United States v. Booker (04-104), United States v. Fanfan (04-105), Jama v. Immigration & Customs Enforcement (03-674), Clark v. Martinez (03-878), and Benitez v. Rozos (03-7434)

January 12, 2005 Supreme Court Update


Greetings, Court Fans!

The Court issued three opinions today, none bigger (in significance or page length) than its long-awaited decision on the Federal Sentencing Guidelines in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105. Booker/Fanfan generated two separate 5-4 opinions and numerous dissents, which we can only briefly summarize here. Here's the extremely short version: The Sixth Amendment right to a jury trial applies to the Guidelines because they are binding on judges and thus have the force of law. But rather than maintain the Guidelines as modified by a jury trial requirement, the Court instead held that the Guidelines are now only advisory. District courts "must," however, consult the guidelines and "take them into account when sentencing," subject to appellate review for reasonableness.

Here's a longer summary that still fails to do justice to all the opinions. Booker and Fanfan were convicted by juries of federal offenses, and the district judges found additional facts that, under the Guidelines, authorized harsher sentences than the facts found only by the jury. Relying on Blakely v. Washington, 542 U.S. --- (2004), which held that Washington State's similar guidelines were subject to the Sixth Amendment, the Sixth Circuit held that Booker was entitled to either a new sentence based only on the jury verdict or a new sentencing hearing before a jury. For similar reasons, Fanfan's judge declined to follow the Guidelines and sentenced him only on the jury's verdict.

In the first majority opinion, by Justice Stevens (with Scalia, Souter, Thomas and Ginsburg), the Court held that the Sixth Amendment applies to the Guidelines because they are indistinguishable from the Washington scheme in Blakely. If the Guidelines were merely advisory, their use would not implicate the Sixth Amendment. But instead they have the force of law, and they rarely authorize downward departures based on facts found by judges – leading to mandatory sentences not authorized by verdicts and based on evidence never heard by a jury. That the Federal Sentencing Commission, and not Congress, promulgated the Guidelines was irrelevant to the Sixth Amendment inquiry, and a jury trial requirement for sentencing created no separation of powers concerns.

The second majority opinion, by Justice Breyer (with the Chief, O'Connor, Kennedy and Ginsburg), addressed what to do with the Guidelines in light of the first holding. The issue is whether Congress would prefer retaining the Guidelines with a new jury trial requirement or severing the incompatible provisions. Based on statutory language, the sheer complexity of a system using juries, and the fact that the jury's involvement would make it much harder to depart upward, the Court concluded that Congress would not want to retain the Guidelines with the Sixth Amendment grafted onto them. So severance of the incompatible provisions is necessary, and the provisions making the Guidelines mandatory are now history. But other parts of the sentencing statutes survive, so judges must still consider the Guidelines and other sentencing goals and impose sentences that reflect the seriousness of the offense, the need for punishment and deterrence, etc. Moreover, the statutes still allow for sentencing appeals. The Court severed statutory provisions setting forth appellate standards of review (because they required de novo review of any downward departure) but found an implied standard of "unreasonableness" in the remaining statutory language and the need for "sound administration of justice."

So much for the majorities. Sadly, Justice Ginsburg, the only Justice common to both majorities, did not write her own opinion. Instead, Stevens and Breyer each dissented from the other's ruling. First, Justice Breyer (joined by the Chief, O'Connor and Kennedy) wrote that nothing in the Sixth Amendment barred a judge from determining the manner in which an offender committed his crime, and history does not support a right to a jury trial regarding sentencing facts. Moreover, the Stevens majority has deprived Congress of its constitutional authority to legislate regarding sentencing. Basically, Breyer disagreed with the Stevens majority, then had to go write the Court's opinion on what to do about it.

Not to be outdone, Justice Stevens, joined by Souter and Scalia (except for parts relying on legislative history), viewed the Breyer majority's "severance" remedy as a similarly "extraordinary exercise of authority" unauthorized by law. Severance usually follows a judicial determination that some statutory provision is unconstitutional and an effort to see if the rest of the statute can be saved. Here, however, the Court has determined that some unconstitutional applications of the Guidelines require the severance of two provisions that, by themselves, were clearly within Congress' power. This approach is so novel that no party or amicus even though to ask for it, and it exceeds the Court's authority. Also, the Breyer majority's remedy will undermine Congress' goal of uniformity in sentencing. Stevens would simply have grafted the jury trial requirement onto the existing Guidelines – because so many cases plead out, and because so few convictions involve sentencing enhancements, the burden of a jury requirement would not be huge. Justice Scalia also dissented from the Breyer majority, noting that at least Stevens' approach was comprehensible. He decried the Breyer majority's implied "reasonableness" standard for sentencing appeals, which violates the principle that sentencing discretion is unreviewable without express statutory direction (and, after striking the only provision establishing an appellate standard, "only in Wonderland" could the Court concoct another one). Justice Thomas also dissented. Rather than invalidate any statutes on their face, Thomas would have treated these cases as "as applied" challenges. While the judicial factfinding in Booker was unconstitutional, it was "severable" from the constitutional application of the Guidelines to other defendants.

