Sentenza

SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES TARAHRICK TERRY, Petitioner, v. No. 20-5904 UNITED STATES, Respondent.

SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES TARAHRICK TERRY,  Petitioner,  v. No. 20-5904 UNITED STATES, Respondent.         

1 2   3   4   5 6   7 8   9 10  11  12  13  14 15 16  17  18  19  20 21  22  23  24  25  21 Official - Subject to Final Review sentencing range.  It can't because Section 2 didn't modify any sentencing ranges.  All it did was raise the quantities, and that affected everyone in all three tiers because it changed the benchmarks for sentencing. Now we didn't mean to say that the language was unambiguous in -- all --all I meant with the Chief was simply that.  I mean it was unambiguous that Section 404 is limited to crack offenses. As for "statutory penalties," we think it's unambiguous when you read it in context, including the eight years of the Sentencing Commission referring to the phrase "statutory penalties," as we do, to refer to the higher quantities, not lower sentencing ranges. JUSTICE SOTOMAYOR:  Thank you. CHIEF JUSTICE ROBERTS:  Justice Kagan. JUSTICE KAGAN:  Mr. Adler, you've referred a number of times to this anchoring effects argument, which is to say that in changing the categories, it would lead to different kinds of sentences. And I have no doubt that that's true, but where do you find any concern about that in Heritage Reporting Corporation 
1   2   3   4 5   6   7   8 9   10  11  12  13 14  15  16 17  18  19  20  21  22  23  24  25 22Official - Subject to Final Review the statute itself?  The statute, when it talks about statutory penalties, that means, like, the penalties that --that -- that are provided in the statute, not the penalties that are actually given by judges because of these anchoring effects. MR. ADLER:  Yes, Justice Kagan.  So that's just an explanation for why Congress would have wanted (b)(1)(C) offenders to be covered just as (b)(1)(A) and (b)(1)(B) offenders are covered.  And -- and we see -- you know, that goes back to really what the overarching goal of Section 404 is, which is to give everyone who was sentenced under the 100-   to-1 regime an opportunity to seek a reduced sentence under Section 2's new statutory benchmarks. So, if we look at Section 2, Section 2 applied prospectively to everyone sentenced after August 3, 2010, including people without mandatory minimums.  Section 404 came along and made that retroactive; everyone agrees with that. And then we drop down to 404(c). Congress told us who it wanted to exclude from Heritage Reporting Corporation 
1 2 3 4 5   6 7   8 9   10  11 12  13 14 15  16  17  18  19    20  21  22  23  24  25  23 Official - Subject to Final Review Section 404, and the only people it excluded are the people who have already received the benefit, the opportunity to benefit from Section 2's new statutory benchmarks.  That includes the people sentenced after August 3, 2010, and it includes the people resentenced after August 3, 2010, and it includes people who have already filed a 404 motion and been denied on the merits. Everyone -- nobody else is excluded, and that's because Congress wanted everyone sentenced under the 100-to-1 regime to have an opportunity to benefit from those new statutory benchmarks, whether it affected their statutory range or not. So that's sort of where it comes into the purpose aspect of this case. JUSTICE KAGAN:  I mean, you make this -- this point about Congress wouldn't have wanted lower-level offenders not to get the benefit of this statute when it -- when it gave that benefit to higher-level offenders. But Congress knew that the Commission had already made changes that benefited all these subparagraph (C) offenders, except the Heritage Reporting Corporation 
