Argument analysis: Justices struggle with interplay among federal sentencing statutes
on Mar 1, 2017 at 6:35 am
It has now been more than a year since Justice Antonin Scalia passed away, but his jurisprudential spirit seemed to fill the courtroom yesterday as the Supreme Court heard oral argument in Dean v. United States. At issue in Dean is 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. During the oral argument, several justices endorsed the government’s contention that allowing a judge to give a nominal sentence for the underlying predicate offenses in these circumstances would largely negate Congress’ purpose in enacting Section 924(c). But, echoing statutory interpretation principles that Scalia often championed in federal criminal cases, the justices also stressed that the text of the applicable sentencing statutes did not clearly foreclose the trial judge’s exercise of judicial sentencing discretion. This textualist point may carry the day for the defendant.
Levon Dean was convicted 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 requiring Dean to receive 30 years of federal imprisonment to run “in addition to the punishment” for his other convictions. Those other convictions carry an advisory sentencing guidelines range of 84 to 105 months’ imprisonment, but at sentencing Dean requested that the district court vary downward to impose a sentence of just one day for all his other convictions. U.S. District Judge Mark Bennett 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. On appeal, the 8th Circuit rejected Dean’s assertion that Bennett had discretion to impose only a one-day sentence for Dean’s other felonies.
Alan Stoler, appointed by the Supreme Court to represent Dean, struggled to justify why a judge could impose a sentence of just one day for Dean’s other crimes. Justices Ruth Bader Ginsburg and Elena Kagan were quick to stress that Section 924(c) requires consecutive sentencing, which a one-day sentence for predicate felonies would functionally undermine. According to Ginsburg, Stoler was, “in effect, asking for a concurrent sentence.” And as Kagan put it, Dean’s reading of the applicable statutes would “utterly eviscerate something that Congress clearly did say” in requiring Section 924(c)’s sentences to be “in addition to” the sentence for the predicate crime. (Adding insult to injury, after Justice Sonia Sotomayor came to Stoler’s defense with a series of questions intended to demonstrate the textual legitimacy of Dean’s claim, Stoler mistakenly referred to her as Justice Kagan.) The same functional concerns informed Justice Anthony Kennedy’s line of questions, as he suggested that Dean’s “position completely negates … the effect of 924,” although he did allow that perhaps “there are other reasons why Congress probably would have allowed” judges to exercise discretion to reduce dramatically the sentence for a predicate offense in these circumstances.
Stoler’s argument gained a bit more traction when he stressed that another statute, 18 U.S.C. § 1028A, which imposes consecutive mandatory minimums for identity theft, contains more express statutory language limiting a district court’s authority to reduce the sentence for a predicate offense. Several justices noted that Section 1028A was enacted well after Section 924(c), but Stoler pointed out that Congress could have, but has not, amended Section 924(c) to include clearer discretion-limiting statutory language.
Though Anthony Yang, representing the U.S. government, might have thought he had won after Stoler stepped down from the lectern, any such feeling must have been short-lived. Chief Justice John Roberts, questioning the emphasis in the government’s brief on the “thrust” of Section 924(c), remarked that “Congress doesn’t pass thrusts, they pass language, and there’s nothing in the language that prevents the judge from imposing a sentence recognizing that the defendant faces 30 years already.” Yang noted that the “thrust” language came from a 2010 Supreme Court opinion, Abbott v. United States, and went on to discuss the legislative history of Section 924(c). But textualism remained a centerpiece of the argument as Kennedy suggested that legislative history “is unimportant in light of what [18 U.S.C. §] 3553 says” about what a sentencing judge must consider when imposing a sentence. And Kagan picked up on Kennedy’s point and merged it with Roberts’ clear-statement concerns, warning that “when there’s a 30-year sentence implicated, you better be pretty clear. And also when you’re legislating against a fairly strong background principle of 3553, you better be pretty clear that you’re displacing that background principle.”
Somewhat amusingly, Justice Stephen Breyer, an original member of the U.S. Sentencing Commission, seemed at various points to look to the commission to extricate the court from the statutory issues in the case. During exchanges with both advocates, Justice Breyer pondered whether instructing judges as to whether they should or should not depart from the guidelines when Section 924(c) adds a consecutive term of imprisonment might be “a matter that lies in the hands of the commission.” But Justice Samuel Alito returned the discussion to reality by highlighting that the challenging statutory issue in this case stemmed from the court’s own decision in United States v. Booker, which recast the federal sentencing guidelines as “effectively advisory.” Alito suggested to Yang that Dean would have prevailed before the federal sentencing guideline system was created and that the government would have prevailed when the guidelines were mandatory. But now, Alito continued, “we’re in this weird world that this Court has created where the guidelines are advisory, but then they’re not advisory, and so that’s why we have this problem.”
In the end, the tenor of the argument suggested that the court will resolve this case by being, as Kagan put it, “strictly textualist here.” Because Congress has employed statutory text elsewhere that more clearly limits judicial sentencing discretion, the justices may be inclined to rule that Section 924(c) ought not be read to impose such limits absent comparable express language. We will know more about the resolution of this interpretive challenge by the end of June.