BUFORD v. UNITED STATES

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Argument of Dean A. Strang

Chief Justice Rehnquist: We'll hear argument now in Number 99-9073, Paula Buford v. The United States.

Mr. Strang.

Mr. Strang: Mr. Chief Justice, and may it please the Court:

Paula Buford's case presents the very type of mixed question well-suited to de novo review, and that's particularly true here because of the overriding, indeed the pervasive importance of uniformity in the current Federal sentencing scheme.

Paula Buford serves a prison sentence roughly twice as long as it would have been because of the way in which the district court interpreted and applied guidelines and commentary on relatedness and consolidation.

In her view, the Court of Appeals of the Seventh Circuit erred by declining to give independent review to the question of consolidation incorporated into the meaning of relatedness, specifically declined to review de novo whether her prior convictions, her prior cases in fact had been consolidated.

I think there are several specific reasons that make this an appropriate case, an appropriate mixed question application of the guidelines...

Chief Justice Rehnquist: Well, Mr. Strang, isn't there one, perhaps, factor that cuts against your argument the fact that district courts probably see this kind of case... kind of an argument in connection with sentencing, a typical district judge, much more often than a typical judge of a court of appeals?

Mr. Strang: It is true, Your... Mr. Chief Justice that but a fraction of sentences ever are appealed on any ground, but there is no reason to assume that the district judge would be reviewing the act of a State court in his own district or her own district or of any court familiar to that district judge.

The fact that the prior convictions here arose in Milwaukee County, the seat of the Eastern District of Wisconsin, I think is fairly described an accident.

Chief Justice Rehnquist: That's where the Federal judge sits, is it not?

Mr. Strang: Yes.

Chief Justice Rehnquist: In Milwaukee County?

Mr. Strang: Yes, and that's an accident of the facts here.

There's no reason that Ms. Buford's prior convictions could not have arisen in Tuscaloosa, Alabama, or San Fernando, California...

Justice O'Connor: Let me ask you another question.

I guess that the guidelines provide that sentences are related where the offenses occurred on the same occasion, or were part of a common scheme or plan, and those questions seem to involve certain factual determinations.

Do you think that on appellate review there would be a de novo review?

Mr. Strang: Never of historical facts, regardless which path one takes to relatedness.

The basic, or what this Court has called historical facts, would be subject only to clear error review.

Justice O'Connor: How about mixed questions of fact and law?

Mr. Strang: The particular mixed question of consolidation, which is the third prong of the definition here, yes.

Justice O'Connor: Well, in the example that I gave you of common scheme or plan there might be mixed questions of fact or law, and would there be de novo review there?

Mr. Strang: There may well be mixed questions, and I think the common scheme or plan is the application here that next to consolidation most calls or most invites de novo review.

If we look at the question of an intervening arrest, which is the initial screening device in the definition under the application note, I think that one is most factual, that an intervening arrest rarely, if ever, would arise beyond fact, it seems to me.

Justice Breyer: I mean, technically I think you're right in saying the words which come out of an application note in a guideline about, that you could deem a thing consolidated when it's... what is the exact word?

when it's functionally consolidated, when it's... you know, what are the words I'm thinking of, functionally consolidated when the cases... when sentencing was joined, okay.

Now you want to know... this is somebody writing an application note in the guideline, and logically speaking nobody's disputing the brute facts.

They're disputing whether sentencing was joined, those words, sentencing was joined, do or do not apply to this undisputed factual situation in the world, so if you're going to go on a, all legal questions are for the court, and the court of appeals, all factual questions are for the trial judge, and this is a legal question, in that rubric I guess you win.

But I would have thought that there were millions of legal questions of this kind that are really for the trial judge, because what they call for is the expertise of the trial judge, and they are so minor that if you start getting court of appeals into all that thing, what you will produce is an unbelievable mess, where the courts of appeals try to figure out every possible ramification of the application of every application note in the guideline.

That's what I'm worried about, with accepting...

Mr. Strang: Sir, I understand the concern.

I think... first let me note, Justice Breyer, that the functional consolidation term comes only from the Seventh Circuit and some of the other court of appeals, the application on the guideline themselves refers simply to... well, the application note refers simply to consolidation.

It is a question of what type of guideline are we applying here, and clearly if we confine ourselves today to the realm of Federal sentencing, United States sentencing guidelines, I would submit clearly that some guidelines never rise above fact in their application.

Others I think are altogether discretionary in their application.

Many of the Chapter 5 guidelines would fall into that category.

Still others, including the consolidation question here, I think are the sort of mixed question...

Justice Breyer: What I'm thinking is that the words, joint sentencing, are words that every trial judge in the United States would understand reasonably well, and they're words that I as an appellate court judge would have a very crude understanding, and therefore I'd like to know what the trial judge thinks about it rather than what I think about it.

Mr. Strang: I don't know that Your Honor's understanding would be any cruder.

Justice Breyer: I haven't done joint sentencing.

Every one of them has.

Mr. Strang: But the determination is one that I think peculiarly is made here on court documents... transcripts, pleadings, orders, at least in the ordinary case.

Justice Kennedy: Well, I suppose you could have a case where the trial judge says, if there are two different attorneys for the State appearing, asking... at a single sentencing proceeding, that there are two different attorneys for two different offenses and there are two different sentences, that, as a matter of law, is not a consolidated sentencing.

I suppose a judge could say that, and if he said that, then I think that you have a fairly strong case that this would be a statement of such generality, that is reviewable de novo.

Mr. Strang: And...

Justice Kennedy: Is that your point?

Mr. Strang: Well, yes, and I...

Justice O'Connor: All right.

Justice Kennedy: Now, but won't there be some other cases where it's not quite so clear, and where the judge said, well now, you know, I know how these State court judges work, and it's clear to me that the two sentences were related because the length of the drug sentence term must have been calculated by reference to what he gave for the robbery term.

That might be a different case, or would it?