Booker/Fanfan was the big news of the day, but the Court also issued two other opinions. In Jama v. Immigration & Customs Enforcement, No. 03-674, a 5-4 majority of the Court held that, under certain circumstances, the government may remove an alien to another country without the advance consent of that country's government. The INS sought to remove Jama to Somalia, where he was a citizen, and the case turned on 8 U.S.C. § 1231(b)(2). As Justice Scalia's majority opinion characterized the statute, it provides four options for the AG: (1) a removable alien can go to the country of his choice (Jama declined to choose); (2) he can go to the country of his citizenship if its government will accept him (Somalia apparently said nothing); (3) he can go to a country with which he has some other connection (e.g., his birthplace, his residence before the United States, etc.); or (4) if all else fails, he can go to "another" country that will take him. The issue was whether the AG could just put Jama on a plane to Somalia (as his birthplace) under (3), which unlike (2) has no consent requirement. You can guess where this is heading: If Congress intended to require consent for category (3), it would have said so. In some cases (like Jama's), this might allow the AG to circumvent the consent requirement in (2), but that would not always be so (one can be a citizen of a country other than one's place of birth, for example), and the possibility of circumvention was not reason enough to imply an absolute consent requirement. Finally, an implied consent requirement would violate the customary policy of deference to the executive in foreign affairs. Justice Souter (joined by Stevens, Ginsburg, and Breyer) dissented. While the majority described "categories" (3) and (4) as separate concepts, in fact they derived from seven subsections of the same statutory provision. By describing the last resort as "another" country that would accept the alien, Congress must have intended that all the options required consent. In addition, deference to the executive was unwarranted because the Constitution (art. I, § 8, cl. 4) gives plenary authority over aliens to Congress.

In another immigration case, a 7-2 majority of the Court held in Clark v. Martinez, No. 03-878, and Benitez v. Rozos, No. 03-7434, that the government can detain inadmissible aliens beyond the statutory 90-day removal period, but only for as long as is reasonably necessary for removal. Martinez and Benitez were aliens from Cuba who were declared inadmissible, and under 8 U.S.C. § 1231(a)(1) they should have been removed within 90 days. They were not, and they filed habeas petitions challenging their continued detention. The Ninth Circuit ordered Martinez's release, while the Eleventh Circuit upheld Benitez's detention. This will shock some of you, but the Scalia-led majority agreed with the Ninth Circuit. In Zadvydas v. Davis, 535 U.S. 678 (2001), the Court held that under another provision, § 1231(a)(6), the government may detain an alien beyond 90 days for as long as "reasonably necessary" to remove him. This discretion has bounds, and Zadvydas established a presumptive six-month time limit. Benitez and Martinez were detained well beyond six months, and the government offered no evidence that it would be able to remove them to Cuba in the foreseeable future, so both habeas petitions should have been granted. Justice O'Connor wrote separately to note that the six-month period could be extended depending on the circumstances, and that any alien released as a result of the Court's ruling would still be under supervision.

In what may come as another shock to some, Justice Thomas (joined in part by the Chief) dissented from the Scalia majority. Section 1231(a)(6) provides for the continued detention of two kinds of aliens: the "inadmissible" and those who had been admitted but were now "removable." Zadvydas dealt only with "removable" aliens. Benitez and Martinez were "inadmissible," and Thomas would read the statute as authorizing their indefinite detention. Further, Thomas wrote that Zadvydas was just wrong and not entitled to stare decisis effect (the Chief did not join this part of the dissent). Notably, the bulk of the majority opinion was really a response to Thomas, with the Court pointedly characterizing parts of his dissent as "quite wrong" and stating flatly that it makes no sense to treat inadmissible and removable aliens differently. The exchange calls to mind Scalia's recent remark that one major difference between the two Justices is that Scalia believes in stare decisis while Thomas does not. Even if immigration is not your area, this exchange is worth reading.

Which, hopefully, is still your view of these updates. Thanks as always for sticking with us!

Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400