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March 1, 2017

Justices seem disinclined to limit federal judicial sentencing discretion in Dean

The US Supreme Court yesterday heard oral argument in Dean v. United States.  The case will resolve a circuit split over whether federal district judges, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the firearm mandates.  The oral argument transcript, available here, is a interesting read for a bunch of reasons.  And I have a little summary of the argument posted here at SCOTUSblog.  Here is how that posting starts: 

It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States At issue in Dean is whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.  During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c).  But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion.  This textualist point may carry the day for the defendant. 

March 1, 2017 at 10:10 AM | Permalink


I'm surprised Dean's counsel didn't rely heavily on the logic and rational laid out in U.S. v Smith as Judge Gorsuch's opinion in that case is pretty clear in why Pepper's deference to 3661 should control in this case. Additionally, it literally gave counsel the opportunity to say to the Court, in defense of his position, that "the honorable judge Gorsuch, writing for the Tenth Circuit in Smith, stated ..." I would have love to have heard the responses, if any, to the fact that a pending potential colleague was being cited as authority.

Also, Gorsuch's opinion points out a valid issue with the Court's holding in Watts and the government's now reverse claim. Gorsuch writes:

"The government's theory in this appeal sits uneasily, too, with the even more specific guidance the Supreme Court has provided about § 3661's application in the § 924(c) context. In United States v. Watts, the Court read § 3661 to permit a sentencing court to find by a preponderance of the evidence that the defendant engaged in the conduct alleged in a § 924(c) charge — even though he was acquitted on that charge — and then use that finding to enhance his sentence for the underlying crime of violence. 519 U.S. at 156-57, 117 S.Ct. 633. And given that, one might well ask this: How can it be that § 3661 authorizes a sentencing court to consider facts related to a defendant's § 924(c) acquittal when fashioning a sentence for the underlying crime of violence but not facts related to his § 924(c) conviction and sentence?"

That last question could have been adopted by Dean's counsel and used in the closing of his argument to drive home the tension between the two cases. Given that Scalia writes in his Watt's concurrence that:

"18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” In my view, neither the Commission nor the courts have authority to decree that information which would otherwise justify enhancement of sentence or upward departure from the Guidelines may not be considered for that purpose ..."

one would think that a textualist reading of the statute and ruling in favor of Dean would be a "Scalia approved" opinion.

Posted by: Sean | Mar 2, 2017 12:41:31 AM


Why is 924(c) even constitutional for sentencing purposes under the DJ clause? The structure of 924(c) seems indistinguishable from felony murder (predicate offense and an extra bit - death (felony murder) or gun (924(c)). So sentencing for both this and the underlying crime as 924(c)(1)(D)(ii) demands runs head long into Harris v. Oklahoma.

Posted by: matt | Mar 2, 2017 10:01:57 AM

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