1 2   3   4   5   67   8   9   10  11  12  13  14  15 16  17  18 19 20  21  22  23  24  25  24 Official - Subject to Final Review ones whose sentences weren't calculated by reference to the drug guidelines at all, you know, except for career criminals. So why is it so clear that Congress would have wanted to benefit the career criminals in subparagraph (C)? MR. ADLER:  Justice Kagan, the same exact thing would be true for the (b)(1)(A) and (b)(1)(B) career offenders as well, so that's not a basis to categorically exclude only the (b)(1)(C) offenders. And as I was explaining earlier, the ratio had the potential to affect everyone, even career offenders, because of the anchoring effect that you alluded to before and also because it came in through the unenhanced guideline range, which served as an additional anchor for career offenders for downward variances, and we know that from the Sentencing Commission's 2016 report, which documents that empirical fact. JUSTICE KAGAN:  Thank you. CHIEF JUSTICE ROBERTS:  Justice Gorsuch. JUSTICE GORSUCH:  I have no questions. Heritage Reporting Corporation 
1   2   3   4   5   6   7 8 9   10  11   12 13  14  15  16  17  18  19  20  21  22 23  24  25 25Official - Subject to Final Review Thank you. CHIEF JUSTICE ROBERTS:  Justice Kavanaugh. JUSTICE KAVANAUGH:  Thank you, Chief Justice. And good morning, Mr. Adler.  Do you know what the market value, roughly, of 3.9 grams was at the time of the offense back in 2008? MR. ADLER:  Justice Kavanaugh, I don't.  It was probably -- if I had to ballpark, I would say 50 bucks or something, something around there. JUSTICE KAVANAUGH:  Okay.  And you've talked several times about the goal of Congress here, and I guess one thing that the questions of my colleagues point out is the text doesn't, at least at first glance, seem exactly in line with that goal, which raises the question, why didn't Congress just say everyone who's been sentenced for crack offenses under 841 is eligible for resentencing, something simple like that? And I realize you can ask that kind of question in almost every statutory case, but, Heritage Reporting Corporation 
1 2 3   4   5   6 7 8   9   10  11  12  13  14 15  16  17  18  19  20  21  22  23  24  25  26 Official - Subject to Final Review here, it seems like that would have been the easy way to do what you've described as Congress's goal.  What -- what do you think was going on there? MR. ADLER:  Right, Justice Kavanaugh. So the reason it couldn't just refer to 841 is because it was also dealing with Section 3, which addressed a different problem with regard to simple crack possession. And I think, you know, I would -- I would sort of turn it around and say, well, if Congress wanted to do what amicus said, then it just would have --it would have drafted the exact same statute and just substituted the word "amended" for "modified," and it gets exactly to where amicus says that Congress wanted to go. So, of course, Congress might have drafted this in an entirely different way, but -- but, based on the statute we have and the two competing interpretations that are in front of the Court, our interpretation is textually sound when you read the phrase "statutory penalties" in context, and that's the fundamental flaw with amicus's theory. JUSTICE KAVANAUGH:  And your in Heritage Reporting Corporation 
