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Supremes Will Review Four More Criminal Cases – Update for December 19, 2023

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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.

SUPREME COURT ENDS YEAR WITH CRIMINAL-CASE CERTIORARI BLOWOUT

In what was probably its last certiorari grant order for 2023, the Supreme Court issued probably added four criminal cases last week.

blowout231219The highest profile case is Fischer v. United States, which arises from a defendant convicted of obstruction of Congress for the January 6th Capitol riot. He was convicted of an 18 USC § 1512(c) offense, which prohibits corruptly obstructing, influencing, or impeding “any official proceeding.” The district court dismissed the § 1512(c) charge, holding that Congress only intended it to apply to evidence tampering that obstructs an official proceeding. The D.C. Circuit Court of Appeals reversed that decision in a 2-1 opinion, ruling that “[u]nder the most natural reading of the statute,” the law “applies to all forms of corrupt obstruction of an official proceeding, other than the conduct that is already covered by” the evidence-tampering language of § 1512(b). One judge dissented that the government’s interpretation of the statute would render it “both improbably broad and unconstitutional in many of its applications.”

SCOTUS also will review a 9th Circuit ruling in favor of Danny Lee Jones, sentenced to death for two murders. A federal district court in Arizona rejected Jones’s claims that his lawyer had provided inadequate assistance, but the 9th reversed that decision, upholding its position in an order denying an en banc rehearing with ten judges dissenting.

The issue is how evidence not presented by a defense attorney because of failure to investigate should be weighed in determining Strickland v. Washington prejudice in a post-conviction proceeding. Although the issue relates to an Arizona death penalty case, the outcome could provide the first new ruling on Strickland prejudice in well over a decade.

goodpros170330In Chiaverini v. City of Napoleon, the high court will consider whether a claim for malicious prosecution can proceed for a baseless criminal charge, even if there was probable cause for prosecutors to bring other criminal charges. In Snyder v. United States, the Supremes will consider whether the federal bribery statute – 18 USC § 666(a)(1)(B) – makes it a crime to accept “gratuities” — that is, payment for something a government official has already done, without any prior agreement to take those actions in exchange for payment.

The Court will rule on the cases by the end of its current term on June 30, 2024.

Sentencing Law and Policy, Four criminal cases of note in latest SCOTUS cert grants (December 13, 2023)

Fischer v. United States, Case No. 23-5572 (certiorari granted December 13, 2023)

Thornell v. Jones, Case No. 22-982 (certiorari granted December 13, 2023)

Chiaverini v. Napoleon, Case No. 23-50 (certiorari granted December 13, 2023)

Snyder v. United States, Case No. 23-108 (certiorari granted December 13, 2023)

– Thomas L. Root

Gunning for Bruen – Update for November 3, 2023

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RAHIMI ORAL ARGUMENT NEXT WEEK IS HIGH STAKES FOR SECOND AMENDMENT

scotus161130On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi, a case that will determine the constitutionality of 18 USC § 922(g)(8), the subsection of the federal firearms possession statute that bars people subject to domestic protection orders from having guns or ammo. Rahimi may well do more than that, addressing the constitutionality of all of 922(g) – including possession of guns by felons.

The Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen adopted a new originalist 2nd Amendment standard:

We hold that when the 2nd Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2nd Amendment’s “unqualified command.

Bruen superseded the Court’s long-standing practice of allowing the government to weigh its interest in public safety against the possibility of imposing a limitation on 2nd Amendment rights.

Since Bruen, several 922(g)-based restrictions have been declared unconstitutional. Possession of guns by people who are subject to domestic protection orders, who use controlled substances – illegal under 922(g)(3), and who have been convicted of nonviolent criminal offenses, illegal under 922(g)(1), have been held to be unconstitutional under Bruen. The government has sought certiorari on all of these decisions, suggesting to the Supreme Court that a Rahimi decision can clean them all up (and in the government’s favor).

sexualassault211014Social and public health advocates argue in essence that “validating the federal law prohibiting persons subject to domestic violence protective orders from gun possession will literally mean the difference between life or death for many victims of abuse, their family, friends, law enforcement, and the broader community,” as the Bloomberg School of Public Health puts it.

Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws and the ability of legislators to address what the Bloomberg School calls “the ongoing gun violence epidemic.”

