Dolls, Films, Math Figure in Justices’ Sentencing Squabbles (1)

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By Jordan S. Rubin

Russian dolls, french film, and fuzzy math featured in two head-scratching criminal sentencing disputes at the U.S. Supreme Court March 27.

The justices had some difficulty piecing together the puzzles presented by the sentencing scenarios in Hughes v. United States and Koons v. United States.

How they ultimately sort them out could affect sentencing disparities across the country, lawyers for defendants in both cases argued.

Part of the Hughes case deals with how to resolve Supreme Court decisions with different factions of the court reaching the same result through different reasoning, with the question being which opinion of the high court binds the lower courts.

Both Hughes and Koons stem, in part, from the court’s 2011 decision in Freeman v. United States. There, the court addressed when a defendant who pleads guilty under an agreement with the government can take advantage of later reductions in the federal U.S. Sentencing Guidelines.

But the court split into three camps in Freeman, with four justices ruling one way, four another, and the ninth—Sonia Sotomayor—writing her own opinion.

Sotomayor reached the same result as the first four justices, thus totaling five in Freeman who said the defendant in that case could reduce his sentence. He was sentenced under a plea agreement, and then sought a reduction after sentencing guidelines were lowered.

The question was whether his sentence was “based on” the guidelines. Sotomayor agreed it was, but based on reasoning that all other eight justices rejected.

Courts have applied an older Supreme Court case, Marks v. United States, to say her opinion controls. Erik Hughes argued he has suffered under that interpretation.

Under Marks, the decision reached on the “narrowest grounds” controls, and courts have applied Marks to say Sotomayor’s opinion from Freeman constitutes the narrowest grounds.

Some justices agreed Marks poses problems, but some also raised concern about abandoning Marks, which was decided in 1977 and has been relied on by courts since then.

Profound Changes, French Film

Marks has “probably caused more confusion than guidance,” Hughes’s attorney, Eric Shumsky of Orrick in Washington, argued.

The U.S. Court of Appeals for the Eleventh Circuit ruled against Hughes’s sentence reduction argument, citing Sotomayor’s opinion from Freeman.

Shumsky said the controlling opinion in a case should be the “logical subset” of another.

But if the court abandons Marks, that could prompt “profound changes,” Justice Samuel A. Alito Jr. said.

The justice went on to give an example, apparently modeled off the 4-1-4 breakdown in Freeman, that could be characterized as amusing, even if not an airtight exercise in mathematics.

“Let’s say that nine people are deciding which movie to go and see,” Alito began. “And four of them want to see a romantic comedy, and two of them want to see a romantic comedy in French, and four of them want to see a mystery.”

“Now is the—are the two who want to see the romantic comedy in French, is that a logical subset of those who want to see a romantic comedy?” he asked Shumsky.

Justice Stephen G. Breyer couldn’t help himself from taking the hypo a step further.

“But you see, if you have, of course, a real French comedy, fine. But suppose you have—to show off— Mr. Hulot’s Holiday, you know, it’s a comedy, but is it romantic, you see,” Breyer said, referring to a 1953 film.

Breyer’s elaboration prompted laughter from the courtroom, and a smile from Alito.

Second Best, Chaos

Staying focused, Justice Elena Kagan cautioned against letting the perfect be the enemy of the good.

“I mean, the question is, what is the second best?” she said. “We’re in a world in which the first-best option, which is five people agreeing on the reasoning, that doesn’t exist.”

Kagan suggested Shumsky’s position could cause chaos.

“Our position is not that there should be chaos,” Shumsky clarified.

But “if the Venn diagrams overlap, if the Russian dolls don’t fit, then, under those circumstances, it’s not a logical subset” that leads to a controlling opinion, he said.

Let it Stand

Rachel P. Kovner, assistant to the U.S. solicitor general, argued for keeping the status quo.

Hughes’s approach is “flatly contrary to what this Court said in Marks,” she said.

It also “undercuts the principle of vertical stare decisis that generally requires lower courts to decide cases in the way that this Court would decide them,” she said. Kovner employed the latin term used to argue in favor of precedent, literally meaning “let the decision stand.”

But Kagan had questions for Kovner, too.

“There are some cases where there are middle ground positions which seem utterly incoherent to anybody else” and “the middle ground is the worst of all possible worlds,” Kagan said.

“So how do you deal with those sorts of cases?” she asked.

Kovner pointed to the Freeman case itself as an example of why an arguably strange middle position shouldn’t lead to discarding the Marks rule.

The five justices who ruled that the defendant in that case could reduce his sentence knew they were voting for the same result, even if it was based on different reasoning, she said.

Cooperators, Disparities

In the second argument, Koons, defendants who cooperated with the government sought the benefit of reductions in sentencing guidelines.

It’s unclear whether they’ll prevail.

“Isn’t it an anomaly in the position you take, that is, if the defendants involved here, if they were to appear for initial sentencing today, they would get the very same sentence that they got—that the—the sentence that they are now serving?” Justice Ruth Bader Ginsburg asked their lawyer, Jeffrey L. Fisher of the Stanford Supreme Court Litigation Clinic.

“So that seems a little odd that people who, if they were being sentenced today, would get the exact same sentence, should get the benefit of this scale-down,” Ginsburg said.

Fisher replied that would be odd if it were true. But it’s not. The government’s argument on that score rests on a “false premise,” he said.

He went on to say it would be “perverse” if cooperators couldn’t get relief based on later guidelines reductions.

Allowing them to reduce their sentences “avoids sentencing disparities because we’re asking for our sentences to be adjusted just as somebody would be sentenced today,” he said.

But Eric J. Feigin, assistant to the U.S. solicitor general, sought to flip the script on Fisher’s argument.

Feigin argued the defendants were looking for a “windfall” and that they were the ones actually creating a sentencing disparity, not the government.

The defendants are asking for relief they wouldn’t be able to get if they were being sentenced today, Feigin said.

The cases are Hughes v. United States , U.S., No. 17-155, argued 3/27/18 and Koons v. United States , U.S., No. 17-5716, argued 3/27/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

For More Information

Arguments transcripts in Hughes:, Koons:

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