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June 27, 2021

SCOTUSblog flags three notable new sentencing cert petitions

Last year around this time, I expressed my sense that it has been quite some time since the Supreme Court has taken up a really big and interesting sentencing case.  This post from near the end of last year's SCOTUS Term, titled "Do others sense that SCOTUS has become particularly (and problematically?) quiet on sentencing matters?", captured this zeitgeist.  In the year since, we have gotten a few notable sentencing rulings (on juve LWOP in Jones and on ACCA predicates in Borden, but these decisions are more clarifications than game-changers.

I review these broad realities not just because we are approaching the close of another SCOTUS Term, but also because SCOTUSblog has this new post spotlighting three new cert petitions that could each lead to a significant sentencing ruling.  Here some details from a post worth reading in full:

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the use of acquitted conduct in sentencing decisions, when a sentencing court must consider a defendant’s juvenile status as a mitigating factor, and compassionate release under the First Step Act.

According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” While the jury considers whether conduct is proven beyond a reasonable doubt, relevant conduct for sentencing purposes need only be proven to the judge by a preponderance of the evidence and can include acquitted conduct. In Osby v. United States, Erick Osby was indicted on seven charges; the jury convicted him of two and acquitted him of the other five. But because the judge considered his acquitted charges as relevant conduct, his sentence was the same as it could have been had he been convicted by the jury of all seven charges. Osby argues that adjusting a sentence based on acquitted conduct violates his rights under the Fifth and Sixth Amendments, which guarantee due process under the law and the right to a jury trial.  While the Supreme Court has declined to address similar questions on this topic in the past, some of the justices have expressed their discontent with the practice of using acquitted conduct in sentencing decisions.  Osby asks the justices for their review to decide whether the practice is unconstitutional.

Next, in Sanders v. Radtke the justices are asked to consider the impact of juvenile status on sentencing decisions.  The petitioner, Rico Sanders, was convicted of multiple rape and assault charges at the age of 15 and sentenced to 140 years in prison with the possibility of parole at age 51. Sanders maintains that the Eighth Amendment and prior precedent required the sentencing court to consider his youth as a mitigating factor. He argues that the principle requiring sentencing courts to consider youth as a mitigating factor applies to life sentences with the possibility of parole in the same way it applies to life sentences without any possibility of parole. The petition further alleges that Sanders’ youth was used as an “aggravating factor” by the sentencing court, and he seeks the court’s review to clarify the circumstances under which a defendant’s youth must be considered as a mitigating factor.

Finally, Bryant v. United States presents a question regarding the compassionate-release provision of the federal criminal code, as amended by the First Step Act of 2018....  In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement [by the USSC]. Further, the government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion based on the reasons given by the government, and the U.S. Court of Appeals for the 11th Circuit affirmed.  Bryant argues that the decision created a circuit split, in direct conflict with eight other circuits, over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions.  He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.

These three cases will not be fully briefed until later this summer, and so we likely will not know about possible grants until the Fall when SCOTUS returns to action for OT21.  If the Justices were to decide to take up even one of these issues, that would be a big sentencing deal.  I highly doubt the Court will take up all these issues, but I think the circuit split behind Bryant makes it a pretty likely grant and I hope some of the newer Justices might be eager to take up the issue in Osby.  After Jones, I think the Sanders case may be the longest shot (but, given recetn history, perhaps we should just assume the odds are long on all of these).

June 27, 2021 at 09:50 PM | Permalink


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