Case o' The Week: Venn and the Art of Jurisprudential Maintenance - Davis and Fractured Supreme Court decisions

The Ninth gets all Venn on us.

United States v. Davis, 2016 WL 3245043 (9th Cir. June 13, 2016) (en banc), decision available here.

Players: Decision by Judge Paez, joined by Judges Fletcher, Rawlinson, Callahan, and Owens. 
  Concurring opinion by Judge Christen, joined by CJ Thomas, and Judges Tallman, Nguyen, and Hurwitz. 
  Judge Bea, dissenting. 
  Big win argued by ND Cal (and Jones Day) counsel Nathaniel Garrett.

Facts: Davis plead guilty to distributing crack, under a (c)(1)(C) deal. Id. at *2. The agreement acknowledged a guideline range and recommended a sentence below it. Id. Congress then passed the Fair Sentencing Act, and Commission adopted lower retroactive crack guidelines. Id. at *3. Davis filed a § 3582 motion to reduce his sentence. The district court held it was bound by Justice Sotomayor’s concurring opinion in Freeman, and found it lacked jurisdiction because Davis’s sentence was “based on” the (C) deal, not the guidelines. Id. at *4. A three-judge panel affirmed, and the case went en banc.

Issue(s): “[W]e must consider how to interpret the Supreme Court's fractured opinion in Freeman . . ., which addressed whether a defendant sentenced pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is eligible for a sentence reduction under . . . § 3582(c)(2) . . .” Id. at *2 (citation omitted].

Held: “Revisiting Freeman and our application of Marks to fractured Supreme Court opinions, we hold that where we can identify no rationale common to a majority of the Justices, we are bound only by the result. In so holding, we join the D.C. Circuit, which concluded that Freeman lacks a controlling opinion ‘because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other.’ . . . Bound only by Freeman’s specific result, the D.C. Circuit adopted the plurality opinion’s approach, which holds that “[e]ven when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” . . . . We also adopt this approach and overrule Austin. Applying the plurality approach, we conclude that Davis is eligible to seek a sentence reduction under § 3582(c)(2).” Id. at *2 (citation omitted).

Of Note: Great result for drug resentencing – but the far bigger issue decided in Davis is how the Ninth deals with fractured Supreme Court decisions. Judge Paez provides a clear explanation of the two main approaches: one focusing on the reasoning of the various opinions, and the other focusing on the ultimate results. Id. at *5. 
  Judge Paez concedes that the Ninth’s own decisions on the fractured-Supremes conundrum have “not been a model of clarity.” Id. “To foster clarity,” this en banc decision “explicitly adopt[s] the reasoning-based approach to applying Marks.” Id.

  The Ninth imagines a Venn diagram with the plurality and concurring opinions: one can’t envision overlapping circles with Justice Sotomayor’s and the plurality opinion. Id. at *7.

  With this reasoning approach, the Ninth stands with D.C. and breaks with the approach of four circuits. Id. at *8. (But with our drifting 4-4 Supreme Court, query whether circuit splits are still as vulnerable to cert. calls?)

How to Use: “Even when a defendant enters into an 11(c) (1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” Id. at 10. 
  Scratch out § 3582(c)(2), substitute “§ 2255”, and our Johnson habeas clients are off to the races. During this Summer of Johnson Replies, turn to Davis for our (C) clients (and other “plea agreement” arguments in the gov’t Oppositions). Like a virus, the Guidelines infect all sentences: a deal’s recommendation won’t immunize a case from Johnson attack.

                                               

For Further Reading: Great timing, Davis: we may use it next week. Two big Supreme Court decisions are expected in very short order: Mathis, summary here, and Voisine, summary here. 

  Both cases are important for four Johnson efforts: decisions will start hit at 7:00 a.m. Monday June 20th.

