« Buffalo mass shooter formally sentenced to LWOP in New York state court | Main | CCJ releases "Long sentences, better outcomes: Opportunities to improve prison programming" »
February 15, 2023
Some notable SCOTUS sentencing stories from the relist watch
After an extended hiatus, the Supreme Court gets back in action next week. In turn, John Elwood is back to keeping up with the cert pool through his terrific SCOTUSblog posts providing "Relist Watch." And this week's "Relist Watch" installment has a couple of stories that all sentencing fans will find interesting:
The Supreme Court will meet this Friday for the first time in nearly a month to consider whether to grant review in new cases....
One other curious thing about our last installment’s relists: There were five petitions challenging the constitutionality of sentencing criminal defendants based on conduct the jury acquitted them of committing. Those cases are just sitting there on the court’s docket, with no further action by the Supreme Court since it distributed them for the Jan. 20 conference. The court generally doesn’t announce what it’s doing with pending petitions, so we have no choice but to speculate here. But near as we can tell, the court appears to be holding those cases to see whether the U.S. Sentencing Commission acts on a pending proposal to place restrictions on federal courts’ consideration of acquitted conduct at sentencing. One of the five petitioners, Dayonta McClinton (whom I represent), argues that the Sentencing Commission’s proposal is woefully inadequate to resolve the issue, but it still may explain the court’s inaction. Things may become clearer down the road.
That brings us to new business. There are 423 petitions and motions pending on the Supreme Court’s docket for this Friday’s conference. Two of those cases are newly relisted....
The second new relist, Davis v. United States, is far more conventional. Petitioner Quartavious Davis was sentenced to 159 years of imprisonment for a series of seven Hobbs Act robberies he committed over a two-month period when he was 18 and 19 years old. Although Davis went to trial, his five co-defendants all pleaded guilty and received much shorter sentences. Davis argues that his attorney rendered ineffective assistance by failing to pursue and negotiate a plea agreement with the government, and by failing to render adequate advice to him regarding whether to plead guilty or go to trial. Davis contends he would have pleaded guilty if he had been advised properly. Although the court of appeals concluded Davis could not show prejudice absent an allegation that the government had offered him a plea deal, Davis contends it was enough to show that his similarly situated co-defendants were able to negotiate plea agreements, suggesting that there is no reason the government would not have been willing to extend Davis the same benefits.
February 15, 2023 at 06:00 PM | Permalink
Comments
So assuming Sentencing Commission adopts some policy/guideline about "acquitted conduct" (however they define that term), are we looking at GVRs for the appellate courts to consider and apply the new dictate from the Sentencing Commission to allow the Supreme Court to avoid having to address what is a very complicated issue? And what is in the current draft from the Sentencing Commission?
Posted by: tmm | Feb 16, 2023 10:39:38 AM
There likely will not be any GVRs for cases that are on direct appeal as this provision probably won't be retroactive. But I can foresee attorneys raising this issue as an 'extraordinary and compelling' reason, among other things, to grant a compassionate release motion.
Posted by: Eric A. Hicks | Feb 16, 2023 11:12:46 AM
Davis sure got screwed, but he got a fair trial. Lafler should be overruled.
Posted by: federalist | Feb 16, 2023 11:21:10 AM
tmm: the USSC's proposed amendment appears starting on pp. 211 of its "reader-friendly" list of proposed amendments: https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20230201_RF-proposed.pdf. Here is how the USSC's describes its proposal:
"The proposed amendment would amend §1B1.3 to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction. The new provision would define “acquitted conduct” as conduct underlying a charge of which the defendant has been acquitted by the trier of fact or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or an analogous motion under the applicable law of a state, local, or tribal jurisdiction."
Eric raises the interesting point that, even if this amendment is adopted by May 2023 AND not disrupted by Congress during its 6-month period of review, it is not clear that this change would be made retroactive to help any folks already sentenced on the basis of acquitted conduct. Further, I believe at least one of the cases before SCOTUS may involve the use of acquitted conduct in ways other than as "relevant conduct" for guideline calculations. So it is not really clear that SCOTUS can dodge this issue soundly via GVRs.
