CrimProf Blog

Kreiner on Retroactive Reductions in the Crack Cocaine Guidelines

Evan Kreiner has posted Whose Applicable Guideline Range is it Anyway? Can Nominal Career Offenders Receive Sentence Reductions Based on Retroactive Reductions in the Crack Cocaine Guidelines? (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract: 

One of the overarching goals of federal sentencing policy is uniformity. This means that defendants with similar criminal histories who are found guilty of similar criminal conduct get similar punishments. This aim is reflected in the federal Sentencing Guidelines (“Guidelines”) and 18 U.S.C. § 3582(c)(2). Section 3582(c)(2) gives courts the authority to lower a prisoner’s sentence if, after sentencing, the guideline sentencing range for his crime is reduced and the Sentencing Commission grants courts the authority to retroactively lower the sentences of defendants sentenced before the reduction in the guideline range. An infrequently-used provision previously, § 3582(c)(2) has received quite a workout since the Commission lowered the guideline range for crack cocaine offenses in 2007 and gave this reduction retroactive effect in 2008. On November 1, 2011, the Commission effectively guaranteed another deluge of § 3582(c)(2) motions by granting retroactive effect to another reduction of the crack cocaine guideline range. 

Since 2008, over 25,500 § 3582(c)(2) motions have forced the federal courts to grapple with difficult eligibility questions for many defendants whose sentences were impacted by the old crack cocaine guideline range. Before a court can even consider reducing a term of imprisonment, § 3582(c)(2) and the corresponding policy statement in the Guidelines, U.S.S.G. § 1B1.10, impose two eligibility requirements: (1) a defendant’s sentence must be “based on” a subsequently reduced guideline range; and (2) a defendant’s “applicable guideline range” must have been lowered. Because many circuits give the phrase “applicable guideline range” a hyper-technical meaning, these circuits restrict eligibility for § 3582(c)(2) sentence reductions for many defendants whose sentences were ultimately based on the old crack cocaine guideline range. 

This Note examines a circuit split regarding the eligibility of one such group of defendants, so-called “nominal career offenders.” As the term suggests, nominal career offenders technically qualify as career offenders under the Career Offender provision of the Guidelines. Qualifying as a career offender ordinarily subjects a defendant to the increased sentences of the career offender guideline range, rather than the guideline range of the offense of conviction. Nominal career offenders, however, receive a sentence lower than the career offender guideline range pursuant to U.S.S.G. § 4A1.3. Section 4A1.3 permits courts to grant “overrepresentation departures” --- impose a sentence beneath the career offender guideline range if the career offender category “substantially over-represents the seriousness of the defendant’s criminal history.” 

Although in many cases involving nominal career offenders courts imposed such lower sentences within the old crack cocaine guideline range, not the career offender range, the Sixth, Eighth, and Tenth Circuits hold that nominal career offenders are ineligible for § 3582(c)(2) reductions. The First, Second, Third, and Fourth Circuits, on the other hand, permit nominal career offenders whose sentences were based on the crack cocaine guidelines to receive the benefit of a sentence reduction under § 3582(c)(2). 

In muddling through this circuit split, this Note confronts two sub-circuit splits that have led courts in different analytical directions. First, courts disagree about the prerequisites for eligibility for a retroactive sentence reduction under §§ 3582(c)(2) and 1B1.10. 

Specifically, the circuits split as to whether §§ 3582(c)(2) and 1B1.10 solely require that a defendant’s sentence was “based on” a subsequently lowered guideline range --- a position maintained by the First and Second Circuits. The Third, Fourth, Sixth, Eighth, and Tenth Circuits, however, have held that the phrase “applicable guideline range” in § 1B1.10 refers to a defendant’s guideline range at a particular point in applying the Guidelines and thereby imposes a distinct, more formal bar to eligibility. Although formalistic, the competing approaches are important because, as discussed below, the circuits that give the more technical meaning to “applicable guideline range” disagree as to whether a nominal career offender’s applicable guideline range can ever be the crack cocaine range. 