Mr. Strang: I don't know that it would, because it really turns, I think, on the guideline one is applying, and if anything is true of the scheme that the Sentencing Reform Act established, it is that an exercise of discretion, if that's what Your Honor is describing, must be explained so that it can be assessed for reasonableness.

It is also, I think, true here that facts must be found, whether that's the whole of the inquiry or whether that's simply the predicate, then, to applying the legal standard to classify the facts.

Justice Kennedy: Do we ask ourselves, does deference mean that two different trial judges could reach different conclusions and both would be accepted?

Mr. Strang: That is exactly what I think it means, and to put it in concrete terms, I think what it means here is that if Paula Buford had a twin, John, who had done the very... who had committed the State court crimes in 1992 with her, also the 1998 Federal crime, but he had been sentenced by the district judge below Judge Stadtmueller and had received a 7-year or 84 to 105-month sentence, whereas Paula for the exact... in the exact same situation had received nearly 16 years, a court of appeals giving clear error review would be bound to affirm both of those convictions and sentences.

Justice Kennedy: I could see that happening if, in the case, I suppose, the Federal judge was trying to ask what the State judge likely did with reference to trying to balance the two sentences.

I think you'd have a stronger point if he says, as a matter of construction of this statute, that two attorneys, two offenses, two separate sentences does not mean textually that they're consolidated.

They are not consolidated.

Mr. Strang: And that, of course, implicitly is what this district judge said, and the relevant, or the most important pages are 21...

Justice Kennedy: I think he came pretty close to that.

Mr. Strang: Yes, he did.

He took note that, you know, the facts appeared undisputed.

He was left to try to apply the guideline and the... I guess he called it the applicable application notes, and then made comment about there being two separate prosecutors, albeit from the same D.A.'s office, pursuing separate interests.

There were two separate pieces of paper entered reflecting judgments.

Justice Ginsburg: And there was no formal consolidation.

Mr. Strang: That is true, there was no formal order of consolidation.

Justice Ginsburg: And it's possible the court of appeals could say, this is too complicated, unless there's a formal consolidation we won't apply the guideline that way, because that isn't even settled, is it, that this notion of functional qualification doesn't come out of the guideline, doesn't come out of any application note.

It's something that some courts made up.

Mr. Strang: Yes, in a word...

Justice Ginsburg: And if there is to be any kind of uniformity infused in this process, why should it come from the court of appeals rather than the Sentencing Commission?

I mean, you could see common scheme.

You could see crimes that happened simultaneously.

But this notion of consolidation, a judge could consolidate just because the guy happened to have committed a number of crimes totally unrelated.

It doesn't have the coherence that the other two categories have, so why shouldn't this be something for the Sentencing Commission to straighten out, and then there would be uniformity, to get the uniformity that way rather than sticking the court of appeals into the picture?

Mr. Strang: The Sentencing Commission very well can, and is empowered to address questions and to try to advance clarity in that way.

That, of course, says nothing about the question on certiorari granted here, which is the standard of review, and the Sentencing Commission cannot tell this Court the standard of review.

I think also, if we're talking, then, about the substantive rule of...

Justice Scalia: No, but your argument... I mean, if this is the point of Justice Ginsburg's question, your argument is that the only way to get uniformity is to have de novo court of appeals review, and the point made in response to that is no, you could achieve substantial uniformity by having more detailed prescription by the Sentencing Commission of what constitutes consolidation and then having the usual deferential review.

Mr. Strang: I...

Justice Scalia: So long as the details are significant enough, you know, complete enough, you'll get reversed even on deferential review if you fail to follow them.

Why isn't that a more sensible way of achieving the uniformity that you're after here?

Mr. Strang: I... in the world of could, I agree with much of what Your Honor said.

Uniformity is advanced by de novo review vis-a-vis deferential review.

I mean, so as between courts acting on the question, I think the courts of appeals are better situated to provide uniformity.

The Sentencing Commission could... is a co-actor here, there's no question, but there's also no question that Congress did not mean that the commission would oust the Federal courts of appellate jurisdiction, quite the contrary.

This was part of the Sentencing Reform Act... it included 3742... and giving the appellate courts a much more active role in reviewing sentences than ever they had before in this...

Justice Breyer: That's true, but they don't have... I mean, they left to the courts to work out what would be a sensible relationship among trial court, appellate court, and Sentencing Commission, and therefore I would think what Justice Ginsburg said was highly relevant.

Mr. Strang: It...

Justice Breyer: That...

Mr. Strang: Again, the Sentencing Commission could act.

It is also clear... and this is in the legislative history that we cited.

It's clear that Congress had in mind that appellate decisions would assist the Sentencing Commission in determining what it is that needed clarification or revisitation, so I don't think it's an either or...

Justice Breyer: No, it's not either or...

Mr. Strang: situation.

Justice Breyer: But you can certainly say that when you have the kind of question that trial judges know quite a lot about, where appellate judges know not that much, where it is highly complex and factually related, that one should rely upon the Sentencing Commission to provide the necessary uniformity, and that would be a strong argument in favor of deferential review here.

Mr. Strang: Well, I don't know that it would.

My problem is that you are then leaving the Sentencing Commission to look at the largely unreported work of district judges in 94 districts, rather than looking at the largely reported work of appellate judges in 12 circuits, as I understand it, so I'm not so sure, Your Honor, that de novo review still isn't the better way to interact with the commission.

That said, again I want to make clear that the commission has the role that Justice Ginsburg posits, and that it is not every guideline or application of guideline that I suggest is appropriate for de novo review under this Court's teaching.

This one, yes, consolidation I think is peculiarly appropriate.

Chief Justice Rehnquist: And why is it peculiarly suited to de novo review, Mr. Strang?

Mr. Strang: One, the overriding importance of uniformity here, which I think elevates the need to clarify and develop.

Chief Justice Rehnquist: Why is uniformity more important with respect to this guideline than any other?