That said, I think there is a history of SCOTUS dealing with nettlesome cases through questionable GVRs. And doing so can make cases "go away" in various ways --- post conviction deals, compassionate release, clemency --- so maybe that's what at least some Justices are looking toward. In addition, in the past some members of Congress have shown some interest in these issues, so that's yet another possible wild card.
I continue to expect cert to be denied because I suspect the Justices are closely divided on these issues in complicated and uncertain ways (with Gorsuch, Kavanaugh and Thomas as the likely swing votes). With lots of uncertainty, denial of cert may be seen as the safest path for all.
Posted by: Doug B | Feb 16, 2023 11:46:35 AM
Or perhaps, if cert is denied, it will be because six Justices view the issue as correctly settled by existing law.
P.S. Since the Guidelines are now advisory only, the Commission's view of what a judge must or must not consider at sentencing has all the weight of a suggestion.
Posted by: Bill Otis | Feb 16, 2023 9:53:16 PM
On your main point, Bill, I struggle to see how you count to six. Justice Thomas dissented from the denial of cert in another acquitted conduct case, and Justices Gorsuch and Kavanaugh have expressed concern about acquitted conduct in various ways in the past. But, sadly, absent statements from Justices, we would all just have to speculate if cert is denied.
On your P.S., the USSC still can and does shape how guideline ranges are calculated, and those ranges are followed in about half the cases and serves as a starting benchmark in all cases. (Indeed, under the current rules, the Fourth Circuit reversed a district judge who sought not to include acquitted conduct in the guideline calculation.) How the guidelines get calculated still matter a whole lot, which is why it is great to have the USSC back in action finally after being quorum-less for far too long.
Posted by: Doug B | Feb 16, 2023 10:17:33 PM
Doug --
"Shaping" how the sentence gets calculated is one thing. Giving direction to judges is another, and that is something the Guidelines no longer do. I wish they did, which was Congress's clear intent in adopting the SRA of 1984 (as Justice Stevens persuasively established in his dissent to the remedial portion of Booker), but that's not how it is. I mean, the Commission can do the Pennsylvania Polka, but it still has no more MANDATORY force over sentencing than Groundhog Day.
Posted by: Bill Otis | Feb 16, 2023 11:24:56 PM
Every federal sentencing, Bill, starts with the parties and the PSR assessing/debating the applicable guideline range, and every federal judge must use the range as a starting point and a benchmark at sentencing. So I think it is quite accurate to say the FSG still give direction to federal judges at sentencing.
It is true that the guidelines lack the force of law after Booker, largely thanks to the GWBush Justice Department advocating for the advisory remedy after Blakely. The defense bar initially shared your desire to see the guidelines remain mandatory after Blakely to give defendants the full constitutional rights set forth in that ruling. Why do you think the GWBush Justice Department (not to mention Chief Justice Rehnquist) was so eager to go against "Congress's clear intent in adopting the SRA of 1984"?
Of course, as you know Bill, if guideline calculations were to be given the force of law, those calculation can no longer include acquitted conduct or any contested uncharged conduct not proven to a jury BRD. I always had an inkling you were, in your heart of hearts, opposed to continued use of acquitted conduct and a civil standard of proof for key sentencing determinations in the federal sentencing system.
Posted by: Doug B | Feb 17, 2023 9:58:02 AM
Doug --
"Why do you think the GWBush Justice Department (not to mention Chief Justice Rehnquist) was so eager to go against "Congress's clear intent in adopting the SRA of 1984"?
Because everybody makes mistakes. Republican Presidents have made a boatload of mistakes far more important, including appointing Warren, Brennan, Blackmun, Souter and one or two others. Without those mistakes, the legal landscape now would be much different.
The Dems, by contrast, almost never make that kind of mistake.
