Argument analysis: For sentence modification, what will “based on” be based on?

The issue before the Supreme Court in Koons v. United States concerns the application of 18 U.S.C. §3582(c)(2), which allows federal judges to modify a prison term for a “defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” But the oral argument in the case focused almost entirely on the meaning and application of 18 U.S.C. §3553(e), the statute that provides judges with authority to sentence a defendant below an otherwise applicable mandatory minimum sentence. The petitioners argued that one clause of this statutory provision makes plain that their sentences were “based on a sentencing range … lowered by the Sentencing Commission”; the government maintained that another clause of this provision dictates the opposite conclusion. The justices seemed to be leaning toward the government’s reading of the statute, but Justice Stephen Breyer advanced a broad-eligibility approach to Section 3582(c)(2) that might entice enough votes to secure a victory for the petitioners.

The petitioners are five defendants who all pled guilty to drug-trafficking offenses carrying statutory mandatory minimum sentences under 21 U.S.C. §841(b)(1), and who all received sentences below the applicable mandatory minimums by providing substantial assistance to authorities under 18 U.S.C. §3553(e). The defendants subsequently sought to have their sentences further reduced after the U.S. Sentencing Commission adopted and made retroactive Amendment 782, which lowered the base offense level for the applicable drug offenses. The courts below decided, however, that these defendants were not eligible for sentence modifications under Section 3582(c)(2). In the words of the U.S. Court of Appeals for the 8th Circuit, each defendant had received a sentence “based on his statutory mandatory minimum sentence and his substantial assistance,” and therefore had not received a prison term “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”

Jeffrey Fisher, arguing for the petitioners before the Supreme Court, asserted that his clients should prevail based on “the plain text of the statute” that allows a judge to sentence below an otherwise applicable mandatory minimum sentence, 18 U.S.C. §3553(e). He stressed that the second part of this provision states that a sentence for defendants who provide substantial assistance “shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission.” So, as Fisher put it, this statutory text “directs the court straight to the guidelines, not away from the guidelines [and] says nothing about tethering a sentence to the mandatory minimum or somehow setting the guidelines aside.” In his view, the petitioners’ sentences were “based on” the guidelines because Congress provided in Section 3553(e) that the mandatory minimum and substantial assistance would “cancel each other out,” so that the sentencing judge would go back to being guided by calculated guideline ranges.

The federal government, represented by Eric Feigin, had a ready response, based on the same statutory provision stressed by the petitioners. Feigin emphasized that the first sentence of Section 3553(e) provides that “the court shall have the authority to impose a sentence below what a statutory minimum requires so as to reflect a defendant’s substantial assistance.” The “so as to reflect” language, he explained, serves as a “limitation on what the court can take into account in imposing a sentence below the minimum”: A court is only to consider “substantial assistance factors” rather than otherwise applicable guideline ranges in this sentencing setting. And, continued Feigin, “all 11 courts of appeals that have directly addressed this question agree with our view of how substantial assistance sentencing works.” In addition, Feigin pointed out, Section 3553(f), which allows certain low-level offenders to escape applicable mandatory minimums, much more clearly calls for application of the guidelines and lacks the limiting language of Section 3553(e).

Each side’s counsel outlined a version of the way sentencing is designed to take place in this context, but the justices often focused on how sentencing actually transpires. Pressing Fisher, Justice Samuel Alito wondered about cases in which a judge “specifically disavows any reliance on the guidelines”; pressing Feigin, Justices Ruth Bader Ginsburg and Sonia Sotomayor stressed that sometimes “district judges do take into account the guidelines … when they determine how much time to include for substantial assistance.” At times, these questions engendered a somewhat metaphysical discussion of whether Section 3582(c)(2)’s reference to sentences “based on a sentencing range” turns on, in Justice Elena Kagan’s words, “questions of historical fact” as to “what you were sentenced based on” rather than “what your sentence should have been based on.” Interestingly, the parties urged the justices to consider, in the words of Fisher, “what the law requires, not necessarily what a judge did perhaps mistakenly.” But still some justices seemed inclined to focus on what the judge actually did at initial sentencing. That approach might augur especially well for those three of the five defendants who actually ended up with sentences that fell within their calculated guidelines range once mandatory minimums were rendered inapplicable because of their substantial assistance.

Deep into the argument, Breyer laid out for Feigin what he termed a “common sense” approach to these matters, “since we’re never going to know, really,” what a judge was thinking when he imposed a particular sentence. In Breyer’s view, “all we have to do if you read it broadly ‘based upon,’ is send it back so that judge himself or herself can resentence.” And, suggested Breyer, the Supreme Court could say, “Judge, when you resentence, if the guidelines had nothing to do with this, don’t change the sentence.” As pitched by Breyer, this approach “seems to be practical, prevents every case from trying to psychoanalyze the judge, [and] prevents … appeal after appeal.”  Feigin responded by reiterating the government’s various statutory and policy arguments against expanding the reach of Section 3582(c)(2) eligibility, but Breyer continued to express concerns about “the complexity of second-guessing” what a sentencing judge considered at sentencing and worried about a “kind of legal perdition” if every sentencing transcript had to be evaluated to apply Section 3582(c)(2) in this context.

Not long after Breyer described his concerns and thinking, Justice Anthony Kennedy asked a question that was based on what he called “Justice Breyer’s common sense approach.” And, perhaps evincing a shrewd read on the bench, Fisher during his rebuttal twice referenced Breyer’s account of why his “broad-eligibility” approach to Section 3582(c)(2) should be embraced. But the justices were relatively quiet throughout the argument and the complete silence of Justice Neil Gorsuch was particularly striking. Because Gorsuch has already demonstrated a particular interest in matters of federal sentencing law and procedure, as well as a firm commitment to textualism, I had been hoping and expecting he might have some especially trenchant questions for counsel in this case. As Justice Clarence Thomas’ habitual silence during oral argument demonstrates, though, staying silent on the bench does not mean a justice has nothing to say. Just what Gorsuch and his colleagues will ultimately say in this case remains, at least to this observer, anything but certain.