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June 30, 2022

Lots and lots of note in big SCOTUS order list at close of Term for the ages

I suspect I am not the only one fatigued from the historic Supreme Court Term that was concluded today (and I only pay really close attention to the Court's criminal docket).  But criminal justice fans may want to find some energy to review this morning's final order list, which includes lots of note.

For starters, the the order list begins with more than a few GVRs based on all the big cases of the last week including Concepcion and Ruan and Castro-Huerta.

Then, SCOTUS granted cert on three new cases, including these two criminal ones involving fraud convictions under federal law: Percoco v. US and Ciminelli v. US.

And, last but not least, the Court has a long series of statements about the denial of cert.  To cover them all, I can borrow from How Appealing's helpful posting:

In Grzegorczyk v. United States, No. 21–5967, Justice Brett M. Kavanaugh issued an opinion, in which Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas, Samuel A. Alito, Jr., and Amy Coney Barrett joined, respecting the denial of certiorari. And Justice Sonia Sotomayor issued a dissent, in which Justices Stephen G. Breyer, Elena Kagan, and Neil M. Gorsuch joined, from the denial of a grant, vacate, and remand order.

In Storey v. Lumpkin, No. 21–6674, Justice Sotomayor issued an opinion respecting the denial of certiorari.

In Canales v. Lumpkin, No. 20–7065, Justice Sotomayor issued a dissent from the denial of certiorari.

In Ramirez v. Guadarrama, No. 21–778, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

In Cope v. Cogdill, No. 21–783, Justice Sotomayor issued a dissent from the denial of certiorari.

In Dr. A. v. Hochul, No. 21–1143, Justice Thomas issued a dissent, in which Justices Alito and Gorsuch joined, from the denial of certiorari.

And in Hill v. Shoop. No. 21–6428, Justice Sotomayor issued a dissent, in which Justices Breyer and Kagan joined, from the denial of certiorari.

I hope to find time before too long to review all of of these statement and later comment on those that strike me as particularly notable.  Readers are, of course, encouraged to flag in the comments items of particular interest.

June 30, 2022 at 12:40 PM | Permalink

Comments

Te upshot from Grzegorczyk v. United States is that there are at least five votes to enforce appeal waivers, even when it means the defendant gets an unlawful sentence.

Posted by: Poirot | Jun 30, 2022 12:42:38 PM

Yeah, Poirot, I fear that Justice Gorsuch is the only current GOP appointee who consistently believes that limits on, and skepticism about, the exercise of government power ought also extend to the operation of the CJ system.

Posted by: Doug B. | Jun 30, 2022 1:20:48 PM

Poirot --

Right you are. When the Court is deciding a case consistently with the waiver even when the government wants to throw it away, it's a really good bet that the Court will uphold it when the government is defending it.

It was my own practice not to invoke the waiver to block an appeal when the defendant actually had a meritorious argument under law. That was almost never, since defendants typically see plenty wrong with everyone else's conduct but never their own, but it did happen. When it did, fine, it's not a game, and it was more important to me that the correct substantive result be achieved than that I win based solely on procedure.

I know defense lawyers like to do that, but it wasn't my cup of tea.

Posted by: Bill Otis | Jun 30, 2022 1:32:52 PM

While technically not an opinion of the Court, given that every justice joined one of the opinions, I think practitioners have to treat Grzegorczyk as pretty strong persuasive authority on the impact of unconditional guilty pleas and appeal waivers in later collateral attacks on the judgment.

Posted by: tmm | Jun 30, 2022 3:25:41 PM

Bill, when Congress passed the statute providing for appeals, do you think it expected that it would be prosecutors or that it would be judges who were to determine if a "defendant actually had a meritorious argument under law"?

Your explanation that you, functioning as a prosecutor, would not seek to block an appeal though an appeal waiver when you thought it had merit highlights what is wrong with this picture. By providing for appeals of sentences in 18 U.S.C. § 3742, Congress obviously sought authorize circuit judges to be the arbiters of whether a "defendant actually had a meritorious argument under law." Congress knows how to write statutes that put prosecutors in the position of gatekeeper when it so desires, but Congress did not say an sentencing appeal should only go forward if Bill Otis or other AUSAs think an appeal is meritorious.

