Argument preview: Justices to consider limits of sentencing discretion under advisory guidelines
on Feb 21, 2017 at 11:29 am
It has now been more than 12 years since the Supreme Court’s landmark opinion in United States v. Booker recast the federal sentencing guidelines as “effectively advisory.” In subsequent cases, the court has clarified and reiterated the breadth of district-judge sentencing discretion within an advisory-guideline system. But on February 28, the court will confront whether mandatory statutory gun-sentencing provisions may limit a district court’s post-Booker sentencing discretion. In Dean v. United States, the justices will decide whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.
Like many federal defendants, petitioner Levon Dean is not a particularly sympathetic character. In April 2013, Dean (along with various others, including his brother) robbed alleged drug dealers of drugs and other property in Sioux City, Iowa. In each of these robberies, Dean and his brother utilized a modified .22-caliber semiautomatic Mossberg rifle to threaten, intimidate and batter their victims.
A federal jury convicted Dean of multiple robbery and firearms counts, including two counts of possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Section 924(c) contains a consecutive-sentencing mandate: It provides that offenders “shall, in addition to the punishment provided for [the predicate] crime of violence or drug trafficking crime,” be “sentenced to a term of imprisonment of not less than 5 years” and, for a “second or subsequent conviction,” to “a term of imprisonment of not less than 25 years.” Dean’s other convictions carried no mandatory prison terms, and the parties agreed that the advisory sentencing guidelines recommended a range of 84 to 105 months’ imprisonment for these other offenses.
At sentencing, Dean requested that the district court vary downward from this guideline range to impose concurrent sentences of just one day for all his other convictions because the Section 924(c) counts carried mandatory five- and 25-year consecutive sentences. According to Dean, the aggregate sentence of 30 years of imprisonment required by his Section 924(c) convictions was “more than sufficient to accomplish the goals of sentencing and to account for the criminal conduct in this case.”
U.S. District Judge Mark Bennett at sentencing indicated that, “if [he] could look at a combined package” of all the offenses together, “360 months plus 1 day” would be “more than sufficient for a sentence in this case.” But, Bennett continued, he lacked discretion to “go down to one day” for all the other convictions because precedent in the U.S. Court of Appeals for the 8th Circuit required him “to look at [the underlying offenses] separately” from the Section 924(c) counts. Bennett did grant a downward variance to 40 months of imprisonment for Dean’s other felonies. Dean thus received a total sentence of 400 months of imprisonment (33.3 years). On appeal, the 8th Circuit rejected Dean’s assertion that Bennett had discretion to impose only a one-day sentence for his other felonies.
Before the Supreme Court, Dean cites to both sentencing statutes and sentencing traditions to support his contention that district judges can and should be able to consider applicable consecutive mandatory minimums when selecting a sentence for an underlying predicate crime. Dean stresses particularly the provisions of 18 U.S.C. §§ 3553 and 3661. Section 3553 instructs a sentencing court to impose a sentence “sufficient, but not greater than necessary,” to comply with Congress’ statutory-sentencing purposes, and Dean argues that “implementing that command requires taking into account a vast range of information about the defendant, including the plainly relevant fact that he will also serve a lengthy mandatory minimum sentence.” Section 3661 further provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct” of a defendant that a district court “may receive and consider for the purpose of imposing an appropriate sentence.” Dean highlights how the Supreme Court has referenced Section 3661’s “plain” and “broad” language to preclude creating any kind of “a blanket prohibition against considering certain types of evidence at sentencing.”
Dean goes on to note that another statute, 18 U.S.C. § 1028A, which imposes consecutive mandatory minimums for identity theft, expressly states that a district court “shall not in any way reduce” the underlying sentence based on, “or otherwise take into account,” the mandatory minimum when determining the proper sentence for the underlying offense. He contends that it would be inappropriate to read a similar limitation on sentencing discretion for underlying offenses into Section 924(c) absent any similar language. Rounding out his statutory arguments, Dean cites the legislative history of Section 924(c) and maintains that the rule of lenity demands an interpretation in his favor if the statutory language creates ambiguity.
