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December 28, 2017

Silk Road creator Ross Ulbricht raises notable sentencing issue in SCOTUS cert petition

As detailed in this new Reason piece, headlined "Ross Ulbricht Files Appeal to the Supreme Court on His Life Sentence Without Parole: Silk Road founder's appeal stresses the dangerous Fourth and Sixth Amendment implications of his prosecution and sentencing," a notable federal criminal defendant is bringing some notable issues to the Supreme Court via a new cert petition. The full cert petition is available at this link, and here are the petition's seemingly simple questions presented:

1. Whether the warrantless seizure of an individual’s Internet traffic information without probable cause violates the Fourth Amendment.

2. Whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

SCOTUS gurus know that the first question intersects with issues in the pending Carpenter case, and that fact alone might make this high-profile case a poor vehicle for getting to the post-Booker sentencing issue also raised. The petition, notably, suggests "It would be most efficient for the Court to resolve the question presented in this case now, while it is considering a related question in Carpenter."

SCOTUS gurus know that the second question is one that has been repeatedly avoided by SCOTUS since its Booker-Rita rulings wherein the late Justice Scalia suggested that, even within the advisory guideline system created by Booker, there must be some Sixth Amendment limits on findings by judges to justify lengthy prison sentences.  Despite pushing the matter, Justice Scalia could not garner enough votes for this Sixth Amendment issue to be addressed by the full Court on the merits before his untimely demise.  I am not really expecting a different reality now, although Ulbricht's lawyers astutely notes in his cert petition that Justice Scalia's replacement has previously suggested concerns on this front:

Shortly after Justice Scalia’s opinion in Jones, then-Judge Gorsuch similarly observed that “[i]t is far from certain whether the Constitution allows” a judge to increase a defendant’s sentence within the statutorily authorized range “based on facts the judge finds without the aid of a jury or the defendant’s consent.” United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (citing Jones).  Three years later, however, that question re- mains unanswered by the Court, despite intervening opportunities to address it.

A few prior related posts on sentencing and appeals of Ross Ulbricht:

December 28, 2017 at 11:54 AM | Permalink


Question #1 is difficult because cell phone information is more intrusive than IP information. It is a little rich for Ross, of all people, to argue this point when he ran a Tor onion server to make his millions. Better than most he must grasp how it is possible to obfuscate one's IP data. Heck, IIRC they busted him in an internet cafe using public wifi. Cell phone data cannot be obfuscated the same way; there is no cell phone equivalent to Tor or even a VPN.

Maybe this fact should not make a difference. But the 4A is what is reasonable and what unreasonable with one set of facts might be reasonable with another. I'll say this much..if the Court finds that the 4A does not protect Carpenter then there is no way on earth they will find it protects Ross.

Posted by: Daniel | Dec 28, 2017 4:52:40 PM

I see a lot of heads I win, tails you lose in the second issue.

There are three basic different ways to run sentencing.

First, you can have very narrow sentencing ranges (a/k/a mandatory minimums) in which the jury can find the facts necessary to support the punishment. I think that this is probably the model that Justice Scalia had in mind and that Justice Gorsuch has in mind, but most of those involved in the sentencing debate do not like this model.

Second, you can have broad sentencing ranges with unreviewable discretion in the sentencing judges. In such a system, trial judges do not necessarily make express factual determinations. Instead, the judge absorbs all of the evidence and argument made during the entirety of the case and spits out a number. In such a system, the idiosyncracies of the judge control and two judges looking at the same defendant for the same conduct could impose vastly different sentences.

Third, you could have broad sentencing ranges with reviewable discretion in which trial judges have to explain what motivated their sentencing decision. An appellate court later determines if those motivations are "reasonable." Necessarily, there will be different interpretations of the evidence -- including the evidence about the defendant's character and the precise harm caused by the offense (with the caveat that the jury will have found the minimum harm required to trigger the range of punishment) -- and the judge will make findings about how they viewed that evidence. The current federal system mostly falls into this category.

If you want reviewable sentencing decisions, the options are really the first system and the third system. You either very narrowly define the harms that trigger a certain range of punishment and have the jury make that finding (e.g., one range of punishment for ten to fifteen kilos of marijuana, another range of punishment for fifteen to twenty kilos, etc.). Alternatively, you can have a broad range of harms and a broad range of punishment, but judges are likely to care about the exact harm in imposing punishment (e.g., if the same range of punishment applies to distributing thirty images of child pornography and to distributing 100 images of child pornography, judges are likely to consider the exact number of images in deciding whether to impose a sentence near the minimum or near the maximum). My opinion is that the Constitution does not require a system of mandatory minimums with no judicial discretion. (It also does not bar such a system.) I can't see a majority of the Supreme Court forcing Congress to adopt a system that is entirely mandatory minimums.

Posted by: tmm | Dec 29, 2017 10:44:07 AM

As I explained in a few articles after Blakey, tmm, I think a sound sentencing can and should distinguish between offense facts and offender factors at sentencing. As I see it, all offense facts that will have a measurable impact on a sentence can and should have to be proven to a jury beyond a reasonable doubt, but offender factors can be subject to less rigorous procedural protections when used at sentencing. (For constitutional convenience, I would define measurable impact as six months' imprisonment in keeping with the current interpretation of when the Sixth Amendment jury trial right kicks in.)

I believe Ross Ulbricht's case brings these matters into stark relief: I believe his LWOP sentence was premised on the district court finding by a preponderance of the evidence that Ulbricht commissioned at least five murders in the course of protecting Silk Road’s anonymity. As I see it, if the feds believe Ulbricht commissioned a bunch of murders, they can and should indict him and try him for those murders rather than seek punishment for those murders only after securing convictions on drug charges.

Posted by: Doug B | Dec 29, 2017 6:27:23 PM

Prof. Berman. You want procedure for each crime, to generate lawyer jobs returning no value to the taxpayer. Incapacitation addresses the person. It is the sole mature and effective aim of the criminal law. The rest is rent seeking bullshit.

That was the charm of 123D. You could execute a serial killing drug kingpin, after a shoplifting charge, and protect future victims from the serial killer. You only care about generating layer fees. You just do not care about protecting murder victims.

Posted by: David Behar | Jan 5, 2018 10:10:21 AM

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