As I have said before, I understand functionally why federal prosecutors want to be appeal gatekeepers AND why circuit courts are happy to have federal prosecutors play this role. Perhaps appeal waivers make for good policy, but they plainly are inconsistent with the text of 18 U.S.C. § 3742. But, as I think we have established in another context, you (and plenty of others) are ever ready to abandon textualism when it serves your policy preferences (or your notions of "common sense").

Posted by: Doug B. | Jun 30, 2022 10:42:27 PM

Doug --

You make two errors. The first is in saying that 18 U.S.C. § 3742 "provides for" sentence appeals. That is oversimplified in a critical way. It actually provides for appeals if the defendant wants one. It does not in any way require appeals, and there are thousands of cases in which no appeal is taken in any event. The defendant might think that an appeal would be nice, but that the dropping of additional charges, or a sweet sentencing recommendation, is even nicer, so he happily goes along with the appeal waiver in order to get these more attractive benefits. This is his choice to make under the statute, not academia's and not the courts'.

Your second error is in assessing the powers of separate branches of government. The courts have a lot of power, no doubt about that. But the executive branch, of which I was an officer, has different but co-equal powers. One of the powers it has is whether to charge and what charges to bring. This is not some kind of outrageous perversion. It's basic constitutional law, and it might be the most important power in the criminal justice system, but IT DOES NOT BELONG TO THE COURTS AT ALL. It is exclusively an executive branch function.

As an executive officer, I exercised the powers accorded me in the constitutional scheme. Absolutely nothing wrong with that, and I would do it again (and may do so in a DeSantis or Cotton administration). One of those powers was to assess the strength of the defendant's argument and to write the government's pleadings accordingly. Sometimes that would result in a confession of error. Far more often it was to say that the defendant got what he earned under the law and isn't that just too bad.

In order to deprive executive officers of their constitutionally-conferred power and leave them as little babies who have to beg the court for anything they seek, you'll need to get a constitutional amendment. But as long as the executive branch remains a CO-EQUAL rather than a subordinate branch, I will remain persuaded that my judgments were ones the law fully authorized me to make. As it happens, the courts uniformly agreed.

Posted by: Bill Otis | Jul 1, 2022 8:42:37 AM

Poirot: I don't think there was a formal appellate waiver in the plea agreement. I think the Supreme Court was refusing to disturb the Seventh Circuit's enforcement of the rule that an unconditional guilty plea -- under a plea agreement that doesn't reserve any issues for appeal -- automatically waives a claim that an offense is beyond the scope of the charging statute as a matter of statutory construction. I have no problem with that.

Posted by: Da Man | Jul 1, 2022 8:47:20 AM

Bill, your points reinforce my claims that appeal waivers are inconsistent with the text of 3742:

1. The statute provides that a "defendant may file a notice of appeal in the district court for review of an otherwise final sentence" on various grounds and that "upon review of the record, the court of appeals shall determine whether the sentence" is lawful. You are correct that a defendant, after a final sentence is imposed, may decide not to file a notice of appeal. But appeal waivers (which are executed before a sentence is imposed) provide prosecutors the ability to screen whether a defendant's appeal goes forward and gets reviewed by the court of appeal. You think prosecutors having such a screening role for sentencing appeals is good policy, but it is not consistent with the text of 3742. You rightly say the appeal choice "is his choice to make under the statute," and that is my point as well. After the final sentence is imposed, the defendant get to decide whether he wants to pursue an appeal and the statute does not say he needs the prosecutor's permission to do so.

2. We are not discussing prosecutorial powers to charge offenses and to not charge or even to drop/bargain over offenses or initial sentencing. But we are now discussing sentencing appeals, and I am not claiming there is a constitutional right to an appeal at all. Rather, I am noting Congress decided it was good policy, and so properly enacted a clear statute, to allow for defendants after sentencing to be able to seek review of that sentence by the courts of appeals. There is not a peep about prosecutors having any gatekeeper authority over these appeals or being able to restrict appeals through plea agreements. (Notably, 3742(c) does have some express terms discussing which kinds of plea agreements can function to limit appeal, but that provision just provides further textual support for my claim that prosecutors do not have broad power to appoint themselves through plea agreements as categorical appellate gatekeepers in all cases.)

