SCOTUS Term: Hughes v. United States and Federal Sentencing

On June 4, the Supreme Court handed down its decision in Hughes v. United States.  Many law professors were watching Hughes because it promised to revisit the rule from Marks v. United States about how lower courts ought to treat fractured decisions from the Court.  Even though Hughes proved to be a disappointment to those who are interested in Marks and fractured opinions, it is still interesting for those of us who follow federal sentencing.  That is because Hughes marks another episode in the continuing saga about how to treat the Federal Sentencing Guidelines.

As many of you know, Congress adopted the Federal Sentencing Guidelines in the mid-1980s in an effort to make sentencing more uniform and less lenient.  Although called “guidelines,” the Federal Sentencing Guidelines imposed mandatory rules on federal judges about the sentences that they could imposed based on various facts involving particular defendants and their crimes.  This mandatory system endured for decades until 2005, when the Court decided in Booker v. United States that the factfinding in the Federal Sentencing Guidelines violated the Sixth Amendment jury trial right.  Although Booker concluded that the mandatory federal guidelines violated the Sixth Amendment, five members of the Court attempted to retain some role for Guidelines by declaring that they could continue to operate as “advisory Guidelines.”  In the decade since Booker, the Supreme Court has failed to articulate clearly what it means for sentencing law to be “advisory.”  Instead, it has delivered a series of opinions that alternatively venerate the Guidelines as fundamental features of every federal sentencing proceeding, and insist that the Guidelines are nothing more than advice that district courts are free to disregard.

For example, in Peugh v. United States the government had argued that the prohibition on ex post facto laws ought not apply to the advisory federal guidelines.  According to the government, after Booker, federal guidelines “are just one among many persuasive sources a sentencing court can consult, no different from a ‘policy paper.’”  But the Peugh Court rejected this characterization of the guidelines.  It characterized the Guidelines as “framework for sentencing,” and it said that the post-Booker system is “intended to make the Guidelines the lodestone of sentencing” by “impos[ing] a series of requirements on sentencing courts that cabin the exercise of [their sentencing] discretion.”

The Court made a series of pro-Guidelines statements in Molina-Martinez v. United States as well. Specifically it suggested that trial judges need not make an independent judgment about the appropriate sentence, but rather may impose Guideline sentences without reflection.  "District courts, as a matter of course, use the Guidelines range to instruct them regarding the appropriate balance of the relevant federal sentencing factors."  This language seems inconsistent with a 2009 case, Nelson v. United States, the Supreme Court held that a district court may not presume that a Guidelines sentence is reasonable, but instead court must engage in their own independent balancing of the § 3553(a) factors. 

While Peugh and Molina-Martinez suggest that the Federal Sentencing Guidelines are more than merely “advice,” last Term, the Court suggested the opposite.  In Beckles v. United States, the Court addressed whether the post-Booker Guidelines are subject to challenge under the void-for-vagueness doctrine.  In an opinion by Justice Thomas, the Court said they were not, in part because:

The Guidelines thus continue to guide district courts in exercising their discretion by serving as “the framework for sentencing,” Peugh v. United States, 569 U.S. ––––, ––––, 133 S.Ct. 2072, 2083, 186 L.Ed.2d 84 (2013), but they “do not constrain th[at] discretion,” id., at ––––, 133 S.Ct., at 2089 (THOMAS, J., dissenting).

Because they merely guide the district courts' discretion, the Guidelines are not amenable to a vagueness challenge.

(You’ll note that Justice Thomas had to rely from language in one of his own dissents for the idea that the “advisory” Guidelines don’t constrain judges’ sentencing discretion.)

I had been waiting to see whether the Court would take that language from Beckles seriously.  Hughes answers that question.  This is Justice Kennedy’s majority opinion in Hughes:

[T]his Court's precedents since Freeman have further confirmed that the Guidelines remain the foundation of federal sentencing decisions. In Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013), for example, the Court held that the Ex Post Facto Clause prohibits retroactive application of amended Guidelines that increase a defendant's sentencing range. Id., at 544, 133 S.Ct. 2072. The Court reasoned that, Booker notwithstanding, the Guidelines remain “the lodestone of sentencing.” 569 U.S., at 544, 133 S.Ct. 2072. And in Molina–Martinez, the Court held that in the ordinary case a defendant suffers prejudice from a Guidelines error because of “the systemic function of the selected Guidelines range.” 578 U.S., at ––––, 136 S.Ct., at 1346.

Not only did Hughes ignore the inconsistency between Peugh/Molina-Martinez and Beckles, it ignored Beckles altogether.  Beckles isn’t mentioned at all in the majority opinion.

One irony of the opinion in Hughes is that it said the decision was necessary to resolve a split in the circuits.  Because the Guidelines exist in order to promote uniformity, the Court did not want inconsistent circuit court decisions to result in non-uniform treatment of defendants who had pleaded guilty.  But the retreat to Peugh/Molina-Martinez and refusal to acknowledge Beckles are symptoms of a bigger problem that has caused far more sentencing inconsistency across the country.  By failing to explain what “advisory” Guidelines actually are, and by making inconsistent statements about the role of the Guidelines at sentencing, the Court has left sentencing law ambiguous.  As a result, there are some circuits that routinely affirm sentences outside the Guidelines, and others that police them closely.  It is ironic that the Court wants to keep some role for the Federal Sentencing Guidelines in order to promote sentencing uniformity, but in failing to explain what that role is, the Court has created pervasive inconsistencies in sentencing law across the country.