Mr. Strang: Oh, no, the guidelines generally, Mr. Chief Justice, I'm sorry.

The guidelines in general, the Sentencing Reform Act of 1984.

Chief Justice Rehnquist: Well, I thought you were saying that uniformity is important with respect to this particular guideline.

You're saying uniformity is important with respect to every single aspect of the guidelines?

Mr. Strang: Yes, and I'm sorry, the confusion I created.

I am saying in a sense both.

Uniformity always here is important in Federal sentencing, but when we're talking about a guideline that has a complex statutory standard, as this one, and is not a matter of purely individualized application such as acceptance of responsibility, or a decision whether to depart upward or downward for some unconsidered fact, then I think uniformity of the rule, clarity of the rule, the meaning of the legal standard is exceptionally important.

Chief Justice Rehnquist: Why is that more important than, say, the clarity of the rule with respect to, say, acceptance of responsibility?

Mr. Strang: Acceptance of responsibility falls closer to the realm of what this Court has called supervision of litigation.

It is dependant upon factors that cannot be transmitted by transcript, or are not available to a court of appeals.

The defendant's demeanor.

The manner in which he interacts with counsel.

You know, a variety of issues that may appear only off the record and therefore concern conduct immediately before the district court.

I think to follow on my answer to Your Honor's earlier question, a clear rule of decision I think is important here for consolidation, because the potential disparity in otherwise like-placed persons is so great, as the facts of this case demonstrate.

Justice Ginsburg: One clear rule for appellate courts that recognizes the expertise that district judges have might say, I reject this notion of functional consolidation.

Either it's consolidated or it's not, and so if it's consolidated, formally consolidated, that's one thing.

If it's not formally consolidated, forget it.

That would hardly benefit people in your client's situation.

Mr. Strang: That's exactly the path that the First Circuit now has gone, no consolidation unless there's a formal order of consolidation of record, but de novo review of the question of the consolidation question.

Justice Ginsburg: But wouldn't there be a huge temptation for a court of appeals to take that position, therefore to reduce the number of cases that would come to it?

Mr. Strang: I don't know, never having been in that position.

The number of cases raising this issue is not overwhelming.

It's... I think it's sufficient to allow some development of the law, but it's certainly not overwhelming, and what the rule of decision would be, I have an opinion about what it ought to be.

How it would play out I'm not sure with any confidence I can suggest to Your Honor, and I'm of course here focused on the standard of review.

I'm not sure that's a satisfactory answer.

Justice Souter: You alluded to the number of cases that would be implicated by the decision and you said, you know, it's not an overwhelming number.

Well, I suppose it's not so far as the application of the decision to beyond career criminal...

Mr. Strang: The career offender?

Justice Souter: the Career Offender Act, but I suppose there would be an application whenever guideline sentences were imposed in consideration of prior offenses, and I suppose the number of those would be enormous.

Mr. Strang: Well, certainly the question of relatedness of prior cases can arise in any calculation of criminal...

Justice Souter: And it... I mean, it must do so thousands and thousands of times a day in the Federal system, mustn't it?

Mr. Strang: Yes.

They can arise, the...

Justice Souter: So if we rule your way, and we say there should be de novo review here, in effect as a matter of law, then I would suppose the courts of appeals are going to be faced with a tremendous number of challenges having nothing to do with the Career Offender Act.

Mr. Strang: I think not.

I mean, the narrow question here is consolidation as the path to relatedness, and at least...

Justice Souter: Yes, but I don't see how we could... well, maybe I should ask this question.

Is there a basis upon which we could say that the consolidation question should be reviewed de novo, but other questions of relatedness need not be?

Mr. Strang: The Court conceivably could do that.

Justice Souter: Well, conceivably, but I mean...

Mr. Strang: Well...

Justice Souter: sensibly?

Mr. Strang: Yes.

Justice Souter: How?

Tell me what the rationale is.

Mr. Strang: The rationale would be that, as I suggested earlier, the initial screening, the question of an intervening arrest, ordinarily, at least my mind struggles to find a situation in which that would present more than a factual or pure factual issue.

Did crimes occur on the same occasion?

Ordinarily it seems to me that's a fact-bound, entirely fact-bound inquiry.

Justice Souter: Right, but that does not exhaust the universe of questions about relatedness.

Mr. Strang: That's correct, it does not.

Justice Souter: And so I come back to my question to you, could we classify consolidation as in effect an issue that should be reviewed as if it were a legal issue and hence de novo, and at the same time on some principle basis say that generally the question of relatedness is not to be treated as if it were a legal issue and subject to de novo?

Can we split the baby that way?

Mr. Strang: I think the Court could.

Whether prudentially it ought is another question, but I think it could because at least as I read this Court's prior decisions on mixed questions it really becomes a matter of deciding, does the balance tip factual or does the balance tip legal?

Does it tip toward one class of judges, one level in the hierarchy, or toward the middle?

Justice Souter: Oh, no, I realize that, but the problem I'm having is simply the fact that there's something peculiar about this issue, because consolidation is simply a subset of relatedness.

Mr. Strang: Yes.

Justice Souter: And it would seem to me to be difficult, as a matter of principle, to say that the consolidation issue gets de novo, whereas relatedness generally does not, and I want to know if there is a principle basis for making that distinction, what that basis is.

Mr. Strang: I think it's whether the mixed... the mixture tips factual or tips legal is the best principle I can identify.

Justice Kennedy: You're saying the statute has different tests for relatedness, some of... many of which are mixed questions, and some of those are proper for de novo review, and others not.

Mr. Strang: This particular guideline yes, and then the guidelines generally.

Justice Kennedy: May I just ask sort of a general question?

Justice Stevens: We're not really construing a statute here.

We're construing a note in the guide... in a particular guideline.

To what extent, if there... there is ambiguity and difficulty in figuring out what the consolidated means or related means.

Isn't there something the Sentencing Commission could give greater particularity to in its definition of the relevant terms?

