DILLON v. UNITED STATES
No. 09-6338
SUPREME COURT OF THE UNITED STATES
Argued March 30, 2010—Decided June 17, 2010
560 U.S. 817
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, and BREYER,
Lisa B. Freeland argued the cause for petitioner. With her on the briefs were Renee D. Pietropaolo, Michael J. Novara, and Peter R. Moyers.
Leondra R. Kruger argued the cause for the United States. With her on the brief were Solicitor General Kagan, Assistant Attorney General Breuer, Deputy Solicitor General Dreeben, and Deborah Watson.*
JUSTICE SOTOMAYOR delivered the opinion of the Court.
A federal court generally “may not modify a term of imprisonment once it has been imposed.”
I
The Sentencing Reform Act of 1984 (SRA or Act), 98 Stat. 1987, established the Sentencing Commission and authorized it to promulgate Sentencing Guidelines and to issue policy statements regarding the Guidelines’ application. See
As enacted, the SRA made the Sentencing Guidelines binding. See Booker, 543 U. S., at 233-234. Except in limited circumstances, district courts lacked discretion to depart from the Guidelines range. See Burns v. United States, 501 U. S. 129, 133 (1991). Under that regime, facts found by a judge by a preponderance of the evidence often increased the mandatory Guidelines range and permitted the judge to impose a sentence greater than that supported by the facts established by the jury verdict or guilty plea. See Booker, 543 U. S., at 235. We held in Booker that treating the Guidelines as mandatory in these circumstances violated
To remedy the constitutional problem, we rendered the Guidelines advisory by invalidating two provisions of the SRA:
With respect to drug-trafficking offenses, the Sentencing Guidelines establish a defendant‘s base offense level according to the type and weight of the drug. See USSG §§2D1.1(a), (c). When the Commission first promulgated the Guidelines in 1987, it adopted the 100-to-1 ratio selected by Congress in setting mandatory minimum sentences in the Anti-Drug Abuse Act of 1986, 100 Stat. 3207. Under that framework, the Commission “treated every gram of crack cocaine as the equivalent of 100 grams of powder cocaine.” Kimbrough v. United States, 552 U. S. 85, 96 (2007). The Commission later sought to alleviate the disparity produced by this ratio. After several failed attempts at reform, see id., at 99, the Commission in 2007 amended the Guidelines to reduce by two levels the base offense level associated with each quantity of crack cocaine. See USSG Supp. App. C, Amdt. 706 (effective Nov. 1, 2007). In 2008, the Commission made that amendment retroactive. See id., Amdt. 713 (effective Mar. 3, 2008).
When the Commission makes a Guidelines amendment retroactive,
Under
II
A jury convicted petitioner Percy Dillon in 1993 of conspiracy to distribute and to possess with the intent to distribute more than 500 grams of powder cocaine and more than 50 grams of crack cocaine in violation of
At sentencing, the District Court made additional findings of fact and concluded that Dillon was responsible for 1.5 kilograms of crack and 1.6 kilograms of powder cocaine. Under USSG § 2D1.1, those drug quantities produced a base offense level of 38. After offsetting adjustments for acceptance of responsibility, §3E1.1, and reckless endangerment during flight, §3C1.2, Dillon‘s total offense level remained 38. Coupled with a criminal-history category of II,3 that offense level produced a then-mandatory Guidelines range of 262 to 327 months’ imprisonment for the drug counts.
The court sentenced Dillon at the bottom of the Guidelines range for those counts, followed by a mandatory 60-month sentence for the firearm count, for a total sentence of 322 months’ imprisonment. At Dillon‘s sentencing, the court described the term of imprisonment as “entirely too high for the crime [Dillon] committed.” App. 13. Perceiving no basis for departing from the then-mandatory Sentencing Guidelines, the District Court felt constrained to impose a sentence within the prescribed range. The Court of Appeals for the Third Circuit affirmed Dillon‘s convictions and sentence on appeal. See 100 F. 3d 949 (1996).
After the Sentencing Commission made the amendment to the crack-cocaine Guidelines retroactive in 2008, Dillon filed a pro se motion for a sentence reduction pursuant to
The District Court reduced Dillon‘s sentence to 270 months—the term at the bottom of the revised Guidelines range.4 But the court declined to go further. Concluding
The Third Circuit affirmed. 572 F. 3d 146, 150 (2009). The court noted that
We granted certiorari to consider Booker‘s applicability to
III
A
“[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment” and may not be modified by a district court except in limited circumstances.
