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January 10, 2022

Spotlighting guideline circuit split, two Justices express "hope" US Commission will be back "in near future"

The Supreme Court issued this lengthy order list this morning which, as is typical, is mostly full of lots and lots of denials of certiorari. The Justices granted review in three cases (one involving habeas procedure) and called for the Solicitor General's views in two other cases.  But, at the very end of the 24-page order list without much of interest for sentencing fans, was a notable short statement by Justice Sotomayor, joined by Justice Barrett, respecting the denial of certiorari in Guerrant v. US, No. 21-5099. Here are highlights:

This petition implicates a split among the Courts of Appeals over the proper definition of a “controlled substance offense,” and, accordingly, over which defendants qualify as career offenders.... Defendants in [most Circuits] qualify as career offenders for federal sentencing purposes even if their only prior offenses involved substances not prohibited under federal law. As a result, they are subject to far higher terms of imprisonment for the same offenses as compared to defendants similarly situated in the Second or Ninth Circuits.

It is the responsibility of the Sentencing Commission to address this division to ensure fair and uniform application of the Guidelines. Cf. Braxton v. United States, 500 U.S. 344, 348 (1991).  In March 2021, I wrote concerning an unresolved Circuit split over the proper interpretation of a Guideline. See Longoria v. United States, 592 U. S. ___. The Sentencing Commission lacked a quorum of voting members then, and it still does today.  At this point, the Sentencing Commission has not had a quorum for three full years.  As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants’ sentences. I hope in the near future the Commission will be able to resume its important function in our criminal justice system.

I am intrigued and pleased to see Justice Barrett now joining Justice Sotomayor in flagging the need for a functioning US Sentencing Commission to address problematic circuit splits.  But it bears noting that plenty of circuit splits, including this one, pre-date the USSC's loss of a quorum.  Even when fully functioning, the USSC has never been able to resolve all challenging circuit conflicts, and I share Dawinder Sidhu's view that we should all "be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines." (See full article here.) 

I think it is the responsibility of the USSC and SCOTUS to help "ensure fair and uniform application of the Guidelines."  And, as Justice Sotomayor notes, we are now a full three years into a quorum-less Commission and still do not even have Commissioner nominees.  Moreover, even if Prez Biden were to nominate new Commissioners in the next few weeks (which seems unlikely) and the Senate were to confirm those nominees quickly (which seems unlikely), a new Commission could not "fix" this broken guideline until Nov 2022 at the earliest (and Nov 2023 or later is much more realistic).  But SCOTUS could, and arguably should, "solve" this issue and others with a per curiam opinion that advances consistency for the time being subject to future review by a future Commission.

Because the Supreme Court has largely abdicated its role in guideline interpretation for over three decades now, I am not surprised that it is not now trying to fill the gap created by a quorum-less Commission.  But I wish there were more than just a couple of Justices willing to do a lot more than just talk up their "hope" that another part of the federal judiciary would be able to soon help advance sentencing justice. 

January 10, 2022 at 11:07 AM | Permalink


You're right that the lack of a quorum isn't the primary reason circuit splits aren't being resolved. I recently dealt with a circuit split over the meaning of "physically restrained" in the guidelines that's been active and explicitly identified for more than two decades. It's just more fun for the Sentencing Commission to add new sentencing enhancements and whatnot than to undertake the harder work of resolving circuit splits.

Posted by: Anonymous | Jan 10, 2022 1:40:58 PM

Sotomayor has little shame—after getting fact-checked by the Washington Post for her false claims at oral argument—she has something to say Monday morning. Hard to take her seriously.

Don’t get me wrong—I do like that she often issues statements regarding cert denials, which is good for the federal court system, but after those gaffes at oral argument—she should be spending her time getting up to speed on things.

Posted by: Federalist | Jan 10, 2022 2:59:54 PM

A couple of thoughts. First, more noteworthy than that two justices thought the absence of a Commission is worth briefly remarking upon is the fact that seven justices don't.

Second, once the Guidelines became an "apply them if you like and ignore them if you don't" contraption, courtesy of Booker, Gall and Kimbrough, the importance of the Commission nosedived. In theory, it could still have important work to do, to wit, putting some kind of teeth back in the Guidelines (as a passage in Booker almost invites Congress to do), but a Biden-appointed Commission will do no such thing. As for circuit splits, SCOTUS will have the final say, as ever.

The reason there's a push (almost exclusively from the Left, with a few exceptions) for a revived USSC is to have a Sentencing Suggestions Maybe If You Like Them official group to push a pro-criminal line, just as Justice Sotomayor is often fond of doing. But since the pro-criminal line already owns the large and loud precincts of legal academia, one must wonder whether such a Commission would be much more than redundant.

Posted by: Bill Otis | Jan 10, 2022 3:18:42 PM

I remember back in the days when one of my hats as a county prosecutor was being the county counselor. At least once every two or three years, we had a work session to clean up loopholes that had arisen as creative people found a way to work around our county zoning ordinance.

So fixing problems with the guidelines should be something that the USSC does on a regular basis.

On the other hand, in other circumstances, when faced with a circuit split over the meaning of a regulation or a statute, I can't see the Supreme Court just saying that it would wait for Congress or the administrative agency to fix the issue.

Posted by: tmm | Jan 10, 2022 3:46:43 PM

I love how Otis started to take the position that the USSC is meaningless once his nomination fell through.

Posted by: AFPD | Jan 10, 2022 7:22:58 PM

Bill, how could the Commission on its own put teeth back into the Guidelines? How could Congress? I thought Booker held mandatory guidelines unconstitutional...

