Argument preview: Narrowing the “narrowest grounds” test, or simply interpreting a federal statute?
on Mar 20, 2018 at 10:42 am
The question of how to count the votes of the justices to decide who won a Supreme Court case – and on what ground – when the court is splintered has baffled lower courts for years. The rule laid out in Marks v. United States purports to answer that question: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by the Members who concurred in the judgment on the narrowest grounds.”
As a practical matter, the Marks rule has compounded rather than cured the confusion surrounding plurality precedent. Yet time after time when the Supreme Court has been confronted with an opportunity to clarify or abandon the Marks rule, it has failed to do so. More often than not, the court simply ignores the rule entirely, leaving lower courts in a hapless interpretative state each time the Supreme Court hands down a plurality decision. This could all change when the court decides Hughes v. United States, which is scheduled for argument on March 27.
On the surface, Hughes is a case about statutory interpretation in the context of federal sentencing procedures, but for many court-watchers the more important question is whether the Supreme Court will finally take the opportunity to resolve a circuit split regarding the proper application of the Marks rule. The questions presented suggest that the court may finally address this issue. A quick count suggests that more pages of briefing by the parties and amici were devoted to addressing the Marks issue than to the underlying statutory question.
This case involves what is known in criminal law as a C-Plea. A C-Plea, named for the corresponding Federal Rule of Criminal Procedure 11(c)(1)(C), is a plea agreement in which the prosecutor and the defendant agree to a “specific sentence or sentencing range.” Such pleas are less common than ordinary pleas in many districts because federal prosecutors prefer not to bind judges to a particular sentence (or sentencing range).
Erik Hughes, charged with, among other things, methamphetamine-related offenses, entered a C-Plea that guaranteed him a below-guideline sentence of 180 months. (The district court calculated the sentencing guideline range to be 188-235 months.) Following his guilty plea, the U.S. Sentencing Commission amended the sentencing guidelines by reducing the offense levels for certain drug offenses, and Hughes filed a motion to reduce his sentence pursuant to 18 U.S.C. 3582(c)(2).
Section 3582(c)(2) allows a defendant who has been sentenced “based on a sentencing range that has subsequently been lowered” to move for a sentence reduction. This case thus presents a statutory-construction question about the meaning of the words “based on.” Is a C-Plea “based on” the sentencing guidelines only when the plea agreement expressly relies on the guideline range to establish the agreed upon term of imprisonment, as the lower court suggested in this case? Or is a C-Plea that promises a particular term of imprisonment never “based on” the sentencing guidelines, as the government contends? Or, as Hughes argues, is any C-Plea eligible for a sentence reduction when the Sentencing Commission reduces the relevant sentencing guideline range?
This question of statutory interpretation is an important one, and has attracted the attention of sentencing law scholar Douglas Berman, who argues in an amicus brief that the disputed phrase “based on” should be construed broadly so as to give effect to the congressional intent to maximize sentencing fairness and uniformity.
Notably, this is not the first time the Supreme Court has been confronted with interpreting Section 3582(c)(2). Indeed, the court took up the very same issue presented in Hughes less than a decade ago in Freeman v. United States. But Freeman resulted in a fractured plurality decision that has proven, once again, the failure of the Marks rule to produce any clear direction. The lower courts are split as to the meaning of “based on” as interpreted in Freeman, and they are split precisely because they are also split as to how to implement the Marks rule. (The 11th Circuit decision begins by candidly noting that the central question is how to “to apply the rule of Marks v. United States … to the splintered opinion in Freeman v. United States.”) In other words, Hughes involves two circuit splits at once; practitioners and scholars alike are hoping that the court will accept the invitation to resolve both, rather than simply answering the question of statutory construction.
Commentators, myself included, have consistently lamented the futility of attempting to apply the Marks rule to discern precedent in a principled, predictable manner. The Supreme Court itself has explained that the narrowest-grounds rule is “easier stated than applied,” and more often than not has dodged the question of what “narrowest grounds” means by simply revisiting plurality opinions without so much as invoking, much less relying on or construing, the Marks rule. Freeman, decided by a 4-1-4 plurality, aptly illustrates the elusiveness of divining binding precedent by applying the Marks rule:
- The four-justice plurality took the most capacious approach to understanding “based on” and essentially held that a sentence was based on a sentencing guideline whenever the guidelines were “part of the analytic framework” the judge use to determine the sentence or approve the C-Plea. Under this approach, most, perhaps all, C-Pleas are “based on” the sentencing guidelines, so they are eligible for a sentencing reduction.
- Justice Sonia Sotomayor, writing for herself, and concurring only in the judgment, reasoned that a C-Plea is “based on” the sentencing guidelines only when the plea “expressly” invokes the guidelines to establish the appropriate sentence.
- The four-justice dissent held that any determinate sentence arising out of a C-Plea is based on the plea agreement, and not the sentencing guidelines.
Most federal courts of appeals applying the Marks rule to Freeman, including the 11th Circuit in Hughes, have concluded that Sotomayor’s lone concurrence is the holding of the case. Accordingly, the 11th Circuit held that because Hughes’ sentence was based on a C-Plea that was not explicitly linked to the sentencing guidelines range, the sentence was not “based on” a subsequently reduced sentencing range, and thus a sentence modification was not permitted under 3582(c)(2). This view of the Marks doctrine treats as binding, national precedent a rationale that was rejected by eight of the justices could be binding. Such a view would seem to encourage strategic voting, rather than compromise, and has been squarely rejected by at least two courts of appeals.
The U.S. Courts of Appeals for both the District of Columbia Circuit and the 9th Circuit take a narrower view of the Marks rule more generally, and thus the holding of Freeman in particular. These two circuit courts have held that when no underlying rationale gains the assent of five justices, the Supreme Court announces a judgment, but it does not create a holding that is binding on lower courts. A binding holding, on this view, requires explicit (or at least implicit) majority agreement on an underlying rationale for the outcome in the case. In the words of the leading circuit court case announcing this view, in the absence of shared reasoning such that one opinion was a true “logical subset” or “common denominator” of the court’s reasoning, a plurality decision does not create any precedent.
Hughes argues primarily that the fractured plurality in Freeman did not create any binding precedent, because there is no “common reasoning” between the plurality and concurring opinions. By contrast, the government argues that Sotomayor’s concurrence was the narrowest grounds, and therefore announced a binding holding, because it was the “intermediate position” between the dissent and the plurality opinions. Like the lower-court split on the issue, the briefs in this case make evident the irreconcilable interpretations of the Marks rule.
This case squarely invites the Supreme Court to resolve two questions of import. Although anyone interested in federal criminal law will be pleased to have an answer to the C-Plea question that has divided the lower courts, the greater project of law development through our system of precedent would surely benefit from a refinement (or alternatively, as one amicus brief urges, abandonment) of the Marks rule.