Case o' The Week: Second bite at Sentencing Apple Just a Nibble in the Ninth - Section 3582 Sentencing Limitations Upheld

  Why fret now about good new sentencing guidelines coming next fall, when 18 USC § 3582(c)(2) will permit re-sentencing?

  A: United States v. Davis, Jr. 2014 WL 114691 (9th Cir. Jan. 14, 2014), decision available here.

Players: Decision by Judge Canby, joined by Judges Watford and Hurwitz. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: In 2008 Davis pleaded guilty to a crack charge and a gun charge. Id. at *1. His guidelines were CH IV / OL 29, producing a low-end of 121 months. Id. The district court varied downwards to 70 months. Id. In 2012, Davis filed a motion to reduce his sentence under 18 USC § 3582(c)(2), after the Fair Sentencing Act (“FSA”) resulted in reduced crack guidelines. Id. Though the low-end of Davis’s (lowered) post-FSA guidelines were still higher than 70 months, he sought a variance down to sixty months, the mand-min. Id. 

  At issue at sentencing was Policy Statement § 1B1.10(b). In 2011 the Sentencing Commission amended this Policy Statement– it now sets the resentencing floor in this context to the low-end of the amended guideline range. Id. “The district court held that the Sentencing Commission’s Policy Statement § 1B1.10(b) precluded a sentence reduction because Davis had already received a sentence below the minimum of the amended guideline range.” Id. at *1.

Issue(s): “[ ] Davis, Jr. appeals the district court’s denial of his motion to reduce his sentence pursuant to 18 USC § 3582(c)(2) . . .  Davis argues that § 1B1.10(b) exceeds the Commission’s statutory authority and violates the separation of powers doctrine.” Id. at *1.

Held: “We . . . reject Davis’s argument that the amendment of § 1B1.10(b) exceeded the Commission’s statutory authority. We also reject Davis’s contention that amended § 1B1.10(b) conflicts with Congress’s directive that the Commission promulgate policy statements that will further the purposes of sentencing set forth in 18 USC § 3553(a)(2), 28 USC § 994(a)(2) (outlining the Commission’s duties).” Id. at *2. “Finally, we reject Davis’s contention that amended § 1B1.10(b) violates the separation of powers doctrine because it requires the district court to rescind a previously granted departure or variance.” Id. at *3. “Section 1B1.10(b) does not offend separation of powers principles because it is simply the result of an exercise of Congress’s power to control the scope of judicial discretion regarding sentencing.” Id.  

Of Note: With no offense to Ms. Chen’s formidable powers of persuasion, Davis is not an entirely unexpected result – many of these issues had already been decided in the Ninth, or rejected by other Circuit decisions. See, e.g., Tercero blog here.  

  Davis is an important read now, however, because it foreshadows battles to come when the many (pro-defense) amendments to guidelines kick-in on November 1, 2014 – particularly to the drug guidelines.

How to Use: What would you have done differently on your crack cases, with the benefit of hindsight and our experiences on FSA re-sentencing? It’s a timely question: good guideline amendments will almost-certainly become effective Nov. 1, 2014. See reader-friendly amendments here. (Drug guidelines on page 32).  

  What will we say to today’s clients, when they call next Halloween from the BOP prison and want a re-sentencing motion? Push hard now to get rid of § 3582(c) waivers in today's plea agreements, with an eye towards the November amendments. 

  (Or put the brakes on the case: November 1 is just a short 286 days away!)

                                               

For Further Reading: The proposed amendments strike sentencing guru Doug Berman “as HUGE news, and a terrific and fitting application of some of the themes that have been stressed by many members of Congress and by the Attorney General in recent months.” See blog here.

  The Prof’s take? “Perhaps I am at risk of already getting too excited (and counting too many unhatched chickens) concerning this USSC vote. But especially if this vote was unanimous within the Commission, and especially if it has the formal or even tacit approval of the Department of Justice, I do not think I am completely off base when suggesting this is a really big deal.” Id.

 

Apple image from http://www.valiant.com/authors/valiant/a-hidden-benefit-of-filing-a-bid-protest-could-give-your-company-a-second-bite-at-the-apple-if-you-lose-a-competition/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: FSA not All Cracked Up to Be -- Austin & Crack Resentencing for 11(c)(1)(C) Deals

Hard, at times, to explain the vagaries of federal sentencing. In Austin, the Ninth (following a fractured Supreme Court), denies relief to a defendant seeking a reduced sentence under the Fair Sentencing Act (the legislation that reduced the unfair and disparate sentences for crack cocaine).

