Tag Archives: Loper Bright Enterprises

3rd Circuit ‘Lopers’ the Sentencing Commission – Update for November 4, 2024

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

WHERE THERE’S A ‘WILL’ THERE’S A ‘WON’T’

chevron230508One of our favorite Supreme Court decisions last June was Loper Bright Enterprises v. Raimondo, a case that punched Chevron deference’s ticket by holding that courts don’t have to defer to agencies’ interpretations of federal law as long as those interpretations are reasonable. Instead, Loper Bright held, courts are in the business of figuring out what statutes say, and they should not defer to a bunch of unelected bureaucrats who often have a vested interest in the interpretations they put on the laws the agencies are supposed to administer.

We saw the dark side of Loper Bright last Friday. The day after the 6th Circuit heard oral argument in a case over whether the Sentencing Commission’s guideline, USSG § 1B1.13(b)(6) – that says an extraordinary and compelling reason for a compassionate release may include an overly-long sentence that could not be imposed today because of a change in the law – exceeds the Commission’s authority.

In the First Step Act, Congress reduced the mandatory minimums for some drug offenses and refined 18 USC § 924(c) to provide that the 25-year minimum for a second § 924(c) offense could only be imposed after a prior § 924(c) conviction. Before First Step, if you carried a gun when you sold pot on Monday and then carried it again when you sold pot on Wednesday, you would get maybe 60 months for selling drugs AND a mandatory consecutive 60 months for carrying a gun on Monday AND a mandatory consecutive 300 months for Wednesday’s gun. Your two-day drug selling binge would have netted you 420 months (35 years) in prison.

retro240506For reasons more political than legal, Congress did not make the changes in drug and § 924(c) mandatory minimum sentences retroactive. But in the years since, some judges found that the fact that some people were serving impossibly long sentences that they could not have had imposed on them after First Step passed could constitute an extraordinary and compelling reason for grant of a compassionate release motion. Other Circuits, notably the 3rd, 7th and 11th, ruled that overly long sentences could not serve as extraordinary and compelling reasons for compassionate release because Congress had not made the changes to the laws that dictated those sentences retroactive.

When the Sentencing Commission finally adopted a new Guideline – § 1B1.13 – a year ago, it included as one of the defined extraordinary and compelling reasons for a compassionate release grant a case where a defendant had a disparately long sentence because of a nonretroactive change in the law. The Dept of Justice began a full-throated attack on subsection (b)(6), arguing that because First Step does not make the changes in § 924(c) retroactive, the Commission was exceeding its authority by letting people do an end run around Congress.

A 6th Circuit panel heard oral argument last week in United States v. Bricker, three consolidated cases in which the government is arguing that subsection (b)(6) exceeds the Sentencing Commission’s congressionally delegated authority. The next day, in United States v. Rutherford, a 3rd Circuit panel held that subsection (b)(6) is invalid.

The Rutherford defendant won a compassionate release after 20 years of being locked up on a 42-year sentence for two armed robberies of a doctor’s office. Citing its right under Loper Bright to ignore the Sentencing Commission’s interpretation of the extent of its authority, the Rutherford panel ruled against Mr. Rutherford based on its belief as to “the will of Congress”:

Subsection (b)(6)… as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release. Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive… [I]t would be inconsistent with [the] pertinent provisions of the First Step Act… to allow the amended version of § 924(c) to be considered in the compassionate release context because Congress specifically decided that the changes to the § 924(c) mandatory minimum sentences would not apply to people who had already been sentenced.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, criticized the 3rd’s decision. “Besides the non-textual nature of divining the “will” of Congress to rule against a defendant, this holding conflates Congress’s nonretroactivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release. There is nothing at all “inconsistent” with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.”

forceofwill241104A cardinal canon of statutory construction holds that where the text of a statute is clear, that’s all that matters. But Rutherford holds in essence that what the court thinks Congress “willed” is more important than what the law Congress passed actually says.

A Fifth Circuit panel has already held that subsection (b)(6) is a legitimate exercise of Commission authority. Prof Berman believes it is “inevitable” that the issue will have to be settled by the Supreme Court.

United States v. Rutherford, Case No. 23-1904, 2024 U.S. App. LEXIS 27740 (3d Cir., November 1, 2024)

United States v. Bricker, Case No. 24-3286 (6th Cir., argument held October 31, 2024)

Sentencing Law and Policy, Based on “the will of Congress,” Third Circuit panel adheres to prior ruling limiting ground for compassionate release (November 1, 2024)

United States v. Jean, 108 F.4th 275 (5th Cir., 2024)

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

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

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root