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SAMARITAN ALERT - DEPARTMENT OF JUSTICE TAKES NEW POSITION ON 1B1.13 CHANGES IN THE LAW

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179


A recent Bloomberg Law piece, headlined "Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court," details how the Justice Department's legal opposition to one part of the U.S. Sentencing Commission's new sentence reduction guideline, Section 1B1.13(b)(6), could be laying the groundwork on a legal issue that might work its way to the U.S. Supreme Court. Usefully, the piece notes that the DOJ legal position now represents something of an about-face:

 

John Gleeson has fought to scrub away what he calls the injustice of “stacked” mandatory prison sentences in the eight years since he left the federal bench. The Debevoise & Plimpton partner’s work could soon face its toughest test: a face-off with the Justice Department at the U.S. Supreme Court.  Gleeson, an ex-prosecutor, spent two decades as a federal district judge in Brooklyn before joining Debevoise in 2016. He’s the driving force behind “The Holloway Project,” a massive pro bono program focused on criminal justice reform.

 

A growing team of Debevoise lawyers have successfully represented 55 people to date, getting their prison sentences reduced by 2,230 years combined, according to the firm. The project is now facing legal jeopardy. The DOJ is challenging Sentencing Commission guidelines that became effective in November, which Debevoise and others have used to obtain reduced sentences in some cases.

 

The Sentencing Commission guidelines went on the books in November, and they essentially dovetail the Debevoise arguments. The guidelines allow criminal defendants who have served at least 10 years in prison to seek sentence reductions based on changes to laws that occurred after the sentencing.  A court can reduce a sentence in this situation if it finds a gross disparity between the original punishment and that likelyimposed under the new law. Gleeson is a member of the Commission and was involved in developing the guidelines.

 

The problem is the Justice Department has a different point of view. The agency continues to fight efforts to reduce sentences in several cases, arguing that the Commission exceeded its authority by effectively making the excessive sentence reduction portion of the law retroactive.

 

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said Erica Zunkel, who teaches at the University of Chicago and has collaborated with Debevoise lawyers. “The DOJ is more or less rolling out the same legal arguments in every case that raises this issue across the country.” That marks a turnabout for the agency, which had previously urged the Supreme Court to wait until the Sentencing Commission made the rules Congress required.

 

The DOJ has “contradicted itself” by now arguing that the Commission doesn’t have the power to answer those questions, according to U.S. District Judge Timothy Batten.  “How can the Commission have the authority to address the question but exceed that authority by addressing the question?” Batten wrote in a case last month. “This argument lacks merit.”  Batten agreed to reduce the defendants’ sentence over prosecutors’ objections.

 

The issue is currently before district judges and some appeals courts in various cases. Gleeson and others expect it will ultimately reach the Supreme Court. “I would not be surprised if the Supreme Court did take it up,” said Elizabeth Blackwood, who has represented Debevoise co-defendants in her role as counsel and director for the First Step Act Resource Center at the National Association of Criminal Defense Lawyers.

 

I believe the ruling referenced in this article by Chief Judge Batten came in United States v. Allen, 2024 U.S. Dist. LEXIS 28049, 2024 WL 631609 (N.D. Ga. Feb. 12, 2024).  This ruling includes this passage (cites removed):

 

To hold that courts cannot consider nonretroactive changes to sentencing laws as extraordinary or compelling reasons would require courts to ignore the policy statement that Congress explicitly directed the Commission to create. The amendments revised the policy statement to unambiguously allow courts to consider nonretroactive changes in individual circumstances.  And nothing in § 3582(c)(1)(A)’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction. Congress could have drafted a blanket prohibition into § 3582(c)(1)(A), but decided not to. Therefore, the Commission's decision to expand upon the policy statement was within its statutory authority and presents no separation of powers issues.

 

Further, the Government's argument contradicts itself. The Department of Justice has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” Amendments to the Sentencing Guidelines, supra at 6; see also [598] at 5 n.11. The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question?  This argument lacks merit.

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