The rub?

His 11(c)(1)(C) plea agreement didn't refer to the guidelines (or didn't refer to them clearly enough). United States v. Austin, 2012 WL 1322204 (9th Cir. Apr. 18, 2012), decision available here.

Players: Hard fought appeal by ED Cal FPD Dan Broderick and AFPD David Porter. Decision by Judge Bea, joined by Judges Wallace and D.W. Nelson.

Facts: Austin was charged with: i) possess with intent to distribute over 50 grams of crack, ii) a § 924(c) count, iii) a § 922(g) charge, and iv) allegation of a prior drug case. Id. at *1. He pleaded guilty pursuant to an 11(c)(1)(C) deal and was sentenced seventeen years. Id. 

Years later he filed a motion under 18 USC § 3582(c)(2) to reduce his sentence under the new crack guidelines. Id. The district court granted the motion and knocked two years off. Id. 

The government appealed; while the case was pending the Supreme Court decided Freeman v. United States, 131 S. Ct. 2685 (2011).  

Issue(s): “In Freeman, a four-justice plurality and Justice Sotomayor, concurring in the judgment, concluded that a sentence imposed pursuant to a (C ) agreement does not preclude eligibility for § 3582 (c)(2) relief . . . . Justice Sotomayor carved out two exceptions where a sentence imposed pursuant to a (C) agreement is nevertheless ‘based on’ a Sentencing Guidelines range.” Id. at *2 . . . The second exception, which Austin argues is applicable here, provides that . . . [a]s long as [a guideline’s sentencing range] is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is ‘based on’ that range.” Id. at *3 (quoting Freeman) (emphasis in original).

Held: “We conclude that Justice Sotomayor's concurrence in Freeman controls this case because Austin's plea agreement was a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement (‘(C) agreement’). Applying her opinion, we hold that the district court lacked jurisdiction to reduce Austin's sentence because the imposed seventeen-year sentence was ‘based on’ the parties' plea agreement and not on ‘a sentencing range that has subsequently been lowered by the Sentencing Commission.’ § 3582(c)(2); see Freeman, 131 S. Ct. at 2697–98. ..” (Sotomayor, J., concurring).”

Of Note: To be fair, this beef is primarily for the fractured Supremes and Freeman – not the Ninth – but really how many (c)(1)(C) deals are not driven by the guidelines, at their core? Justice and USAOs are so slavishly devoted to “advisory” guidelines that any deal is driven by the guidelines at sentencing – and inevitably the high crack guidelines are the primary driver for negotiated dispositions. 

In fact, according to Austin’s appellate brief, his (C) plea agreement refers to the guidelines five times in four sentences – and specifically concedes that the Court would determine his advisory sentencing range before considering the recommended seventeen-year sentence. See Answering Brief at 2010 WL 6351294, *3-*4. If the parties had simply ballparked the offense level in the plea agreement (OL 31), id., Austin would have certainly received his crack-amendment reduction. Hard to understand why other crack defendants have gotten their FSA reductions, but because of this simple omission in the plea agreement, Austin does not.

How to Use: We love ‘em, the bench hates ‘em: (C) deals make the world go round. Federal Rule of Criminal Procedure 11(c)(1)(C) provides for “locked” dispositions that contain recommendations from the parties. If the district judge disagrees, the Court is free to reject the deal – but then either party can then pull out of the agreement. Judge Bea does a good job in Austin explaining how (C) agreements work, and reviews the advisements necessary for this special breed of deal. Austin, 2012 WL 1322204 at *3. Austin is a useful place to start to understand this valuable disposition tool.                     

For Further Reading: (C) deals are good. (C) deals are particularly good after Booker, to provide certainty amongst the uncertainty caused by the advisory guidelines. For an interesting and compelling explanation of why (C) deals should be used more broadly in our post-Booker world, see Wes Porter, The Pendulum in Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role for Binding Plea Agreements Post-Booker, 37 Wm. Mitchell L. Rev. 469 (2011), available here.

Image of crack cocaine from http://youthrise.org/action/cocaine-and-crack

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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