Characterizing proceedings under
The language of
The substantial role Congress gave the Commission with respect to sentence-modification proceedings further supports this conclusion. The SRA charges the Commission both with deciding whether to amend the Guidelines,
Read in this context,
Following this two-step approach, a district court proceeding under
Consistent with the limited nature of
At step two of the inquiry,
This understanding of
Federal Rule of Criminal Procedure 43 requires that a defendant be present at “sentencing,” see Rule 43(a)(3), but it excludes from that requirement proceedings that “involv[e] the correction or reduction of sentence under Rule 35 or
B
Given the limited scope and purpose of
Viewed that way, proceedings under
This argument is unpersuasive. The incomplete remedy we rejected in Booker would have required courts to treat the Guidelines differently in similar proceedings, leading potentially to unfair results and considerable administrative
challenges. See 543 U. S., at 266. As already explained, the sentence-modification proceedings authorized by
The dissent‘s contrary conclusion rests on two erroneous premises. First, the dissent ignores the fundamental differences between sentencing and sentence-modification proceedings and asserts without explanation that “[n]othing turns on” the distinction between them. Post, at 841. For the reasons stated above, the statutory differences between the proceedings are highly significant.
Second, the dissent gives short shrift to the fact that, after Booker, the Commission retains at least some authority to bind the courts. Through
For all of these reasons, we conclude that neither Booker‘s constitutional nor remedial holding requires the result that Dillon urges.
IV
Dillon additionally contends that thе District Court erred in failing to correct
Dillon‘s arguments in this regard are premised on the same misunderstanding of the scope of
*
*
*
For the foregoing reasons, the judgment of the Court of Appeals is
Affirmed.
JUSTICE ALITO took no part in the decision of this case.
JUSTICE STEVENS, dissenting.
When sentencing petitioner Percy Dillon for crack-cocaine-related offenses in 1993, the District Court stated that the punishment Dillon received was “entirely too high for the crime [he] committed.” App. 13. Bound by a sentencing regime that was mandatory at the time, the judge had no choice but to sentence Dillon to 322 months of imprisonment—nearly 27 years behind bars. The judge later explained that, were it within his discretion, he would have sentenced Dillon to five years of imprisonment. Id., at 62. Had Dillon been sentenced after our decision in United States v. Booker, 543 U. S. 220 (2005), the judge would have had substantially more discretion. Instead, the District Court was compelled to mete out a punishment that it believed to be grossly disproportionate to the offense and, therefore, “greater than necessary” to meet the goals of our criminal justice system,
The punishment Dillon received was so high, in part, because at the time of his conviction our drug laws punished crack cocaine offenses 100 times more severely than powder cocaine offenses. In 2007, as the Court explains, see ante, at 821, the United States Sentencing Cоmmission proposed a partial fix to this disparity, lowering its Guidelines Manual1 ranges for crack cocaine offenses to as high as a 20:1 ratio. See United States Sentencing Commission, Guidelines Manual Supp. App. C, Amdt. 706 (Nov. 2009) (USSG) (effective Nov. 1, 2007). Pursuant to its congressional
Although Dillon does not have a constitutional right to obtain the benefit of the Commission‘s change, it is undisputed that he has a statutory right to do so. Under
In his
Today, the Court holds that in this one limited nook of sentencing law, the Commission retains the power to bind judges that we struck down in Booker. In my view, the Court‘s decision to treat the Commission‘s policy statement as a mandatory command rather than an advisory recommendation is unfaithful to Booker. It is also on dubious constitutional footing, as it permits the Commission to exercise a barely constrained form of lawmaking authority. And it is manifestly unjust. I would therefore hold that in the context of a
I
Although I did not join JUSTICE BREYER‘s remedial opinion for the Court in Booker, it is nevertheless clear to me that its scope applies to
As an initial matter, it is of no moment that the Booker Court did not excise any portion of
virtue of Commission decree. See
As a matter of textual analysis, divorced from judicial precedent, it is certainly reasonable for the Court to find that the Commission can set mandatory limits on sentence reductions under
It is useful to put Booker in context. During the deliberations that led to the enactment of the Sentencing Reform Act of 1984,
While we resolved that constitutional debate in the Commission‘s favor in Mistretta, it became apparent during the next two decades that the mandatory character of the Guidelines, coupled with the practice of judicial factfinding, not only produced a host of excessively severe sentences but also created an unacceptable risk of depriving defendants of long-settled constitutional protections. See, e. g., Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) (holding that “[o]ther thаn the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt“); Ring v. Arizona, 536 U. S. 584, 602 (2002) (holding that “[i]f a State makes an increase in a defendant‘s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt“); Blakely v. Washington, 542 U. S. 296, 304 (2004) (holding that “[w]hen a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority” (citation omitted)).