Mr. Strang: For the rule of decision, yes, Your Honor, it could.

Justice Stevens: It just sort of strikes me it's sort of a strange issue for us to be wrestling with.

Mr. Strang: Well, and of course under Stinson, although this is not a statute it's binding law, so it doesn't merit less time or consideration in that sense, I think, but again I have to acknowledge because of Mistretta we have the Sentencing Commission out there, and when we get to the question of the rule of decision, having first settled the standard of review, yes, the Sentencing Commission can weigh into that.

Chief Justice Rehnquist: Isn't there something to be said, too, for discouraging rather than encouraging a great number of appeals of sentencing factors to the court of appeals?

Mr. Strang: But I think de novo review does that, and it's the point I wanted to make in response to Justice Souter's question as well.

At least as I understand the theory, or a theory of de novo review, is that as the law develops clarity through that process lawyers and district judges are more likely to get it right and to know that.

The district court is very bright.

Chief Justice Rehnquist: Well, that's a very optimistic picture of the legal profession.

Unidentified Justice: [Laughter]

Mr. Strang: Well, it...

Chief Justice Rehnquist: You know, I sometimes think we take a case here to decide a question and the opinion we write deciding it creates three new questions for lawyers to argue about, so I don't think certainty is very certain in anyway, but just as a practical matter it seems to me it's better to have these things resolved finally by the district courts in some cases than simply appealed to the court of appeals.

Mr. Strang: Well, in the end, Your Honor, where that would take us is back to the persuasion that the district courts are best able to provide uniformity in sentencing and that, indeed, at page 12 of the United States brief, is an assertion it makes, and that's simply at war, I suggest, with the basic congressional findings and purposes of the Sentencing Reform Act, that it was precisely the lack of uniformity with largely unsupervised district judges...

Chief Justice Rehnquist: It motivated the Sentencing Commission...

Mr. Strang: Yes.

Chief Justice Rehnquist: Act, there's no doubt of that, but it's one thing to say that we don't want two people in the same cell block in Leavenworth convicted of the same thing, one serving 1 year and the other is serving 20 years, but when we get down to the finer points there may be more to be said for discretion, assuming it's consistent with the guidelines.

Mr. Strang: Although this is a situation where the difference... although not 1 and 20 years, the difference is really quite remarkable.

If there are no further questions, I'd like to reserve a few minutes for rebuttal.

Argument of Paul R. Q. Wolfson

Chief Justice Rehnquist: Very well, Mr. Strang.

Mr. Wolfson, we'll hear from you.

Mr. Wolfson: Thank you, Mr. Chief Justice, and may it please the Court:

The court of appeals properly applied a deferential standard of review to the district court's decision for two principal reasons.

First, the text of the Sentencing Reform Act itself directs the courts of appeals to give due deference to the district court's applications of the guidelines to the facts and, second, institutional considerations also support a deferential standard of review.

The district courts are better suited for making the kind of fact-intensive decision that is typically involved in applying the guidelines to a set of facts.

Justice Kennedy: Suppose, as in Justice Ginsburg's example, a district court said there is no consolidation, in my view, unless there's a formal order of consolidation.

That's it.

That seems to me a general proposition, a general and very broad interpretation of the text, which is susceptible of de novo review and which ought not to vary from one court to another.

Mr. Wolfson: Justice Kennedy, I think I agree with you.

That is, if the district court said, I interpret the guideline to mean that in no case may I conclude that two prior cases were consolidated unless there were a formal order of consolidation, and then that's the rule of law, and then I apply the rule of law to the facts of this case.

Now, the court of appeals would be authorized to review that rule of law in a plenary fashion.

Justice Stevens: All right.

Justice Kennedy: Now, suppose he says, where there are two offenses and two attorneys and two sentences, that is not consolidation?

Mr. Wolfson: If he announces that as a generally applicable rule of law that's... that is, it doesn't matter what any other fact of the case is, that is the rule of law that applies in every case of this nature that will come before me, that is a rule of law.

But if he... but if, on the other hand, what he is doing is saying, I read what the court... I read the standard that has been enunciated by the court of appeals, and that is, there may be such a thing as functional consolidation, and now I'm going to determine whether the disparate facts of this case answer to that description, and I see there are 15 salient facts in this case and eight of them tip in one direction but seven in another, and on balance I conclude that it's not functionally consolidated, that is...

Justice Kennedy: He didn't do that here.

He was a very careful judge.

He did say, I'm left to conclude the only inference of consolidation is the fact that the sentences were imposed in two different cases.

That's almost a negative formulation of the hypothetical rule I gave you.

Mr. Wolfson: Well, he said a lot... actually, Justice Kennedy, I think he said...

Justice Scalia: He then does go on.

Mr. Wolfson: He said more than that.

I mean, I'm... I would point the Court to page 21 of the joint appendix which, without belaboring it too long, he also did go on to say there were guilty... there were separate guilty pleas entered, there were two separate judges, you know, he found there was no agreement among the parties that the cases would be consolidated, so I think really what he was doing was answering to the other description that I was discussing which he was saying, here's how I think the facts of this case ought to be classified according to a legal standard, and that is the application of the guidelines to the facts, which Congress...

Justice O'Connor: Well, do you think this was a mixed question of fact and law here?

Mr. Wolfson: I think it's best viewed that way, Your Honor, a mixed question of fact and law.

That is, consolidation is... can be understood as a legal concept and functional consolidation.

It's similar to the common... I think more clearly a mixed question of fact than law is the common scheme or plan idea.

If anything, this perhaps seems a little more factual.

I think the common scheme or plan notion of relatedness is one that comes up very frequently, and that is, I agree, is a mixed question of fact and law and, like this case, if the Court were to apply that application note to a set of facts, that should be reviewed deferentially on appeal, and it's very...

Justice Kennedy: Well, I understand that the necessity for allocating resources of the courts at the different levels in the right way, but it seems to me if you had a twin case to this that it should have come out a different way.