Image of Venn diagram from http://jasminejonesy.tumblr.com/post/128324172173/11-funny-venn-diagrams-to-brighten-up-your-day

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

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Case o' The Week: Lost in Austin - the Ninth fractures over fractures, crack resentencing

 A fractured panel fractures over a fractured opinion from a fractured Supreme Court.

  (Weirdly appropriate, for a “crack” case . . .)

United States v. Davis, 776 F.3d 1088 (9th Cir. Jan. 27, 2015), decision available here.

Players: Per curiam opinion, by Judges O’Scannlain, Kleinfeld and Berzon. Compelling concurrence by Judge Berzon.  

Facts: In 2005 Davis pleaded guilty pursuant to a Fed. R. Crim. Proc. 11(c)(1)(C) deal. Id. at 1089. He was sentenced to 18 years. Id. After the Sentencing Commission reduced the Guideline sentences for crack cocaine in 2010, Davis sought a retroactive reduction of his sentence. Id. The district court held that it lacked jurisdiction to modify his sentence, because Davis’s sentence was not ‘based on’ the Guidelines. Id.

Issue(s): In light of the Supreme Court’s divided decision in Freeman v. United States, 131 S. Ct. 2685 (2011), and the Ninth Circuit’s interpretation of that decision in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), does the district court have jurisdiction to modify a sentence under 18 U.S.C. § 3582(c)(2) when the underlying sentence was pursuant to a (c)(1)(C) plea agreement?

Held: “We affirm.” Id. at 1089. “The district court’s determination in this case that it lacked jurisdiction to reduce Davis’s crack sentence is consistent with” United States v. Austin, 676 F.3d 924 (9th Cir. 2012).” Id. at 1091

Of Note: When the case that is the subject of the Case o’ The Week memo is dusty enough to have earned an “F.3d” cite, fair to infer the drought in Ninth criminal opinions continues. As of the Ides of March, the last criminal opinion in the Ninth was the Mendez-Sosa case on March 2. See http://www.ca9.uscourts.gov/opinions/ The opinion (not order, or amended opinion) before that? Feb 5, in Burgos-Ortega. If the trope, “no news is good news” is true, very good news of late in the Ninth.

How to Use: This disappointing decision is not a big surprise, given the Ninth’s decision in Austin. In a very thoughtful concurrence, Judge Berzon takes a hard look at how appellate courts are supposed to interpret fractured Supreme Court decisions. Id. at 1091 (Berzon, J., concurring). She finds Austin wanting, and opines that Marks (the lead opinion on fractured opinions) is not consistent with the Ninth’s approach in Austin. Id. at 1092 (discussing Marks v. United States, 430 U.S. 188 (1977)). Judge Berzon ends with an en banc flag: “We should reconsider Austin’s holding . . . .” Id. She’s right, Austin deserves another look, and preserving this issue in (c) cases seems prudent.

  More broadly, Judge Berzon’s concurrence is a helpful read when dealing with the (increasingly frequent) problem of fractured opinions, and how to glean the controlling holding under Marks. Not surprisingly, courts are even fractured on how to properly read fractured opinions. (Happily, the perpetual discord guarantees the defense will always have something to argue.)

Hon. Judge Claudia Wilken

                                               

For Further Reading: The Northern District of California now has a Post-Plea Diversion / Deferred Sentencing Court. See notice here. The agreement for the new Court has been signed by all the stakeholders in the district, and can be found here: 

   Many folks have worked long and hard to make this agreement a reality, but as Chief Judge Hamilton notes, much credit goes to the “tireless efforts of our immediate past Chief Judge, Claudia Wilken.”   

   Look for more details on the new Court this spring as enrollment and staffing get up and off the ground.

Image of fractured glass from http://joanwz.hubpages.com/hub/PlexiglassVsTemperedGlass#slide6421188

Image of the Honorable Judge Claudia Wilken from https://www.acbanet.org/UserFiles/images/Photo%20Album/JusticeForAll_2012/JFA2012web_226.jpg

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

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