justice Breyer, and Justice Kagan joined the opinion in full and Justice Kennedy joined the opinion except as to Part III-C. Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts, Justice Scalia and Justice Alito as to Parts I and II-C. Justice Alito filed a dissenting opinion in which Justice Scalia joined.

Posted by: TJH | Oct 15, 2014 12:31:05 PM

"One problem is that a line of argument that gets Scalia's vote inevitably loses Breyer,"

I believe that this largely because of bad lawyering. Because of the way that these two justices see the law you will never get them to agree on every case. But there is no good reason why a well-tailored argument can't pick up both votes in some cases.

Posted by: Daniel | Oct 15, 2014 4:03:38 PM

How can an individual now consent to serving on a jury, when a judge can overturn a not guilty verdict ? In fact, after being acquitted of conspiracy charges, the judge tried him again on the same count ( amounting to double jeopardy ) and found them guilty and denied them their jury verdict.
Just another FUBAR decision by our traitorous SCROTUM justices. So was their decision that the death penalty is unconstitutional for child molesters. Everyone dies, so the death penalty in and of itself is not unconstitutional ( nor cruel and unusual ), only the manner of execution can be cruel and unusual.
Jurisdiction - How can one submit to jurisdiction of a court that does not have to obey the verdict of the jury ?
I demand that the House Of Representatives impeach the 6 dishonorable justices who did not either vote to overturn the lower courts decision, or who didn't vote to review the unconstitutional sentence given.

Posted by: Michael Martin | Oct 18, 2014 1:34:53 PM

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