After Booker, are federal courts allowed to deviate from the Federal Sentencing Guidelines when resentencing prisoners based on retroactively applicable Guideline modifications? Or are they still bound to follow the (albeit modified) Guidelines?
Pursuant to a statutory sentence-reduction proceeding, are courts permitted to recalculate the underlying Guideline range, or must they adhere to their initial calculation?
In 1993, Petitioner Percy Dillon was tried and convicted in federal court for possession of crack cocaine and was sentenced to 322 months in prison under the Federal Sentencing Guidelines. Subsequently, the Supreme Court determined in United States v. Booker that the Guidelines were only advisory, not mandatory, and Congress retroactively reduced the Guideline range for crack cocaine offenses. Dillon filed a motion to have his sentence retroactively reduced, and argued that under Booker the Guidelines are not binding on his resentencing. The district court rejected this view, and reduced Dillon’s sentence to 277 under the new Guidelines. The Third Circuit affirmed, and the Supreme Court granted certiorari to resolve the issue of whether the Federal Sentencing Guidelines are binding or merely advisory on retroactive sentence reductions.
Questions as Framed for the Court by the Parties
I. Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582.
II. Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range.
In 1993, the United States District Court for the Western District of Pennsylvania convicted Percy Dillon of a number of federal crimes relating to his possession of crack cocaine. Applying the Federal Sentencing Guidelines, the district court calculated Dillon’s offense level and criminal history score, and sentenced him at the bottom of the permissible Guidelines range—322 months. At Dillon’s initial sentencing, the trial judge noted that he believed the sentence imposed by the Guidelines was unreasonable. Despite noting 322 months was “unfair to the defendant,” the district court concluded it was “bound by the guidelines range.”
After Dillon’s sentencing, two events took place. First, in 2005, the United States Supreme Court held in United States v. Booker that certain aspects of the Federal Sentencing Guidelines violated the Sixth Amendment right to a jury trial. The Court concluded in Booker that, constitutionally speaking, the Guidelines could no longer be mandatory, but only advisory. Second, in 2007, the United States Sentencing Commission issued new Guidelines which—once approved by Congress in 2008—had the effect of lowering sentences for crack cocaine offenses, and could be applied retroactively. As a result, Dillon filed a pro se motion in the district court for a sentencing reduction under 18 U.S.C. § 3583(c)(2), and argued Booker should be read to apply to sentence modifications as well as initial sentencing. Adhering to the new Guidelines, the district court reduced Dillon’s sentence to 270 months, but concluded Booker did not apply to sentence modifications under § 3583(c)(2).
Dillon appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit reasoned that Booker did not apply to retroactive sentence reductions under 18 U.S.C. § 3582(c)(2), but only initial sentences and de novo re-sentencings based on findings of judicial error. Noting that this position was consistent with “the overwhelming majority of our sister Courts of Appeals,” the Third Circuit affirmed the district court. Furthermore, the Third Circuit rejected Dillon’s argument that the district court should have recalculated his criminal history score upon resentencing, and concluded that the district court had no authority to do so. The Supreme Court granted certiorari on September 1, 2009.
Application of United States v. Booker
In United States v. Booker, the Supreme Court held that increasing a defendant’s sentence under mandatory Sentencing Guidelines based on judicial fact-finding violated the Sixth Amendment. Therefore, the Federal Sentencing Guidelines are now advisory. In effect, Booker “requires a sentencing court to consider Guidelines ranges [but] permits the court to tailor the sentence in light of other statutory concerns as well.”When imposing sentences, judges must consider factors listed in 18 U.S.C. § 3553(a) such as the seriousness of the offence, characteristics of the defendant, as well as the goals of deterrence and protecting the public. Although Booker dealt with the initial imposition of sentences under § 3553, Dillon argues that a district court retroactively reducing a sentence pursuant to 18 U.S.C. § 3582(c)(2) is subject to Booker’s rule and cannot be bound by the Guidelines. Dillon urges that Booker applies to any resentencing that relies on the factors listed in §3553(a). According to Dillon, a sentence modification under § 3582(c)(2) is functionally equivalent to the sentencing at issue in Booker. Dillon points out that Booker applies to formal resentencings that are based on errors because 18 U.S.C. § 3742(g), which governs remands for resentencing in cases where a sentence has been vacated as unlawful or erroneous, directs courts to resentence in accordance with § 3553(a). Dillon argues that because § 3582(c) likewise directs judges to consider the factors in §3553(a) when modifying a prisoner’s sentence, Booker must apply. Dillon contends that distinguishing between sentence modifications under §3582 and any other kind of resentencing “amounts to nothing more than labeling.”
