DILLON v. UNITED STATES

Transcript: 

ORAL ARGUMENT OF LISA B. FREELAND ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-6338, Dillon v. United States.

Ms. Freeland.

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

Believing its hands were tied by a policy statement created to prevent application of this Court's decision in Booker to section 3582(c) proceedings, the district court imposed a mandatory guideline sentence that exceeded the maximum authorized by the jury's verdict by more than six years.

Sentencing commission policy cannot override this Court's clear and unambiguous directive to courts to treat the guidelines as advisory in all cases moving forward, and any interpretation of section 3582(c) that permits the commission to mandate sentences must be rejected, not only as matter of statutory stare decisis, but because it would violate the Sixth Amendment.

In an effort to avoid this result, the government elevates form over substance, arguing that section 3582(c) proceedings are not sentencings at the -- and that the sentence imposed is not a new sentence.

The government is wrong.

Section 3582(c) proceedings are sentencings at which Booker's constitutional and remedial holdings must apply.

The--

Chief Justice John G. Roberts: What if the sentencing commission just issued a new guideline and said: Anyone with a -- a crack sentence, their sentence is going to be reduced by 10 percent.

That wouldn't present any problems, would it?

Ms Freeland: --Mr. Chief Justice, I think it would present precisely the same problems here.

By indicating an amount of time that a sentence could be reduced, the sentencing commission would still be doing precisely what it did here, which is setting a lower level, mandatory lower level, on sentences that the district court could impose.

Chief Justice John G. Roberts: But there's no -- but 3553(a) doesn't even come into play under my hypothetical.

Ms Freeland: I'm sorry, Your Honor.

Chief Justice John G. Roberts: 3553(a) doesn't even come into play, so there's not a resentencing by a judge.

It is just an across-the-board policy, like increasing good time credits.

Ms Freeland: I disagree, Your Honor, because Congress in this case decided to enact a statute, 3582(c), that invokes the discretionary sentencing power of the court.

Chief Justice John G. Roberts: Right, in -- in this case.

But in my hypothetical Congress hasn't done that.

It hasn't -- or the sentencing commission hasn't done that.

They haven't invoked the discretionary sentencing.

They just said: Across the board, 10 percent off.

Ms Freeland: And, Your Honor, perhaps I misunderstood, but once the sentencing commission acts to revise a guideline under its power under 994(u) and opts to make that amendment retroactive under -- I mean 994(o) -- and opts to make it retroactive under 994(u), only the court has power to lower a sentence.

Congress in--

Justice Anthony Kennedy: Why is that?

It's the same hypothetical of the Chief Justice.

I'm not interrupting your -- your discussion with him.

Suppose, pursuant to permissible regulation, the BOP says: Just file paperwork with us, and if -- and if you show that you were under a crack cocaine sentence, you are going to be reduced by X number of months, period.

Just file it.

What -- is there a problem with that?

Ms Freeland: --And Justice -- Justice Kennedy, I think there would be.

And again, I don't mean to be dodging the question.

The problem is section 3582(c).

Congress clearly indicated that it wanted these types of reductions to be treated differently than those under 3624(b), which are delegated to the Bureau of Prisons.

And those types of reductions--

Justice Anthony Kennedy: But the -- the hypothetical is Congress doesn't do this.

The hypothetical is that Congress just tells the BOP: Find out who's in on crack cocaine and release them -- whatever, 20 months early.

What is wrong with that?

Ms Freeland: --Your Honor -- Your Honor, if Congress chose to draft a statute similar to 3624(b) to empower the Bureau of Prisons to act whenever the commission lowered a guideline or -- or changed a guideline under 994(o), I agree with Your Honor.

It would not present the problems here.

Justice Anthony Kennedy: Okay.

Then the Chief Justice's hypothetical, at least for me, meant: What -- why should there be a difference?

Ms Freeland: The difference, again -- and I don't mean to be dodging your questions.

The difference is that Congress acted in two very different ways here.

It enacted 3582(c) to deal with reductions in sentence that are -- that are prompted by revisions to the guidelines, and it enacted 3624(b) to deal with revisions that are prompted by good behavior.

And the--

Justice Sonia Sotomayor: What is the constitutional difference that would ignore a Sixth Amendment right in the resentencing by the court that doesn't when it's a resentencing or a modification of a sentence by the Bureau of Prisons?

Ms Freeland: --Justice Sotomayor, I think the difference would be that when it is delegated to the courts under a statute like 3582(c), the court is then dealing with a mandatory guideline range, and the Sixth Amendment problem arises when the court sentences the--

Justice Sonia Sotomayor: But is this truly a new sentence -- meaning a person serving a sentence, this is an act of clemency.

Whether the Bureau of Prisons does it or the court does it, why should we introduce a different binding or non-binding constitutional limit on one body rather than the other?

Ms Freeland: --Justice Sotomayor, I disagree with the premise of your question that this is an act of clemency similar to the reductions for good time behavior.

The -- the term "clemency", "leniency", "grace", connotes the idea that you deserve to be punished for this, but we are going to -- we are going to exercise leniency--

Justice Ruth Bader Ginsburg: Ms. Freeland, may I take you on another path, not the question of the difference between the two -- two sections.

You have a large prison population, and then Booker comes down, and then the guidelines change only as to crack cocaine, nothing else.

All of the others whose sentence has become final cannot get into the court's door because they don't have the entering wedge.

In what system -- what fair system would say, aha, because the crack cocaine guideline was reduced -- the disparity was reduced -- these people are now going to overcome the finality bar, but all of the others who are identically situated with respect to all other factors, they don't get their sentences revised?

Ms Freeland: --Justice Ginsburg, I have a couple of responses to your question.

