Sunday, June 19, 2016

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.

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



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