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Court hears crack cocaine sentencing case

WASHINGTON – In a case that could impact thousands of defendants, the Supreme Court heard arguments Wednesday on whether sentences set by binding plea agreements are eligible for modification under the revised federal crack cocaine sentencing guidelines.

Petitioner William Freeman says he should be allowed to challenge the 106-month sentence he received for pleading guilty to possession with intent to distribute crack cocaine and related charges.

The written plea agreement stated that Freeman agreed “to have his sentence determined pursuant to the Sentencing Guidelines.” His sentence was the lowest possible under the federal guidelines in place at the time.

Two years later, however, the U.S. Sentencing Commission reduced the base offense levels for crack cocaine offenses.

Freeman moved for a sentence reduction under 18 U.S.C. §3582(c)(2), a federal law that allows judges to reduce sentences “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”

The U.S. District Court found the statute does not apply to defendants who were sentenced pursuant to plea agreements, and the 6th U.S. Circuit Court of Appeals affirmed.

The Supreme Court granted certiorari.

Defining ‘based on’

At oral argument Wednesday, federal public defender Frank W. Heft, Jr., argued that Freeman’s sentence was “based on” the old guidelines, notwithstanding the plea agreement.

Chief Justice John G. Roberts. Jr. wasn’t so sure.

“This plea agreement, I think, could be said to be ‘based on’ the sentencing guidelines, but it is also ‘based on’ the agreement,” Roberts said. “So how can you say it’s based on only the sentencing guidelines when it may not have been imposed in the absence of the plea agreement?”

Heft said the two were not mutually exclusive — that a sentence can be based both on the guidelines and the plea agreement.

Justice Samuel Alito then looked to the dictionary for guidance.

“You quote one definition of ‘base’ [but] you omit another standard definition of the term, ‘the principal element or ingredient of anything, considered as its fundamental part,’” Alito said. “[And] if you use the latter definition, you have to decide which is more ‘fundamental’ here – the agreement between the parties or the sentencing guidelines.”

“That’s correct, the guidelines certainly were the starting point,” Heft said. “But they were also the principal foundation of this agreement.”

Justice Antonin Scalia asked if Freeman’s argument is simply impractical.

“There’s no reason to believe that the government is interested in the guidelines, as opposed to being interested in putting this person away for a certain amount of time,” Scalia said. “[It] doesn’t further the intent of both parties, at least, to say when the guideline is changed, the agreement changes.”

Curtis Gannon, assistant to the solicitor general, argued simply that the “sentence is based on the parties’ agreement.”

“It is not based on the advisory guideline range that would otherwise have been used at sentencing, even if the sentence corresponds to that range,” Gannon said.

“Well, here the agreement at various points says that the parties agree on the calculation under the guideline,” said Justice Anthony Kennedy. “So it seems to me fair under the statute to say that it is ‘based on’ the guidelines.”

But Gannon said the language in the agreement was not related specifically enough to the particular guidelines that were changed.

Instead, the agreement dealt with several sentencing factors, which means that the sentence reduction provision doesn’t apply, Gannon said.

Gannon also deflected a question by Kennedy over whether the government’s argument would work both ways — that is, if the plea agreement would allow prosecutors to increase Freeman’s sentence, even though §3582(c)(2) does not.

There is only a “narrow window for ways in which the otherwise final sentence could be modified,” Gannon said.

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