The first is that I think that a decision by a district court judge to correct a sentence under 3582(c) should be analogous to a decision of a district court judge to correct a sentence under 2255.

Once the decision is made that the sentence should be corrected, finality is extinguished; and when the court goes about imposing the new sentence, it must comport with the law of the land at the time.

Justice Ruth Bader Ginsburg: But why should, bearing in mind that entire prison population similarly situated, the courts say the finality bar is lifted only to the extent that the crack cocaine guideline disparity has been reduced?

Ms Freeland: And, Your Honor, once the finality bar is lifted, the concerns about retroactivity should slip away.

But with respect to fairness, which I think is at the heart of your question, the fact that this partial remedy for an urgent and compelling problem, that is, the crack guideline, was afforded to some should not prevent the Court from seeing justice for those like Mr. Dillon, even though there are some in prison that are serving unconstitutional sentences that will not be able to seek relief.

Mr. Dillon is properly compared to other defendants who are sentenced under the amended crack guideline, not the original crack guideline.

His sentence is an amended crack guideline sentence, and for purposes of avoiding unwarranted disparities Mr. Dillon is most comparable to those other defendants that are sentenced after the crack guideline.

Justice Ruth Bader Ginsburg: If you -- if you are right that this benefit goes to -- only to the classic can you get in the door, wouldn't that be a powerful motive to the sentencing commission not to make its guidelines reductions retroactive?

Ms Freeland: Your Honor, I would certainly hope not.

994 clearly contemplates that the commission will undertake a constant review and revision of the guidelines to make sure that they serve the purposes of punishment.

And 994(u)clearly shows that Congress contemplated that some of those decisions would warrant retroactive application.

If the commission were to respond to a decision by this Court in Mr. Dillon's favor by refusing to revise the guidelines in the future or refusing to make any of those revisions retroactive, I submit that it would be abdicating its duty under 994.

Justice Antonin Scalia: It wouldn't say that.

It just wouldn't do it.

That's all.

Ms Freeland: You are right, Your Honor.

It just wouldn't do that, but history would speak for itself.

The commission has constantly undertaken this duty under 994.

Justice Antonin Scalia: Well, it is certainly a factor that if I were -- if I were on the commission, I would certainly take that factor into account.

Every time I make it retroactive, it is going to reopen -- it is going to reopen the whole sentencing and -- and allow a Booker application where -- where it didn't apply before.

How can I close my eyes to that if--

Ms Freeland: Well, Your Honor--

Justice Antonin Scalia: --if I am making the retroactivity determination?

Ms Freeland: --Your Honor, if I could, I am not suggesting that the commission close its eyes to anything.

However, what we are asking for in this case is not a full resentencing where all sentencing decisions would be reopened.

We are simply saying that when a court imposes a new sentence, that new sentence must comply with this Court's decision in Booker.

Chief Justice John G. Roberts: Only Booker?

Ms Freeland: And that means--

Chief Justice John G. Roberts: Only Booker?

Only Booker?

What if there is another constitutional objection to the sentence, and it goes back under -- under the crack cocaine?

Can you say, oh, and, you know, also, it violated my rights under equal protection?

You didn't notice that before, but here's the argument.

Is that before the sentencing court?

Ms Freeland: --Your Honor, I would have to say that it is.

The--

Chief Justice John G. Roberts: Yes, you would you have to say so--

Ms Freeland: --The sentence imposed would have to comply with the Constitution.

Chief Justice John G. Roberts: --So it's not only as unfair as Justice Ginsburg hypothesized.

It's even more unfair than that, because just because of the crack cocaine change, somebody with an equal protection challenge gets to raise that.

Well, somebody in prison without an equal -- with an equal protection challenge but not the crack cocaine one is still stuck.

Ms Freeland: That's true, Mr. Chief Justice, but that's the case in any situation where a defendant has raised an issue on appeal or has presented a claim in a 2255 petition, and just by happenstance the decision awarding them a new -- a new trial or a new sentence happens when a new constitutional rule is announced by this Court.

Now--

Chief Justice John G. Roberts: Well, that's a new constitutional rule.

This is an old one.

This is one that was -- you know, the equal protection clause has been on the books for a while.

And -- and he -- he just gets the chance to raise it solely because of the fact that his conviction involved crack cocaine.

Ms Freeland: --And again, Your Honor, I think that he would get to raise it, but I want to point out that not every constitutional issue would be ripe for the court's decision at that proceeding.

If there were an opportunity to raise -- as you said, equal protection is not a new law as we are talking about Booker being a new law for Mr. -- for Mr. Dillon.

If there were an equal protection challenge that had not been lodged at the original sentencing, the district court would apply the law of the case and--

Chief Justice John G. Roberts: Oh, no, no, no.

I thought under your theory this is a whole new sentencing.

So who cares if he waived it at the first one.

We are starting from -- from point zero.

Ms Freeland: --Mr. Chief Justice, I must have misspoken.

That is certainly not what I meant to indicate.

What I meant to say is, certainly, all sentences imposed ought to comply with the Constitution.

But we live in a system that has waiver principles, law of the case, mandate rule.

These are all obstacles that a defendant seeking to overturn a sentencing or raise an issue on equal protection grounds that weren't presented before would serve as obstacles to their doing so.

Chief Justice John G. Roberts: And my point is that they shouldn't under your theory.

The fact that he waived it at the earlier sentencing under your theory should not matter at all.

Because your theory is that this is a whole new sentencing, so who cares what went on in the prior sentencing.

Ms Freeland: I disagree, Your Honor, that my theory does not encompass that part of the rule.