1 2 3 4   5   6 7   8   9   10  11  12  13  14  15  16  17 18  19  20  21  22  23  24  25  27 Official - Subject to Final Review context point, I think, ultimately rests on this idea that sentencing judges will be affected, as you put it, I think, by changing from four-fifths of the mandatory minimum amount to four-twenty-eighths of the mandatory minimum amount.  Is that one of the things you're relying on? MR. ADLER:  That -- that is the background of how discretionary sentencing worked under 3553(a).  What I mean in context, I mean the actual statutory language, reading it in context, because Section 2 didn't modify any sentencing ranges. So, if Congress was drafting Section 404, it would have had the statute book open to Section 2.  It would have looked to see what Section 2 actually did, and all it did was raise these two crack quantities from 5 to 28 to 50 to 280 in two particular statutes, 841(b) and 960(b).  So then Congress would have opened the statute book to those statutes, and the first thing it would have seen was a heading entitled "Penalties."  It would have done the same thing for Section 3 when seeing the same thing, "Penalties." Heritage Reporting Corporation 
1   2   3 4   5 6 7   8   9 10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  28Official - Subject to Final Review And so the "statutory penalties" language is just a shorthand reference for the penalty statutes at peril. JUSTICE KAVANAUGH:  Don't you think someone would have, though, after about 10 minutes said, well, what about those (C) offenders? MR. ADLER:  No, Justice Kavanaugh, because all Congress was doing here was trying to make Sections 2 and 3 retroactive for everyone sentenced under the 100-to-  1 regime. It wasn't sort of slicing and dicing up subcategories of crack offenders. JUSTICE KAVANAUGH:  Thank you. CHIEF JUSTICE ROBERTS:  Justice Barrett. JUSTICE BARRETT:  So, Mr. Adler, let me just pick up right there.  Is your position essentially then that "penalty" is kind of a shorthand that pulls in -- and Justice Kavanaugh alluded to this -- everyone who was sentenced under the prior crack cocaine disparity? MR. ADLER:  Yes.  Yes, Your Honor, that is our position. JUSTICE BARRETT:  That seems pretty Heritage Reporting Corporation 
1 2   3   4 5   6   7 8 9 10  11  12  13  14 15 16  17 18 19  20  21  22 23  24  25  78 Official - Subject to Final Review or another Schedule I or II controlled substance. JUSTICE BARRETT:  So there's nobody really who's left out in the cold? MR. MORTARA:  There is nobody who's left out in the cold.  I would say -- I would say the only person left out in the cold would be someone who would like to take a benefit of the First Step Act's change to the statutory recidivism enhancement but is left out in the cold because Congress did not make that change fully retroactive. JUSTICE BARRETT:  So, when you say --to make sure that we're understanding the same thing, when I say "left out in the cold," I mean nobody who could have benefited even from the shift in the benchmarks, you know, that we've been discussing, the practical effect on the sentencing judge. Are -- are you taking that into account, so there's nobody who could have even been resentenced and perhaps taken the --advantage of the benchmarks? MR. MORTARA:  Well, to the extent that someone believes that this anchoring effect Heritage Reporting Corporation 