But others suggest that 922(g)(8) looks “more like a political performance than a serious effort to reduce abusive behavior.” Writing in Law & Liberty, George Mason University laws professor Nelson Lund argues that nevertheless, “the government’s brief [in Rahimi] may look like little more than a Hail Mary pass aimed at persuading the Justices to revise or deceptively “clarify” the novel Bruen test. This gambit, however, could very well succeed. The Bruen holding has its roots in a dissenting opinion written by then-Judge Kavanaugh before he was promoted to the Supreme Court. His opinion was exposed to serious objections arising largely from the paucity of historical evidence that could support a viable history-and-tradition test. Bruen suffers from the same weakness, and it was clear from the start that the Court would find itself driven toward reliance on means-end analysis, although not necessarily the very deferential form that Bruen rejected.”

Mr. Rahimi fired off a few rounds at a fast-food joint when his friend's credit card was declined.
Mr. Rahimi fired off a few rounds at a fast-food joint when his friend’s credit card was declined.

Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”

Solicitor General Elizabeth B. Prelogar took steps to expedite the review of Rahimi, citing the “substantial disruption” that invalidation of the domestic violence gun restriction would create. Meanwhile, as the American Bar Association Journal put it, Prof. Leider said the Solicitor General “slow-walked [the] cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.”

That 3rd Circuit case, Range v. Atty General, involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun.

“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said. “I think the government wanted this case and not the Range welfare fraud case because this case is much easier on the judgment line.”

He’s right that Rahimi is a tough case for those hoping that Bruen may ultimately limit the proscription on nonviolent felons owning guns (such as the case in the 3rd Circuit en banc decision in Range v. Attorney General. The evidence suggests that the presence of firearms in abusive relationships increases the risk of injury and death substantially.

After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi.

United States v. Rahimi, Case No. 22-915 (oral argument November 7, 2023)

N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. —, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022)

Johns Hopkins University, Bloomberg School of Public Health, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023–2024 Term (October 10, 2023)

American Bar Association Journal, Supreme Court takes on first major gun case since landmark ruling last year softened regulations (November 2, 2023)

Law & Liberty, Domestic Violence and the Second Amendment (November 1, 2023)

USA Today, Domestic violence abuse victims need more protections — not less stringent gun regulations (November 2, 2023)

– Thomas L. Root

SCOTUS Tackles the ‘And/Or’ Debate in Pulsifer Case – Update for October 6, 2023

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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 HEAR ORAL ARGUMENT ON DRUG SENTENCING “SAFETY VALVE”

The Supreme Court opened its nine-month term last Monday hearing oral argument on the meaning of a First Step Act amendment to 18 USC § 3553(f), a subsection known as the “safety valve.”

Under the “safety valve” provision, judges could disregard mandatory minimum sentences for people convicted of certain nonviolent drug offenses who had limited criminal history and met a few other conditions.

andor210524At issue is how to interpret a part of the law that determines who is eligible for this provision, which could potentially lead to a shorter sentence. Three requirements under the provision involve prior criminal history, and the court is being asked to decide whether people no longer qualify if they meet one of these criteria — or if they must meet all three.

Mark Pulsifer pled guilty to one count of distributing 50 grams of methamphetamine and then sought application of the “safety valve.” To be eligible, a defendant cannot have “(A) more than 4 criminal history points… (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

At issue is whether “and” means “and.”

The government argues that “and” means “or,” so defendants are ineligible if they fail any of the three subparts. “It joins together three independently disqualifying conditions by distributing the phrase ‘does not have.’ That’s the only interpretation that avoids rendering the first subparagraph entirely redundant,” the Solicitor General’s attorney told the justices.

Pulsifer’s lawyer disagreed. “Letting the government get to ‘or’ when Congress said ‘and’ would encourage Congress to be sloppy with the most basic English words, leaving square corners far behind, and in the criminal context, where fairness matters most. The Court should hold Congress to what it wrote.”

words221110At oral argument, the justices spent most of their time parsing the grammar and conjunctions, trying to determine whether § 3553(f) uses the word “and” to join three eligibility criteria together or distributively across three independently disqualifying criteria. The government’s lawyer often appealed to a canon of construction rooted in “common sense,” a suggestion not that well received. “I don’t know that canon, but I guess it’s a good one,” Justice Neil Gorsuch quipped.