3. This discussion is not about depriving prosecutors of any lawful powers, it is about Congress in the text of the US Code deciding to give DEFENDANTS a statutory right to seek review of their sentences. That text give no hint of granting PROSECUTORS any control over a right given by statute to the defendant. Again, giving prosecutors such screening power may be good policy, but a true textualist would readily acknowledge that such a power is inconsistent with the text of 3742. But, as is often clear whenever we dig into these kinds of issues, Bill, your commitment to textualism fades as soon as text does not support your prosecutorial policy preferences.

Posted by: Doug B. | Jul 1, 2022 10:10:05 AM

Doug and Bill -

Neither of you have anything to say about the rejection of the SG's error confession in Grzegorczyk v. United States?

Posted by: Da Man | Jul 1, 2022 12:33:43 PM

Doug --

-- I'm having a hard time finding the language in 3742 that says a defendant may waive his right to appeal only AFTER sentence is imposed. Could you quote that? It's like saying a defendant may waive his right to a trial only after we know what the outcome of the trial is. But, apart from being impossible, there is simply nothing in the Constitution or any statute that says anything like that, and the WHOLE CONCEPT of plea bargaining negates it.

-- "Congress decided it was good policy, and so properly enacted a clear statute, to allow for defendants after sentencing to be able to seek review of that sentence by the courts of appeals. There is not a peep about prosecutors having any gatekeeper authority over these appeals or being able to restrict appeals through plea agreements."

Since Congress acted against the backdrop of decades of prosecutors having "gatekeeper authority" (through offering favorable plea deals) to moot the need for ANY TRIAL AT ALL, a fortiori it knew that prosecutors would have exactly analogous power with respect to appeals.

But I digress. If your argument has the force you think it does, bring it before the courts. Oh, wait! It HAS been brought before courts, indeed all the circuits, for decades now, and lost every time! Now I know you think that's that's only because ALL those judges over ALL those years are just lazy and don't want to do the work of sentencing appeals, but I cannot agree. I don't think laziness is the reason the argument keeps losing. I think the reason is that it's an unpersuasive argument.

Posted by: Bill Otis | Jul 1, 2022 1:16:13 PM

Da Man --

"Neither of you have anything to say about the rejection of the SG's error confession in Grzegorczyk v. United States?"

Actually I did, in the third comment on this thread. I think the rejection is revealing, and a bit amusing, but not nearly as revealing or as amusing the the Court's UNANIMOUS rejection of Merrick Garland's confession of error in the Terry case, https://sentencing.typepad.com/sentencing_law_and_policy/2021/06/scotus-rules-in-terry-that-lowest-level-crack-offenders-cannot-secure-resentencing-based-on-first-st.html

Posted by: Bill Otis | Jul 1, 2022 1:29:12 PM

Bill, 3742 says nothing about waiver at all, it says "defendant may file a notice of appeal" of the sentence. If he does not want one, he need not file for one. But the text of 3742 does not supports any "waiver" of this right to seek a sentencing appeal at any time.

Congress acted against the backdrop of decades of federal sentences being essentially unappealable. See US v. Tucker, 404 U.S. 443, 447 (1972) (“[A] sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.”). Congress decided that was bad policy and authorized appeal of sentences via 3742's clear text. If Congress wanted prosecutors to be able to preclude defendants' sentencing appeals, it wrote very strange language, and the legislative history of 3742 highlights the value to the sentencing system as a whole from robust appeals by defendants and the government. See S. REP. NO. 98-225, at 151 (1983) ("Appellate review of sentences is essential to assure that the guidelines are applied properly and to provide case law development of the appropriate reasons for sentencing outside the guidelines. This, in turn, will assist the sentencing commission in refining the sentencing guidelines as the need arises.")