I just don't see what discretionary findings, what deference that ought to be given to the trial judge in this very case.

I'm not saying that other consolidation cases there wouldn't be some factors, say if the judge, the Federal sentencing judge said, well now, these State judges I'm sure must have balanced the two sentences and that makes them related.

Mr. Wolfson: Justice Kennedy, I think what the district court was doing in this case was saying, when I'm asked to consider whether something is functionally consolidated, I'm really considering did the previous State court system treat the two cases as though they were one?

Now, there's no order specifically saying that they did, so I have to look at the record of what happened in those two cases and see how the court system treated this case.

Now, there isn't a, kind of an immediately obvious answer, so the court had to look at the way that those cases were treated from the complaint stage all the way until the sentencing, and there were various factors that strongly indicated that the two cases were not consolidated.

They were charged by separate complaint.

They were assigned to two judges.

One of the judges said, I'm not going to wait for sentencing in the other judge... in the other case, it's too long, I'm going to go full steam ahead on this case.

So I think the evaluation, the district court's determination that the totality of the facts have a certain character is what we view as the application of the guideline to the facts, and that is what is entitled to deference.

Now, on the institutional consideration point, I don't think there's any reason to think that that task would be done better if repeated by three appellate judges, or at least that that task isn't... doesn't... that that function isn't worth the cost to the justice system as a whole.

After all, although it's true that the judge did not make credibility determinations in a classic sense, he was required to draw inferences from a historical record to sort of fill in the gaps, try to figure out why the court system treated this case one way rather than another, and that is a very fact-intensive determination, and I also think there's not any particular reason to believe that an agglomeration of appellate case law in this subject would prove particularly useful for this...

Justice Breyer: No, but that's why... that's why probably really... I actually think, I guess, is if an appellate court decided to review these things de novo that would be fine.

If an appellate court decided to review them with some deference that would be fine.

But the people who ought to work it out are the Sentencing Commission, I mean, which they can do, basically.

Mr. Wolfson: Yes...

Justice Breyer: So suppose I thought that, I mean, I can't... I promise you that I can get good reasons both ways what it should be.

Mr. Wolfson: Well, the Sentencing Commission, of course, does review every district court sentencing.

Now, when one...

Justice Breyer: In other words, the way the Sentencing Commission would work it out is, it would tolerate differences among the circuits in that respect, unless it really began to show up in different sentences being given to different people, at which point all they'd have to do is write a new application note.

Mr. Wolfson: Well...

Justice Breyer: They would assign it to a staff person, look into it, write a new note that's clearer, and vote on it, and that's the end of that.

Mr. Wolfson: But of course... well, of course, that's true of many aspects of the administration of the sentencing system.

That is...

Justice Breyer: Yes, and normally we don't hear them.

Normally we leave...

Mr. Wolfson: It's true of permissible bases for departure.

It's true of... I mean, other... there are other sentencing guidelines applications that are of very similar character, whether somebody is a minimal participant in an offense, whether his crime involved more than minimal planning...

Justice Souter: Not quite the same, because those usually are very fact-related to the facts of the crime, while this, in fact, is a matter of judicial administration, which we could say judges throughout the system are somewhat more familiar with.

Mr. Wolfson: Well...

Justice Souter: It's unlikely you'll get an odd factual situation with something like consolidation, isn't it?

Justice Breyer: I mean, this is a sort of weird case in that normally it's fairly clear whether the cases were consolidated or not consolidated, isn't it?

Mr. Wolfson: It may not be entirely clear whether a case was functionally consolidated, and it may not...

Justice Souter: That's a concept the courts make.

Mr. Wolfson: And it may not be clear whether a case... it may not be clear whether a case involved a common scheme or plan.

Courts can reach whether defendant's prior offenses involved a common scheme or plan.

Courts can permissibly reach different conclusions about a set of facts on that case.

The point I'm trying to make is that, you know, if a district court on review of a court of appeals, say it were de novo, were to say well, this case is plainly functionally consolidated, or this case is functionally consolidated because this defendant's two prior offenses in Wisconsin State court were consolidated, I don't think that helps the district court decide any later case say well, this defendant's Alabama offenses were... were functionally consolidated.

Justice Ginsburg: Mr. Wolfson, by answering as you did, you're sort of accepting this functional consolidation notion.

Has the Government taken a position in dealing with these... this consolidation notion of whether it should be a consolidation order or, we're not going to mess with functional consolidation, or has the Government just not taken a position on that?

Mr. Wolfson: Well, we have argued in some lower courts, Your Honor, that consolidation means formal order of consolidation, but the Seventh Circuit has ruled otherwise.

Several other courts of appeals have ruled otherwise.

We haven't asked those courts to reconsider that rule of law.

We're not asking this Court to reexamine this.

We accept the concept for this case that there is... that there is such a thing as functional consolidation, and the more important question to us is how that concept, as with many... as with the application of many concepts in the sentencing guidelines, how that concept is applied and how that application should be reviewed.

It's a more important issue to us in terms of the overall administration of the guidelines system, and...

Justice Stevens: May I ask this question, Mr. Wolfson: if you do not require a formal order of consolidation, as I understand your position, how could this have been more consolidated

One judge, one proceeding, two sentences imposed at the same time to run concurrently.

What other possibly could make it consolidated for purposes of sentencing except a formal order?

Mr. Wolfson: I think the other things that could have made it more clearly consolidated would have been, one plea bargain would have been a very, a very important factor had that been in the other direction, one district attorney who was there to represent the interests of the State in both cases, and not two district attorneys where one specifically...

Justice Breyer: But they could be...

Mr. Wolfson: abjured any interest in the other case.

Justice Stevens: But all those things could happen if there were a formal consolidation, too.

You could still have two district attorneys.

Mr. Wolfson: You could, but I mean... but I think...

Justice Stevens: You could have no... you could have two plea bargains, too.

