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Greetings, Court Fans!

 

The Court came back yesterday for its final session before the holiday recess, and in the spirit of the season it gave us three opinions and a bunch of cert grants – making this the longest of our Updates so far this Term. If you’re a criminal practitioner, or just a fan of the Court’s recent efforts to remake the world of criminal sentencing, you’ll be in heaven – if not, well, we hope you enjoy the cert grants.

 

The opinions might require a bit of background, as criminal sentencing case law has been the gift that keeps on giving. In its 2000 decision in Apprendi v. New Jersey, the Court held that the Sixth Amendment right to a jury trial bars a court from sentencing a criminal defendant beyond the relevant statutory maximum unless the jury found all facts justifying the increase beyond a reasonable doubt. The Court extended that reasoning in United States v. Booker in 2005, where two different five-Justice majorities (bridged only by Justice Ginsburg) held that: (1) the then-mandatory federal sentencing guidelines ran afoul of the Sixth Amendment because they authorized harsher sentences based on facts found by the sentencing judge, not the jury, and (2) rather than require all sentencing facts to be found by the jury, the remedy was to make the guidelines merely “advisory” for federal judges – essentially one factor to be considered along with the purposes of the federal sentencing act. Under Booker’s “remedial” opinion, federal appellate courts are to review criminal sentences for “reasonableness.” Last Term, in Rita v. United States, the Court further held that appellate courts can, but do not have to, presume that a sentence issued within the relevant guidelines is reasonable, but that they cannot similarly presume that a sentence outside the guidelines is unreasonable.

 

Yesterday, the Court followed up on Rita with Gall v. United States (06-7949), where it held that all criminal sentencing decisions – inside, just outside, or way outside the guidelines – should be reviewed under a deferential abuse-of discretion standard. Gall was convicted of participating in an Ecstasy distribution ring when he was in college, but the judge sentenced him only to probation rather than the standard three years in prison because, essentially, Gall wised up and matured, left the conspiracy early, and did his best to become an upstanding family man and business owner before he ever was indicted for taking part in the ring. The Eighth Circuit reversed on the ground that the judge’s dramatic sentencing departure required a “proportional” justification of extraordinary circumstances. Justice Stevens’s opinion for the Court rejected that test, holding that, while the degree of variance is relevant on appeal, there is no “proportionality” test or mathematical formula for measuring the extent of a departure. Instead, an appellate court should make sure the sentencing judge’s decision was procedurally sound – i.e., based on the right guidelines range and proper statutory factors, as well as on facts that are not clearly erroneous – and then conduct deferential abuse-of-discretion review. In Gall’s case, the sentencing judge reasonably gave great weight to Gall’s “self-motivated rehabilitation,” and the Eighth Circuit should have deferred to that ruling. Justice Scalia concurred to say two things: (1) we still have a Sixth Amendment problem, because no matter the standard of review some sentencing increases will still rely on judge-found facts – but at least this deferential system will result in fewer problems; and (2) defendants still can bring as-applied challenges to their sentences arguing that they rely on judge-found facts. Justice Souter also concurred, basically giving up on his dissents in the prior cases and saying that the only real solution is for Congress to reenact the mandatory guidelines with jury factfinding.

 

There were two dissents. Justice Thomas (about whom we’ll say more below) simply refused to play ball anymore in the post-Booker world: The sentencing judge departed below the guidelines, and this was error. Justice Alito wrote a lengthier dissent, in which he echoed Scalia’s point that Booker’s distinction between “mandatory” and “advisory” guidelines was illusory from the Sixth Amendment standpoint – either way, a judge can increase a sentence based on facts not found by the jury, so both seem equally problematic. Given that the Court is wedded to the distinction, however, he thought the proper solution was to require sentencing judges to give “significant weight” to the guidelines – the whole point of the guidelines and the Sentencing Reform Act was to rob judges of some of their discretion in the name of uniformity. In Alito’s view, the Eighth Circuit’s opinion did just that – it did not set a “proportionality” test, much less a mathematical formula, but simply applied meaningful abuse-of-discretion review and found that the sentencing judge had slighted important federal sentencing policies.

 

Next, in Kimbrough v. United States (06-6330), the same 7-2 Court (this time led by Ginsburg) held that, in sentencing a crack cocaine dealer, a judge can depart from the guidelines based on his disagreement with the guidelines’ disparate treatment of crack versus cocaine powder. Under the relevant statutes and sentencing guidelines, a crack dealer is subject to the same sentence as a dealer involved with 100 times as much cocaine powder, despite the facts that: (1) more recent data have debunked many of the grounds Congress used to justify treating crack more harshly; (2) the disparity means some higher-level powder dealers get off more easily than street-level crack dealers; and (3) the federal sentencing commission itself has tried to get the disparity off the books. Kimbrough, a crack dealer, was sentenced to four fewer years than the guidelines range for his crimes because the judge thought that the minimum was enough and that the case exemplified the unjust effect of the crack/powder disparity. The Fourth Circuit reversed, finding that a departure was per se unreasonable when it was based on disagreement with a guidelines disparity. The Court reversed right back, holding that the disparity, like all of the guidelines, is merely advisory, and that a sentencing judge can issue a sentence consistent with the overarching goal of imposing sentences “sufficient, but not greater than necessary,” to promote respect for the law and punish the offense. In the right circumstances, such as Kimbrough’s, it would not be an abuse of discretion to conclude that the disparity yielded a crack sentence “greater than necessary” to achieve the purposes of sentencing. (Note: The Court appears to have given this “parsimony” provision in the sentencing act new life, as it has not been terribly prominent in the case law – or terribly influential in most sentencing decisions.)