And I think with respect to our criminal history issue that we have raised that is precisely what we said.

That there are errors that a district court may not be able to correct in a 3582(c)(2)--

Justice Antonin Scalia: Well, why do you -- why do you pick on -- on Booker as -- as not carrying over?

I mean if you say that there carries over from the prior sentencing his failure to raise the equal protection claim, why can't you say it's also law of the case that the Booker objection doesn't stand?

It's all the case.

It was decided before Booker, and that's the law of the case as far as that's concerned.

Ms Freeland: --Well, Your Honor, if the law of the case were in place before Booker was decided, the new law would be an exception to the law of the case if Mr. Dillon were resentenced as he were after the Court's decision in Booker.

I'm not sure if that answers your question precisely.

For Mr. Dillon, Booker is new law at his new sentencing.

He did not have an opportunity to raise a Booker objection or ask for a sentence below the guideline range at his original sentencing.

Justice Sonia Sotomayor: Under your theory there is no bar to an upward sentence by the -- by the judge, because if it's a brand new hearing subject to Booker, which mandates complete discretion under 3553, the judges define the sentence that fits the crime and the defendant.

So you don't mind an upward--

Ms Freeland: Well, under 3582(c), Your Honor, the statute -- the statute provides that--

Justice Sonia Sotomayor: --You only want part of the statute, not the whole statute?

Ms Freeland: --Your Honor, I think we want the whole statute, the statute--

Justice Sonia Sotomayor: If you want the whole statute, then it's a new sentence.

You can't -- and say the statute limits up and down, but I only want the down, and I want a new sentence.

Ms Freeland: --Your Honor--

Justice Sonia Sotomayor: It doesn't make sense.

Ms Freeland: --I think I understand your point.

The -- the problem is with the statute.

3582(c) does not authorize a court to increase the sentence.

The fact that a sentence cannot be increased does not divest the proceeding by which it is imposed.

Justice Stephen G. Breyer: So what's -- what's the -- the words in the statute is that it may reduce the term.

You cannot change the term -- you cannot change a sentence, except that you can reduce the term if such reduction is consistent with applicable policy statements.

Ms Freeland: That's correct, Your Honor.

Justice Stephen G. Breyer: Do you see anything -- what's -- what's unconstitutional about that?

Then they issue a policy statement, and the policy statement says you can't reduce it except insofar as our new -- whatever the new thing is -- applies.

If you are arguing that that violates the Constitution, what I am missing is, why?

What violates the Constitution there?

Ms Freeland: Your Honor, post-Booker what violates the Constitution is the policy statement's use of the word "shall".

That's a -- that's a significant change in--

Justice Stephen G. Breyer: I don't remember.

I thought in Booker -- and I have to go back and look at it, but I thought in Booker the Court held that certain specific -- like certain specific words in certain specific provisions of the -- the sentencing statutes were unconstitutional because of Apprendi and because of the other part of Booker itself.

Well, 3582 wasn't one of them.

So -- so there must be something unconstitutional.

If you are right, I don't see how you get around this statute.

Ms Freeland: --Your Honor, in our view 3582(c) is not unconstitutional.

Justice Stephen G. Breyer: All right.

If it's not unconstitutional, then why don't you have to follow it?

Because what it says is, you cannot get a reduction except in respect to what the policy guideline says.

And the policy guideline says you don't get a reduction, except insofar as we have reduced a sentence in a particular respect.

What's unconstitutional about that?

I'm -- I'm not saying there isn't.

I want to know what your argument is that it is unconstitutional.

Ms Freeland: Justice Breyer, post-Booker if 3582(c) is interpreted as you just said, that the sentence -- the reduction in sentence must be consistent with a particular policy statement--

Justice Stephen G. Breyer: That's what it says.

I don't know how you would interpret it some other way if that's what it says.

Ms Freeland: --And that the -- and that the policy statement then requires the court to impose a mandatory guideline sentence--

Justice Stephen G. Breyer: No, it just says what we're doing is we are reopening the sentencing in respect to the particular way we reduce people's sentence, not in respect to something else.

That's what I read the policy statement to say.

That if there were 19 things that were considered in the sentence and one of those 19 is changed in a downward direction, then it says we make an exception, says the policy statement.

You can reopen No. 19, but not the first 18.

Now, why is that unconstitutional?

What in the Constitution prohibits doing that?

Ms Freeland: --The Constitution -- Your Honor, if I could, the constitutional problem with Section 1B1.10(b)(2)(A) is that it requires the district court to impose a sentence within the guideline range.

Therein lies the problem.

The requirement, a mandatory guideline sentence based on a judicially enhanced range, therein lies the problem.

Section 3582(c) does not mandate guidelines sentencing.

It's 1B1.10.

Justice Ruth Bader Ginsburg: Ms. Freeland, what would happen if the -- the motion is made with respect to the crack cocaine, and the judge said, I'm -- I'm not going to -- I deny the motion.

Would the judge then have to go on and consider Booker and say, on this speech, I deny the motion, but now I can just do whatever I want with the rest of it?

Ms Freeland: Your Honor, if I could, if a judge is presented with a 3582(c) motion and denies the motion, all the court has done is enter an order denying a motion.

It's not until the district court decides to grant the 3582(c) motion and reduce the defendant's sentence that 3553(a) factors come into play, the policy statements come into play, and a new sentence is thereafter imposed.

Justice Ruth Bader Ginsburg: Well, if -- suppose Congress and the sentencing commission had made it crystal clear that they are authorizing a reopening but only with respect to one piece.

You say -- you say no matter how clear it is, as a matter of constitutional law, because Booker has been decided, the whole sentence is up for--

Ms Freeland: Justice Ginsburg--

Justice Ruth Bader Ginsburg: --consideration?