Respondent United States, however, denies that the Sixth Amendment has been violated, and rejects the application of Booker. The United States maintains that Booker does not apply to sentences that were already final when Booker was decided in 2005, and that its holding only applies to plenary sentencings—initial sentencings or resentencings occurring after an original sentence has been found to be unlawful. In the United States’ view, a § 3582(c)(2) sentence modification falls outside the scope of Booker precisely because it is not a de novo sentencing imposed to replace a sentence that has been vacated or set aside, but instead is a discretionary reduction of an otherwise-final sentence based on a specific Guidelines amendment. This case’s differentiation from the plenary sentencing in Booker is particularly meaningful, the United States contends, because unlike plenary sentencing, a § 3582(c)(2) resentencing does not implicate the Sixth Amendment. This is because under § 3582(c)(2), the court is not using judge-found facts to formulate a new sentence or increase the length of a prison’s sentence, but rather, exercises its discretion to reduce a preexistent final sentence. The United States insists that the Sixth Amendment is not offended, and “Booker's decision to render the Guidelines advisory for purposes of sentencing under 18 U.S.C. 3553(a) [does not] have any application to Section 5382(c)(2) proceedings.”The United States also emphasizes that § 3582(c) permits the discretionary reduction of a prison sentence only insofar as the reduction is consistent with the policy statement in Federal Sentencing Guidelines § 1B1.10(b)(2), which precludes reducing a sentence to a term less than the minimum of the amended guideline range.
Dillon acknowledges the mandate of Federal Sentencing Guidelines § 1B1.10(b)(2), but asserts that a sentence must always comport with existing law, irrespective of the context, and that the Sixth Amendment is violated whenever a sentence “exceeds the maximum allowed under the facts found by the jury or admitted by the defendant.” Dillon argues that the United States’ reliance on § 1B1.10(b)(2) is misplaced because “[Section] 1B1.10 attempts to resurrect the mandatory Guidelines system Booker invalidated.” Dillon also urges that the policy statement cannot limit a court’s discretion to apply the factors in §3553(a) because when policy statements and federal statutory law conflict, the policy statement must yield.
Recalculation of the Amended Guidelines Range
Dillon next argues that irrespective of Booker, his sentence necessarily must be vacated and remanded because the district court had the authority and the duty to correctly recalculate the guidelines range, rather than base the sentencing on the original, clearly erroneous guidelines range. According to Dillon, the lower court erred under Federal Sentencing Guidelines § 4A1.2(c)(1)when, in calculating his criminal history score, it incorporated a prior misdemeanor for resisting arrest that resulted in a term of probation less than one year and a term of imprisonment fewer than thirty days. Dillon maintains that because Federal Sentencing Guidelines § 4A1.2(c)(1)precludes counting a prior misdemeanor that resulted in a term of probation less than one year and a term of imprisonment fewer than thirty days when calculating a guidelines range, it was reversible error for the district court to incorporate his resisting arrest conviction in its calculation.
The United States counters that because Dillon did not raise this argument in the district court, the district court’s ultimate determination is not so plainly erroneous as to require reversal under Federal Rule of Criminal Procedure 52(b). Furthermore, the United States insists that even if the district court’s calculations are reviewable for plain error, the district court was not obligated, let alone permitted, to correct the purported error during the resentencing because neither § 3582(c)(2) nor Federal Sentencing Guidelines § 1B1.10 authorize a district court to revisit sentencing decisions that do not relate to the Guidelines amendment upon which a sentence reduction is founded.
