Sipai And Administrative Law In The Criminal Context

On September 30th in Sipai, the Ninth Circuit amended an earlier opinion that had found the district court lacked jurisdiction to reduce a sentence based on crack retroactivity. Although the amendment is an improvement, both opinions are based on a simple mistake of administrative fact, presenting a case study on the importance of administrative law in criminal cases. In the original opinion, the Ninth Circuit applied part of the amended crack retroactivity policy statement that appeared generally to bar reductions for post-Booker crack defendants. On the contrary, the Commission intended to disapprove reductions only where the original sentence entirely disregarded the Guidelines. Because the Commission violated administrative law norms in promulgating this part of the Guideline, the Commission’s intent was not adequately communicated, leaving the parties and the courts unaware that the Commission did not intend to restrict the remedy for overlong crack sentences.

Let’s start back at the November 13, 2007, hearings on crack retroactivity. Lisa Freeland and I testified for the Federal Public Defenders on the question then before the Commission: Whether the partial remedy passed by the Commission lowering the crack guideline by two levels should apply retroactively. The Commission has been tenacious in trying to correct the over-incarceration resulting from the 100 to 1 crack to powder sentencing disparity. After open hearings on the question of retroactivity (available here), the Commission voted 7-0 to make a partial remedy available.

But embedded in the accompanying restrictive amendments to § 1B1.10, p.s., which were never published for comment and which no defender had ever seen, was the statement that caused the Ninth Circuit’s confusion in Sipai. The Sentencing Reform Act calls for participation of all criminal justice players – including Federal Defenders – in the amendment process under 28 U.S.C. § 994(o) and (p). Congress also required compliance with the notice-and-comment provisions of the Administrative Procedure Act, 28 U.S.C. § 994(x), and required rational and data-based decision-making under the APA and 28 U.S.C. § 991(b)(1)(C), (2), and § 995(a)(12)-(16). While the notice-and-comment provision applies by its terms only to “guidelines,” and not “policy statements,” the Court held in Dillon that § 1B1.10, p.s. was mandatory. By including language that set standards upon which sentencing courts would rely in deciding time the prisoner would serve, the Commission violated the basic administrative law standards for promulgation of substantive rules.

The Sipai case presents a classic example of the need for administrative law compliance. The surface of the policy statement section seems to foreclose relief to post-Booker defendants:

"[I]f the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate."

However, at the crack summit in Charlotte on January 17-18, 2008, Commission Chairman Ricardo Hinojosa disclaimed the reading that Booker sentences were not subject to the sentence reduction. He unequivocally stated that the statement quoted above was only supposed to apply where the sentencing judge entirely disregarded the Guidelines at the original sentencing. This position was confirmed at the St. Louis crack summit on January 24, 2008, where Allan Dorhoffer, the principal legal training officer of the United States Sentencing Commission, explained that this phrase was not intended generally to disqualify sentences imposed under Booker from the two-level reduction. He stated that the disqualification was intended to apply only where the judge decided a number of months “and didn’t look to the guidelines at all.” “[T]here are some judges who might not have paid as close attention to the guidelines range in sentencing, and just said, ‘you know, I think in general, 20 months is appropriate.’ In those situations – if you were a judge that did that – a further reduction is not going to be appropriate. Is that going to be the normal set of cases? Probably not.” The entire exchange with Mr. Dorhoffer is available here.

The original Sipai opinion shockingly upheld the district court's determination that it lacked jurisdiction to reduce a post-Booker crack sentence (here). Through the diligent advocacy of Joyce Leavitt and Robin Packel of the Oakland federal defender office, the opinion was amended. Instead of affirming the sentence, the Court remanded the case for the exercise of district court discretion. The FPD attorneys successfully argued that a general policy statement discouraging reductions did not deprive the sentencing court of jurisdiction to exercise discretion whether to reduce the sentence.

That leaves a potential administrative law challenge to the policy statement itself. The rule is legislative because it decides whether a reduction should be granted. Based on the lack of notice-and-comment, and the failure to articulate a supportable rationale, the portion of the policy statement at issue should be stricken as invalid. In Bureau of Prisons litigation, the Ninth Circuit has stricken regulations regarding sentence reduction under 18 U.S.C. § 3621(e) for successful completion of RDAP for violation of notice-and-comment (Paulsen) as well as for violation of APA § 706's requirement of rational rule-making (Arrington and Crickon). The same administrative law should apply to this aspect of the policy statement.

The application of administrative law can assist our clients in other contexts. For example, in the Fox case involving the degree of reduction on crack retroactivity, the Ninth Circuit initially granted the government’s request to rehear the case directly en banc. In Hicks, the Ninth Circuit had upheld the district court’s discretion to impose a reasonable sentence when considering a sentence reduction based on retroactive amendment. The government challenged the district court’s decision to reduce Fox’s sentence by more than two levels based on mere commentary to the crack retroactivity guideline. The issue may sound familiar because the Supreme Court granted certiorari on the constitutional issue in Dillon. Despite FPD Freeland’s heroic efforts, we lost the constitutional issue in the Supreme Court. But in the Ninth Circuit, Mr. Fox raised the administrative law claims that were not resolved in Dillon. Just as in Lopez v. Davis, where the Supreme Court denied RDAP statutory relief but left the administrative law questions open in footnote 6, the Dillon decision leaves unresolved the administrative law validity of the relevant policy statement. On September 9, 2010, the Ninth Circuit denied the government’s motion to summarily reverse Fox's sentence based on Dillon – “because the arguments raised by this appeal are sufficiently substantial to warrant further consideration by the merits panel” – and set the case for panel argument.

We criminal defense lawyers often view administrative law as blessedly beyond the scope of our normal advocacy. But the administrative validity of governmental action can have a decisive effect for our clients. In such cases, administrative law should be aggressively asserted keeping two principles in mind. First, in Arrington’s footnote 6, the Ninth Circuit left open the question whether “the promulgation of agency rules that restrict human freedom should be reviewed with ‘special vigor.’” Second, in footnote 9 of Chevron, the Court limited agency action based on the construction of the governing statute as elucidated using the “traditional tools of statutory construction,” which should include such defense-friendly principles as the rule of lenity and the doctrine of constitutional avoidance. If you have cases at the intersection of criminal and administrative law, such as the effect of Guidelines amendments or schedule decisions under the Controlled Substances Act, the briefing in Fox is available here (opening at 30-39; amicus at 17-27; opp to reversal)and you can feel free to contact our office or Amy Baron-Evans at the Sentencing Resource Counsel.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon