Will the Supreme Court decide whether judge-found facts can be used to increase a federal sentence?

August 26

Last May I noted a recent cert. petition challenging the use of judge-found facts to increase a federal sentence. (The Supreme Court has already said that it is unconstitutional for statutes to rely on judge-found facts to justify a longer sentence; the new question is whether it is also unconstitutional for common-law rules like appellate reasonableness review to do the same thing. I first blogged about the case here.)

I thought I’d post with a short update about the petition. Two amicus briefs were filed in support of the petition — one from the Cato Institute and Rutherford Institute, and one from Professor Douglas Berman, known to all of the blogosphere for his tireless work at Sentencing Law and Policy. The Court asked the government for a response, which is posted here. And the defendants filed a reply. It is distributed for conference at the end of September.

Looking at the petition and the amicus briefs, I was struck by something: Different people are concerned about different types of judge-found facts. Some are most concerned about facts that are made legally dispositive (emphasized by the cert. petition). Some are most concerned about facts about the offense, as opposed to facts about the offender (noted at the end of the Cato brief). Some are most concerned about facts on which the jury acquitted, as opposed to those that were simply never charged (emphasized by the Berman brief).

So far as I can tell, these defendants’ case lies at the center of all three concerns. So if the Court is indeed interested in deciding whether appellate common-law rules are subject to the same constraints as statutory law — as Justices Scalia and Thomas have argued — the case seems like the right vehicle.

That said, it may well be that the other members of the Court do not think that such sentencing is a problem, or do not care. And the government’s response also claims that the case is a bad vehicle because none of the defendants can show that their sentences were deemed reasonable only because of the judge-found facts:

Even if as-applied challenges were theoretically available, no such claim could succeed on the facts of this case. Cf. Rita, 551 U.S. at 373-374 (Scalia, J., concurring in part and concurring in the judgment) (disavowing any claim of an as-applied Sixth Amendment violation where the petitioner could not demonstrate that his sentence would have been unreasonable absent a judge-found fact). Petitioner Jones could not establish that, without the district court’s finding, his 180-month sentence would be unreasonable, given his status as a career offender and his resulting advisory Guidelines range of 324 to 405 months of imprisonment. See pp. 4-5, supra. Petitioner Ball also could not establish that his sentence was unreasonable, in light of the seriousness of his crime of conviction, the quantity of drugs that he personally distributed, and his long history of drug dealing. See p. 5, supra. Similarly, petitioner Thurston could not meet the unreasonableness standard, in light of his long criminal history and numerous arrests for drug offenses and violent crimes. See p. 5, supra. This case presents a particularly weak case for a claim that petitioners’ sentences were substantively unreasonable because the district court varied downwards from the applicable Guidelines range and imposed below-range sentences.

Yet here is the reply:

Petitioners do not claim to have led blameless lives: they were, after all, convicted of isolated street-level sales of crack cocaine. But in painting this case as a purportedly poor vehicle for review, the Government’s statement of facts principally mirrors its conspiracy theory, which the jury unanimously rejected.

It claims that Petitioners were members of a “loosely-knit gang” and “engaged in acts of violence against rival gangs.” Ball, it contends, was “one of its leaders.” Next it devotes virtually a full page to spelling out the underlying charges. Only then does it concede that a jury (after an eight month trial) acquitted them of everything except Ball’s single count of distributing crack cocaine and Thurston’s and Jones’ two counts of distributing crack. Even then, it fails to disclose the amounts: for Ball, 11 grams, for Thurston and Jones, 2 grams or less.

The Government’s lengthy characterization of Petitioners and the charges brought is a smokescreen to limit reasoned discussion of the Question Presented. One might look to Thurston, whose sentence fell in the middle of Petitioners’ sentences. He received 194 months’ imprisonment for a conviction that normally yields a-33 month term, and for which no one similarly situated during the post-Booker era received more than 51 months incarceration. Moreover, the Government’s extravagant claims made here about him were never found by a jury, apart from having sold a miniscule amount of crack.

…As for Ball, he was never charged with possessing a weapon when he made his crack sale and no evidence to the contrary was presented below. Nothing else the Government says here about him (or Jones) was proved to a jury, either, aside from the street-level sale.

For what it’s worth, I find it particularly relevant that the D.C. Circuit opinion under review did not adopt the government’s approach to avoiding the question, and instead squarely announced that “Whatever the merits of Justice Scalia’s argument, it is not the law.”

Here’s more coverage by Tony Mauro. And finally, in the spirit of full disclosure: I have discussed some of these issues with several of the lawyers involved in the case, but of course these views are entirely my own.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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