The Booker Court considered whether the Sentencing Reform Act‘s mandatory determinate sentencing sсheme infringed the jury-trial right. In the first of two opinions, we held that the two applications of the Guidelines before us violated the Sixth Amendment because the sentencing judge in each case imposed a more severe sentence than the facts found by the jury warranted. 543 U. S., at 235. We recognized that if the Guidelines “could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amend-
ment.” Id., at 233. But we rejected such an advisory reading of the Guidelines, as they then stood. Id., at 234. To satisfy constitutional guarantees, we explained that any fact that has the effect of increasing the mandatory range must be “established by a plea of guilty or . . . must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id., at 244. Otherwise, the sentence would violate the
In light of the potential for mandatory Guidelines sentences to violate the Constitution, the Court had to elect among possible remedies. As I explained in my dissent from the Court‘s second Booker opinion (the remedial one), there was no need to find any constitutional infirmity in any provision of the Sentencing Reform Act to provide relief for the defendants in Booker, or to apply the Guidelines in a mandatory fashion in future cases—so long as juries were allowed to decide the factual issues raised by requests for enhanced sentences. See id., at 272-303 (opinion dissenting in part). Notwithstanding the fact that the Court could have retained the Guidelines’ mandatory prescriptive effect in a manner consonant with the jury-trial right, the Court nevertheless adopted a broad remedy that recast the Guidelines in their entirety.
That change did not respond to a determination that the mandatory Guidelines regime itself violated the
The Court openly acknowledged this methodology:
“In essence, in what follows, we explain both (1) why Congress would likely have preferred the total invalidation of the Act to an Act with the Court‘s Sixth Amendment requirement engrafted onto it, and (2) why Congress would likely have preferred the excision of some of the Act, namely the Act‘s mandatory language, to the invalidation of the entire Act. That is to say, in light of today‘s holding, we compare maintaining the Act as written with jury factfinding added (the dissenters’ proposed remedy) to the total invalidation of the statute, and conclude that Congress would have preferred the latter. We then compare our own remedy to the total invalidation of the statute, and conclude that Congress would have preferred our remedy.” 543 U.S., at 249.
Thus, rather than “maintaining the Act as written with jury factfinding added,” ibid., the Court opted to alter the Commission‘s power in a more fundamental way: It did away with a fixed, determinate sentencing regime based on mandatory Guidelines. Henceforth the Commission would guide and advise federal courts in thе exercise of their sentencing authority. But the Commission would not bind.
The Court held as follows:
“We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory,
18 U.S.C. § 3553(b)(1) (Supp. IV), incompatible with today‘s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section,§ 3742(e) (2000 ed. and Supp. IV), which depends upon the Guidelines’ mandatory nature. So modified, the federal sentencing statute, see Sentencing Reform Act of 1984 (Sentencing Act), as amended,18 U.S.C. § 3551 et seq.,28 U.S.C. § 991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see18 U.S.C. § 3553(a)(4) (Supp. IV), but it permits the court to tailor the sentence in light of other statutory concerns as well, see§ 3553(a) .” Id., at 245-246.
The only fair way to read the Booker majority‘s remedy is that it eliminated the mandatory features of the Guidelines—all of them.4 It is true that the Court explicitly severed only two specific statutory sections. But there was not, at the time, even a whisper of a suggestion that any other mandatory provision existed or that any should be preserved.5
In light of this history, the limited nature of the
Approaching this case as the Booker Court did, one must ask whether it is likely that a fully informed Congress would have created this kind of Commission: one endowed with vast responsibilities for drafting advisory Guidelines and policy statements, but also with the tiniest sliver of lawmaking power to tie the hands of a district court‘s exercise of grace under
II
My understanding of the scope of the Booker remedy is reinforced by an additional consideration: The Commission‘s policy statement, to which the Court today allows binding effect, may exceed the scope of the Commission‘s powers. No one disputes that Congress could have rejected the Court‘s remedial holding in Booker if it so wished. Instead, it is the Commission that has rejected Booker‘s application to
We have been quite permissive of congressional delegations in our separation-of-powers jurisprudence. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.‘” Mistretta, 488 U.S., at 372 (quoting J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)). Few legislative actions have been found to offend this principle. 488 U.S., at 373.