Posted by: Curious | Jan 10, 2022 9:04:01 PM


I know lying in court has become routine, but try not to let it spill over here. As no point did I say the USSC is meaningless. I said, to the contrary, "it could still have important work to do, to wit, putting some kind of teeth back in the Guidelines (as a passage in Booker almost invites Congress to do)..." A return to (at least) presumptive guidelines would be a big step forward for the rule of law over the rule of taste. As things stand now, we have let irrational disparity and much of the luck of the draw back into the system.

And I said all this in in a published article seven years BEFORE I was nominated or considered to be nominated (see: https://fedsoc.org/commentary/publications/the-slow-sad-swoon-of-the-sentencing-suggestions). Your statement that I took my position only as post-facto sour grapes (only "once his nomination fell through") is flagrantly and intentionally false. Not that this is new with your crowd. And not that you'll ever be nominated for beans, sonny.

No wonder you don't have even the minimal guts to sign your name.

Posted by: Bill Otis | Jan 10, 2022 10:13:53 PM

Curious --

The Commission on its own cannot restore mandatory or presumptive guidelines, but can recommend this to Congress, which, as Booker notes, can adopt that recommendation. Making recommendations to Congress is an explicitly stated statutory mission of the USSC.

To oversimplify matters, the Booker Court held the guidelines unconstitutional (under Blakely) because they were mandatory AND kept the pre-existing preponderance standard even for sentencing beyond the statutory max. If Congress restored mandatory guidelines but made the govt prove the relevant aggravating factors beyond a reasonable doubt, it would satisfy Booker's analysis.

Posted by: Bill Otis | Jan 10, 2022 10:19:59 PM

Thanks Bill and apologies for the unfair and inappropriate abuse you are subjected to on this board.

Perhaps I'm wrong, but didn't Booker also hold that the guidelines were unconstitutional because they were based on facts found by a judge, not a jury? So to make them mandatory again, wouldn't Congress not only have to raise the standard of proof to BRD, but also require the government to prove aggravating factors to a jury? At that point, they wouldn't really be sentencing guidelines anymore, they'd just be new crimes defined with much greater specificity and with much narrower sentencing ranges.

Posted by: Curious | Jan 11, 2022 10:42:52 AM

There’s no doubt that mandatory guidelines are unconstitutional.

Posted by: Federalist | Jan 11, 2022 11:11:47 AM

Huh, Federalist? Mandatory guidelines are perfectly constitutional under existing SCOTUS precedent if (but only when) their application complies with the Fifth and Sixth Amendment rights of proof BRD and a jury trial.

A number of states have extended those rights in response to Blakely (such as Minnesota), though many defendants (such as Derek Chauvin) waive their right to jury findings at the sentencing stage even if they sought a jury trial on basic guilt issues. Of course, most defendants in every US jurisdiction waive most of their Fifth/Sixth trial procedure rights, as the vast majority of criminal cases are resolved via plea bargains.

Though the too-intricate guidelines produced by the US Sentencing Commission are "advisory" after Booker, many defendants in federal court still face a more limited set of mandatory "guidelines" in the form of mandatory minimums for most drug offenses and others. Since Alleyne, these defendants clearly have Fifth and Sixth Amendments protections attaching to any necessary factfinding that impacts their applicable mandatory minimum sentencing terms. Because of a variety of formal and informal forms of sentence reductions only available to those who waive a lot of rights, most federal defendants waive their Fifth and Sixth Amendment rights even in the context of mandatory sentencing provisions (and they also waive many other procedural rights, like a statutory right to appeal/seek habeas).

One exception to all these rules concerns the "fact" of a prior conviction. There has been uncertainty about the reach of that exception for a couple of decades now, and SCOTUS might address this matter in the Wooden ACCA case this term.

Posted by: Doug B. | Jan 11, 2022 11:52:20 AM

Curious --

Thanks for your kind remarks. Doug has his reasons for allowing anonymous posts, but that allowance has drawbacks, illustrated inter alia by the guttersniping done by the person calling himself "AFPD." I very much hope he isn't actually an AFPD, and I doubt that he is. The ones I dealt with were more honest and professional.

My recollection of Booker, which is pretty good but not perfect at this point, is that the govt would need to prove the sentencing aggravators that take it above the maximum BRD but not necessarily to a jury. Indeed, a jury does not even exist in about 95% of the cases, which get plea bargained, i.e., the parties consent to judgement to be entered by the court. I think that, as long as the aggravator standard were set at BRD, my proposal would fly under Booker. (And my proposal is basically nothing more than the one Justice Stevens endorsed in his four-justice dissent to the remedial portion of Booker).

Posted by: Bill Otis | Jan 11, 2022 2:52:43 PM

Federalist and Doug --

I far more often agree with Federalist when he takes issue with Doug, but this time is different. There is no doubt that mandatory guidelines are not per se unconstitutional. As Doug notes, statutory mandatory minimums are constitutional (an issue I litigated more than once), and a fortiori, mandatory guidelines are as well, they being more flexible than the statutory MMs. The only requirement relevant to this discussion is that mandatory guidelines must provide that aggravators that would take the sentence above the maximum guideline range (which Blakely oddly denominates as the statutory maximum) must be proved BRD.

Posted by: Bill Otis | Jan 11, 2022 3:06:01 PM

Bill, after the Alleyne decision in 2013, any fact that legally raises the maximum OR THE MINIMUM sentencing range must be proved by to a jury BRD (subject to defense waiver)

Posted by: Doug B. | Jan 11, 2022 7:27:05 PM

Doug --

In 95% of the cases (i.e., the 95% that get bargained), the parties are virtually always going to waive a jury determination, since that is the whole point of plea negotiations to begin with. In the other 5%, yes, the same jury that determined guilt will also have to determine the existence vel non of an above-the-maximum (or as you note, an enhanced minimum) aggravator.

Posted by: Bill Otis | Jan 11, 2022 9:30:02 PM

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