Mr. Wolfson: And although there were concurrent sentencing the judge understood the sentences to be different sentences.

That is, they were not... they were not entered in one sentencing order.

Justice Stevens: Well, just on two counts of an indictment you get two different sentences, too.

I mean, I have difficulty understanding it because they were concurrent, imposed at the same time by the same judge.

I don't know how you'd get more consolidated.

Mr. Wolfson: If they had been determined pursuant to a single plea bargain, Justice Stevens...

Justice Stevens: Right, I see.

Mr. Wolfson: I think one could reach a more... a better conclusion that they were consolidated, because it indicates that the... you know, that the executive branch was treating them as though they were inextricably connected, but that's... that was not what happened in this case.

It was really a happenstance that they were sentenced on the same day and it might well have been that they were not.

After all, Judge Geske said, I'm not going to wait for the entry of the plea in the other case, I'm going to go ahead with sentencing in my case, and that, I think, is a strong factor that points in the opposite direction.

Now, of course, to go back to the standard of appellate review point, I think there isn't any particular reason to think that the court of appeals de novo review would necessarily arrive at a better result, or a more... as a systemic matter more accurate result of these determinations, because the facts are so disparate.

There's also the point that surely when the State court is deciding whether to consolidate cases, as the Wisconsin State court said, or whether it's not, it's not thinking, well, in some possible future Federal prosecution...

Justice Stevens: No, but the word consolidated, it's a Federal question as to whether it's consolidated, isn't it?

Mr. Wolfson: I think that's right.

Justice Stevens: It's whether it's consolidated...

Mr. Wolfson: Yes, right.

Justice Stevens: within the meaning of the note.

Mr. Wolfson: Right.

I think that's right, that it's a Federal term.

I would ordinarily expect that if the State court entered a formal order of consolidation under its criminal rules that would be enough, absent some extraordinarily unusual facts, but even so, I mean, surely... I mean, as the district court, as the district judge pointed out in this case, you know, he did look at the record in the State court.

Justice Stevens: The thing that's interesting to me, I have a lot of sympathy for your basic position, but on the facts of this particular issue it seems a little hard for me to swallow.

The thing that's really hard for me to swallow is the district judge came out the other way and said it's not even close.

He said they're not even close to being consolidated.

Mr. Wolfson: Well, of course...

Justice Stevens: If I remember it correctly.

Mr. Wolfson: I mean, the petitioner has not... the petitioner has only argued that de novo review should be applied, and the petitioner has not argued that if a deferential standard of review is applied that the judgment should be reversed, so that's... you know, I mean, that's the case as we take it.

Justice Ginsburg: Mr. Wolfson, could the district judge have taken into account that these cases were put together for sentencing but that they could not have been put together for trial?

Mr. Wolfson: Well, I think that cuts... you know, the fact that they could not have been put together for trial may cut in our direction.

That is...

Justice Ginsburg: Yes.

Mr. Wolfson: Right.

Justice Ginsburg: I'm suggesting that.

Mr. Wolfson: Right.

Right.

I think he could have.

I'm not sure that the... I'm hesitant to rely too heavily on that, because I'm not sure that the Wisconsin court rules forbid, flatly forbid consolidation for trial, but they certainly presume that a drug case and a nondrug case will not... will proceed along separate tracks, and I think that this, as the Seventh Circuit pointed out, you know, that is a factor pointing against functional consolidation in a case like this, because Wisconsin seems to have a policy of not wanting such cases to be tried together.

Justice Stevens: Of course, the irony of that position is that in this particular case the bank robberies and the drug addiction seem to be related.

Mr. Wolfson: Seem to be...

Justice Stevens: Related in a realistic sense.

Mr. Wolfson: The prior bank robberies?

Justice Stevens: Yes.

Mr. Wolfson: Well, I don't think that's true actually, Justice Stevens.

After all, although the, you know, the facts... I don't think that there's a showing that the... you know, the bank robberies and the drug addiction were, you know, part of a, as we might say, part of a scheme or part of a modus operandi.

Justice Stevens: Well, she was robbing the banks to get the money to feed her drug habit, as I understand it.

Mr. Wolfson: Well, that is generally not enough for a court to view cases as related, or even as part of a common scheme or plan, I mean, you know, and the district court was quite clear on that point and the court of appeals agreed, and the petitioner didn't argue otherwise, so I mean, it's a more narrow concept than that when one is asking whether prior cases are related.

Justice Kennedy: Is it your position that under this guideline we have to... it has to be all or nothing de novo review or deferential review, or can we parse it out and say, common scheme and plan are deferential, consolidation is de novo, or do we just make a mess out of the guideline if we do that?

Mr. Wolfson: I think that all three subprongs of the relatedness test... that is, common scheme or plan, same occasion, consolidation, are applied... are reviewed under a deferential standard of review.

That's not to say that there are never any legal questions that may be involved in that, and those, as we discussed earlier, would be reviewed de novo.

An example I can think of in this case is, the guideline says that offenses are not deemed to be related if they were separated by an intervening arrest, and so there you might have to, you know, consider whether something was a continuing crime, and the same would be the case... I'm sorry, I meant with the common, with the same occasion subprong you might have to consider whether the offenses were... one of the offenses was a continuing crime and that's a legal question.

Justice Breyer: If we don't want to do that, if we want to follow up on this idea, could we do this?

Could you say, look, we're not here considering whether... the word in the guideline is consolidated.

Or, no, the word in the application note is consolidated, right?

Mr. Wolfson: Right.

Justice Breyer: All right.

The word in the application note is consolidated for sentence, and really what we're considering in this case is not whether consolidated for sentencing has to be de novo or deferential.

We are considering, in the circumstance where a court of appeals has decided that the words consolidated for sentencing include something called functional consolidation, then can the court of appeals decide that that concept which is a subset of consolidation, namely functional consolidation, maybe should be reviewed de novo or not.

We don't have to get into whether the thing of the document, you know, consolidation means when there's an order.