1 2   3 4   5 6   7   8   9   10  11    12  13  14  15  16  17  18  19  20  21  22 23  24  25  79 Official - Subject to Final Review exists and that it was real, they, if they're (C) offenders, are -- are indeed, as you put it, left out in the cold because Congress used the phrase "statutory penalties," not penalties imposed because of anchoring effects that may not even exist. JUSTICE BARRETT:  And that's true even if they were career offenders?  And --MR. MORTARA:  Correct. JUSTICE BARRETT:  --and I guess, like -- and --and they're people who didn't have the opportunity to be resentenced when the sentencing guidelines were amended and given retroactive effect initially? MR. MORTARA:  Those would be people like Mr. Terry, career offenders, yes. JUSTICE BARRETT:  Okay.  And is there any distinction between your position and the position of the Third Circuit in United States versus Birt? MR. MORTARA:  I think, at the end of the day, no, because the categorical conclusions are the same.  There was some slight difference in logic that is not relevant. JUSTICE BARRETT:  Okay.  Thank you, Heritage Reporting Corporation 
1   2   3 4   5   6   7   8   9 10  11  12  13  14  15  16  17  18              19  20  21  22 23 24    25  80Official - Subject to Final Review Mr. Mortara. CHIEF JUSTICE ROBERTS:  Do any of my colleagues have further questions for the amicus? In that case, Mr. Mortara, a minute to wrap up. MR. MORTARA:  I will sum up with the Court's words from last Thursday in Niz-Chavez. "A rational Congress could reach the policy judgment the statutory text suggests it did; and no amount of policy-talk can overcome a plain statutory command." I have nothing further. CHIEF JUSTICE ROBERTS:  Thank you, counsel. Mr. Adler, rebuttal? REBUTTAL ARGUMENT OF ANDREW L. ADLER ON BEHALF OF THE PETITIONER MR. ADLER:  Thank you, Mr. Chief Justice. So let's talk about the text.  There are several additional problems with amicus's textual interpretation that haven't been brought up today. First, he's effectively requiring this Heritage Reporting Corporation 
1   2 3 4 5 6   7   8   9   10  11  12  13  14  15  16  17  18 19 20  21  22  23  24  25  81Official - Subject to Final Review Court to insert the word "effectively" before the word "modified."  Because Section 2 didn't change the ranges, that --he's asking the Court to say that it effectively modified the ranges, and that's just not part of the statute. Second, his interpretation is inconsistent with the past tense "were modified."  His argument depends on defining the violation as a pre-Section 2 50-and 5-gram offense, but no statutory penalties for those offenses were modified by Section 2 because the Fair Sentencing Act applied only prospectively. So his -- his interpretation is inconsistent with the past tense. Finally, something that occurred to me, his interpretation would categorically exclude all pre-Apprendi offenders because none of them had 5 or 50 grams as an element of their offense when they were convicted, and there have been 2- to 300 pre-Apprendi offenders who have obtained relief under Section 404, and they would have all been excluded under amicus's view. Finally, amicus referred several times to Dorsey and at one point said that our Heritage Reporting Corporation 
1 2   3   4 5 6 7 8 9 10  11 12  13  14  15  16 17 18 19  20  21  22  23  24 25  82 Official - Subject to Final Review interpretation of the language would sort of do violence to the English language.  Well, I'd refer the Court to Justice Scalia's dissent in Dorsey, and he repeatedly used the phrase "statutory penalties" to refer to something other than a sentencing range, just as the Commission did for the eight years leading up to Section 404.  And I think Justice Scalia had a pretty good grasp of the English language. Second, on the history, amicus really did not say anything at all about the Sentencing Commission.  And all we're saying here is that Section 404, like all other statutes, must be interpreted in light of the historical context in which it was enacted.  And Section 404 was just the latest part of an ongoing dialogue between Congress and the Commission, so it would be improper to read 404 in isolation from that context. On the career offender point, that's just a red herring in this case.  There are (A) and (B) offenders that were also career offenders and they were fully eligible for relief under Section 404.  So that cannot be a basis for excluding (b)(1)(C) offenders. Heritage Reporting Corporation 
