Spotlighting guideline circuit split, two Justices express “hope” US Commission will be back “in near future”
The Supreme Court issued this lengthy order list this morning which, as is typical, is mostly full of lots and lots of denials of certiorari. The Justices granted review in three cases (one involving habeas procedure) and called for the Solicitor General’s views in two other cases. But, at the very end of the 24-page order list without much of interest for sentencing fans, was a notable short statement by Justice Sotomayor, joined by Justice Barrett, respecting the denial of certiorari in Guerrant v. US, No. 21-5099. Here are highlights:
This petition implicates a split among the Courts of Appeals over the proper definition of a “controlled substance offense,” and, accordingly, over which defendants qualify as career offenders…. Defendants in [most Circuits] qualify as career offenders for federal sentencing purposes even if their only prior offenses involved substances not prohibited under federal law. As a result, they are subject to far higher terms of imprisonment for the same offenses as compared to defendants similarly situated in the Second or Ninth Circuits.
It is the responsibility of the Sentencing Commission to address this division to ensure fair and uniform application of the Guidelines. Cf. Braxton v. United States, 500 U.S. 344, 348 (1991). In March 2021, I wrote concerning an unresolved Circuit split over the proper interpretation of a Guideline. See Longoria v. United States, 592 U. S. ___. The Sentencing Commission lacked a quorum of voting members then, and it still does today. At this point, the Sentencing Commission has not had a quorum for three full years. As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants’ sentences. I hope in the near future the Commission will be able to resume its important function in our criminal justice system.
I am intrigued and pleased to see Justice Barrett now joining Justice Sotomayor in flagging the need for a functioning US Sentencing Commission to address problematic circuit splits. But it bears noting that plenty of circuit splits, including this one, pre-date the USSC’s loss of a quorum. Even when fully functioning, the USSC has never been able to resolve all challenging circuit conflicts, and I share Dawinder Sidhu’s view that we should all “be troubled by the court’s refusal to review conflicts involving the federal sentencing guidelines.” (See full article here.)
I think it is the responsibility of the USSC and SCOTUS to help “ensure fair and uniform application of the Guidelines.” And, as Justice Sotomayor notes, we are now a full three years into a quorum-less Commission and still do not even have Commissioner nominees. Moreover, even if Prez Biden were to nominate new Commissioners in the next few weeks (which seems unlikely) and the Senate were to confirm those nominees quickly (which seems unlikely), a new Commission could not “fix” this broken guideline until Nov 2022 at the earliest (and Nov 2023 or later is much more realistic). But SCOTUS could, and arguably should, “solve” this issue and others with a per curiam opinion that advances consistency for the time being subject to future review by a future Commission.
Because the Supreme Court has largely abdicated its role in guideline interpretation for over three decades now, I am not surprised that it is not now trying to fill the gap created by a quorum-less Commission. But I wish there were more than just a couple of Justices willing to do a lot more than just talk up their “hope” that another part of the federal judiciary would be able to soon help advance sentencing justice.