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June 4, 2018

Many hundreds of federal prisoners surely thrilled by Hughes, but thousands surely disappointed by Koons

As I mentioned in this post a few months ago around the time of SCOTUS oral argument, a lot of federal prisoners had a lot of interest in the two sentence modification cases on the SCOTUS docket.  Now that we have decisions in the sentence modification cases of Hughes and Koons (basics here), a bit of (too) simple accounting seems in order.

Helpfully, Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines reports that 781 prisoners have been denied a sentence reduction "because of binding plea" (the issue in Hughes) and that 3070 prisoners have been denied a sentence reduction because "mandatory minimum controls sentence."  Though these numbers are not the full universe of who might be impacted by these rulings, it does suggest that, speaking quantitatively, these rulings were a bigger win for federal prosecutors than for federal defendants.

Prior related post:

June 4, 2018 at 11:31 AM | Permalink


Lawyer question. Are plea agreements contracts? Does the state UCC apply to plea bargains? Does the Contracts Dispute Act of 1978 apply to federal plea agreements? If that is not true, what contract rules do apply?

Is there a contract defense called, unforeseen circumstances? If there is, should plea agreements be revised? Are changes in legislation and appellate decisions not the ultimate in unforeseeable circumstances?

Posted by: David Behar | Jun 4, 2018 4:28:11 PM

They are generally treated like contracts, but not with the same formality. Here is one of lots of article on the topic:

Posted by: Doug B. | Jun 4, 2018 5:03:54 PM

DB1 simply asks a question and then DB2 answers.

Unless DB1's account was being used by somehow else, this is a telling case that implies that DB1 is largely a sort of character that now and then is absent.

Posted by: Joe | Jun 4, 2018 9:28:29 PM

What effect will Hughes have on defendants who have already filed § 3582(c)(2) motions and been denied because they were in a circuit that had adopted Justice Sotomayor's concurrence in Freeman? Are they out of luck, are they now entitled to relitigate their § 3582(c)(2) motions under the proper standard, or do we not yet know?

Posted by: Jer Welter | Jun 4, 2018 11:49:49 PM

Great question, Jer. I found a recent 10th Circuit opinion holding that district judges have jurisdiction to consider successive motions under 3582 and it cites to other circuits finding same: https://www.ca10.uscourts.gov/opinions/17/17-6001.pdf

I think a fair read of the statute and certainly the equities all permit allowing defendants a second bite if they lost due to Freeman. But that is just my two cents. I sure hope DOJ won't oppose second filings, and the statute even states that the court may even act "on its own motion."

Posted by: Doug B | Jun 5, 2018 12:01:39 AM

UCC does not apply because neither the defendant nor the government qualifies as a merchant and the contract relates to acts rather than goods. The UCC is a model code based on some traditional contract principles refined for commercial purposes. Those traditional principles would still apply to plea bargains. The major exception to traditional contract principles in the case of plea bargains is the Double Jeopardy Clause, limiting the ability to set aside the agreement. As far as the Contracts Dispute Act, while the bargain itself might be analyzed under traditional contract principles, the conversion of the contract into a judgment of the court takes it out of the Contract Dispute Act and into the rules of court for when judgments may be set aside.

Posted by: tmm | Jun 5, 2018 5:12:40 PM

Doug, thanks for that informative response. I had a hazy recollection that there was a problem with successive § 3582(c)(2) motions from when I clerked for a district judge in the 4th Circuit. Green, the 10th Circuit decision you cite, holds that there is no jurisdictional bar to successive motions. It also cites a recent 4th Circuit decision (US v. May, 855 F.3d 271 (4th Cir. 2017)), which appears to have ameliorated somewhat the tricky 4th Circuit precedent I had dimly remembered (a 2011 case called Goodwyn, as Mays has reminded me).

It appears that, per May, the law in the 4th Circuit is now that, as to "both purely successive § 3582(c)(2) motions and § 3582(c)(2)-based motions for reconsideration: A defendant cannot obtain relief on the basis of such motions, but this prohibition is non-jurisdictional and thus subject to waiver."

So your hope that the DOJ won't oppose Hughes-based successive filings might be right where the rubber will meet the road, at least in the 4th Circuit.

Posted by: Jer Welter | Jun 5, 2018 6:24:29 PM

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