Ms Freeland: --Justice Ginsburg, that is correct.

And the reason is because 3582(c) is a provision that is used by courts to correct sentences.

Once the court decides that the defendant is worthy of a correction, that the sentence should be corrected, it grants a motion extinguishing the old sentence and imposes a new sentence.

Our position is simply that when it imposes the new sentence, it must comply with Booker's constitutional and remedial holdings.

Justice Antonin Scalia: I have a better answer to Justice Breyer's question.

You want my better answer?

Ms Freeland: Please, Justice Scalia.

Justice Antonin Scalia: Sure.

[Laughter]

It's -- it's -- it's not -- it's not Section 3582 that is unconstitutional, and it isn't even the provision for being guided by a policy statement of the sentencing commission that's unconstitutional.

It is the nature of the sentencing commission's policy statement that is unconstitutional.

Surely, if the sentencing commission had a policy statement which said you will reduce it for white prisoners but not for black prisoners, that would surely be unconstitutional, right?

Ms Freeland: Absolutely, Your Honor.

Justice Antonin Scalia: And your point here is that the policy statement which says you effectively will disregard Booker is unconstitutional?

Ms Freeland: I agree.

Justice Antonin Scalia: That works, doesn't it?

Ms Freeland: I agree.

And, Justice Breyer--

Justice Stephen G. Breyer: You agree.

Now -- now, what -- that's what I -- I could understand that if 3582 said to the judge you resentence him.

But it doesn't say that.

So there is a sentence in effect, and what 3582 says is a -- a sentence can be reduced just as if, to go back to the beginning, Congress passed a statute or the commission said everybody's sentence will be reduced.

That doesn't change what the sentence was.

It says there is a reduction, like for good -- good time.

So it says a defendant, if he has been sentenced based on factor 19 in the case, the court may reduce the term of imprisonment, the term of imprisonment there under the sentence.

So I'm back to my question.

What is unconstitutional about that?

And what the court just says is the court -- the commission says, that's right.

You may reduce it in respect to what we have considered.

You may not reduce it in respect to something which is not considered.

So I'm still puzzled about the constitutional problem.

Ms Freeland: --And, Justice Breyer, I apologize because I may not be--

Justice Stephen G. Breyer: No, no, you don't have to apologize.

Ms Freeland: --I may not be understanding your question.

Justice Stephen G. Breyer: I understand your argument now.

And I didn't quite and I do.

So there is nothing to apologize for.

Ms Freeland: Okay.

I would like to--

Justice Stephen G. Breyer: You wanted to get the idea in my mind.

I'm not expressing that in my question, but I got your answer.

Ms Freeland: --Okay, thank you.

[Laughter]

A couple of points, though, that I -- that -- from reading the text of the statute that I would like to point out.

Justice Breyer, notice it doesn't say "sentence".

It says "term of imprisonment".

"Term of imprisonment" is -- is a term of art in the Federal Code.

The 3551 of the United States Code.

And under 3621, the Bureau of Prisons cannot hold someone in custody absent a sentence of imprisonment.

And in this case there are two judgments, two sentences of imprisonment.

The Bureau of Prisons would not have been able to hold Mr. Dillon for 270 months under the 1993 judgment, and the Bureau of Prisons certainly cannot hold Mr. Dillon for 322 months under the -- the June--

Chief Justice John G. Roberts: I'm sorry.

Why -- why could they -- the first part of that, why could they not hold him for the term under the 1993 sentence?

Ms Freeland: --Under 3621 it's very clear that the -- the Bureau of Prisons, absent a reduction under 3624(b) for good time, is directed to hold the defendant in the custody of Bureau of Prisons for the term of imprisonment on the judgment.

In this case, following the--

Justice Antonin Scalia: What -- what if the President reduces the sentence using his pardoning power?

He cuts it back; he cuts it in half.

The Bureau of Prisons has to hold him for the full term of the imprisonment?

No, that can't be true.

Ms Freeland: --Justice Scalia, I'm certain that that's not true.

And I mean there -- I am not familiar--

Justice Antonin Scalia: So why is this any different?

Ms Freeland: --with this provision.

Justice Antonin Scalia: Why is this any different?

I mean there are obviously -- what it proves is that there are exceptions to that requirement that they hold him for the term of imprisonment.

They -- they have to hold him for the term of imprisonment unless it has been shortened, right, by -- by pardon or remission of part of the term by the President or what the argument for the government is, or by application of this retroactive rule by -- by the commission.

Ms Freeland: And again, Your Honor, I'm not familiar with the clemency and commutation procedures.

I would have to think that some piece of paper, some order directing the Bureau of Prisons to reduce the sentence, just as a new judgment in a 3582(c) is a new sentence of 270 months, would have to be presented so that the Bureau of Prisons would release.

But -- but that aside, the -- the real point here is that the new judgment is a new judgment; it is a new sentence.

This is not a reduction in the old sentence.

Justice Stephen G. Breyer: That is what it says.

The other thing that is bothering me, to tell you the truth, is -- is the part of the point that was brought up previously that it is up to the commission whether to make it retroactive.

It is?

Ms Freeland: I agree.

Justice Stephen G. Breyer: And I don't know why they couldn't take into account that to make any drug-related change, you see, and then make that retroactive, is going to reopen the sentencing for every single person who has already been convicted of a drug crime in the Federal courts, of which there are probably tens of thousands.

And -- and I think they would properly take that into account.

And, therefore, they might properly say, we're not going to make this retroactive.