The second sub-circuit split is what constitutes a nominal career offender’s applicable guideline range under the more technical reading of § 1B1.10 that “applicable guideline range” refers to a defendant’s sentencing range at a specific point in applying the Guidelines. The Sixth, Eighth, and Tenth Circuits, relying on a definition of overrepresentation departure inserted in 2003, have held that a nominal career offender’s applicable guideline range is the career offender range, not the crack cocaine range. Because the career offender range has not been lowered, these courts do not permit retroactive sentence reductions for nominal career offenders. The Third and Fourth Circuits, however, refused to apply the new definition of overrepresentation departure to defendants sentenced prior to its enactment, and have held that the applicable guideline range for a nominal career offender is the range to which a court departs at sentencing. If a court departed to the crack cocaine range in imposing sentence, the Third and Fourth Circuits permit § 3582(c)(2) reductions for nominal career offenders. 

This Note concludes that § 3582(c)(2) does not permit courts to exercise authority to reduce the sentences of nominal career offenders. Part I briefly introduces the reader to §§ 3582(c)(2) and 1B1.10 and the reductions in the crack cocaine Guidelines, and outlines the sections of the Guidelines pertinent to the sentencing of nominal career offenders. Part I also details how circuits determine whether to apply amendments that clarify the technical functioning of the Guidelines to defendants sentenced prior to their enactment. Part II explores the key lines of analysis in the nominal career offender cases: (1) whether the phrase “applicable guideline range” in § 1B1.10 imposes a technical requirement distinct from § 3582(c)(2)’s “based on” language;” (2) whether a nominal career offender’s sentence can be “based on” the lowered crack cocaine guideline range; (3) whether a nominal career offender’s “applicable guideline range” can be the crack cocaine range; and (4) whether the definition of overrepresentation departure inserted in 2003 should be applied to defendants sentenced using earlier versions of the Guidelines. Part III contends that § 1B1.10’s “applicable guideline range” language refers to a defendant’s sentencing range at a particular point in applying the Guidelines and concludes that a nominal career offender’s applicable guideline range is the career offender range. Therefore, Part III argues that nominal career offenders may not receive the benefit of a retroactive sentence reduction under § 3582(c)(2). Part IV introduces a technical amendment to the Guidelines that took effect on November 1, 2011 --- Amendment 759 --- and analyzes its likely impact on all future § 3582(c)(2) motions by nominal career offenders.

Yankah on Kant's Legal and Political Philosophy

Ekow N. Yankah (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Crime, Freedom and Civic Bonds: Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy (Criminal Law and Philosophy, Forthcoming) on SSRN.  Here is the abstract: 

There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. 

But the same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society.

Morrison on Facebook and the Fifth Amendment

Caren Myers Morrison (Georgia State University - College of Law) has posted Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment (Arkansas Law Review, Forthcoming) on SSRN.  Here is the abstract: 

While Facebook has become ubiquitous in most people’s lives, it is also making increasingly frequent appearances in criminal cases. In the past few years, Facebook has emerged as a fertile source of incriminating information from boastful or careless defendants who find in Facebook a great way to project their outlaw persona to the world.

But does the Fifth Amendment privilege against self-incrimination shield someone who has posted incriminating information on his Facebook page from being forced to disclose his password or provide access to his profile?

While in most cases, Facebook information is public, in rare situations, a law enforcement officer might find herself in the peculiar position of believing that incriminating information is posted on a Facebook page, but having no way to get to it without the suspect’s cooperation.

In these circumstances, the government would have to subpoena the suspect for his Facebook content or his password, and may have to compel compliance by offering immunity for the act of producing the information. What is not clear is whether the immunized communication implied in the act of turning over Facebook content or passwords — confirming the existence of the account, the defendant’s control over it, and its authenticity — would then taint the Facebook information itself, rendering the government unable to use it.

While these situations are only likely to arise in a relatively narrow class of cases, the application of unsettled Fifth Amendment doctrine to novel technological issues raises complex questions. This paper, part of the Arkansas Law Review’s Symposium on Facebook and the Law, will attempt to provide a guide through this uncharted landscape. After reviewing Facebook’s growing prominence in criminal cases and the tangled Fifth Amendment jurisprudence that governs subpoenas for documents, I conclude that, where the government does not have enough information to obtain Facebook information from the company itself, a suspect's Facebook profile may be effectively beyond government reach. In the final section of the paper, I consider whether this level of protectiveness is normatively desirable or whether it will simply create an incentive for greater government intrusions.

Unanimous Court reverses Ninth Circuit in death penalty counsel substitution case

Justice Kagan delivered the opinion for the Court in Martel v. Clair.

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