Dean concludes with a rousing discussion of traditional sentencing discretion throughout history and as championed by the Supreme Court over the years. An amicus brief filed by the National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums strikes a similar tone. In the words of the amicus, the 8th Circuit’s creation of a limit on the district judge’s sentencing discretion here “conflicts with centuries of traditional sentencing practices in the United States and a clear statutory command entrusting judges with significant discretion to consider the fullest information possible about the offenders before them.”
The federal government agrees that the statutory language is central to the resolution of this case, but its arguments focus on the language of Section 924(c) stating that a court “shall” impose a mandatory five-year (or longer) sentence “in addition to the punishment provided for” the predicate offense and directing that the additional punishment be imposed consecutively to “any other term of imprisonment.” That key language, explains the government, amounts to a command that all Section 924(c) offenders receive additional punishment for their firearm offense. Allowing a sentencing judge to reduce the sentence for the predicate and other offenses to just one day would effectively permit “sentencing judges to carve out statutory exceptions from 924(c) based on judicial perceptions of good sentencing policy.”
In the government’s view, other statutory sentencing provisions and the legislative history of Section 924(c) bolster its arguments for limiting judicial sentencing discretion in this context. Broader sentencing provisions, the government explains, afford judges in other settings discretion to impose sentences concurrently or consecutively, but the very point of Section 924(c) was to “eliminate a sentencing court’s normal authority … to determine the total, aggregate length of imprisonment from multiple terms of imprisonment.” And the provision’s “drafting history demonstrates Congress’s intent to withdraw discretionary sentencing authority that might otherwise allow sentencing judges to eliminate Section 924(c)’s mandatory additional punishment.” Moreover, the government continues, interpreting Section 924(c) to require additional punishment does not violate Section 3661’s provisions about relevant sentencing considerations, nor is it undermined by the broader limit on sentencing discretion Congress subsequently adopted in the aggravated identify-theft provisions in Section 1028A. Summarizing its take on Dean’s arguments, the government asserts that the “only apparent function of petitioner’s reduced-to-one-day sentencing regime would be to avoid the congressionally imposed consecutive, additional, mandatory-minimum sentences in Section 924(c). That is reason enough to reject it.”
Ironically, each side’s formalist statutory arguments are in some sense strengthened by the disconcerting functional implications of its opponent’s positions. Dean reasonably rejects the idea that a court is required to “blind itself” completely at sentencing to a defendant’s significant mandatory consecutive sentence, and he rightly asserts that statutory language and sentencing history support his claim that federal judges should always have the authority to impose a final sentence that seems just and effective in light of all relevant sentencing circumstances. On the other hand, the government reasonably assails any effort to “negate the imposition of additional punishment for § 924(c) violations,” and it rightly asserts that the congressional goals of Section 924(c) could be undermined by allowing judges to impose a nominal punishment for any and all predicate crimes in the face of applicable mandatory consecutive sentences.
Though the Supreme Court has not always broken into traditional conservative and liberal blocs in federal sentencing cases, the more liberal justices will likely be drawn to Dean’s claims, while the more conservative justices will likely see matters the government’s way. An interesting added element of the case, though one not engaged by the briefs, is the fact that Dean was subject to the harsh stacking rules of Section 924(c), subjecting him to 30 years of mandatory imprisonment for two Section 924(c) convictions rather than just the five years that would be mandated by a single Section 924(c) conviction. The multi-decade mandatory added punishment for multiple Section 924(c) convictions arguably allays any concern that a nominal punishment for Dean’s other offenses would undermine Congress’ goal of requiring severe additional punishment for using a gun in furtherance of other crimes. In other words, conceptually and practically, the issue in this case feels quite different depending on how many Section 924(c) convictions a defendant is facing. But, of course, the justices have to resolve the issue legally, not conceptually and practically.