That's not before us.

We're considering the concept called functional consolidation.

Mr. Wolfson: Well, I think the rule does...

Justice Breyer: I'm rather tempted by that, so...

Mr. Wolfson: I think the rule that we are proposing does lend itself to a more general applicability, Justice Breyer.

I mean, we have... section 3742(e) does say that the courts of appeals shall give due deference to the district court's applications of the guidelines to the facts, and that is a system-wide directive.

It's...

Justice Breyer: My problem with it is that I can think, probably, if you give me a few minutes, which I won't take, of instances in this highly complex set of rules and thousands of words in the guidelines where it just will not turn out to be right always to let the district court have its way when it applies a form of words to a fact situation, but there will be many others where it seems to be just the right thing to do, and therefore a narrow holding might be preferable.

That's my thought.

I'd like your view on that.

Mr. Wolfson: Well, the statute does say due deference, and so it doesn't exclude the possibility that there will be situations where de novo review is appropriate, as when the district court engages in a legal interpretation of a guideline, or where it seems clear that that's what it was doing in that particular case.

Chief Justice Rehnquist: Well, that's true... I mean, under deferential review, or you know, abuse of discretion, if the district court comes to a legal conclusion that's wrong it can be reversed on appeal, can it not?

Mr. Wolfson: That's correct, but I am thinking of, there are some guidelines where there may be legal conclusions that the court has to engage in.

One thing... one that has come to mind is the definition of aggravated felony in section 2(l), where there are both legal determinations to be made and then applying those determinations to the facts, but I think that one can presume as a general matter that when the issue is a mixed question of fact and law, as the Court described it in Miller v. Fenton, where it falls somewhere between a pristine legal standard and a determination of the raw historical facts, I think that as a general matter where it falls in that category a deferential standard of review will be appropriate.

Justice Breyer: It's hard to... the reason I find it hard to do it that way is in the statute books you can find questions where all you're doing is applying the legal label to a fact situation, the most important thing in the world, the least important thing, whether a newsboy is an employee, whether a foreman is an employee.

The same description applies to what the judges do.

The consequences are enormously different.

You see, I mean, that's a classical example, but that's what I'm afraid of right here.

Mr. Wolfson: Well, one has to look at the, sort of the system as a whole and the institutional considerations and reach a judgment about how Congress intended the system to operate, and I mean, certainly in Koon, you know, the Court was aware that the question of whether a permissible departure one way or another was, had enormous significance not just in the facts of particular cases.

It could mean a tremendous difference in the defendant's sentence, and yet the Court concluded as a general matter whether the district court concluded that... when the district court concluded that it was or was not a permissible... an appropriate basis for departure, I should say, on the facts of the case was to be reviewed deferentially.

Now, that's not to say that the Court couldn't conclude that the answer it reached was wrong.

I mean, the Court reached such a conclusion in Koon, as a matter of fact.

Justice Kennedy: But under your view the trial courts will not have any guidance from the appellate system even as to what factors ought to be considered in whether there was consolidation.

Mr. Wolfson: I don't think that's right, Justice Kennedy.

That is, I think... I mean, deference is not no review.

That is, I think a court can't... if the district court makes a clear error of judgment about whether something was consolidated or was not consolidated, just as if it makes a clear error of judgment as to whether a defendant's prior offenses were part of a common plan...

Justice Kennedy: Well, I'm thinking in the context of this case, where we're pretty well agreed on what happened, the two attorneys and the two different offenses but the one hearing.

Mr. Wolfson: Well, I mean, this case is... I can't think in this case, or a case like this, of any facts, say, that would have been so out of bounds for a district court to consider that it... you know, that it would have been completely erroneous to have considered that fact, but looking at the system more generally and not just consolidated but relatedness and applications of the guidelines, I don't think that one should arrive at the conclusion that due deference means no review at all, just as is the case in departure decisions under, departure decisions under the guidelines.

The courts of appeals can give the district court guidance about what is inappropriate, an inappropriate basis for departing in that situation.

Justice Souter: Isn't it... maybe you could comment on this.

It would seem to me, of course, you're right that deference doesn't mean no review at all, but I would think that it would be more difficult for a court to review in a sensible and critical way a decision about whether consolidation had occurred than it would have been under the old law for a court to review whether a sentence was appropriate when you're asking the question, should the sentence have been 10 years or 20 years.

Here, we've got a case in which this question of consolidation is going to make the difference, as I recall, between doubling a sentence or not, and I would suppose that in the absence of some clear rule it would be more difficult to review the consolidation decision under the guidelines than it would under the old law have been to review the sentence itself, as, say, between 10 and 20 years, which is a very strange result.

Am I seeing things in a... in the wrong way here?

Mr. Wolfson: Well, I think that... I may not be quite understanding, but I think that one has to assume that the courts of appeals announce interpretations of the guidelines and that the district courts then apply those interpretations in a faithful manner to the facts of cases.

Now...

Justice Souter: Yes, but can you give me an example... give me an example, keyed to this case, perhaps, of the kind of announcement of a rule governing the meaning of consolidation that would be appropriate and would actually make a practical, critical difference when courts are reviewing consolidation solely for abuse of discretion.

Mr. Wolfson: Well, of course, if the district court had... I mean, assuming it hadn't been settled in the Seventh Circuit, if the district court had said no functional consolidation...

Justice Souter: No, but we're taking this case in the context that there is something called functional consolidation, and I... I'm assuming that that really could cover, as you in your argument a moment ago pointed out, a tremendous variety of facts.

You said, you know, even if you come down with a rule it would be difficult to review on a de novo basis because of the extraordinary variety of facts, so we're starting with the assumption that you've got functional consolidation, number 2, that functional consolidation covers a tremendous amount of district territory.

If you make those assumptions, what kind of a rule on abuse of discretion review could a court announce that would be of any critical help?

Mr. Wolfson: Well, of course, if the district court had refined that rule further and had announced what...