And I am not saying all judges are lazy (though some may be), I am saying that you and judges here are not being faithful to the text of 3742 (seemingly because it does not serve your policy preferences). The text (and history) of 3742 provide absolutely NO support for prosecutorial gatekeeping of sentencing appeals. But you and judges seemingly have a policy preference for appeals waivers, and so they have been upheld even though the text (and history) of 3742 provide absolutely NO support for them.

You invented appeal waivers because you thought preventing defendant sentencing appeals made for a better policy than how Congress structured these appeals in the text of 3742 --- and you have gotten courts to go along (although they keep making up and changing the caselaw surrounding enforcement of these waivers). It is an impressive and consequential example of extra-textual "lawmaking" by the executive and judicial branches. But it is inconsistent with the duly enacted statutory law set forth by Congress in 3742.

Posted by: Doug B. | Jul 1, 2022 3:17:01 PM

Doug --

"But it is inconsistent with the duly enacted statutory law set forth by Congress in 3742."

No it isn't, which is why over three decades and dozens if not hundreds of challenges to appeal waivers, not a single court has said what you continue to insist is true.

It reminds me of the old joke about the proud mother watching her klutzy son marching in the July 4 parade: "Look at my wonderful boy! He's the only one in step!"

Posted by: Bill Otis | Jul 3, 2022 9:27:31 AM

Bill, please quote any and all statutory law that support broad appeal waivers of the right to appeal a sentence set forth by Congress in 3742. I agree that courts have made up a jurisprudence to uphold appeal waivers --- though that caselaw is uneven and sometimes inconsistent --- but this is just like courts have made up a jurisprudence around Miranda. You make the sound point that Miranda warnings cannot be found in the text of the Constitution; I am making the comparable point that appeal waivers cannot be found in the text of any statute. You likely will keep marching against Miranda and will cite the text of the Constitution as your marching orders; I will keep marching against appeal waivers and will cite the text of 3742 for my marching orders.

One big difference: Miranda at least aspires to safeguard the rights that are in the text of the Constitution; appeal waivers aspire to, and regularly do, gut the rights in 3742. So, as I see it, appeal waivers are far more inconsistent with duly enacted statutory law than Miranda rights are with the Constitution.

Posted by: Doug B. | Jul 3, 2022 1:24:45 PM

Doug --

Section 3742 provides for appeals FOR PARTIES WHO WANT TO APPEAL. It does not in any form or fashion make appeals mandatory. Let me repeat: 3742 makes appeals optional not mandatory. Since they are not mandatory, a party can decline to pursue a sentencing appeal if he wants.

Do you disagree?

If you agree, which logically there is no choice but to do, the rest is easy. A huge number of defendants are happy to sign the waiver because by agreeing to forego an appeal, they can get from the government something, or a number of things, they view as more valuable. Waivers of appeals are valid for exactly the same reason waivers of trials (i.e., plea bargains generally) are valid: A defendant may choose to forego constitutional or statutory rights if he thinks that overall, he'll be better off by doing so.

Courts don't accept this logic because they're lazy or hoodwinked or incapable of reading the statute. They accept it because it makes sense.

Posted by: Bill Otis | Jul 3, 2022 6:07:56 PM

I agree that a party can opt not to appeal. I do not agree that the government can, consistent with the text of 3742, as part of the plea process, turn a defendant's decision whether or not to appeal into the government's decision to disallow (or allow) a defense appeal. As I have noted before, forgoing trial rights as part of a plea deal is sound (and blessed by various court rules) because the trial is about establishing guilt and so the very act of pleading guilty obviates the need for a trial and related rights. But Congress created sentencing appeals to serve a MUCH different function, and foregoing that statutory right (especially when done before a sentencing even happens) can and should ONLY take place on the terms Congress provided. Congress provided those terms in 3742(c). If you want more such waivers, make the case to Congress and have that statute amended.

To return to questions you have not answered before, should a prosecutors be able to demand that a defendant waive his right to go to church or to get married or to collect Social Security benefits or to take future statutory tax deductions in exchange for a shorter sentence in a plea deal? Seeking such waivers might strike some federal prosecutor as good policy in one or many cases, but I do not think the extreme power imbalance that is part of out severe federal criminal justice system should be carte blanche for prosecutors to seek to have defendants forego all sorts of constitutional or statutory rights will nilly without congressional blessing.

