What could have been one of the most significant cases of the term turned out to be a very narrow decision of import mainly to federal defendants and criminal lawyers. The court granted certiorari on two separate questions relating to the meaning and viability of the rule articulated in Marks v. United States for discerning precedent from a plurality opinion. In Marks, in 1977, the court held that “[w]hen a fragmented Court decides a case, … the holding of the Court may be viewed as that position taken by the Members who concurred in the judgment on the narrowest grounds.” Ultimately, however, the court addressed only the “proper construction” of a federal sentencing statute, concluding that, with a caveat discussed below, defendants who plead guilty are eligible for sentencing relief if the Sentencing Guidelines are retroactively amended.
In Freeman v. United States, the Supreme Court in 2011 failed to provide a majority opinion as to the circumstances in which a federal criminal defendant who enters a Type-C plea agreement, in which the prosecutor and the defendant agree to a specific sentence or sentencing range, is eligible for a sentence reduction if there is a subsequent, retroactive amendment to the relevant Sentencing Guidelines range. Freeman resulted in a 4-1-4 split, with Justice Sonia Sotomayor writing for only herself, and the lower courts disagreed as to the proper application of the Marks rule to Freeman. As a result, the eligibility of a prisoner for sentencing relief based on a sentencing range that has been lowered by the commission varied depending on the circuit in which the defendant was convicted. Such a result, the six-justice majority opinion by Justice Anthony Kennedy explained, was at odds with the central purpose of the Sentencing Guidelines of promoting uniformity in sentencing.
Erik Hughes negotiated a Type-C plea for a 180-month sentence, and the trial court accepted the plea after calculating his guidelines range as 188-235 months. Just months later the applicable guidelines were amended, reducing Hughes’ sentencing range to 151-188 months, and Hughes promptly filed a motion for a reduced sentence. The lower courts denied Hughes’ bid for a lower sentence, explaining that he was ineligible for a reduced sentence based on the reasoning of Sotomayor’s lone concurrence in Freeman.
Rejecting Sotomayor’s concurrence in Freeman, six justices (including Sotomayor) held yesterday that generally a sentence, including a sentence entered under a Type-C plea, will be “based on” the guidelines and the defendant will be eligible for resentencing. The court acknowledged that there will be cases in which a sentence is not based on the guidelines. It gave as an example Koons v. United States, (also decided yesterday) in which the trial court judge explicitly “discarded” the guidelines and sentenced the defendant “irrespective” of them. But the court emphasized that cases like Koons “are a narrow exception” to the general rule, and “absent a clear demonstration, based on the record as a whole, that the court would have imposed the same sentence regardless of the Guidelines,” a defendant’s sentence is “based on” the guidelines.
Sotomayor wrote a short concurrence that explained her decision to vote with the majority and to abandon her lone concurrence from Freeman that had been adopted as binding by several circuits. She stated that she continues to believe that her “Freeman concurrence sets forth the most convincing interpretation” of existing law, but she regrets that her “concurrence precipitated a 4-1-4 decision that left significant confusion in its wake.” Sotomayor agreed to join the majority “in full because doing so helps to ensure clarity and stability” in the criminal law.
Chief Justice John Roberts wrote a dissent joined by Justices Clarence Thomas and Samuel Alito, which echoed the dissent in Freeman. The dissenters disagree that a Type-C plea is “based on” the Sentencing Guidelines, and thus they would hold that defendants sentenced pursuant to Type-C plea agreements are not eligible for a sentence reduction based on subsequent amendments to the Sentencing Guidelines. Quoting his dissent in Freeman, the chief justice argued that a sentence in a Type-C plea case is never based on the guidelines, because such sentences are based “on one thing, and one thing only – the plea agreement.”
For anyone not involved in federal criminal law, the justices’ decision not to take up the Marks rule issue is the most notable feature of this case. As the rate of pluralities has increased over time, and because understanding what makes one opinion narrower than another can be critical to parsing some of the most contentious opinions in modern history — the death penalty, free speech, abortion and environmental protection all involve major questions that turn on the interpretation of a plurality decision – applying the Marks rule has become a salient feature of high-profile litigation across the country. But Kennedy explained that because the Supreme Court has now reached agreement on the statutory interpretation question that divided them in Freeman, it is “unnecessary to consider” the proper approach to interpreting plurality decisions “despite the extensive briefing and careful argument the parties presented to the Court concerning the proper application of the Marks rule.”
Following an oral argument dominated by a discussion of the “narrowest grounds” and repeated requests by both parties to resolve the perpetual confusions about the Marks rule, the Supreme Court dodged the question altogether. Perhaps the court simply has no interest in clarifying the Marks rule; it seems to prefer the prevailing chaos and confusion. Or at least the court seems resigned to sticking with the rule because, as Justice Stephen Breyer put it during oral argument, “So if you ask me to write something better than Marks, I don’t know what to say.”
Ultimately Hughes promises greater clarity and uniformity in federal sentencing, but continued uncertainty when it comes to predicting the precedent created by a fractured plurality decision. The Supreme Court revisited a statutory question in order to reach majority consensus, rather than tackling the underlying issue that generated the circuit split – the meaning of the Marks rule.
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