Pulsifer’s lawyer rejected it as well: “The government focuses a lot on common sense, but it’s common sense that if Congress wanted to say “or,” it would have said “or,” he contended. “It knew how to do that in other parts of this very sentence, of § 3553(f). The — Congress’s own drafting manual says to do so, and that would be the ordinary meaning — that would be the ordinary term to use in order to express the meaning that the government attributes to this statute.”

The court’s ruling may affect thousands of defendants with pending cases and those in federal prison. And how to read an ambiguous “and” may become important to a lot of zero-point people pretty soon, too.

zeropoints230420The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Section 4C1.1(a)(1) directs that an eligible defendant is one who “did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.” Does this mean that no one with a 3B1.1 enhancement or who was convicted of a 21 USC § 848 continuing criminal enterprise is eligible? Or does it mean that you must have both a 21 USC § 848 conviction and a § 3B1.1 enhancement to be disqualified?

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that he suspected Pulsifer

will end up with a 5-4 vote in favor of the government’s proposed statutory interpretation that would restrict the reach of the First Step Act’s expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms. But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant’s reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).

Berman anticipates a decision in winter 2024, although he offers the chance that “this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).”

New York Times, On First Day of New Term, Supreme Court Hears Debate Over First Step Act (October 2, 2023)

The Hill, Supreme Court opens term with case on prison terms for drug offenders (October 2, 2023)

Slate: The Supreme Court’s Oddest Pairing Comes Out Swinging on Behalf of Criminal Defendants (October 2, 2023)

Transcript of Oral Argument, Pulsifer v. United States, Case No. 22-340 (October 2, 2023)

Sentencing Law and Policy, Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case (October 3, 2023)

– Thomas L. Root

Supremes Are Back From the Beach, Guideline Amendments Lurch Toward Effective Date – Update for September 26, 2023

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PREVIEW OF COMING EVENTS

events230926With Congress careening toward a federal government shutdown (always bad news for BOP inmates), a freshly indicted Sen Bob Menendez (D-NJ) being pressured to quit, and about 300 military appointments being held up by Sen Tommy Tuberville (R-AL), it’s looking increasingly doubtful that Congress will do anything in the next 25 work days to block the Sentencing Guideline amendments from becoming effective on Nov 1.

Former Sentencing Commission attorney Mark Allenbaugh, founder of the website Sentencing Stats, has rolled out a web tool for people to use in order to determine whether they qualify for the retroactive zero-point Criminal History guidelines reduction (new USSG § 4C1.1). It can be found at https://www.zeropointoffender.com.

vacationSCOTUS180924Meanwhile, the Supreme Court returns to work after a 3-month vacation for its annual “long conference.” At today’s long conference, the Justices will decide which of some 950 petitions for writ of certiorari – about 15% of all petitions filed during the year – should be granted review.

“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, at the long conference, the rate is roughly half of that, about 0.6%.

Zero Point Offender

The Hill, All eyes on ethics as Supreme Court justices return to Washington (September 26, 2023)

The New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– Thomas L. Root

Supremes To Play ACCA Statute ‘Match Game’ – Update for May 23, 2023

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SCOTUS WILL REVIEW ACCA DRUG CONVICTION QUESTION
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 Supreme Court last week granted review to a pair of Armed Career Criminal Act cases addressing a question about the “serious drug offense” predicate for the mandatory 15-year ACCA gun possession sentence.

Under 18 USC § 922(g)(1), a person having been convicted of a crime punishable by more than a year in prison (generally speaking, a felony) is prohibited from possessing guns or ammo. (The offense is a little more complex than this, but for today’s purposes, let’s run with that definition). A § 922(g)(1) offense is punishable with a sentence from zero to 15 years.

However, if the defendant has been convicted of three prior crimes of violence or “serious drug offenses,” he or she is subject to the ACCA. The punishment is Draconian: a minimum of 15 years and a maximum of life in prison.