"Of course, as you know Bill, if guideline calculations were to be given the force of law, those calculation can no longer include acquitted conduct or any contested uncharged conduct not proven to a jury BRD."
Really? What case says that? You'd better quick tell all those district judges out there, who use acquitted conduct and uncharged conduct dozens of times a day and routinely get affirmed doing it.
Posted by: Bill Otis | Feb 17, 2023 2:18:01 PM
Really, Bill? The Booker merits opinion says that, if the guidelines are mandatory, then any and all guideline fact-finding that aggravates the sentencing range has to accord with 5th/6th Amendment requirements. That's why DOJ advocated for the advisory remedy --- to allow DOJ and judges to still do guidelines fact-finding/calculations without giving defendants more procedural rights. If you do not understand this, I am quite perplexed at what you think Booker was about.
And DOJ advocating for advisory guidelines --- and against having to prove guideline facts under 5th/6th Amend rules --- was not a mistake. It was a calculated decision that DOJs under Bush AND Obama AND Trump AND Biden have all been content to embrace since we've seen no serious subsequent DOJ advocacy for a return to a mandatory guideline system.
Posted by: Doug B | Feb 17, 2023 4:04:14 PM
Doug --
I'm delighted that at long last you spill the beans -- namely, that the defense bar wants to have its cake and eat it too. Having the guidelines stripped of their mandatory character was a big win for it, and now it wants the ALTERNATIVE remedy (proof of many sentencing facts BRD) to be magically turned into an ADDITIONAL remedy.
If the prosecution ever got that greedy, we'd be able to hear the NACDL screeching on Pluto.
Posted by: Bill Otis | Feb 18, 2023 10:29:19 PM
Not spilling any beans to suggest that defense attorneys want a criminal justice system to operate in the ways the Framers surely imagined: strict procedural rights before the state can impose/enhance criminal punishments like death or loss of liberty, different standard if the state does not want to impose/enhance criminal punishments.
And, of course, these are the basic realities that prosecutors generally follow and embrace -- they generally know they have to justify a prosecution via a formal indictment/information and then know they will have to prove up the facts of the crime to get state punishment; but they also know they can decline to prosecute or cut a sweetheart plea deal without any formal procedures or explanations.
And as it should be under our Constitution in which the Framers put special burdens on the imposition of state punishment. This is called respecting the Constitution, not spilling any magic beans.
Posted by: Doug B | Feb 19, 2023 10:50:40 AM
Doug --
1. Thank you for conspicuously not denying that getting non-mandatory guidelines PLUS a requirement of proof BRD for sentencing facts would indeed be the defense bar's having Booker's cake and eating it too.
2. "Not spilling any beans to suggest that defense attorneys want a criminal justice system to operate in the ways the Framers surely imagined..."
Ha! That's not true and you don't think it's true. What defense attorneys want is for the criminal justice system to let their clients go with no punishment at all, guilty or not, and regardless of what procedure gets them to this ever-so-wonderful result.
Posted by: Bill Otis | Feb 19, 2023 2:02:07 PM
I sense most defense attorneys want to keep their clients from being subject to unproven and unjustified punishments, and I surmise most defense attorneys think that means that punishment not proven and justified BRD is worrisome under either a mandatory or advisory guideline system. In contrast, Bill, you favor punishment for acquitted conduct and for conduct not proven BRD. I think that would trouble the Framers, but I welcome your provision of any cites or other Founding-era evidence suggesting a civil standard of proof should be adequate to justify criminal punishment.
Posted by: Doug B | Feb 19, 2023 8:35:52 PM
Doug --
-- Again I thank you for not denying that getting non-mandatory guidelines PLUS a requirement of proof BRD for sentencing facts would indeed be the defense bar's having Booker's cake and eating it too.
-- "I sense most defense attorneys want to keep their clients from being subject to unproven and unjustified punishments..."