Ms Freeland: Your Honor, the -- the practice in the court of appeals post-Booker of remanding all of the cases that were in the pipeline shows that the Federal courts are able to handle revisiting thousands of sentences imposed under a mandatory system to revisit them under 3353(a).

And as Justice Walton said in testifying before the sentencing commission with respect to this issue, that the courts are fully prepared to handle any administrative burden and believes that such a burden would be sufficiently justified for people like Mr. Dillon who are deserving.

Justice Anthony Kennedy: I will make this brief because your -- your rebuttal light is on.

Your answer made sense when we talk about term as opposed to sentence, if you just look at (c).

But (b) says notwithstanding the fact that a sentence to imprisonment can be modified -- a judgment or conviction that includes such a sentence constitutes a final judgment.

Does (b) not apply to (c)?

Ms Freeland: (b) does apply to (c), Your Honor, and I'm glad that you raised that because 3582(b) is significant in that it does not distinguish the effect of finality of remands, modifications under 3582(c); it's the judgment of conviction -- the conviction that remains final.

The sentence is no longer final.

It's modified under any of the provisions listed in 3582(b).

If there are no further questions I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, Miss Freeland.

Ms. Kruger.

ORAL ARGUMENT OF LEONDRA R. KRUGER ON BEHALF OF THE RESPONDENT

Ms Kruger: Mr. Chief Justice, and may it please the Court: The provisions of the Sentencing Reform Act at issue in this case, unlike the provisions that were at issue in Booker, do not govern the imposition of sentence.

They instead provide a discretionary mechanism for the exercise of leniency for defendants who have already been sentenced.

The district court in this case properly exercised its authority under the statute to reduce Petitioner's sentence by a little bit more than 4 years, which was the maximum amount of reduction that was consistent with the sentencing commission's specifications under section 994(u) about whether and to what extent its crack cocaine amendments warranted reductions in already imposed sentences.

The district court had neither a further obligation nor indeed the authority to set Petitioner's sentence aside altogether and resentence Petitioner under the advisory guidelines regime announced in Booker.

Justice Ruth Bader Ginsburg: Does that extend to -- which was part of this case -- the court notices that there was a technical error; it was a calculation error the first time, and the judge says, well, I will fix that up, too.

That was an arithmetic error?

Ms Kruger: Yes, Justice Ginsburg, the same rule applies to the calculation error that Petitioner is raising.

Section 3582(c)(2) was not designed by Congress to serve as effectively a less restrictive substitute for raising such challenges on direct appeal or where otherwise available under section 2255.

It was instead designed for the limited purpose of providing an opportunity to extend leniency to defendants whose sentences are otherwise final, nonappealable and therefore not subject to any modification.

Justice Sotomayor, you had asked earlier whether this provision was designed as an act of clemency or was instead designed as a kind of adjunct to the court's judicial review power, a kind of 2255-type power.

We think the answer is clearly that it was designed as a mechanism for the exercise of a type of clemency power.

I think that is particularly clear if you look at the parallel provisions in section 3582(c)(1) which are reprinted at pages 3a and 4a of the appendix to the government's brief.

Those provisions also provide for similar types of sentence reductions in cases where the director of the Bureau of Prisons makes a motion for sentence reduction based either on extraordinary and compelling reasons or because the defendant is over the age of 70 and has served more than 30 years in prison.

In all of these cases the district court exercises a discretionary power to reduce the sentence in the exercise of leniency, not because of legal error but for ethical reasons.

Justice Sonia Sotomayor: Well, that gets tied up, doesn't it, to your argument that this is not a part of the criminal prosecution, that this is -- not a Sixth Amendment proceeding, but some -- not a Sixth Amendment proceeding, so it doesn't require constitutional protection?

Ms Kruger: That's correct, Justice Sotomayor.

We think that what Congress has called for in all of the sentence reduction provisions of section 3582(c) is a kind of discretionary mechanism for reducing sentences that are already final and not appealable and can't be modified in any other respect.

It hasn't called for a de novo plenary resentencing.

So it allows defendants in the position that Petitioner is in to come into court and reopen every aspect of their sentence, requiring reconsideration of guidelines determinations made in this case more than a decade ago or requiring application of intervening changes in the law.

Justice John Paul Stevens: Am I correct in understanding that 3582(c) was enacted prior to our decision in Booker?

Ms Kruger: Yes, it -- it was.

Justice John Paul Stevens: And is it clear that it should be construed as though the system was mandatory before the decision in Booker, rather than construed in the light of the remedial decision in Booker?

Ms Kruger: Well, I think there are two questions that are raised here about how this statutory scheme comports with Booker.

One is the Sixth Amendment question, whether this is a statutory provision that calls for a resentencing, at which Booker and its decision about the Sixth Amendment would apply.

And then the second question is even if you think there is no constitutional problem with reading the statute in accordance with its plain terms, whether Booker's remedial analysis requires treating the reference to the policy statements in section 3582(c)(2) as purely advisory.

We think with respect to that question, not even Petitioner is quite willing to embrace the full consequences of that argument.

It would mean severing and excising the portion of 3582(c)(2) that requires consistency with the applicable policy.

Justice John Paul Stevens: Right.

Is that any more dramatic change then was made in the Booker remedial opinion itself?

Ms Kruger: I'm not sure whether or not it's a more dramatic change in terms of the number of case that is would be affected, but it--

Justice John Paul Stevens: The remedial opinion basically rewrote the whole statute on -- except that it didn't have to reach 3582(c)(2), but it certainly changed the -- the nature of the mandatory provisions that were previously in the statute.

Ms Kruger: --That's true, and it did so in order to solve the constitutional difficulties that were created by a mandatory guidelines system with respect to the imposition of sentence.