1   2 3   4   5   6   7   8   9   10  11  12 13 14 15  16  17  18  19  20  21  22  23  24  25  83Official - Subject to Final Review And career offenders, the only reason that they are different here is because their guideline range was not determined by the 100-to-1 ratio.  But, as we've explained throughout, the 100-to-1 ratio had the potential to affect them nonetheless through the 3553(a) calculus.  And downward variances are commonplace under Section 404 for career offenders. And, finally, in response to the Chief Justice on why would Congress do this, this Court looks to the text, of course, and that's paramount, but, at the same time, the Court doesn't interpret statutes in a way that makes no sense.  And -- and all my friend could say was, well, there were people that received a mandatory minimum penalty.  That would be a handful of people. So that's just an implausible interpretation.  Section 404 covers all offenders who were sentenced under the ratio. That -- the purpose was to ensure that everyone sentenced has the opportunity to seek a reduced sentence under Section 2.  That includes the kingpins and it includes the low-level dealers Heritage Reporting Corporation 
1   2   3   4   5   6 7 8   9   10  11  12  1314151617181920212223242584Official - Subject to Final Review  under (b)(1)(C). The judgment below should be reversed. CHIEF JUSTICE ROBERTS:  Thank you, Mr. Adler. Mr. Mortara, this Court appointed you to brief and argue this case as an amicus curiae in support of the judgment below.  You have ably discharged that responsibility, for which we are grateful. The case is submitted. (Whereupon, at 11:23 a.m., the case was submitted.) Heritage Reporting Corporation 
Official - Subject to Final Review 85$ 404[29] 4:13 5:14 6:1,21,23 7:1,5,10 18:17 21:9 22:13, account[3] 41:24 49:15 78:21 18 73:12 almost[2] 25:25 56:24 13 4:4,7 14:4 19:12 21:21 30:14 32:23 33:4 39:1 47: $50[1] 68:5 21 23:1,8 27:15 29:12 32: accurately[1] 11:24 already[6] 23:2,7,24 32:13   19 54:13 62:24 67:17 69: 1 6 33:7 42:23 45:25 54:6 Act[47] 6:9 8:2 15:15,23 19:  45:16 50:12 12 70:19,22 80:17 81:8 1[2] 12:2 64:16 81:21 82:8,13,15,18,24 83: 16,23 20:1,5,6 29:18 37:17 altered[1] 75:18 arguments[3] 51:11,12 10[2] 28:5 69:18 8,20 44:2,6 46:22 50:10 52:24, although[4] 37:7 40:12 51:  60:14 10-year[4] 13:23 32:2 55: 404(a[8] 7:18 10:3,5 20:24   25 53:15,16 55:5,8,22 56: 22 53:4 armed[1] 8:10 15 70:7 54:19,24 60:2 77:18 25 57:17,22 58:1,14 59:21 ambiguous[5] 20:15 52: around[6] 12:3 25:13 26: 10:00[2] 1:15 4:2 404(b[5] 66:18 67:8 68:11 61:24,24 64:5 66:9,19,20 23 73:3 74:23 75:23 11 33:12 35:22 62:12 100[3] 12:2 45:12 64:25 71:21,25 67:10,15,17 68:12 69:3 71: ambit[1] 55:5 aside[2] 63:7,8 100-to-1[13] 6:2 13:12 22: 404(c[4] 22:24 31:10,13 32: 14 72:15 75:7,13,19 76:2 amended[7] 8:17 18:8,12 aspect[1] 23:17 15 23:12 28:11 31:21 32:7 13 77:9 81:12 26:15 37:9,13 79:13 assessed[1] 13:18 34:25 53:18 74:5,7 83:4,5 4B[1] 40:5 Act's[1] 78:9 Amendment[7] 8:11,15, Assistant[1] 2:3 11:23[1] 84:11 5 active[1] 66:21 21 9:2 36:18 42:11 56:23 Assume[2] 38:25 73:13 13[1] 