Justices Settle Sentencing Quandaries, Punt Bigger Question

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By Jordan S. Rubin

The U.S. Supreme Court resolved two criminal sentencing cases June 4 as it helped one group of defendants, hurt another, and dodged a broader issue posed by one of the cases.

The rulings for the defendant in Hughes v. United States and for the government in Koons v. United States weighed the technical but practically significant questions of whether certain defendants who plead guilty can take advantage of retroactive reductions in federal sentencing guidelines.

Hughes involved defendants who pleaded guilty under agreements that specified their sentences. Koons involved those whose sentences were reduced after they cooperated with the government and pleaded guilty against the backdrop of mandatory minimums.

“Today’s decision will have dramatic consequences for people, like Mr. [Erik] Hughes, who are serving sentences based on Sentencing Guidelines that Congress and the Sentencing Commission now recognize were too harsh,” his attorney, Eric Shumsky of Orrick, Herrington & Sutcliffe, LLP told Bloomberg Law.

But the decision might not apply to a dramatic number of people.

Hughes might help a couple hundred defendants, but Koons could have helped thousands had it come out the other way, Douglas A. Berman told Bloomberg Law, citing U.S. sentencing commission data.

The “most notable thing” about Hughes “is that Justice [Neil M.] Gorsuch sided with federal defendants,” said Berman, who teaches criminal law and sentencing at The Ohio State University Moritz College of Law and filed an amicus brief supporting Hughes.

The court split 6-3, with Gorsuch joining Anthony M. Kennedy’s opinion along with Ruth Bader Ginsbug, Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor.

Gorsuch joining the majority in Hughes “maybe has some longer term signals to where he might be on some sentencing issues,” Berman said.

Hughes could’ve had a bigger effect had the justices resolved a broader issue that drew the attention of court watchers beyond the criminal arena—the question of which opinion applies when the justices split into two equally divided camps and another justice votes differently from both groups, creating a “4-1-4" split.

That broader issue, dating back to the Supreme Court’s 1977 decision in Marks v. United States, impacts other areas like environmental litigation, as the Supreme Court previously split 4-1-4 in Rapanos v. United States, a contentious EPA regulation case.

Jeffrey L. Fisher of the Stanford Law Supreme Court Litigation Clinic represented the defendants in Koons. “We’re obviously disappointed for our clients,” he told Bloomberg Law. But he described the court’s short, unanimous decision against them as “narrow” and “quite limited to the particular sentencing records in this particular case.”

DOJ didn’t immediately respond to a request for comment.

Clarification in Hughes

Hughes pleaded guilty to methamphetamine and gun charges under something called a “Type-C” agreement with the government. It said he’d get 15 years in prison. After he was sentenced, the guidelines range applicable to him was lowered. He sought to take advantage of that.

But to get that benefit, his agreement needed to have been “based on” the guidelines.

The court tried to answer the question of when agreements are based on guidelines back in 2011, in Freeman v. United States. But the justices in Freeman split 4-1-4.

Kennedy wrote an opinion in Freeman for himself and three other justices—the same ones who joined him in Hughes , minus Sotomayor—saying defendants who enter certain plea agreements can get their sentences reduced later on. Sotomayor agreed the defendant in Freeman could lower his sentence but she espoused different reasoning from Kennedy’s. Chief Justice John G. Roberts Jr. dissented in Freeman, joined by Justices Clarence Thomas, Samuel A. Alito Jr., and Gorsuch’s predecessor, the late Antonin Scalia.

That fractured decision in Freeman caused confusion in the lower courts about which of the three opinions from Freeman to apply.

Trying to remedy that confusion, in Hughes, Sotomayor joined forces with Gorsuch and the four from Kennedy’s Freeman opinion to announce a firmer rule: A sentence under a Type-C agreement is “based on” the guidelines range if that range was “part of the framework the district court relied on in imposing the sentence or accepting the agreement.”

Accomplishing that clarity was work enough for the day, though, as the majority left the broader 4-1-4 Marks question unresolved, likewise leaving some observers and litigants wanting.

And Sotomayor wrote a concurrence again, as she did in Freeman, this time making clear she thinks she was correct in that 2011 case but that the need for clarity carries the day. “The integrity and legitimacy of our criminal justice system depends upon consistency, predictability, and evenhandedness,” she wrote.

The majority reversed a contrary appeals court decision that went against Hughes, sending his case back down to see if the judge will reduce his sentence. The justices didn’t say they think Hughes should necessarily get his sentence lowered, only that he’s eligible for that to happen.

Yet despite the defense victory here, the positive effect of Hughes on defendants could be limited, Berman noted. That’s because Type-C agreements are “the exception, not the rule.” Most cases are resolved by plea deals, but not ones that carry a specific, binding sentence, he said.

Roberts dissented in Hughes, as he did in Freeman, again joined by Thomas and Alito. He expressed concern that the majority robbed the government of the benefit of its bargain with Hughes, who otherwise faced a life sentence. But the feds can remedy this purported imbalance going forward, Roberts pointed out, by adding “a provision to every Type-C agreement in which the defendant agrees to waive any right to seek a sentence reduction following future Guidelines amendments.”

No Help for Helpers

In Koons, five meth conspirators cooperated with the government and accordingly got their sentences lowered, receiving “downward departures” from the mandatory minimums they faced. Nonetheless, they asked the justices for further sentence reductions after guidelines ranges lowered.

But their sentences had already gone down due to their “substantial assistance” to the government, and their initial sentences were based on the mandatory minimums, not the guidelines, the feds argued.

A unanimous court led by Alito agreed.

The guidelines would have needed to play a “relevant part” in the framework used to sentence them, he wrote, citing the court’s opinion in Hughes that issued moments earlier.

The case is Hughes v. United States , U.S., No. 17-155, reversed and remanded 6/4/18 , Koons v. United States , U.S., 17-5716, affirmed 6/4/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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