Without that same kind of Sixth Amendment violation in the context of discretionary sentence reduction proceedings, we think there is no basis in Booker's analysis for severing and excising any portion of 3582(c)(2), but I would note that the consequence of severing and excising the requirements' consistency with the applicable policy statements would be to free district courts not only from the sentencing commission's specifications about how much to reduce sentences, but also which of its amendments to the guidelines would justify retroactive application.

Because it is after all in a policy statement, section 1B1.10, that the sentencing commission has specified which of its amendments, among many, justify sentence reductions under 3582(c)(2).

That would mean that every time the sentencing commission revises its guidelines and reduces applicable sentencing ranges, any number of defendants would be free to come to the district courts and ask them to make their own independent judgment about whether or not they should be effectively resentenced as a consequence.

And that would certainly provide a significant disincentive for the sentencing commission ever to revise sentencing guidelines in a downward direction.

Justice Ruth Bader Ginsburg: Have there been other guidelines ranges that have been reduced, and if so were those also retroactive?

Ms Kruger: There have -- there have been many guidelines, ranges that have been reduced over the course of the existence of the sentencing guidelines.

I believe that right now, the current number of -- of guidelines amendments the sentencing commission has made retroactive stands at 27.

This was the -- one of the first decisions that the sentencing commission made about retroactivity in the wake of Booker, and it did so with full consciousness of the potential for broadly reopening sentences.

And it certainly weighed very heavily in the sentencing commission's deliberations that the traditional understanding, existing long before Booker was ever decided, was that 3582(c)(2) proceedings do not constitute plenary resentencings that incorporate all intervening changes to the law.

Justice Stephen G. Breyer: Can -- can I ask you a different question on the secondary argument that they make?

When I read the secondary argument, that there was an error in the calculation of the guidelines and she would like to have that error corrected, I didn't see anything in the policy statement that would prevent her from getting that correction.

Justice Ruth Bader Ginsburg: I think you told me -- I asked you that question, and you told me it could not be corrected, because everything was final.

Ms Kruger: That's correct--

Justice Stephen G. Breyer: Why?

Ms Kruger: --and the policy statement actually also--

Justice Stephen G. Breyer: What in the policy statement?

Because what it says is: What you're supposed to do is judge; you go and look at the guidelines that were applied.

Now, substitute the new one reducing the sentence for the old one, and then go apply it.

And therefore, that seems to me not to block a claim that would say, when you apply these guidelines with the new one substituted for the old one, apply them; that is, if, in fact, there was an error the first time.

Now, she may have a hard time showing that, but if she can show it, what in the words that are right there in (b)(1) stops her from getting that correction?

Ms Kruger: --It's on page -- if you look at page 8A of the appendix--

Justice Stephen G. Breyer: I have it.

I have it in front of me.

Ms Kruger: --In the final sentence, it says,

"In making such determination, the Court shall substitute only the amendments listed in subsection C for the corresponding provisions that would apply, and shall leave all other guideline application decisions unaffected. "

Justice Stephen G. Breyer: Well, all other guideline application decisions, their claim is that they just made an error, like a clerical error, a clear error, manifest injustice, in that first math.

Do you think that this would leave them unaffected?

Ms Kruger: I do.

Justice Stephen G. Breyer: Yes.

Ms Kruger: I think that that is the plain meaning of the sentencing commission's directive there.

Justice Antonin Scalia: I guess they also made a mistake in not applying Booker, right?

Ms Kruger: Well, the premise of that question, I think, assumes two things.

It assumes that 3582(c)(2) proceedings are plenary sentencings at which Booker applies, which the sentencing commission, based on a very long history of rejections, precisely--

Justice Stephen G. Breyer: I would have thought the objection to that is: No, they didn't make a mistake in applying Booker, because this Court has said that Booker isn't retroactive.

And of course, they did make a mistake if it is retroactive.

And then the Court should have said, it is retroactive, in which case there would be no problem.

Ms Kruger: --Well, if Booker were retroactive, I think that our position would still be that this is not the proper vehicle for applying it.

The proper vehicle would be to file a motion for -- to vacate or set aside the sentence under section 2255.

Congress didn't intend these sentence reduction proceedings to serve essentially the same purpose.

It -- it intended them to serve simply the purpose of reducing otherwise final, non-appealable sentences.

I would say--

Justice Stephen G. Breyer: I know my word was: It shall leave all other guideline application decisions.

Well, that's -- that's -- their claim is not that the guideline -- it's that they -- they chose the wrong guideline or they didn't apply the right words.

You see, so they weren't applying that -- they just applied the wrong thing.

Now you say I'm working too hard.

Okay.

Ms Kruger: --I think you may be working a little hard, Justice Breyer.

I would say that on that point, we also fundamentally disagree with Petitioner's submission that there was any error in the calculation of his criminal history score in 1993.

But to the extent that Petitioner wanted to raise any challenges to that determination, we think the appropriate time and place to do that would have been on direct appeal of that sentencing decision, rather than waiting a decade and attempting to use the 3582(c)(2) proceedings as a kind of vehicle for collaterally reopening that aspect of his sentence.

Justice Anthony Kennedy: When the judge considers the adjustment motion under the -- under the section, does he consider how the prisoner has behaved in prison; i.e., if he has behaved very badly, he doesn't give the -- the reduction?

Ms Kruger: The district court can consider any disciplinary proceedings that have occurred in the course of the defendant's imprisonment, yes.

Justice Anthony Kennedy: But he -- but he cannot go below.

The -- the Petitioner makes the argument metaphysically that there is just a new sentence.

