Here, Josh Friedman of Akin Gump recaps Tuesday’s oral argument in Dillon v. United States.  On Monday, Akin Gump’s Troy D. Cahill previewed the proceedings here.  Check the Dillon v. United States (09-6338) SCOTUSwiki page for additional updates.

At oral argument on Tuesday morning, petitioner's counsel characterized proceedings under 18 U.S.C. § 3582(c)(2) as "sentencings at which [United States v. Booker's] constitutional and remedial holdings must apply."  Counsel for the United States, by contrast, characterized such proceedings as a "discretionary mechanism for the exercise of leniency for defendants who have already been sentenced."  The questions asked and observations made by the Justices during oral argument suggested that the Court is reluctant to side with petitioner's characterization.  However, the Court hinted as well that it may not agree fully with the characterization advanced by the United States, at least as it pertains to a district court's ability to correct calculations relating to, for example, a defendant's criminal history category.

Lisa B. Freeland, appearing on behalf of petitioner Percy Dillon, began her argument by asserting that Section 3582(c) proceedings are sentences to which the Sixth Amendment and Booker apply.  The Chief Justice, Justice Kennedy, and Justice Sotomayor immediately questioned whether, in view of Ms. Freeland's argument, the adoption of an across-the-board rule providing for a fixed reduction in crack cocaine sentences by the Sentencing Commission or Bureau of Prisons would be constitutionally suspect.  Ms. Freeland responded that although such an action "would not present the problem here," this case is distinct because it involves a statutory mechanism created by Congress that empowers the federal courts to reconsider a defendant's sentence.  And, she argued, the district courts must exercise that power in accordance with "the law of the land at the time [of the Section 3582(c)(2) proceeding]."

Seeking to examine "a different path," Justice Ginsburg expressed her concern that the amended guideline applies only to crack cocaine offenses.  As a result, "all of the others who are identically situated with respect to all other factors, they don't get their sentences revised."  Ms. Freeland responded that an "urgent and compelling problem" necessitated the promulgation of the amended guideline and justified providing relief to those, like Mr. Dillon, who were sentenced for crack cocaine offenses while not providing relief to those sentenced for other offenses.  Further, in response to Justice Ginsburg's observation that the rule advocated by petitioner would provide a "powerful motive" to the Sentencing Commission not to make its Guidelines amendment retroactive, Ms. Freeland noted that such a response would be an "abdicat[ion]" of the Sentencing Commission's duties.

The focus of the argument then turned to the process and limits of the proceeding under Section 3582(c)(2) as advocated by Ms. Freeland.  Seemingly to avoid characterizing the proceeding as a "full-resentencing," Ms. Freeland explained that "[w]e are simply saying that when a court imposes a new sentence, that new sentence must comply with this Court's decision in Booker."  Chief Justice Roberts and Justice Scalia questioned the operation of such a limited process and asked if other non-Booker constitutional violations could also be considered in a Section 3582(c)(2) proceeding.  Ms. Freeland responded that "waiver principles, law of the case, [and the] mandate rule," among other procedural rules, would limit a defendant's ability to raise challenges to his amended sentence.

Argument then shifted to the text of Section 3582(c).  Responding to a question by Justice Sotomayor whether, under Ms. Freeland's construction, 3582(c)(2) proceedings are merely one-way ratchets under which a court is authorized only to reduce a defendant's sentence, Ms. Freeland explained that the text of Section 3582(c)(2) compelled this result.  Justice Breyer seized this opening to debate the relevant statutory text "“ "the court may reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."  In his estimation, the statute bound judicial discretion to the limits set forth in applicable policy statements and, because there was an applicable policy statement in this case, he suggested that Ms. Freeland would have to demonstrate that policy statement itself was unconstitutional in order to prevail.  Conceding that it was not petitioner's position that Section 3582(c)(2) is itself unconstitutional, Ms. Freeland clarified that insofar as § 1B1.10(b)(2)(A) requires a district court to impose a sentence within the guideline range, the policy statement itself is the source of the constitutional violation because, as suggested by Justice Scalia, the policy statement "effectively" requires district courts to "disregard Booker."

Finally, Justice Breyer voiced the concern that applying Booker to Section 3582(c)(2) proceedings would cause overwhelming systemic burdens.  Ms. Freeland cited the relative ease with which the lower federal courts handled resentencings in the immediate aftermath of Booker and, in any event, she emphasized, the imposition of such a burden is justified for people like Mr. Dillon "who are deserving [of relief]."

Leondra Kruger, appearing on behalf of the United States, contended that proceedings under Section 3582(c)(2) do not implicate Booker because such proceedings do not give rise to a "plenary resentencing . . . requiring reconsideration of guidelines determinations . . . or requiring application of intervening changes in the law."  Ms. Kruger characterized proceedings under Section 3582(c) as "limited" in purpose and akin to "a type of clemency power" that results in the reduction of the original sentence  The limited nature of the proceedings, according to Ms. Kruger, also precludes a district court from correcting "technical error[s]" such as the calculation of petitioner's criminal history category.  Further supporting her position and responding to Justice Breyer's question whether anything in the Sentencing Guidelines policy statement prevented a district court from making such a correction, Ms. Kruger cited § 1B1.10(b)(1)'s requirement that, when making a resentencing determination under Section 3582(c), a district court "shall leave all other guideline application decisions unaffected."

Justice Kennedy then directed the Court's attention to whether a defendant's behavior while imprisoned affects the availability of relief.  Ms. Kruger's affirmative response "troubled" the Chief Justice, who suggested that the consideration of that factor seemingly opens the proceeding to all other factors.  Ms. Kruger responded that the parameters of the district court's discretion are provided by 18 U.S.C. § 3553(a), which sets forth the universe of factors relevant to proceedings under Section 3582(c)(2).

Justice Kennedy also questioned whether the government's limited view of Section 3582(c) proceedings, in tandem with the limited availability of commutation of sentences for model prisoners like Mr. Dillon, illustrates that "something is not working in the system."  Though Ms. Kruger was not prepared to speak to that question, she did note that those considerations do factor into the availability of relief under Section 3582(c)(2).

The Court is expected to issue its decision prior to its summer recess in late June

Posted in Dillon v. U.S., Merits Cases, Uncategorized