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September 30, 2021

SCOTUS starts new term with four new cert grants, one involving the sentencing process for retroactive crack case resentencing

I was pleased to see that the Justices decided to give us a taste of the start of the new SCOTUS Term by issuing this morning this one-page order list that includes the granting of certiorari in four new cases (all of which are likely to be heard in early 2022).  And I am even more excited to see that there was a federal sentencing case on the certiorari granted list, "20-1650 CONCEPCION, CARLOS V. UNITED STATES."  Here is the SCOTUSblog collection of docket entries in this case, and it is interesting to see that (unlike most cases that get granted) the Justices did not need a relisting to decide it should take up this matter.  And here is a link to the cert petition from Mr. Concepcion that sets forth this question presented:

Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. § 841 note, a district court must or may consider intervening legal and factual developments.

Notably, back in February of this year, this post titled "Reviewing the still uncertain state, and the still certain need, for effective federal crack retroactivity resentencing" reviewed some of the persistent legal questions arising in the thousands of retroactive crack case resentencings that Section 404(b) of the First Step Act of 2018.  I am pleased to see SCOTUS take up some of these issues in Concepcion, and I hope the Justices will be able to some more clarity to retroactive resentencing procedures.

Earlier this week, I flagged in this post a number of other sentencing issues swimming around in the cert pool that are worth watching in the weeks and months ahead.  I assume we will get a much, much, much longer order list on Monday morning where we will likely see cert denied on some of these issues but also possible relisting of others.  So, SCOTUS sentencing fans, stay tuned as engines are just getting started for the new Oct21 Term.

September 30, 2021 at 10:12 AM | Permalink


Meanwhile, President Biden (pushed back for various things on criminal justice while doing some positive things too) submitted some more good federal judicial nominees, including multiple people (again) with experience as public defenders.


Posted by: Joe | Sep 30, 2021 10:40:51 AM

Someone recently asked me about the best part of Prez Biden's record, and I was quick to note his judicial nominees. Now if he would just put forward needed nominees for the US Sentencing Commission (and keep up the record of PDs and diverse individuals)!

Posted by: Doug B. | Sep 30, 2021 10:51:19 AM

Dale Ho for SDNY. That could be a pretty active and lively confirmation hearing.

It was recently noted in the press also that other appointments are languishing, such as the FCC. That's not of so much interest here of course, but as an internet/telecom nerd I'd like to see the agency fully staffed. But I think when it comes to Senate confirmation it's not necessarily a situation where simultaneous walking and gum chewing is possible. Floor time is at a premium and the caucus has to be tended to. So you need to set out some priorities. And we've seen what those are with pandemic relief, fiscal stimulus (both of the conventional and more progressive kinds), and, case in point, Art. III judges. He's also tried to get some key agency people installed like the ATF head, although it didn't turn out well. So, I think it's hard to argue his priorities are off base. But of course, everyone has their certain pet area where they'd like to see more progress, so some amount of frustration may be inevitable.

Posted by: kotodama | Sep 30, 2021 12:57:43 PM

Various liberal legal voices were almost drooling when the promise of Judge Dale Ho was announced.

And, yes, a long theme of mine is the amount of balls up in the air here. The criticism over commutations/pardons is stronger since that is something that could be done by executive action alone though I'm sure some argument would be made why it is taking so long if the relevant parties are asked (maybe something about other commitments there too).

(This is not meant to justify it btw.)

Posted by: Joe | Sep 30, 2021 4:24:19 PM


any thoughts on how this will affect the pending cert petitions of Houston v. US 20-1479 and Bryant v. US 20-1732? will SCOTUS grant another FSA cert petition this term or is one enough with Concepcion?

would love to hear your thoughts!

have oral argument before the 5th on similar FSA/3553 arguments on Nov. 1.

Posted by: k | Oct 1, 2021 12:23:09 PM

Bryant is a compassionate release case, so it may still have a shot. But I expect other crack resentencing cases will all get GVR or denied after Concepcion gets decided.

Posted by: Doug B | Oct 1, 2021 2:52:52 PM

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