More than 20 years ago, the Court upheld the constitutionality of the Commission‘s work from just such an attack in Mistretta. We took sanctuary then in the fact that, in enacting the Sentencing Reform Act and creating the Commission, Congress had “se[t] forth more than merely an ‘intelligible principle’ or minimal standar[d]” for the exercise of the Commission‘s discretion, and had “explain[ed] what the Commission should do and how it should do it, and se[t] out specific directives to govern particular situations.” Id., at 379. To this end, Congress gave the Commission clear “goals,” id., at 374; specified the “purposes of sentencing,” ibid.; “prescribed the specific tool“—“the guidelines system“—the Commission was to use in its work, ibid.; set limits on the appropriate Guidelines ranges the Commission was to promulgate, id., at 375; and set forth “seven factors” and “11 factors,” respectively, to assist the Commission with “its formulation of offense categories” and its establishment of “categories of defendants” for sentencing purposes, id., at 375-376.
We explained that “although Congress granted the Commission substantial discretion in formulating guidelines, in actuality it legislated a full hierarchy of punishment—from near maximum imprisonment, to substantial imprisonment, to some imprisonment, to alternatives—and stipulated the most important offense and offender characteristics to place defendants within these categories.” Id., at 377. There was, accordingly, no “concern of encroachment and aggrandizement that has animated our separation-of-powers jurisprudence and
JUSTICE SCALIA disagreed. He argued forcefully that Congress’ creation of the Commission was itself “a pure delegation of legislative power” and therefore an abuse of separation of powers. 488 U.S., at 420 (dissenting opinion). “Congress’ commitment of such broad policy responsibility to any institution,” in JUSTICE SCALIA‘s view, violated a core principle of our governing system: that “basic policy decisions governing society are to be made by the Legislature.” Id., at 415.
Although we acknowledged in Mistretta that Congress had permissibly granted substantial powers to the Commission to set law and policy on sentencing generally, we had no occasion to consider whether it had spoken with sufficient clarity respecting the Commission‘s authority to prescribe sentence reductions. That question has now reared its head, and in my view it raises separation-of-powers concerns significantly more difficult than those presented in Mistretta.
First, I am doubtful that Congress authorized the type of “policy statement” we find in USSG §1B1.10. Congress instructed the Commission to promulgate “general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a) (2) of title 18 . . . including the appropriate use of,” inter alia, various “sentence modification provisions.”
Given that distinction, it is significant that Congress elected to use the Commission‘s policy-statement power to set limitations on the sentencing modification procedures, rather than invoking the Commission‘s Guidelines power. The Commission is now trying to use a policy statement to have the mandatory effect of a guideline—inverting the Sentencing Reform Act‘s original design. I find no provision within
Moreover, not only does nothing in
How to respond to Booker, and whether to retain mandatory Guidelines, was a decision for Congress and Congress alone. Booker expressly left “[t]he ball” “in Congress’ court,” explaining that “[t]he National Legislature is equipped to devise and install, long term, the sentencing sys-tem, cоmpatible with the Constitution, that Congress judges best for the federal system of justice.” 543 U.S., at 265; see also supra, at 834-835. That Congress has declined to disturb Booker in the five years since its issuance demonstrates not only that JUSTICE BREYER is more clairvoyant than I am, but also that Congress has acquiesced to a discretionary Guidelines regime. Congress’ silence has deprived the Commission of any “intelligible principle[s],” J. W. Hampton, 276 U.S., at 409, by which to steer its consideration of the appropriate response to Booker. And without such guidance, I fear that, in promulgating USSG §1B1.10, the Commission may have made the type of “basic policy decisio[n]” that JUSTICE SCALIA reminded us is the province of the Legislature, Mistretta, 488 U.S., at 415 (dissenting opinion).
Prior to the Commission‘s 2008 overhaul of its policy statement in § 1B1.10—and even under the applicable policy statement in effect when the Court decided Booker—nothing in the Guidelines, see supra, at 834-835, and n. 2, as understood in light of Booker, would have precluded Dillon from obtaining the type of discretionary sentence reduction he now seeks (assuming he was so eligible). Standing in Dillon‘s way presently are two provisions of § 1B1.10, revised contemporaneously with the Commission‘s decision to make its amendments to the crack cocaine offense Guidelines retroactive.