A “serious drug offense,” the subject of last week’s certiorari grant, is defined in 18 USC § 924(e)(2)(A) as being a federal controlled substance offense punishable by at least 10 years in prison or

an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 USC § 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law

Federal trial courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach, which requires determining whether the state drug offense elements are the same or narrower than those of its federal counterpart. If the state law is broader – such as defining a mixture of cocaine as including Coca-Cola – the state conviction would be considered too broad to qualify as an ACCA predicate.

The problem is that federal drug law often changes — such as when Congress decriminalized hemp, narrowing the federal definition of marijuana – but some state laws may not. Then, the defendant could have been guilty of an underlying serious drug offense at the time he or she caught the state case, but might not be guilty of a “serious drug offense” predicate if the statute is read next to federal law on the day he or she gets the ACCA sentence.

matchingacca230523Under the earlier version of federal law, the state and federal offenses matched — and the state offense was an ACCA predicate. Under the amended version, the offenses did not match — and the state offense would not be an ACCA predicate. Thus, the version of federal law that the court chooses to consult dictates the difference between serving a 15-year maximum or a 15-year minimum.

The issue presented, then, in the pair of cases the Supreme Court will review is whether ACCA’s “serious drug offense” definition incorporates the federal drug schedules in effect at the time of the ACCA offense or the federal drug schedules in effect at the time of the prior state drug offense.

Expect oral argument in the fall and a decision in the winter or spring of 2024.

Jackson v. United States, Case No 22-6640 (certiorari granted May 15, 2023)

Brown v. United States, Case No 22-6389 (certiorari granted May 15, 2023)

– Thomas L. Root

Government Fraud Theories Take It On The Chin – Update for May 15, 2023

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SUPREME COURT NIXES FEDERAL POLITICAL FRAUD CASES

Fraud170406Nobody likes fraud. Prior to the 1987 decision in McNally v. United States, everyone agreed that federal wire fraud and mail fraud statutes prohibited all kinds of it, including any number of intangible frauds that the Government argued were crimes even if the object of the fraud was not to deprive the government or taxpayers of money.

Honest Services Fraud:  “Honest-services” fraud is fascinating stuff. Most cases prosecuted under federal mail fraud and wire fraud statutes for honest-services fraud involve public employees accepting a bribe or kickback that did not necessarily result in a financial loss for the government or taxpayer but did deprive the government of the right to receive the “honest services” of a government official or employee. In some cases, courts have ruled that the employee did not even have to hold a public position. 

The whole idea of “honest services fraud” that didn’t cost the public a dime was rejected in McNally. But Congress quickly plugged the hole with 18 USC § 1346, which defined mail and wire fraud as “include[ing] a scheme or artifice to deprive another of the intangible right of honest services.” Decades later in Skilling v US, fallout from the Enron scandal, the Supreme Court clarified that “the intangible right of honest services” in § 1346 relates to “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.” 

money170419Joe Percoco had managed former New York Gov. Andrew Cuomo’s re-election campaign, but he was a private citizen (about to return to the governor’s office) when he called the head of a state development agency and urged him to let a real estate development go forward without the developer having to buy a “labor peace” agreement with the local unions. A day after Joe made the call, state officials reversed their decision that the developer needed to such an agreement, saving  the developer a lot more money than the $30,000 he had paid Joe. 

Joe was convicted of fraud for taking money in exchange for helping to facilitate the real estate construction project. The fraud was “depriving members of the public of the intangible right to ‘honest services’.”

In a unanimous ruling, the Supreme Court threw out Joe’s conviction, holding that the jury instructions used to convict him were too vague. 

The Supreme Court rejected the argument that a person nominally outside public employment could never have a fiduciary duty to the public to provide honest services, but it held that a jury instruction that Joe had such a duty ‘if he dominated and controlled any governmental business and people working in the government actually relied on him because of his special relationship with the government” were too vague. The justices said the instruction did not define “’the intangible right of honest services’ with sufficient definiteness that ordinary people could understand what conduct was prohibited.”

moneyhum170419The Court held that by “rejecting the Government’s argument that § 1346 should apply to cases involving ‘undisclosed self-dealing by a public official or private employee,’ the Skilling Court made clear that “the intangible right of honest services” must be defined with the clarity typical of criminal statutes and should not be held to reach an ill-defined category of circumstances simply because of a few pre-McNally decisions. The fact that Joe was influential was simply not enough to put him on notice that being hired to make a persuasive phone call was a federal crime.

