We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TIGER TRIES TO EAT ITS YOUNG

Traditionally, the Department of Justice defends federal statutes and regulations from constitutional attack. In fact, DOJ’s role as watchdog over the sanctity of its statutes and rules is so established that the Federal Rules of Civil Procedure require a private litigant to serve the Attorney General in a lawsuit against another private party if the litigant is claiming that any federal statute is unconstitutional.

I have seen cases in the past where the government conceded that the application of a statute was unconstitutional – but usually after the Supreme Court has found the statute itself to violate the Constitution. Good examples abound, such as United States v. Brown, a 2nd Circuit summary order noting that where “the underlying crime of violence was a racketeering conspiracy… [t]he Government concedes that the Supreme Court’s recent decision in United States v. Davis… requires vacatur of those counts of conviction [under 18 USC 924(c)]”).

But I don’t recall a case where the government has mounted a defense based on the argument that the federal agency rule applicable to the private party’s claim was void as contrary to federal statute. Until now.

To channel Rodney Dangerfield, this is a case of a tiger eating its young.

The new USSG § 1B1.13(b)(6) – the Guideline that sets out binding Sentencing Commission policy on 18 USC § 3582(c)(1)(A) “compassionate release” sentencing reductions – holds that where a prisoner has

an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law… may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed…

You may recall that when this provision was adopted by the Commission last April, it generated vigorous debate and passed on a whisker-thin 4-3 vote.

Now, in United States v. Brand, a compassionate release case in the Northern District of Florida, the government has opposed a prisoner’s request for relief from a sentence of stacked 18 USC § 924(c) convictions by arguing that USSG § 1B1.13(b)(6) is an unconstitutional expansion of Sentencing Commission authority because it effectively makes nonretroactive changes in the law retroactive. The thrust of the government’s defense is that Congress did not make changes in 18 USC § 924(c) retroactive when it passed the First Step Act five years ago, that this was a deliberate choice made by Congress, and that the Sentencing Commission’s decision to define the sentence disparity resulting from people sentenced before First Step have dramatically higher stacked 924(c) sentences than people sentenced after First Step as “extraordinary and compelling” is unlawful: “Although Congress has delegated broad authority to the Sentencing Commission, subsection (b)(6) is contrary to the text, structure, and purpose of 18 U.S.C. § 3582(c)(1)(A) and 28 U.S.C. § 994(a), and is therefore invalid.”

I think the argument is strained. Besides trying essentially to engraft Administrative Procedure Act standards (see 5 USC § 706, for instance) onto a judicial agency that is not subject to the APA, I think that the biggest hole in the government’s argument is that – unlike other agency rules – under 28 USC § 994(p), Guideline amendments (and an explanation of why they are being proposed) must be submitted to Congress 180 days before effectiveness to give Congress a chance to modify or disapprove the amendments. Congress’s right to modify or disapprove makes it tough to argue, as the government does, that the Commission’s reading of the compassionate release statute “exceeds the gap left by Congress.” If Congress had thought the new § 1B1.13(b)(6) was overreaching, outside the Commission’s authority, or contrary to the non-retroactivity of First Step, it had six months to say so.

The government relies on Mayo Foundation for Med. Educ. & Research v. United States, but in that case, the court notes that “the ultimate question is whether Congress would have intended, and expected, courts to treat [the regulation] as within, or outside, its delegation to the agency of ‘gap-filling’ authority.” Here, I think, the existence of the six-month review period and Congress’s election not to modify or veto during that period is more than ample evidence of Congress’s intent.

But the real danger in Brand is this: The court denied the prisoner appointment of counsel right about the time the government lodged its novel constitutional claim that Federal Rule of Civil Procedure 5.1 requires a party contesting the constitutionality of a federal statute to serve the Attorney General of the United States with notice of the action. Under 28 USC § 2403(a), a court ruling on such a challenge is required to do the same. Upon receiving notice, the Attorney General has a right to intervene as a party in the case and present evidence. Both of these requirements suggest that the government has a compelling interest in defending the sanctity of its rules and statutes.

So what happens when the Attorney General himself contests the lawfulness of a federal regulation, especially where it is a quasi-statute as is a sentencing guideline? Expecting a pro se prisoner to competently defend the lawfulness of a federal rule against the government puts a lot of weight on the shoulders of the inmate. What is more, it is almost certain to result in steamrolling the government’s position into the final order, resulting in the making of a bad ruling out of an unbalanced contest.

Sentencing Commission guideline 1B1.13(b)(6) has the tacit approval of Congress. If any compassionate release defense calls for the appointment of counsel, defending the lawfulness of a properly adopted guideline does.

United States v. Brown, 797 Fed.Appx 52, 54 (2d Cir. 2019)

United States v. Davis, 588 U.S. —, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019)

Gvt Response to Motion for Compassionate Release (ECF 108), United States v. Brand, Case 8:11-cr-380 (N.D.Fl., filed November 17, 2023)

Mayo Foundation for Med. Educ. & Research v. United States, 562 US 44 (2011)

– Thomas L. Root