There can be no question that the purpose of the Commission‘s amendments to its policy statement in §1B1.10 was to circumvent the Booker remedy. See Brief for Federal Public and Community Defenders et al. as Amici Curiae 3-9 (describing history of promulgation of current version of §1B1.10). To this end, the Commission disclaimed that proceedings under
Had the Commission taken it upon itself, by issuance of a general policy statement, to make its Guidelines mandatory but subject to jury findings in all cases, we would either strike down such an act on separation-of-powers grounds or apply the same remedy we did in Booker to render the statement advisory. It makes little difference, in my view, that the Commission has only rejected the Booker remedy in this single procedure. The encroachment is the same, if only more subtle. Any legislative response to Booker was a decision for Congress to make—not the Commission.
III
Separate from the arguments noted above, the Court‘s decision tоday may reflect a concern that a contrary holding would discourage the Commission from issuing retroactive amendments to the Guidelines, owing to a fear of burdening the district courts. In what might be described as a subtle threat, the Commission
Even if that explanation were accurate, it should not influence our assessment of the legal question before us. The Commission has a statutory obligation to review and amend Guidelines ranges.
Undoubtedly, discretionary application of the Guidelines in
The facts of Dillon‘s case show why any additional burden on the courts caused by applying Booker‘s remedial holding likely pales in comparison to the benefit of achieving more tailored, proportionate sentences for those individuals currently serving terms of imprisonment that exceed what is “necessary” to meet the goals of our sentencing system,
But the District Court, constrained by thе then-mandatory Guidelines, increased Dillon‘s sentence based on judge-found facts by more than 10 years over the sentence authorized by the jury‘s verdict. See Brief for Petitioner 2, and n. 2. The court could only lament: “I personally don‘t believe that you should be serving 322 months. But I feel I am bound by those Guidelines and I don‘t feel there is any grounds for . . . depart[ing] from those Guidelines.” App. 12-13. The court acknowledged: “I don‘t say to you that these penalties are fair. I don‘t think they are fair.” Id., at 13. The court also implored Dillon to make something of the hand he had dealt himself: “I hope that while you are in prison . . . that you will take some time to consider the direction that your life will take when you do return to society. . . . It is only through people like you if you spread the word that other young men of your age will hesitate to get involved in [dealing drugs].” Ibid.
Dillon has done just that. He has participated in outreach efforts in the communities in which he has been imprisoned, doing extensive work with adolescents to steer them away from a life of drugs and crime. Brief for Petitioner 5-6. Working with two universities, he has facilitated the initiation of an African-American Studies prоgram at Hunters Point Family, a bay area organization devoted to assisting at-risk youth. He has also played a large role in initiating a similar program at his prison facility. Berkeley‘s Prison Outreach Coordinator stated to the District Court that “without [Dillon‘s] insight and advice, our project would not have succeeded and grown the way it has.” Id., at 6 (internal quotation marks omitted). Dillon has also prepared himself for a successful life once he returns to society. He has obtained his general equivalency diploma (GED), taken vocational classes in property management, and has job prospects awaiting him upon release. Id., at 6-7.
The Government concedes that Dillon has undertaken “significant institutional rehabilitation and education.” Brief for United States 11. The Court of Appeals acknowledged that “[i]f Booker did apply in proceedings pursuant to
Given the circumstances of his case, I can scarcely think of a greater waste of this Nation‘s precious resources. Cf. Barber v. Thomas, ante, at 494 (KENNEDY, J., dissenting) (“And if the only way to call attention to the human implications of this case is to speak in terms of economics, then it should be noted that the Court‘s interpretation comes at a cost to the taxpayers of untold millions of dollars“). Dillon‘s continued imprisonment is a truly sad example of what I have come to view as an exceptionally, and often mindlessly, harsh federal punishment scheme.
IV
Neither the interests of justice nor common sense lends any support to the decision to preserve the single sliver of the Commission‘s lawmaking power that the Court resurrects today. I had thought Booker dismantled the mandatory Guidelines regime. The Court ought to finish the job.
I respectfully dissent.
Notes
advisory
while maintaining a strong connection between the sentence imposed and the offender‘s real conduct—a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve” (emphasis added)); id., at 254 (“Congress would have preferred no mandatory system to the system the dissenters envisage“); id., at 264 (“Finally, the Act without its ‘mandatory’ provision and related language remains consistent with Congress’ initial and basic sentencing intent. . . . The system remaining after excision, while lacking the mandatory features that Congress enacted, retains other features that help to further these objectives” (emphasis added)); ibid. (“The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing” (emphasis added)).I also cannot accept the Court‘s broad understanding of the power the Commission derives from