Again, I see why you and many others think appeal waivers make for good policy. But they are inconsistent with the text, history and policy goals of the SRA and undermine the purposes Congress sought to achieve through 3742. You and other prosecutors (and many courts) dislike how that policy plays out --- lots of busy work for little obvious benefits --- but inventing an extra-textual way to implement your policy preference is a notable example of executive and judicial lawmaking, not a faithful application of duly enacted statutory.

Posted by: Doug B. | Jul 3, 2022 6:28:50 PM

Doug --

"To return to questions you have not answered before, should a prosecutors be able to demand that a defendant waive his right to go to church or to get married or to collect Social Security benefits or to take future statutory tax deductions in exchange for a shorter sentence in a plea deal?"

-- Go to church: Yes, if the facts of the case show that he's been consistently using church to recruit underage kids for CP or prostitution. He would have to get his religious needs met through a different arrangement.

-- Get married: Yes, if the facts show that he's a bigamist and has scammed his last four wives out of all their savings.

-- Collect social security: Yes, if he's just been convicted of swindling Social Security of $500,000 and hasn't paid any of it back.

-- Take future statutory tax deduction: Yes, if he just got convicted of 15 years' worth of taking sham deductions. Just like, after negotiation, a defendant can agree to $25,000 in restitution rather than the $35,000 the government initially claimed he owed.

So yes, there are circumstances in which the court could impose all those conditions, and certainly it could do so it the defendant agreed that he's get three years off his sentence in exchange, which most of them would do in a hearbeat.

"...foregoing that statutory right (especially when done before a sentencing even happens) can and should ONLY take place on the terms Congress provided. Congress provided those terms in 3742(c). If you want more such waivers, make the case to Congress and have that statute amended."

I'd need to make the case to Congress if I'd lost my waiver argument in court. Since I won it (again and again and again), it would appear the your position is the one that needs to prevail -- in court, in Congress, somewhere, anywhere but the NACDL convention. Why would I need to go to Congress to get something I already have?

Posted by: Bill Otis | Jul 3, 2022 7:33:01 PM

Yes, Bill, prosecutors and defendants can agree to plea terms that are related to the crime and judges would assess those terms at sentencing in light of the rules Congress set forth in 3553 and other statutes. But, as your comments suggest, you think such terms would need to be related to the crime(s) and in accord with statutory requirements.

I presume you do not think prosecutors and defendants could agree in a plea agreement to have federal sentencing done by a state judge or to have any appeal subject to private arbitration. The parties do not get to rewrite the foundational procedural rules Congress has put in place. The Constitution does not say we must have "inferior courts" for the federal system; but once Congress has by statute ordained and established these courts, prosecutors do not get to use plea agreements to rewrite the statutory procedures to serve prosecutorial (or judicial) preference) after Congress has put these processes into the text of the law through duly enacted statutes.

Despite having no support in the laws passed by Congress, Bill, you advanced your policy preference by inventing appeal waivers as an executive branch official. (I think I recall your bragging about "inventing" appeal waivers and that strikes me as a apt description of how they came to be -- invented by a DOJ official looking to advance DOJ policy preferences.) Courts have --- through uneven and sometimes inconsistent caselaw --- enforced this extra-textual invention. Like Miranda jurisprudence, appeal waivers are right now part of our jurisprudence. But that does not change the enduring reality that they are inconsistent with the text, history and policy goals of the SRA and undermine the purposes Congress sought to achieve through 3742.

Posted by: Doug B. | Jul 3, 2022 9:18:17 PM

Thank God for appellate waivers. Can you imagine a criminal justice system where a reasonableness appeal flows from EVERY decision to impose a within-Guidelines range sentence? Or does the Anders v. California regime kick in at that point so that overworked public defenders don't have to waste their time tilting at windmills?

Posted by: Da man | Jul 6, 2022 7:40:43 AM

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