Justice Souter: Ah, but all smart trial judges know that the less they say the better, and smart trial judges who want to keep control of sentencing decisions, which the guidelines have made it very difficult for them to keep control of, are going to keep their mouths relatively shut.

Mr. Wolfson: It may be that the functional... that de facto or functional consolidation is sufficiently fluid that, you know, in the ordinary course the district court's determination is going to be controlling.

I mean, it's...

Justice Scalia: I thought your response to this was going to be that you don't have to have the court of appeals doing the job, that it should be done by the commission.

Mr. Wolfson: Well, that's...

Justice Scalia: That the commission can promulgate more detailed specifications as to what constitutes consolidation if, indeed, more detail is needed, or desired.

Mr. Wolfson: Well, I think that's right, the Sentencing Commission is there precisely to continue the process of making the sentencing guidelines more uniform by reviewing the experience of the district court.

Justice Souter: True enough, but the consequence is now, since the commission has not done any such thing, that it seems to me that the range of unreviewable discretion is greater when a court is determining what is or is not a functional consolidation than the range of unreviewable discretion was under the old law when a court was deciding whether to give 10 years, or 20 years, or 50 years.

Mr. Wolfson: Justice Souter, one response I would like to say is, I think as the commission and as the courts refine the legal concepts farther and farther down, and as the legal concepts themselves become narrower, I think it's going to be the case that the district court's determination whether any case where the facts of the case fall within those legal concepts is more likely to be upheld.

That is, if all we had was two cases, or if two cases are related...

Justice Souter: Okay, but I think what your argument in fact means is, if the Sentencing Commission decides to get into this with more detailed rules, then the discretion is going to be limited, but if the Sentencing Commission doesn't, then we are left with what seems to me this rather ironic situation of less reviewable discretion...

Chief Justice Rehnquist: Well, Mr. Wolfson, my understanding of the rule before the sentencing guidelines came into effect was that a majority of the circuits said there was no review of sentencing so long as it was within the limits specified by law.

Mr. Wolfson: That's correct, if it was within the statutory limits there was no review at all, but...

Justice Souter: And didn't some circuits take the position that there was an abuse of discretion review?

Mr. Wolfson: Yes, but my point is, it's harder to find, I think, an abuse of discretion inherently as the legal rule that you're applying to a set of facts becomes narrower and narrower.

Justice Souter: You're...

Mr. Wolfson: I mean, as both the Sentencing Commission and the court of appeals, I think that's sort of inevitable.

Now, the court of... if all that were available in this case were the bare guideline that said related, and there were no application notes, then as... the court of appeals would have then undertaken the task of refining that concept of related, which is at a more general level, and then would have applied it.

Thank you.

Rebuttal of Dean A. Strang

Chief Justice Rehnquist: Thank you, Mr. Wolfson.

Mr. Strang, you have 3 minutes remaining.

Mr. Strang: Thank you, Mr. Chief Justice.

I want to revisit the question of the Sentencing Commission and the interplay with de novo review.

This Court in Mistretta approved the basic structure and rule of the Sentencing Commission, of course, and my view on that, or anyone else's, no longer matters, but I think we cannot rely here too much on the Sentencing Commission or cede the ground properly in Federal courts.

For one, the Sentencing Commission never can fix disparity in a given case, or cure a lack of uniformity in the cases as they come.

It can act only to try to reduce or prevent that in the future.

Justice Scalia: Oh, I thought it can act retrospectively.

Mr. Strang: I'm sorry.

Justice Scalia: I thought that its rules can be retrospective, that it can, indeed, require resentencing in light of its new rules.

Mr. Strang: It can.

It can do that.

I wouldn't expect it to do that in a situation like this.

In its... its powers really are not so different in its realm than would be Congress' power in the realm of reconsidering what this Court does in the area of an ordinary statute.

Congress can act there, too, to alter the rule or even the standard of review, so I think it's clear, 3742 certainly makes it clear, I think, that Congress envisioned here a critical role for the courts of appeals.

The question then is, well, at what level?

I want to note how much de novo and deferential review look the same in terms of the mechanical tasks that judges must undertake.

It's only the conclusory act, as I understand it, that differs.

That is, the briefs must be read, the relevant portions of the record must be examined, and in the end the difference then is will reasonable, if inconsistent, conclusions be allowed to stand... well, yes, that's deferential review... or does a court of appeals simply look for the right answer, de novo.

De novo review continues to have its place and it has its place here, just as much, I think, as de novo review admittedly on a case-by-case basis helps us understand reasonable suspicion, or helps us understand probable cause, or helps understand what in custody means for Miranda purposes.

So in the end I'm married to the belief that the word do in 37... thank you very much.

Chief Justice Rehnquist: Thank you, Mr. Strang.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-9073, Buford against United States will be announced by the Justice Breyer.

Argument of Justice Breyer

Mr. Breyer: This case raises a narrow question of federal sentencing law, a very narrow.

Imagine under the sentencing guidelines a trial court is supposed to determine whether an offender’s prior convictions were or were not consolidated, and if they were consolidated then they are related and if they are related they count as a single conviction, so, his sentence does not go up as much as if they were not consolidated.

Imagine the trial judge makes that determination and then the question before us is what standard of review should a Court of Appeals apply when it reviews that determination?

The relevant statute tells the Appeals Court to give due deference to the Trial Court’s decision.

The offender here wants de novo review and so the offender argues that the deference that is due is no deference at all.

The Court of Appeals rejected the offenders claim.

It thought that it should review the Trial Court’s determination deferentially and we conclude that the Court of Appeals was right.

Our reasons rest primarily upon the fact that the Trial Court is normally in a better position to determine, whether or not two earlier convictions had been consolidated.

The Trial Court is in a better position to make that determination than is the Court of Appeals.

Hence, we think that deference is called for.

We explain all this further along with certain other related matters in our opinion.

The decision is unanimous.