Right to Control:   In the other Supreme Court criminal-law decision last week, Louis Ciminelli had steered the terms of a $750 million development project so that his company’s bid would be successful. The government could not prove that the state lost a dime over what other contractors would have bid but argued Lou had deprived the state of its “right to control” the bid process.

The Supreme Court rejected any notion that any “right to control” theory resided in the wire fraud statute. The Court expressed federalism and overcriminalization concerns in narrowing the scope of § 1343, holding that “the fraud statutes do not vest a general power in the Federal Government to enforce (its view of) integrity in broad swaths of state and local policymaking. Instead, these statutes protect property rights only. Accordingly, the Government must prove not only that wire fraud defendants engaged in deception, but also that money or property was an object of their fraud.”

Percoco v. United States, Case No 21-1158, 2023 US LEXIS 1889 (May 11, 2023)

Ciminelli v. United States, Case No 21-1170, 2023 US LEXIS 1888 (May 11, 2023)

– Thomas L. Root

Supremes Skeptical About Identity Theft Policy – Update for March 6, 2023

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AGGRAVATED IDENTITY THEFT HAS ROUGH RIDE AT SCOTUS

identitytheft230306The government’s habit of using the two-year mandatory consecutive minimum sentence for aggravated identity theft provided by 18 USC § 1028A as a cudgel against simple fraud took its own beating during last week’s Supreme Court oral argument.

The case concerned David Dubin, who was convicted of healthcare fraud. Dubin was accused of bilking Medicaid by misrepresenting who had conducted medical testing and rounding up the time spent carrying out each test from 2.5 to 3 hours, so that a bill submitted for services to Peter Patient was higher than it should have been.

Dubin’s sentence included a two-year mandatory minimum term for “aggravated identity theft” because the Medicaid submission included the identity of the patient but misrepresented the particulars of the test. As The New York Times put it and countless federal defendants who have been clobbered by § 1028A’s extra two-year consecutive sentence, the statute “does not seem to require identity theft in the ordinary understanding of that phrase.”

Dubin’s lawyer argued that his client had not used a patient’s identity in any meaningful way: “It has to be a lie about who receives services or who obtains services,” he said, “not a lie about how those services were rendered.”

The Supreme Court was generally sympathetic. Justice Neil Gorsuch  said, “If the government’s theory is correct and every time I order salmon at a restaurant I’m told it’s fresh, but it’s frozen, and my credit card is run for fresh salmon, that’s identity theft.” The government’s position in the case, Gorsuch suggested, would transform everyday fraud into identity theft “whether it’s in a restaurant billing scenario, a health care billing scenario, or lawyers who round their hours up.”

Justice Ketanji Jackson appeared to agree. “It’s like every fraud in the world,” she told the government’s lawyer, “And you just admitted in response to Justice Thomas that it could be a teeny, teeny fraud.”

Justice Sonia Sotomayor said “the vagueness” of the statute—a due process issue—”is a problem.” She noted that it is hard to nail down the government’s definition of the crime “because every time you point to something that seems absurd, they come up with a limiting rule.” She complained that “the issue of vagueness permeates this statute,” and mentioned the rule of lenity, which favors a narrow reading of ambiguous criminal laws.

Justice Clarence Thomas asked the government where its position that any fraud, no matter how small, “stand[s] in terms of vagueness, notice to the world, fair notice to the world? I’m not sure most waiters in America appreciate that they’re committing identity theft when they bill for that bottle of wine.”

identitytheft1028A230306Dubin’s lawyer said said § 1028A’s mandatory minimum sentence was “a very strong cudgel to use against people to procure pleas in very low-level fraud cases. And that’s not what Congress [] aimed for in this case. Congress wasn’t trying to create a two-year mandatory minimum all of a sudden for ordinary fraud offenses. It was aimed at a particular new form of misconduct that’s simply not present in the words ‘aggravated identity theft.’”

