Opinion analysis: Form order certifying that judge considered appropriate factors was sufficient to explain sentencing modification
on Jun 19, 2018 at 2:57 pm
Yesterday, in Chavez-Meza v. United States, the Supreme Court resolved a circuit split regarding whether the district court must give an explanation at all for its decision in a sentencing-modification proceeding pursuant to 18 U.S.C. § 3582(c)(2), and, if so, how full the explanation must be. In short, the judge must provide an explanation, but the current boilerplate form will generally suffice.
Adaucto Chavez-Meza, a convicted meth dealer, petitioned the federal judge who sentenced him to 135 months in prison to modify that sentence after the Sentencing Commission retroactively amended the federal sentencing guidelines to reduce the base offense level for all drug offenses. Under this amendment, Chavez-Meza’s sentencing range became 108 to 135 months, rather than 135 to 168 months. The district judge signed a two-page standard form statement called an “AO-247” and reduced the sentence to 114 months — a significant decrease, but short of the requested reduction to 108 months. The U.S. Court of Appeals for the 10th Circuit affirmed without demanding further explanation of why the original sentence was at the very bottom of the range, but the modified sentence edged a bit closer to the middle.
The government argued that because this is a sentencing-modification case, “that alone should secure it a virtually automatic victory.” According to the Justice Department, the statute underlying sentencing modifications imposes on the court “no duty” to provide an “on-the-record explanation’” of its reasons. The Supreme Court did not find it necessary to go that far. Writing for a seven-member majority, Justice Stephen Breyer opined that the judge had explained the chosen sentence fully enough to allow for meaningful appellate review. Relying heavily on 2007’s Rita v. United States, the majority stated that when a judge imposes a sentence within the Federal Sentencing Guidelines range, generally no lengthy explanation is necessary. The judge in Chavez-Meza’s case noted at the original sentencing hearing that the defendant sold a large quantity of actual methamphetamine, and the same judge, when granting the request for a sentencing modification, had before him information that Chavez-Meza had broken a moderately serious rule while in prison. The court remarked that if the record was insufficient at the original sentencing hearing or upon modification, the appellate court could have sent the case back to the district court for a more complete explanation (citing Molina-Martinez v. United States).
The majority rejected the defendant’s argument that when the Sentencing Commission retroactively lowers the guideline range, the judge should choose a point within the new lower guidelines range that is “proportional” to the point chosen in the old higher guidelines range. No statute or convincing argument suggests such a presumption, the court stated. As a technical matter and viewed “logarithmically, what may seem the middle of a new lower range is not necessarily proportionate to what may seem the middle of the old higher range.” For example, the petitioner’s original sentencing range had a 33-month differential, while his amended range has only a 27-month differential. I leave the relevant calculations to the mathematicians. More importantly, the court continued, the judge originally selected the “right” sentence based upon legitimate factors concerning the criminal behavior and the characteristics of the defendant. The court therefore found it “unsurprising” that changing the applicable sentencing range might lead a judge to choose a nonproportional point within the new range.
The majority did not resolve the issue of whether 18 U.S.C. § 3553(c)(1), which requires the judge to provide a “reason for imposing a sentence at a particular point within the range,” applies to sentencing-modification motions as well as sentencing hearings. This may not matter, however, because the court ultimately found that even under the stricter sentencing-hearing standard the district court’s bare-bones motion was sufficient to allow for meaningful appellate review. The majority essentially combined all the information that can be gleaned from the original sentencing hearing and presentence reports, the motions by the parties, and the AO-247 form, and then determined that the record as a whole established that the judge had “a reasoned basis” for the sentence. Though the court maintained that the answer might be different in a different case, it would be very rare indeed for a sentence to be imposed and affirmed and yet the record be found insufficient to support the granting of a sentencing-modification motion.
Justice Anthony Kennedy, along with Justices Sonia Sotomayor and Elena Kagan, dissented. These justices were frustrated by the “terse” AO-247 form, with its preprinted language stating that the judge has “considered” a petitioner’s motion for a reduced sentence, and has taken into account the policy statements set forth at United States Sentencing Guidelines Manual section 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a). Such forms, complained the dissenters, give petitioners little information as to why the new sentence is not at the bottom of the new sentencing range, and therefore little fuel for generating reversals on appeal. Because there is no hearing for a sentencing-modification motion, appellate courts are left to “speculate” as to why a “proportional” reduction was not imposed. The dissenters offer two modifications to the AO-247 form: (1) Require the district judge to add a sentence or two to the form’s “Additional Comments” box; or (2) rewrite the form to insert new boxes that provide “the reason or reasons for choosing a particular sentence.” They claim that the information contained in the revised forms will replace dozens of pages of briefs, orders and judicial opinions with just a few sentences, fostering judicial efficiency.
If only it were so! Although I predicted in my argument analysis that some justices might recommend a revised AO-247 form, I also noted that unfortunately a revised form would accomplish little. It would not correct mistakes, reduce unwarranted disparity (an issue that loomed large in the briefs but disappeared in the opinion), or provide useful information to appellate courts in reviewing sentencing-modification motions. Increased judicial sentencing discretion, along with concomitant sentencing disparities, is in large measure the result of the 2005 decision in United States v. Booker to make the guidelines advisory. Federal district judges are, for the most part, using their newfound discretion to decrease prison sentences below or at least to the low end of the guideline range. These sentences, which vary widely depending in large measure on which federal district a defendant is charged in and which judge she drew, essentially cannot be reversed on appeal without running afoul of the Sixth Amendment right protected by Booker.
For those who believe that the American criminal justice system is incarcerating too many people for too long, judicial discretion in sentencing is laudable. But even if it were not, Booker simply does not allow us to cabin district judge discretion via appellate review. In this case, for example, Chavez-Meza would not have received a lower sentence from Judge William Johnson, nor would the sentence have been reversed by the 10th Circuit, no matter what was preprinted or checked off on the AO-247 form. Chavez-Meza sold a large amount of meth, was involved in a drug cartel and was unable to follow prison rules. Were the dissenting justices’ proposed modified form before Johnson at the time of Chavez-Meza’s sentencing-modification motion, the judge could have written pretty much whatever he wanted in the “Additional Comments” box and been affirmed. In this instance, such a result appears just. But even in cases in which we might agree that a lower (or higher) sentence is more appropriate, current law would still require the appellate court to affirm any sentence (especially a within-guideline sentence) if the judge writes down “necessary for deterrence,” “necessary to reflect seriousness of offense,” or anything else in the kitchen sink of rationales contained in 18 U.S.C. § 3553(a). It is the standard of substantive reasonableness, not lack of information, that prevents meaningful appellate review.
For these reasons, this decision will be remembered as a minor one. Its effect will be similar to that of Koons v. United States, another case decided this month in which the court sided with the government. In Koons, the majority refused to apply sentencing reductions under 18 U.S.C. § 3582(c) (2) to petitioners who already had their sentences lowered based upon substantial assistance to the government. I believe such petitioners would have been unlikely to convince the federal judges who sentenced them that their earlier assistance had been more helpful than the judges initially realized. On the other hand, the government did lose a sentencing case yesterday, Rosales-Mireles v. United States, which requires judges to resentence under plain error when a guidelines sentence was based upon a mistake in the Presentence Report. That one mattered, as those petitioners are likely to have their sentences lowered based upon the holding. So, all in all, yesterday’s developments should be considered relatively positive for the administration of the criminal justice system.