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Practice Pointer: Navigating a Novel Cert. Problem

With apologies for the length of this post, I thought that developments in one of the Stanford Supreme Court Litigation Clinic’s cert. petitions provided a useful practice pointer and illustration of the relationship between the Solicitor General’s Office, private counsel, and the Court.

Our petition in Beasley v. United States (available here) arises from the requirement in 21 USC 851(a) that, in order to enhance certain drug offenses based on the defendant’s prior convictions, the government must provide notice to the defendant “before trial.” In this case, the government did not provide notice until after jury selection. Beasley failed to object at trial, but on appeal to the Fourth Circuit argued that the government had violated Section 851(a). The court of appeals held that the requirement of Section 851(a) is not jurisdictional and (because no objection was made in the trial court) is therefore subject to plain error review, and furthermore that any error in this case was not plain.

Our petition alleges that other circuits would disagree with those holdings. In opposing certiorari (see here), the Solicitor General disputed the existence of any significant circuit split.

More important for present purposes, the government advised the Court that the question presented was irrelevant to the outcome of Beasley’s case. It explained that the district court had sentenced the defendant as a career offender, and that the district court’s guideline-based sentence was within the unenhanced statutory range for a sentence that applies without the notice required by Section 851(a). So, the government told the Court, the meaning of Section 851(a) was irrelevant here.

In fact, the government misunderstood how the career offender guideline (USSG 4B1.1) works. That guideline is somewhat unusual, as it sets the defendant’s “offense level” (a determinant of the sentencing range) based on the maximum statutory sentence. As the courts have subsequently interpreted the guideline and the statute on which it is based, the statutory maximum depends (in a case like this one) on whether the government provides the notice required by Section 851(a).

The question for us became: what to do about the mistake? If credible, the government’s argument was devastating to the cert. petition. This sort of point significantly, sometimes fatally, hobbles any cert petition. The Court’s frequent view in such a situation is, “Why should we bother with deciding the petitioner’s issue if it won’t do him any good and indeed we might never end up deciding the legal issue in the case because it makes no difference?”

Most straightforwardly, we could articulate the proper reading of the career offender guideline in our reply brief. But that alone would not get the job done. The Solicitor General has enormous credibility (built up over many decades) with the Court, particularly on questions so technical and objective as the operation of the sentencing guidelines. No matter how compelling our interpretation of the guideline, the law clerk reviewing the petition would be left with doubt. Though it would be unclear how the government was right, the presumption would be that it was, and there would remain an overhanging worry that the petition was a bad vehicle.

Our problem was magnified by the fact that the brief in opposition did not explain how the government believed its position was consistent with the language of the guideline. It instead merely asserted that the guideline, not the statute, set the sentence. So our reply couldn’t point to a precise argument in the Solicitor General’s brief that we could disprove by its terms.

This is one of the many ways in which cert. practice can differ fundamentally from filing a merits brief, which is much more familiar to most litigators. In litigating the merits, it is (theoretically, at least) enough to be 51% right – more right than wrong. But the recommendations in the cert. process follow a very different calculus that is freighted with risk aversion. No law clerk wants to urge the Court to take a case that it later dismisses because of something about the procedural posture that should have been caught earlier. If doubt exists about whether a case is an appropriate vehicle, the safest course is to deny review and wait for another (better) petition to come along on the same question.

So, in establishing that a question is properly presented by the petition – for example, in proving that the question was properly raised in the lower courts or (as in this case) determines the outcome of the case – the petitioner establishes in the mind of the reader that he is 100% (not 51%) right. Any residual doubt can kill the case. And as noted, it is exceptionally difficult – indeed, nearly impossible – for a private attorney to establish with perfect certainty that the Solicitor General just misunderstands the basic operation of a sentencing guideline.

My solution to that dilemma was to rely on the Solicitor General’s own sense of the government’s obligation to play matters entirely straight with the Court. So – after spending a lot of time (way too much time in fact, as it delayed our reply brief considerably) trying to be sure that our understanding was correct, including reading every possibly relevant case and consulting with Amy Baron-Evans and Peter Goldberger, who know this stuff cold – I called the relevant lawyers in the SG’s Office and explained my view that they had made a mistake.

Private lawyers almost certainly would have told me to jump in a lake and say what I had to say in our reply brief. But the Solicitor General’s Office was completely accessible. I won’t get into the details of the conversation or what the government said, which isn’t for me to characterize. But my own view is that they were extremely thoughtful and were willing (indeed earnest) to review any citations we wanted to provide supporting our view.