Dubin v. United States, Case No. 22-10 (Oral argument, Feb 27, 2023)

The New York Times, Supreme Court Seems Skeptical of Broad Sweep of Identity Theft Law (February 27, 2023)

Reason, SCOTUS Questions the Government’s Absurdly Broad Definition of ‘Aggravated Identity Theft’ (March 2, 2023)

– Thomas L. Root

Will SCOTUS Grant Review to Acquitted Conduct Today? – Update for January 23, 2023

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ACQUITTED CONDUCT STILL HANGING FIRE

Three weeks ago, I wrote that the Supreme Court would be deciding whether to finally take the question of whether a district court should be able to factor conduct for which a defendant was acquitted into a sentence, sort of “the jury didn’t think you did it, but I know better” approach to sentencing.

relist230123It turns out that SCOTUS now has five petitions for review before it raising the acquitted conduct issue. The principal case, McClinton v. United States, was “relisted” at the Justices’ Friday, January 6, 2023, conference for the following week’s Friday conference. On January 13, the Justices relisted the issue again for the January 20, 2023, conference. The Court will announce actions taken at the January 20th conference this morning at 9:30 Eastern time.

A “relist” occurs when the justices neither accept nor deny a petition for certiorari, but instead defer it for the next conference.

SCOTUSBlog explains that

it is almost impossible to know exactly what is happening when a particular case is relisted… One justice could be trying to pick up a fourth vote to grant review, one or more justices may want to look more closely at the case, a justice could be writing an opinion about the court’s decision to deny review, or the court could be writing an opinion to summarily reverse… the decision below.

Generally, the Supreme Court does not accept a case for review until it has been “relisted” one or more times.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said last week, “More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court’s decision not to grant review. But relisting is also sometimes a precursor to a later granting of cert. So, as I have said before, I am hopeful, though still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.”

SCOTUSBlog, Acquitted-conduct sentencing and “offended observer” standing (January 19, 2023)

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

Sentencing Law and Policy, US Supreme Court relists latest cases seeking review of acquitted conduct sentencing (January 17, 2023)

– Thomas L. Root

Nine Justices Get Back to Work – Update for September 27, 2022

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SCOTUS ‘ENDLESS SUMMER’ ENDS

The Supreme Court brings its three-month recess to an end tomorrow, when the Justices will hold the Court’s annual “long conference.”

vacationSCOTUS180924Throughout the year, the Justices meet on a nearly weekly basis to consider pending petitions for certiorari. But that practice ends in late June when the Court breaks for the summer. Then, petitions pile up over the summer.

At the annual “long conference,” held the week before the Court begins its next term, the Justices will typically dispose of about 2,000 pending petitions. A research paper published seven years ago in the Law and Society Review found that the petitions arriving over the summer had a 16% worse chance of being accepted by the Court.

Gregory Garre, Solicitor General during the George W. Bush administration, told The New York Times, “Given the numbers, as counsel, you really have to try your best to avoid the summer list, though sometimes it is unavoidable,” Garre said. “Fortunately, as tough as the odds are, the cream can still rise to the top.”

The Court convenes to begin October Term 2022 (the name of the nine-month term ending June 30, 2023) next Monday.

49 Law and Society Review, Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions (August 27, 2015)

New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– Thomas L. Root

Butterfly Wings Don’t Beat For Innocence – Update for July 7, 2022

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THE BEIJING BUTTERFLY

butterfly220707When mathematician Edward Lorenz first posited the notion that a butterfly flapping its wings in Beijing today could affect the path of a tornado in Kansas three weeks hence, his fanciful illustration became the interface with chaos theory that the average Joe and Jane could understand. Essentially, the butterfly effect is the sensitive dependence on initial conditions in which a small change in one state of a deterministic nonlinear system can result in large differences in a later state.

When a federal defendant is presented with a plea agreement and told by her lawyer that it’s the best deal she can hope for, the fine print is rarely explained. That includes Section 10(b)(1)(A)(iii) on page 12 which says something like “Defendant waives the right to challenge the conviction or sentence under 18 USC § 3742 or on any collateral attack under 28 USC § 2255 or other section, except in cases of ineffective assistance of counsel.”

pleawaiver220707And why not sign it? The defendant is under plenty of stress as she contemplates agreeing to spending a decade in prison, and a lot of that gibberish in the back of the plea agreement means a lot less to her than her attorney’s blandishments that the judge certainly won’t give her more than 48 months.

In chaos theory parlance, the appeal/collateral attack waiver is a pretty small input. Only later does the output become huge.