In your view, is that refuted by the language of (c)(2) because they talk about an occasion of a defendant who has been sentenced to a term of imprisonment, and then they say the term can be reduced, and it doesn't use the words

"a new sentence shall be imposed? "

I assume that is your argument.

Ms Kruger: I mean, I think that that certainly reinforces the conclusion that I think also arises from other aspects of the provision that -- what Congress had in mind was not the imposition of a brand-new sentence, but simply a discretionary reduction of the old one.

I think that's right, Justice Kennedy.

Chief Justice John G. Roberts: I am troubled by your response to Justice Kennedy's previous question, that the judge can take into account conduct in prison and all these other things.

It does seem to open it up to other factors than the crack cocaine disparity, and once you are looking at other factors, why not look at everything?

Ms Kruger: Well, I think the answer to that question is resolved by looking at the plain text of 3582(c)(2), Mr. Chief Justice, which directs that district courts have a discretion to reduce sentences in a manner that is consistent with applicable policy statements, but after considering the statutory sentencing factors under section 3553(a), which includes, of course, the need to protect the public from future crimes committed by the defendant, as well as the history and characteristics of the prisoner.

The reference to 3553(a) guides district courts' discretion in deciding whether or not to grant a reduction that's authorized by the sentencing commission in the course of its statutory duty under 994(u) to specify whether and to what extent its methods justify retroactive application.

Justice Anthony Kennedy: It's a one-way ratchet?

Ms Kruger: Effectively.

I mean, it works in both directions.

It can justify granting a reduction; in the case of Petitioner, the district court thought that the 3553(a) factors clearly pointed in favor of granting the reduction, but it also -- those factors can work in the direction of denying an otherwise available reduction.

Justice Anthony Kennedy: The Petitioner's brief opens with a statement about his rehabilitation.

We don't know if that has been contested.

You don't respond to it.

But let's assume that's all true.

He established schools and he helped young people and so forth.

Does the Justice Department ever make recommendations that prisoners like this have their sentence commuted?

Ms Kruger: I am not aware of the answer to that, Justice Kennedy.

It's certainly true that evidence of that type of rehabilitation factored into the government's recommendation in this case that Petitioner--

Justice Anthony Kennedy: And isn't the population of prisoners in the Federal prisons about 185,000 now?

Ms Kruger: --I think--

Justice Anthony Kennedy: I think it is.

And how many commutations last year?

None.

How many commutations the year before?

Five.

Does this show that something is not working in the system?

185,000 prisoners?

I think that is the number.

Ms Kruger: --I -- I'm not prepared to speak to that question today, Justice Kennedy.

I can tell you that the government very much takes those considerations into account in making recommendations about available sentence reductions under section 3582(c)(2).

And indeed, in this case, the government agreed that the Petitioner should receive the full measure of the benefit that the sentencing commission had made available when it decided to make the crack cocaine amendments retroactive, based in large part on Petitioner's conduct in presenting and his other characteristics.

Justice John Paul Stevens: May I ask this question?

Accepting the point that there is no constitutional compulsion that they had to open up for a full new sentencing, and I understand one reason for not doing it is that you don't impose too much work on the district courts for doing it, but could you explain to me: Why is it, just as a matter of policy and good judgment, the commission could say, well, you can take a look at all the negative factors that argue against reduction, but you cannot look at any of the factors that would show why you should have had the same sentence that if -- why you should get the kind of sentence you would have gotten if you had been sentenced in the first place today?

Because I guess this particular math is going to mean spend 22 more years in jail than if you had been sentenced today.

Ms Kruger: The reason why the commission doesn't do that is because it wouldn't comply with its statutory mandate under 29 U.S.C. 994(u) to specify both which guidelines amendments justify retroactive application and the amount by which sentences may be reduced.

The sentencing commission would have no power to simply say in its policy statement: District courts, you are free to reduce sentences by however much amount you believe is appropriate.

Justice John Paul Stevens: You think that the statute would have prohibited a more generous policy statement, then?

Ms Kruger: I think the statute would have prohibited such a policy statement.

Yes, that's correct, Justice Stevens.

Justice Antonin Scalia: I -- I still don't understand how you fit into that your answer to the Chief Justice earlier that, in fact, the Court can consider other factors in -- in 3553(a) when it's making the reduction.

Ms Kruger: Justice Scalia, I think the answer is simply that the 3553(a) factors and their consideration under 3582(c)(2) is designed for a different purpose than for the consideration that goes into the initial imposition of the sentence.

The point of considering the 3553(a) factors, to the extent they are applicable to use the words of 3582(c)(2), is to just to determine whether or not the district court will grant a reduction that is authorized to the extent it is authorized by applicable policy statements.

It is not to determine whether the resulting sentence, as an original matter, is greater than necessary to comport with the statutory sentencing factors.

It's simply for the limited purpose of deciding whether to exercise discretion to reduce the sentence in a manner that is authorized by the statute.

Justice Antonin Scalia: I see.

But -- but I thought you said you could take into account good behavior in that determination?

But that isn't a factor -- that isn't a factor that would cause you had to disallow the reduction.

It's a factor--

Ms Kruger: It's a factor that would cause you to permit the reduction, presumably.

It's one of the many considerations that a district court can take into account in deciding that it will, in fact, exercise its discretion to reduce the sentence to the extent that that is permitted by Congress and applicable policy statements.

Chief Justice John G. Roberts: But it -- it's also a factor that would -- might guide the district court to a decision not to reduce the sentence.

Ms Kruger: That's correct.

It can point in either direction in any given case.

But the critical point is that Congress has set the parameters for the district court's exercise of discretion in these proceedings.

Whatever the district court chooses to do has to be consistent with applicable policy statements, including the commission's policy statement in which its implemented its statutory authority to specify whether and to what extent its guidelines amendments will justify retroactive application.