 

Scalia concurred to echo some of the points in his Gall concurrence, and Alito dissented to echo his Gall dissent. Finally, Thomas dissented. He agreed with Souter’s point in his Gall concurrence – the right remedy was to require jury factfinding for sentencing facts, not to make the sentencing guidelines advisory but keep judicial factfinding. As Thomas saw it, the Court now had to figure out how to administer a sentencing scheme that had no basis in the federal sentencing act, and there simply was no way to do this without making policies that had no grounding in law. Absent a principled way to apply Booker’s remedial opinion – and he found none – Thomas would apply the act as written and keep the guidelines (and thus the crack/powder disparity) mandatory.

 

The final decision of the day was less momentous. In Watson v. United States (06-571), the Court unanimously held that a person who trades drugs for a gun has not “used” a firearm in connection with drug trafficking. The relevant federal statute sets a mandatory minimum sentence for a drug trafficker who “uses” a firearm, but it does not define “use.” Back in 1993, in Smith v. United States, the Court held that someone who trades a gun for drugs “uses” the gun, but yesterday the Court held that the converse was not true. Souter’s opinion for the Court relied largely on the “reasonable and normal” everyday usage of “use,” noting that no one but the prosecutor would say that a person who receives a gun in a barter transaction has “used” it. As for the asymmetry with Smith, in which one side of a guns-for-drugs trade is more penalized than the other, the Court was unimpressed: Law depends on respect for language (can’t you just see that statement coming back to haunt someone in a future Scalia dissent?), and the proper fix for any disparity is for Congress to change the statute. Ginsburg concurred only in the judgment. She thought the asymmetry made no sense; she would overrule Smith, confining “use” of a firearm in drug trafficking to “use as a weapon,” which she thought was both coherent and consistent with normal usage.

 

So much for the decisions. On Friday, the Court hit us with an order list that granted cert in six new cases – the Justices are doing their darnedest to fill up this Term’s argument calendar, despite the relatively slow pace of cert grants earlier in the Term. The biggest of the new cases are Munaf v. Geren (06-1666), and Geren v. Omar (07-394), which concern two U.S. citizens’ attempted habeas challenges to their detention by U.S. forces in Iraq and planned transfer to Iraqi custody. Here are the (lengthy) questions in Munaf:

 

(1) When an American citizen is detained under the exclusive control of American military authorities abroad, is the jurisdiction of a federal court to entertain his petition for a writ of habeas corpus defeated by the fact that those . . . authorities purport to act as a part of a multi-national force and that they propose – with no valid legal authority – to deliver the citizen to a foreign nation for execution of a death sentence imposed by a court of that nation?

(2) Does the decision of the Court of Appeals, holding that Hirota v. MacArthur deprives the federal courts of jurisdiction under these circumstances, extend the 1948 per curiam opinion in Hirota into conflict with this Court’s post-1948 jurisprudence culminating in Rasul v. Bush and Hamdi v. Rumsfeld, and should that conflict be resolved either by restricting Hirota to its proper sphere or by overruling it?

(3) Did the Court of Appeals err in holding that the jurisdiction of the federal courts over a habeas corpus petition filed by an American citizen detained under the exclusive control of American military authorities abroad turns on whether those authorities propose to deliver him to a foreign nation for prosecution in its courts (in which case the Court of Appeals has held that habeas jurisdiction exists) or for execution of sentence after conviction by the foreign court (in which case the Court of Appeals here holds that jurisdiction ceases to exist)? If this distinction is valid, can the military authorities defeat federal habeas corpus jurisdiction ex post by doing what they did in this case – arranging the conviction and sentencing of their detainee by a foreign court after his habeas petition has been filed?

 

The other new grants, which have a largely criminal focus, are as follows:

 

Burgess v. United States (06-11429): (1) Whether the term “felony drug offense” as used in federal statute requiring imposition of enhanced mandatory minimum 20 years’ imprisonment when drug offender has “prior conviction for a felony drug offense” must be read in pari material with federal statutes defining both “felony” and “felony drug offense,” so as to require imposition of minimum 20-year sentence only if prior drug conviction is both punishable by more than one year in prison and characterized as a felony by controlling law. (2) When the court finds that a criminal statute is ambiguous, must it then turn to rule of lenity to resolve ambiguity?

 

Indiana v. Edwards (07-208): May States adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial?

 

Florida Department of Revenue v. Piccadilly Cafeterias, Inc. (07-312): Whether section 1146(a) of the Bankruptcy Code, which exempts from stamp or similar taxes any asset transfer “under a plan confirmed under section 1129 of the Code,” applies to transfers of assets occurring prior to the actual confirmation of such a plan?

United States v. Ressam (07-455): Whether Section 844(h)(2) [of Title 18, prescribing a mandatory ten-year term of imprisonment for any person who “carries an explosive during the commission of any felony which may be prosecuted in a court of the United States”] requires that the explosives be carried “in relation to” the underlying felony.

 

Huber v. Wal-Mart Stores, Inc. (07-480): If a disability prevents an employee from performing the essential functions of his or her current position, does the ADA require: (a) that the employer reassign the employee to a vacant, equivalent position for which he or she is qualified, as the Tenth and District of Columbia Circuits have held; or (b) that the employer merely permit the employee to apply and compete with other applicants for the vacant, equivalent position for which he or she is qualified, as the Seventh and Eighth Circuits have held?

 

Barring an unexpected order, this should be it for Court activity before the holidays. Until 2008, thanks for reading!

 

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim, Ken, or any other member of the Appellate Practice Group at 203-498-4400