The Supreme Court left for vacation in time for the 4th of July. Like a fireworks display, the finale was stellar and stunning: abortion, guns, prayer, and the biggest case of all, a decision that may spell doom for the administrative state. But just like many fireworks finales, after the final glowing detonation fades, one straggler rocket goes airborne, with no light but a surprise reverberating boom.

Last Thursday, the Court released its final list of certiorari grants and denials for the term, announcing the one or two cases it will add to next term’s docket while denying a long list of petitions. One of the denials was a guy named Zenon Grzegorczyk (pronounced just the way it sounds). Zenon, a good father, wanted to murder six people whom he blamed for his divorce and for the loss of custody of his child. He hired and paid hitmen to pull it off.

hitman220707Problem was that Zenon, not being an avid news consumer, was unaware that all hitmen available for hire are undercover law enforcement officers, moonlighting for some pocket money. Thus it was in this case. Zenon was promptly charged with murder for hire (18 USC § 1958) and an 18 USC § 924(c) count for using a firearm during and in relation to a crime of violence.

Zenon signed a plea agreement in which, among other things, he waived any right to challenge his murder-for-hire and firearms convictions. He was sentenced to about 18 years.

A couple of years later, after the Supreme Court decided in Johnson v. United States and Sessions v. Dimaya that crimes of violence had to be accompanied by use or threat of force, Zenon filed a § 2255 motion challenging the firearms conviction. Because of his plea agreement, the District Court denied the motion, and the 7th Circuit affirmed. Zenon filed a petition for certiorari seeking Supreme Court review.

Meanwhile, the Supreme Court ruled in United States v. Davis that a conspiracy to commit a violent crime was not itself a violent offense that could support an 18 USC § 924(c) conviction. The government flipped its position, asking the Supreme Court to vacate the 7th Circuit’s judgment because Davis made Zenon actually innocent of the 18 USC § 924(c) conviction. The mechanism is called a “GVR,” because the Supremes grant the petition for certiorari, vacate the lower court’s decision, and remand the case for further consideration, all in one order.

judgeB160229The Supreme Court refused, denying the petition last week. Justice Kavanaugh wrote in a concurrence to the denial that “[b]ecause the 7th Circuit correctly concluded that the defendant’s unconditional guilty plea precluded any argument based on the new caselaw, this Court has no appropriate legal basis to vacate the Seventh Circuit’s judgment.”

What is notable was the spirited dissent written by Justice Sotomayor. She argued that Zenon’s case

falls comfortably within this Court’s longstanding GVR practice… The Solicitor General’s considered concession that 18 USC § 1958(a) is not a “crime of violence” under the elements clause of § 924(c)(3)(A) is an intervening development that has triggered the Government’s agreement to forgo assertion of the procedural bar that proved decisive below. Consequently, there is surely a reasonable probability of a different result on remand: With the Government waiving the procedural bar, Grzegorczyk’s § 924(c) conviction and 5-year sentence should be vacated, and his § 1958(a) sentence reduced by at least 2 years and 7 months. Moreover, given the stakes for Grzegorczyk, as well as the Government’s express consent, this is a case where the marginal cost to judicial efficiency and finality from a remand should yield to solicitude for Grzegorczyk’s rights. “Further proceedings” are therefore “just under the circumstances,” 28 USC § 2106, and the Court should issue a GVR order.

“By denying certiorari rather than issuing a GVR order,” Justice Sotomayor fumed, “the Court allocates the full cost of the Government’s error to Grzegorczyk, who faces over 7½ extra years of incarceration as a result.”

innocent210504What this means, of course, is that actual innocence of a count of conviction will always yield to an oppressive appeal waiver signed in haste by a defendant who is understandably focused on the larger issues in her plea agreement rather than flitting butterfly of a provision, whose wingbeats seem inconsequential at the time but may later spawn a tornado of injustice.

In his concurrence, Kavanaugh suggested that if the government really felt that Zenon was entitled to relief from the five -year 924(c) sentence, “the Attorney General may recommend a pardon or commutation to the President, and the President may pardon the defendant or commute the sentence.”

Like that’s gonna happen…

Grzegorczyk v. United States, Case No. 21-5967, 2022 U.S. LEXIS 3273 (June 30, 2022)

– Thomas L. Root