What they want, as surely you know, is, if they can conjure up a way to get away with it, to keep their clients from being subject to ANY PUNISHMENT AT ALL. Indeed, even if they didn't want it as a freestanding "virtue," they'd have to seek it under the canons of ethics. "Best interests of the client," etc.
-- "I welcome your provision of any cites or other Founding-era evidence suggesting a civil standard of proof should be adequate to justify criminal punishment."
Watts says it directly, as you implicitly acknowledge by refusing even to mention the holding (or any part of the majority opinion) in Watts in your amicus brief in McClinton. And the whole discussion in Booker, and Booker's self-conscious and pointed preservation of the real offense system (i.e., NOT just the offense of conviction proven BRD) says it indirectly but loudly.
And no, blogs and academia are not the Supreme Court, and do not dictate what the law is. Nor, contrary to the thrust of your argument, do they maintain fidelity to the Framers. Quite to the contrary. The best example is probably the death penalty, which academia fervently hates, but the Framers approved (and used) against many more offenses and with many fewer safeguards than exist today.
Fidelity to the Framers (propertied white males, dontcha know) is just a makeweight, used by the pro-crime crowd when convenient and otherwise blasted by academia as reactionary and racist.
I mean, c'mon. I've been around this track a time or two.
Posted by: Bill Otis | Feb 19, 2023 11:11:50 PM
Bill, Watts cites no Founding-era evidence for its holding. And the Booker merits opinion --- relying on lots of Founding-era evidence, like Apprendi and Blakely before it --- rejects the civil standard of proof to justify criminal punishment in a mandatory punishment scheme. You are right that the Booker remedy (again without Founding-era support) preserved the civil standard, but only within an advisory system. If we return to the mandatory guideline system that you claim you prefer, the system will require BRD jury findings (or defense admissions as we have with guilty pleas).
Do you dispute that the mandatory guideline system that you claim to prefer will require proof BRD for aggravating, punishment-enhancing facts? I still am unclear if you accept this foundational point that Booker seems to make clear.
And, of course, lots and lots of folks do not seek to "maintain fidelity to the Framers." But I sense you sometimes claim that you wish to, except it seems when doing so does not serve certain pro-state policy interests. That's fine, but I will find it useful to highlight when some of your pro-state policy views do not "maintain fidelity to the Framers."
Posted by: Doug B | Feb 20, 2023 2:38:07 PM
Doug --
Assuming arguendo that the merits portion of Booker was correctly decided, then yes, for sure, the remedy should have been to keep the guidelines mandatory and require proof BRD for any fact that would take the sentence above the statutory max. I think I said that a dozen years ago in my article here: https://fedsoc.org/commentary/publications/the-slow-sad-swoon-of-the-sentencing-suggestions And the Stevens dissent to the same effect is very strong. (But it would not require proof BRD for any aggravator at all, as Scalia makes clear in Blakely).
And once again, thanks for effectively conceding that the defense bar wants to have its Booker remedy cake ("advisory only" guidelines) and eat it too (sentencing proof BRD). Thanks also for conceding, in your inimitable round-about way, that defense lawyers want, not merely to avoid "unjust" and "excessive" punishment for their clients, but any punishment whatever, no matter how thoroughly guilty they are.
Posted by: Bill Otis | Feb 20, 2023 10:35:07 PM
Bill, I am not sure I understand what you claim is something I am saying about defense attorneys representing defendants, but I want to better understand this statement: "But it would not require proof BRD for any aggravator at all, as Scalia makes clear in Blakely."
Can you explain what you mean here? There is a prior conviction exception to Apprendi/Blakely, though Justice Thomas has argued against it. Is that what you mean or are you talking about other facts that mandate a sentence increase?
Posted by: Doug B | Feb 21, 2023 9:34:16 AM
Doug --
Under a mandatory guidelines system, sentencing proof BRD would be required to take the sentence above the statutorily-designated range, but only proof by a preponderance would be required to sentence at any point within the range. Scalia set this out pretty clearly in Blakely.
Posted by: Bill Otis | Feb 21, 2023 2:18:54 PM
