Last Friday, the Supreme Court granted certiorari in two cases that will address circuit conflicts about a defendant’s eligibility for a sentence reduction based on a retroactively applicable amendment to the Sentencing Guidelines. See Hughes v. United States, No. 17-155 (U.S. Dec. 8, 2017) (cert. petition here); Koons v. United States, 17-5716 (U.S. Dec. 8, 2017) (cert. petition here).
Pursuant to 18 U.S.C. § 3582(c)(2), Congress authorizes federal courts to reduce the term of imprisonment of “a defendant who has been sentenced . . . based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” (emphasis added). The defendants in Hughes and Koon both sought, and were denied, sentence reductions based on Amendment 782 to the Sentencing Guidelines, which reduced the offense levels of certain drug offenses by two levels and applies retroactively.
In Hughes, the defendant pleaded guilty to conspiracy with intent to distribute at least 500 grams of methamphetamine and being a felon in possession of a firearm. Although Hughes’s sentencing guideline range was 188 to 235 months, Hughes was sentenced to 150 months pursuant to the Court’s acceptance of his Rule 11(c)(1)(C) plea agreement, which required the Court to impose the below-guideline sentence agreed on by the parties. He was later denied an Amendment 782 sentence reduction based on Justice Sotomayor’s concurring opinion in Freeman, that the sentence in Hughes’s binding plea agreement was not “based on” a sentencing guidelines range as required by § 3582. See United States v. Hughes, 849 F.3d 1008 (11th Cir. 2017) (attached here).
The questions presented in Hughes are framed as follows:
This Court explained in Marks v. United States, 430 U.S. 188, 193 (1977), that “[w]hen 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 those Members who concurred in the judgments on the narrowest grounds.’” In Freeman v. United States, 564 U.S. 522 (2011), the Court issued a fractured 4-1-4 decision concluding that a defendant who enters into a plea agreement under Fed. R. Crim. P. 11(c)(1)(C) may be eligible for a reduction in his sentence if the Sentencing Commission subsequently issues a retroactive amendment to the Sentencing Guidelines. But the four-Justice plurality and Justice Sotomayor’s concurrence shared no common rationale and the courts of appeals have divided over how to apply Freeman’s result.
- Whether this Court’s decision in Marks means that the concurring opinion in a 4-1-4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other.
- Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman , or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.
- Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.
Petitioner Hughes is represented by Stephanie A. Kearns & Brian Mendelsohn, Federal Defender Program in Atlanta, GA, and E. Joshua Rosenkranz, Erik A. Shumsky, Thomas M. Bondy, Katehrine M. Kobb, & Allison M. KIlmartin of Orrick, Herrington & Sutcliffe, LLP, New York.
Koon involves five consolidated appeals. All five defendants were convicted of methamphetamine conspiracy offenses subject to statutory minimum mandatory sentences but all were sentenced below the minimum mandatory sentence based upon substantial assistance motions filed by the government. Each defendant was later denied an Amendment 782 sentence reductions because the Court determined their sentences “were not ‘based on’ a guideline range subsequently lowered by the Sentencing Commission.” See United States v. Koons, 850 F.3d 973, (8th Cir. 2017) (opinion attached here).
The questions presented in Koons are:
- Whether the Eighth Circuit Court of Appeals erred in holding, contrary to the opinion of the Fourth Circuit Court of Appeals, that defendants whose initial advisory guideline sentencing range was below a statutory mandatory minimum and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e), are not eligible for further reduction in sentence under 18 U.S.C. § 3582(c)(2) and retroactive sentencing guideline Amendment 782, which lowered the base offense levels assigned to most drug quantities?
- Whether Freeman v. United States, 564 U.S. 522 (2011) (plurality opinion) supports the holding that there is a substantive limitation on the term "based on" in 18 U.S.C. § 3582(c)(2) that prohibits defendants whose initial advisory guideline range was below a statutory mandatory minimum, and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e), from being eligible for further reduction in sentence due to retroactive sentencing guideline Amendment 782?
Petitioner Koons and his co-appellees are represented by James Whalen, Federal Defender, Des Moines, Iowa. The Training Division provides sentencing resources here.