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Sotomayor & Retroactive Sentencing Adjustments: Surprisingly Constrained

January 6, 2012

1. History, 2. Law, 7. Post-Trial

Sotomayor & Retroactive Sentencing Adjustments: Surprisingly Constrained

The fears of the judicially conservative during the nomination and confirmation of any SCOTUS justice from a liberal Administration is that the newly seated justice will expand the Constitution like a rubber band until it snaps.  Now-seated Associate Justice Sotomayor had these fears bounced off the side of her head throughout the review process.  I’m not reviewing her record of Opinions – you can trip through that odyssey here if you like.  I want to look at her role in Freeman, and, more specifically, as it was applied in Rivera-Martinez II.

We know that sentences are determined by applying the Guidelines.  Pennsylvania has a set, the feds have their own, etc.  Guidelines are binding or suggestive based upon a history of litigation.  Not our present issue.

At issue for our purposes is that long-stupid sentence enhancement for Crack.  Sentencing ranges for controlled substances are generally determined by weight.  Rather than creating a weight standard for each substance, the Guidelines will find a common drug.  Crack is converted to Cocaine, for example.  The problem was that the weight of Crack was multiplied by ONE HUNDRED in the conversion.  Assume someone gets nailed with two kilos, one each of Crack and Cocaine.  Their sentence was based upon ONE HUNDRED ONE kilos of Cocaine.

This approach made no sense from a chemistry perspective:  To make a batch of Crack, the ingredients are one ounce of Cocaine, a teaspoon of baking soda, and 3/4 cup water.  The water is cooked out.  An ounce of Crack is ever-so-marginally more than an ounce of Cocaine.

So why the multiplier?  Crack, so the legislative argument went, was bad.  “We need to punish its use out of existence,” legislators seemed to be saying.  Yet the sentencing for Meth was more akin to Cocaine.  And Meth is on par with Crack for its destructive impact.

Maybe because Meth doesn’t have a controlled-substance base, the legislators couldn’t figure out a better scheme.  In one method, the ingredients to make Meth are Ephedrine or Pseudoephedrine (which explains why we have to buy Sudafed from the pharmacist now), Iodine, Red phosphorus, Ether, Hydrochloric Acid, Sodium hydroxide, and Methanol.  No controlled substances.

Along comes the Fair Sentencing Act of 2010.  It reduces the multiplier to about 18 and removed some mandatory minimums.  We’re still arguing how to apply the FSA, and SCOTUS has the issue in Hill v. US.  The question presented is “Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.”

But what about revising sentences already in the books?  This is where Freeman v. US joins the conversation:

Holding: When, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), a defendant enters into a plea agreement that recommends a particular sentence as a condition of a guilty plea, he may be eligible for a sentence reduction if the U.S. Sentencing Commission later lowers the sentencing range.

The SCOTUS vote was 5-4.  Sotomayor wrote a concurring opinion.  Roberts, Scalia, Thomas, and Alito all joined in a dissent.  Sotomayor’s opinion is considered the controlling opinion.  The bottom line is that “he may be eligible” if the sentence was “based on” the Guidelines.

And now Rivera-Martinez II joins.  The First Circuit devoted a lot of words to trying to find a majority opinion in Freeman.  The opinion is a wonderful exploration of judicial reasoning.  The feds, you see, have a “C-Type” sentencing.  That’s a reference to Federal Rule of Criminal Procedure 11(c)(1)(C).  To wit:

(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

The court is bound by the specific sentence in the plea agreement.  We don’t have this luxury in the Pennsylvania system.  We achieve predictable sentences by removing crimes from a case, leaving the judge with a more narrow sentencing range than she would have with an open plea to the entire indictment.

We now need to balance these competing interests in the federal system:  Freeman allows retroactive application of new Guidelines if the sentence was based on the Guidelines; a C-Plea is a specific sentence which may or may not have been based on the Guidelines.  So, if the sentence was not based on the Guidelines, does a defendant have the right to a revision of his sentence if the Guidelines are revised thereby reducing the sentence he would have received?

No.  Sorry.  Back to your cell.

It’s a somewhat-tortured conclusion, yet logical, too.  Sotomayor wrote that the previous sentence had to be based on the Guidelines.  It comes straight from federal law.  18 U.S.C. § 3582(c). Section 3582(c)(2) provides an exception to this general rule:

[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. [My emphasis]

Going back to Freeman, we learn that the dissenting opinion saw all C-Type sentences to be not based on the Guidelines but, instead, based on the agreement – the Plea Agreement.

So now we dig into the Rivera-Martinez II sentence.  How can we learn whether a sentence was based on the Guidelines or based on the Agreement?  Pull the sentencing docs:

[Sotomayor] acknowledges that a term of imprisonment in a C-type plea agreement will most often be negotiated by reference to the relevant guideline provisions. Freeman, 131 S. Ct. at 2697 (Sotomayor, J., concurring). Yet under the rationale of the concurrence, this linkage is not enough to warrant a finding that the ensuing sentence is “based on” the guidelines. Justice Sotomayor makes it pellucid that the proper focus is neither the guideline calculations that the judge may perform before deciding whether to accept the agreement, id. at 2695-97, nor the “mere fact that the parties . . . may have considered the Guidelines in the course of their negotiations,” id. at 2697. Rather, it is the terms contained within the four corners of the plea agreement that matter.

And the answer is …

The Agreement does not identify any guideline sentencing range. Moreover, the Agreement does not contain any information about the defendant’s criminal history category. See Rivera-Martínez I, 607 F.3d at 287 & n.4. This silence about a criminal history category makes it impossible to conclude from the Agreement alone that the proposed sentence is based on a specific sentencing range. See id. at 287 n.4. The integers needed to trigger the exception carved out by Justice Sotomayor are not present here.

Sorry, dude.

This is where I feel it’s appropriate to state that the conclusion is somewhat tortured.  Assume that a defendant is charged with Crime X.  The Guidelines suggest a sentence of 30 years.  He take a C-Type Plea for 15 years.  The Guidelines are later revised to suggest 5 years for the crime.  Clearly, the defendant made his decision to buy into the 15-year plea because of the Guidelines suggested range.  It seems to be splitting hairs to reach materially different conclusions solely because the sentencing docs didn’t include specific references to the Guidelines.

What do we learn from this?  In each and every plea deal, ensure the Guidelines are threaded throughout.

And as Sotomayor writes more opinions, we’ll learn whether she agrees with the narrow application of her words. Or if the self-proclaimed “wise Latina woman” gets cranky about having to write opinions with just one interpretation.

Post-Script.  I was in federal court years ago.  A co-defendant fired his attorney and represented himself.  At sentencing, I stood with my client before the Bench.  The co-defendant stood a few feet away.  Both had been charged with possession with intent for Crack, Cocaine, and Marijuana.  The Guidelines calculation was based upon using a common drug – the federal probation and parole guys converted both the Crack and Cocaine to quantities of Marijuana.  It came out to over 100 kilos.

“How much that weigh?” the self-representing defendant asked.
“Approximately 220 pounds,” the Assistant US Attorney replied.
“Shoot, if I had that much weed,” he rejoined, “I’d be able to afford me a real attorney.”

Even the judge laughed.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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