67:12 14[1] 67:12 15[2] 49:3 69:19 19[1] 73:21 1986[1] 73:21 5[18] 8:21 13:22 17:11 19: 15,24 20:1,19 27:18 31:7 43:17 51:4,17 52:10 59:5, 5,8 69:19 81:18 5-gram[2] 54:2 81:9 actual[1] 27:11 actually[11] 9:25 10:7 11: 15 22:4 27:17 51:24 61:13 62:24 69:16 70:11 75:10 ADAM[3] 2:9 3:10 54:13 additional[2] 24:17 80:22 amendments[3] 8:9 29: 13,15 amicus[14] 2:10 3:11 5:3 16:2 26:12,16 33:6 50:7 54:14 67:16 80:4 81:24 82: 10 84:6 assuming[1] 36:1 atextual[1] 58:18 attempting[1] 13:25 August[5] 22:20 23:5,6 55: 12,25 AUSA[2] 63:20,21 2 5.1[1] 20:10 address[3] 33:3 54:25 62: amicus's[5] 5:18 26:24 42: available[2] 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ANDREW[5] 2:3 3:3,14 4: b)(1)(C[17] 4:12,19,22,24, 20-5904[1] 4:4 748[1] 29:13 19 22:7 24:7 25:6,10 26:5   7 80:17 25 5:8,13 7:7 8:6 16:18 18: 200[2] 45:12 52:11 750[5] 8:11,15,21 9:2 29: 27:8 28:8,17,23 29:7,20 anomalies[1] 6:1 9 22:9 24:11 32:15 77:12 2008[3] 25:9 55:13,24 14 30:6,9,21 31:16,18,19 49: another[4] 48:13,18 67:18 82:25 84:1 2010[9] 9:12,14 10:25 22: 759[1] 29:14 17 80:16,17,19 84:4 78:1 back[8] 12:5 22:12 25:8 20 23:5,7 55:13,24 56:1 2015[2] 29:17 40:25 8 Adler's[1] 50:25 administration[1] 68:13 answer[2] 17:3 75:1 anybody[1] 12:4 36:25 45:18 46:6,18 74:12 background[1] 27:9 2016[1] 24:20 80[1] 3:15 administrations[2] 34:3, anyone's[1] 32:8 ballpark[1] 25:11 2021[1] 1:11 841[4] 7:21 16:20 25:21 26: 4 anyway[1] 38:21 bank[1] 16:25 206[1] 57:18 6 admit[1] 64:22 apart[1] 41:23 Barrett[23] 28:16,17,25 29: 28[8] 8:22 17:13 27:18 31: 841(a[1] 16:17 adopt[1] 60:20 APPEARANCES[1] 2:1 7,19 30:6,8,10,21 31:15 51: 7 43:19 51:2 59:10 74:21 841(b[3] 10:9 27:19 60:23 advantage[2] 77:13 78:23 appears[2] 35:20 37:11 8,9 52:6,17 53:9 76:21,22 28-gram[1] 54:1 841(b)(1)(A[2] 57:14 61: adversary[2] 20:15,16 application[1] 62:3 78:3,13 79:7,10,17,25 280[3] 8:22 27:19 31:7 23 adversary's[1] 20:7 applied[4] 22:19 39:25 40: based[3] 26:19 46:10 71: 3 841(b)(1)(B[1] 55:14 841(b)(1)(C[4] 17:8 55:5, advocating[3] 34:18 35: 23 44:20 8 81:12 applies[1] 34:6 22 basic[2] 56:4 59:4 3[17] 6:16,21 7:20 10:11,17 19 77:19 affect[3] 24:13 48:22 83:6 apply[5] 8:2 16:2 30:22 58: basically[2] 35:22 47:16 15:15,23 22:20 23:5,6 26: 844(a[2] 10:12,13 affected[11] 13:12,14,15 11,20 basis[2] 24:10 82:25 7 27:24 28:10 55:8,25 66: 20 67:10 3.9[1] 25:7 30[1] 12:11 30-year[1] 39:11 9 9[1] 42:18 960[1] 7:22 960(b[2] 10:10 27:20 14:10 21:3 23:14 27:2 31: 22,23 34:24 48:7 ago[2] 62:18,21 agree[8] 14:19 16:1,4,12, 16,22,23 71:10 applying[1] 13:5 appointed[1] 84:5 approach[4] 47:25 60:25 72:4,7 approved[2] 5:10 29:14 Bates[2] 67:11 68:16 become[1] 62:4 behalf[8] 2:4,7 3:4,7,15 4: 8 32:24 80:18 behavior[1] 65:11 300[1] 81:20 A agrees[4] 4:11 22:22 33:7 area[3] 73:23,25 74:1 believe[2] 16:23 44:16 32[1] 3:8 A)'s[1] 48:1 50:7 areas[1] 42:20 believed[1] 11:16 34[3] 12:17 39:14,15 a.m[3] 1:15 4:2 84:11 Alito[24] 15:20,21 16:1,6, aren't[3] 33:17 47:12 64:9 believes[1] 78:25 35[1] 74:10 ably[1] 84:7 13,19,24 17:20,22 18:2,11, argue[5] 6:10 55:4 65:8 66: below[7] 2:10 3:12 44:11 3553(a[5] 11:14 13:17 27: above[7] 20:10 44:11,12 15,21 19:5 29:2 41:25 42: 10 84:6 51:16 54:15 84:2,7 10 31:24 83:6 66:6,7 68:19,20 1,24 43:9,20 46:19 65:14, argued[2] 62:5 65:8 benchmark[1] 30:15 4 4[3] 1:11 3:4 11:7 40[1] 19:15 above-entitled[1] 1:13 abundantly[1] 31:11 accepting[1] 59:25 accomplish[1] 34:21 15,23 allow[1] 42:17 allows[1] 53:18 alluded[4] 24:15 28:21 62: argues[1] 5:3 arguing[4] 47:8,17 60:11 62:17 argument[23] 1:14 3:2,5,9, benchmarks[13] 4:25 6:6 8:19 11:5 21:5 22:17 23:4, 14 30:18 32:11 76:25 78: 17,23 Heritage Reporting Corporation Sheet 1 $50 - benchmarks