In 1984, responding to concern about crime control, effective punishment, and the wide disparity in sentences imposed by various federal courts, Congress created the United States Sentencing Commission in order to limit judicial discretion by formulating national sentencing guidelines. The result was the promulgation of the Federal Sentencing Guidelines in 1987. Federal law requires federal courts to follow the Guidelines. The Guidelines lay out a comprehensive system for trial courts to determine the appropriate sentence for each category of federal crime. Under the Guidelines, judges first calculate a defendant’s base offense level and then offset it against a variety of factors including the defendant’s criminal history in order to impose a sentence within a proscribed range. Since 1989, over 1,000,000 defendants have been sentenced pursuant to the Guidelines.
As initially enacted, the Guidelines were mandatory. However, in 2005, the Supreme Court ruled that requiring courts to automatically apply the Guidelines in all cases violated the Sixth Amendment, because a defendant could be sentenced based on facts that were not determined by a jury beyond a reasonable doubt. Thus, after Booker, the relevant law was changed to indicate that the Guidelines are advisory only—while district courts are encouraged to apply sentences based on the guidelines, they are no longer required to do so.
In 2007, the Sentencing Commission promulgated new Guidelines that eliminated the disparity between base offense levels for possession of crack cocaine and possession of powder cocaine, effectively lowering the base offense level for crack cocaine. Following the recommendation of the Sentencing Commission, Congress subsequently determined that the revised Guidelines should be applied retroactively. Defendants sentenced for crack cocaine offenses under the old Guidelines can now petition to have their sentences reduced to fall in line with the new Guidelines.
Because of the vast number of inmates convicted on crack cocaine charges and currently eligible for resentencing under 18 U.S.C. § 3582(c)(2), the Supreme Court’s ruling in this case has the potential to affect literally thousands of prisoners. As such, numerous amicus curiae have submitted briefs.
The Washington Legal Foundation, advocates for individual rights and limited government, rejects the view that mandatory adherence to the Guidelines can be imposed in any circumstance, whether sentencing or resentencing. Fundamentally, the Foundation argues that the right to individualized sentencing is fundamentally “enmeshed” in the Constitution. According to the Foundation, the period from when the mandatory Guidelines were imposed in 1987 until Booker was decided in 2005 was an “historical anomaly” which Booker corrected.Finally, the Foundation notes the disparity that now exists between capital cases—where individualized sentencing determinations are required by the Eighth Amendment—and non-capital cases—where the Eighth Amendment is not applied to sentencing—and argues that the Court should correct this inequality by requiring individualized sentencing determinations in all cases.
A group of Federal Defenders have also submitted a brief on behalf of the Petitioner presenting a more textual argument. The Defenders contend that the plain language of 18 U.S.C. § 3553(a) (the general federal sentencing statute which makes the Guidelines but one factor a sentencing court must consider) applies in the same force whether a defendant is being sentenced initially or resentenced pursuant to 18 U.S.C. § 3582(c)(2). The Defenders further argue that § 3582(c)(2) cannot be read to vest “policy statements” issued by the Sentencing Commission with the force of law, because these statements are not adopted pursuant to formal rulemaking as required by the Administrative Procedure Act.Thus, they argue that the Commission’s policy statement, which purports to make the new Guideline floors binding on courts faced with retroactively revising crack cocaine sentences, is invalid.
The United States Sentencing Commission has submitted its own amicus brief in support of the United States arguing that it has statutory authority to promulgate binding rules regarding retroactive modification of sentences under 28 U.S.C. § 994(u). According to the Commission, Braxton v. United States controls, where the Supreme Court noted that “Congress has granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect.”Furthermore, the Commission asserts that determining the appropriate parameters of a retroactive sentence modification could present an undue burden on individual judges. Conversely, the Commission argues that it is uniquely positioned and empowered to weigh the complicated policy choices that must be made whenever retroactive sentence modifications are authorized. Finally, the Commission raises the prudential concern of the flood of litigation and resulting uncertainty that would occur if the Court adopted a rule requiring individualized determinations for all retroactive resentencing proceedings. Ultimately, the Commission concludes that if Booker is held to apply in this context, it would be less likely to recommend retroactive Guideline modifications in the future.
This case presents the Supreme Court an opportunity to clarify the reach of its holding in Booker , and has the immediate potential to affect the sentences thousands of prisoners nationwide. Furthermore, the Supreme Court will have the opportunity to clarify the scope of the Sixth Amendment as it relates to the overall constitutionality of the Federal Sentencing Guidelines.
Wex: Law about Federal Sentencing