I first spoke with the government before we filed our reply brief, and it declined to file a correction. Again, it isn’t for me to speculate about the reasons it didn’t do so. But it is fair to say that the government could have concluded that its position in the opposition was sufficiently plausible. For example, the government’s argument reflects a possible reading of the guideline’s text (because in theory the statutory maximum sentence could be the sentence without regard to whether the Section 851(a) notice was filed), and while several courts have discussed how the guideline actually operates (saying that it depends on the notice) only one court of appeals has actually reversed a sentence on that basis (and it did so in an unpublished opinion).

So last Friday, we filed the reply (available here), which spent several pages on this issue. The rhetoric of the brief is somewhat strong (for Supreme Court filings): we say, for example, that the government’s position is “in the teeth” of the controlling Supreme Court precedent and we point out that one of the cases the government cites for its view actually says the opposite.

But we don’t, for example, accuse the government in any way of attempting to mislead the Court. That, too, is a practice pointer: if your argument depends on persuading the Supreme Court that the Solicitor General is acting unethically, you are going to lose. The SG uses logical and rhetorical tricks freely, but it doesn’t knowingly mis-cite precedents or omit relevant authority. And the Court knows it.

Ironically, that was what actually made it so plain that the government had made a mistake here. Its argument was plausible both as a matter of the guidelines’ text and the usual structure of the guidelines (which generally do not themselves set sentencing ranges on the basis of statutory maximums). And the government certainly will take advantage of all reasonable arguments in its favor. But the Solicitor General won’t do so without acknowledging the contrary authority that exists and trying to answer or distinguish it. Here, the government stated that the career offender guideline set Beasley’s sentence without regard to Section 851(a) but never acknowledged any of the decisions rejecting that reading of the guideline. Some kind of error had to have happened.

Our reply brief lays out at length our understanding of how the career offender guideline operates, and I think does so persuasively. But for the reasons I gave above, don’t believe that it would sufficiently eliminate all doubt about the case as a cert. vehicle. And because the conflict alleged in the petition isn’t exceptionally wide and deep, the remaining doubt alone might have been enough to cause the petition to be denied.

Yesterday, however, the government filed a letter with the Court (available here) continuing to oppose certiorari but “[u]pon further review” abandoning its argument under the career offender guideline. So, the underbrush of that issue has been eliminated entirely. The Court can now proceed to decide whether the question presented warrants review and whether the case is otherwise a good vehicle.

I think that this series of events demonstrates that the adversarial system — and the repeat-player nature of the relationship among the Solicitor General, the private bar, and the Court — works. It’s my sense that in the lower courts or a case purely between private lawyers this sort of issue could easily have devolved into a shouting match in the briefing. Instead, we made our point in phone calls to the government, which thought about it carefully and, after initially disagreeing with us, came back to the issue yet again, apparently decided we were right, and told the Court so.

That’s not to say that I think that the government did things perfectly. For three reasons, I don’t think it did. The mistake (which would have had a dramatic affect on the cert. petition) should not have happened in the first place, and it could have been avoided by looking at the relevant case law. But mistakes do happen, and I’ve made more substantial errors than this one. This error moreover wasn’t itself egregious. Although with hindsight the correct reading of the career offender guideline looks totally clear and it’s clear that the court of appeals understood it correctly in this case, in fact it isn’t so immediately obvious. Without getting into the details of our own uncertainty for a time, it is fair to say that Beasley’s brief in the Fourth Circuit didn’t explain the error (where the government made the same point) and the petition for certiorari itself just repeated the Fourth Circuit’s statement that the application of Section 851(a) changed Beasley’s guideline sentence (without explaining how).

Once we pointed out the error, it also would have been better if the Solicitor General had recognized and corrected it before we ate up somewhat precious pages of our reply brief. But the reality, I think, is that the government thought about it hard but (in my own view) wasn’t at that point convinced that we were so right that it didn’t have a genuine leg to stand on. Once it saw the reply on Friday, it apparently continued to think about the issue and changed its mind and then filed the letter on the next business day. The most important point to my mind is that the government was willing on short notice to spend a considerable amount of time on a vehicle argument on an uncertain cert candidate, reviewing the issue not once but twice and ultimately writing a letter to our advantage.

Finally, the Solicitor General’s letter leaves a little to be desired. It says that the government agrees with us on this issue “in part,” which is a bit odd given that (so far as the letter itself reveals) it recognizes that we’re completely right. The letter also somewhat tersely adopts our reading of the guideline – as if the government were merely making a reasoned confession of error between two possible interpretations – without acknowledging all the authority it missed in the opposition or apologizing to the Court for its error. But the subtext of the letter is fairly plain. And the letter is quite professional in not rehashing the government’s other arguments for opposing cert.

So the lesson that I learned from this experience is that it is best whenever possible to treat your adversary professionally and (at least in the case of the Solicitor General’s Office) have faith that their professionalism and desire to do the right thing will produce the right result.