If the Court has no further questions, we would ask that the judgment of the court of appeals be affirmed.

Chief Justice John G. Roberts: Thank you, Ms. Kruger.

Ms. Freeland, have you three minutes remaining.

Ms Freeland: I'm sorry, Mr. Chief Justice, how many minutes?

Chief Justice John G. Roberts: Three.

REBUTTAL ARGUMENT OF LISA B. FREELAND ON BEHALF OF THE PETITIONER

Ms Freeland: Three minutes, thank you.

A couple of points.

I wanted to answer Justice Kennedy's question.

The court is not only permitted to consider bad behavior in prison, under 1B1.10, the court is required.

The word is "shall".

And, so, all of these things and many of your questions point to the fact that this is an adversarial proceeding.

Section 3582(c) describes a sentencing.

It requires the court to consider all of the 3553(a) factors.

It requires the court to be consistent with policy statements.

It requires a court to impose a new sentence.

And the word 3582(c) connotes correction, not leniency, not grace.

Those are functions of the executive branch, not of the judicial branch.

And in this context the court decided after the commission reduced the sentencing -- the sentencing guidelines for crack offenders, that a correction was warranted.

There was an error in the prior sentence that 3582(c) permitted the district court to correct, and when it imposed a new sentence, that new sentence has to comport with current law.

Justice Ruth Bader Ginsburg: Can I get you to go back?

You said something that only the executive can grant clemency.

What -- what about a program where a district court judge says I'm going to have this person undergo a course -- a drug addiction course, and if the defendant successfully passes the course, then I will give a lighter sentence?

That -- that--

Ms Freeland: Justice Ginsburg -- I'm sorry.

Justice Ruth Bader Ginsburg: --Did your answer exclude that -- that possibility?

Ms Freeland: Justice Ginsburg, your hypothetical, the court is imposing a sentence or conditions of a sentence, and once those conditions have been met, the defendant is relieved, just as when the conditions of a sentence of imprisonment have been met, the defendant is released from prison.

One point that I would like to get back to, because there were many questions about it, is this consistent with policy statements.

Policy statements by definition do not bind.

The sentencing commission in this case changed the 1B1.10 to say that the sentencing court could not, shall not impose a sentence below the guideline range.

1B1.10 for all of the 26 retroactive amendments that preceded the crack amendment read district courts should sentence within the amended guideline range, and that is appropriately a policy statement.

1B1.10(b)(2)(A) is not a policy statement.

It purports to be a binding rule.

And as this Court knows, policy statements do not bind.

Justice Stephen G. Breyer: Yes, but they do if Congress says they do.

Ms Freeland: When Congress says consistent with policy statements -- and, Your Honor, I would direct you -- I see my red light is on, if I could finish--

Chief Justice John G. Roberts: You can answer Justice Breyer's question.

Ms Freeland: --I would direct you to the amicus brief on behalf of the defenders at pages 23 and 24 and our reply brief at pages 25 and 26.

Chief Justice John G. Roberts: Thank you, counsel.

Ms Freeland: Thank you very much.

Chief Justice John G. Roberts: The case is submitted.

Transcript: 

Chief Justice John G. Roberts Jr.: Justice Sotomayor has an opinion this morning in case 09-6338, Dillon vs. United States.

Justice Sonia Sotomayor: In 1993, petitioner Percy Dillon was convicted of among other things, crack cocaine offenses and was sentenced to 322 months imprisonment.

Roughly fifteen years later, the sentencing commission amended the Crack Cocaine Guidelines by lowering them and it made the amendments retroactive.

Dillon then moved for sentence reduction under 18 USC code Section 3582 (C) (2).

That provision authorizes a District Court to reduce an otherwise final sentence pursuant to a guideline amendment if a reduction is consistent with the commission's policy statements.

The relevant policy statement found in section 1B1.10 of the Guidelines Manual precludes a court from reducing a sentence to a term that is less than the minimum of the amended guidelines range except in circumstances not applicable here.

Dillon nevertheless asked the district court to impose a sentence below the amended range, contending that our decision in United States versus Booker which made the guidelines advisory requires court to treat section 1B110 as nonbinding.

He also asked the court to correct certain alleged errors in his original sentence that are unrelated to the guidelines amendment.

The District Court imposed a sentence at the bottom of the revised guideline range but declined to grant the further reduction.

Finding Booker inapplicable to section 3582(C)(2), the court concluded that section 1B110 constrained it to impose a sentence within the amended range.

The Court of Appeals for the Third Circuit affirmed.

We granted certiorari to address Bookers' applicability to section 3582 (C) (2) proceedings.

Dillon contends that proceedings under that section are essentially plenary re-sentencing proceedings and that Booker's holdings therefore apply.

The text and purpose of the statute belay that claim.

Section 3582 (C) (2) represents a congressional act of lenity intended to give prisoners the benefit of later enacted guidelines amendments.

The authority of the courts acting under section 3582 (C) (2) is substantially constrained by the commission which is charged with determining whether and to what extent the guidelines amendment is retroactive.

By statute, the court may exercise discretion to reduce a prisoner sentence only to the extent consistent with the commission's statements.

In light of these unique constraints, it is clear that proceedings authorized under section 3582 (C) (2) are not re-sentencing proceedings.

For the reasons elaborated in our opinion issued today we hold that treating section (1) (B) 110 as binding in these circumstances implicates neither the sixth amendment nor remedial interest that issue in Booker.

Accordingly, the judgment of the Court of Appeals is affirmed.

Justice Stevens has filed a dissenting opinion, Justice Alito took no part in the decision of the court.