Concurrence Opinion
concurring:
Surratt has received the relief from life imprisonment he was seeking in this case and more. He is also no longer serving a judicially imposed sentence, but a presi-dentially commuted one. The President’s commutation order simply closes the judicial door. Absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.
It matters not whether we believe the commutation was too lenient or not lenient enough. We are simply without power to inject ourselves into the lawful act of a coordinate branch of government — one that Surratt willingly agreed to — and supersede a presidential pardon or commuta
My dissenting colleague’s unwillingness to find moot even this clear-cut a case points to a broader problem affecting our criminal justice system. Insofar as I can detect, there is no such thing as finality in my dissenting colleague’s view. Indeed, the principle of finality is not even paid the lip service that presages disregard. Some reason is somehow always found for a case to go on and on and on. To so freely revisit final judgments, as my dissenting colleague would, is to embark on a course that is so vague and so open-ended as to render criminal judgments entirely provisional and good for one day only.
While my dissenting colleague alleges that Surratt’s initial sentence was “unlawful,” it was indisputably lawful when entered and the correctness of the sentence has divided judges ever since. Let it be said that strict sentences always make for hard cases. It is not for pleasure that the system imposes them. But Surratt had been convicted time and time again for drug-related offenses — including distributional felonies — under federal and state law. The President had every right to calibrate his commutation with these considerations in mind, bringing this saga to an end, both merciful and firm.
Dissenting Opinion
dissenting from dismissal:
Thomas Jefferson wrote that “the most sacred of the duties of a government is to do equal and impartial justice to all its citizens.” Those words impart that all citizens, no matter their plight in life, should be accorded justice in our court system. Today’s perfunctory dismissal of Petitioner Raymond Surratt, Jr.’s 10-year effort to obtain a fair and impartial disposition of his case in the federal courts is, if not an outright injustice, at least an abandonment of fairness.
It began when we incorrectly construed 21 U.S.C. § 841(b)(1), the statute pursuant to which Petitioner was sentenced, and thereby subjected Petitioner to a mandatory life sentence, when Congress had established a far shorter mandatory minimum. Then, when Petitioner, with the government’s support, sought collateral relief on grounds that his unlawful life sentence constituted a fundamental defect of constitutional dimension, we actively appointed independent counsel to argue that Petitioner should spend his life in prison. Apparently unsatisfied with the executive branch’s conclusion that Petitioner’s sentence was sufficiently unjust to warrant
And when, in the face of our delay, the President commuted Petitioner’s sentence — partially remedying the error— we, without prompting or request by either party, but actively on our own, suggested to the government that Petitioner’s action was moot. The government got the message, arguing in response to our prompting that (1) Petitioner’s collateral attack is moot and (2) there is no “fundamental defect” in Petitioner’s sentence that warrants collateral relief.
So today, my good colleagues dismiss Petitioner’s action as moot. But if we were to accord Petitioner the relief that even the government concedes is fair by vacating Petitioner’s sentence and remanding for resentencing, Petitioner would likely be released because his time-served exceeds the upper end of his now-applicable Guidelines range. None of us disputes that. And, even under his commuted sentence, today’s dismissal of Petitioner’s action as moot means Petitioner will remain in prison for, at a minimum, several more years. None of us disputes that. It should therefore follow that the disposition of Petitioner’s appeal will likely determine whether Petitioner remains in prison or is released — meaning that Petitioner’s action is not moot because he retains a decidedly “concrete interest” in the resolution of his case. Chafin v. Chafin,
Nonetheless, at least by the expression of one of my colleagues, the majority dismisses Petitioner’s action as moot on the theory that the President’s commutation of Petitioner’s concededly incorrect sentence renders his action a nonjusticiable political question because Petitioner is now serving an executive, as opposed to judicial, sentence. But while the Constitution vests the President with broad pardon and commutation authority, neither it nor the case law establishes that “[t]he President’s commutation order simply closes the judicial door,” as my colleague asserts. Ante at 219. Indeed, the President has no authority to impose a sentence on any citizen; she can only exercise the authority to pardon or commute an existing judicial sentence. And any part of that judicial sentence that remains after commutation remains a sentence imposed by the judiciary, not the executive branch of government. Simply put, the synergism that my colleague seeks to establish that “the whole is greater than the sum of its parts,” may have been apropos in science for Aristotle, but it has no application in law. To the contrary, the part of the sentence that remains after commutation is part of a judicial sentence, not a newly created executive sentence.
My colleague also emphasizes Petitioner’s acceptance of the commutation as grounds for dismissal, stating that it is not our job to question the “bad bargain” Petitioner may have chosen in accepting the commuted sentence. Ante at 220 (quoting Schick,
Finally, my good colleague maintains that we are “simply without power to in
Neither the facts nor the law support this continuing denial of a lawful punishment for Petitioner. With great respect, I must dissent.
I.
In 2005, Petitioner pled guilty to conspiracy to possess with intent to distribute more than 50 grams (1.76 ounces), but less than 150 grams (5.29 ounces), of crack cocaine in violation of the Controlled Substances Act, 21 U.S.C. §§ 841(b)(1), 846. Before sentencing, the government filed an information with Petitioner’s criminal history, which listed three previous North Carolina drug-related convictions. Because Petitioner had conspired to distribute more than 50 grams of crack, Section 841(b)(1)(A) governed his sentence. Id. § 841(b)(1)(A) (2002). Under that provision, Petitioner faced a mandatory minimum term of life imprisonment without release if two or more of those prior convictions constituted “felony drug offenses.” Id. If Petitioner had committed one prior “felony drug offense,” he would have faced a mandatory minimum term of 20 years’ imprisonment. Id. At the time of Petitioner’s conviction, Section 841(b)(1) subjected a drug trafficker dealing in crack cocaine, like Petitioner, to the same mandatory minimum sentence as one dealing in 100 times more powder cocaine. Id. § 841(b)(1)(A), (B). As a result of that 100-to-1 powder-to-crack quantity ratio, if Petitioner had distributed powder cocaine, as opposed to crack cocaine, he would not have faced the mandatory minimum and would have been subject to a statutory maximum of 20 years’ imprisonment. Id. § 841(b)(1)(C).
At the time of Petitioner’s sentencing, we had held that a North Carolina drug conviction qualified as a “felony drug offense” for purposes of Section 841(b)(1) if “the maximum aggravated sentence that [the state court] could [have] imposed for that crime upon a defendant with the worst possible criminal history” exceeded one year. United States v. Harp,
Five years later, in August 2010, Congress enacted the Fair Sentencing Act, which amended Section 841(b)(1) to reduce the disparity between sentences for powder and crack cocaine offenses. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010). In particular, the statute increased to 280 grams (9.88 ounces) the quantity threshold for subjecting crack offenders to the more severe punishments set forth in Section 841(b)(1)(A), thereby reducing the powder-to-crack quantity ratio to 17.9-to-l. 21
Had the powder-to-crack quantity ratio established by the Fair Sentencing Act been in effect at the time of his conviction, Petitioner would have been sentenced under Section 841(b)(1)(B), rather than Section 841(b)(1)(A), because of the Fair Sentencing Act’s revised quantity threshold for receiving the higher mandatory minimums set forth in Section 841(b)(1)(A). 21 U.S.C. § 841(b)(1)(A), (B). Under Section 841(b)(1)(B), Petitioner would face a mandatory minimum term of 10 years’ imprisonment if at least one of his prior convictions constituted a “felony drug offense.” 21 U.S.C. § 841(b)(1)(B).
On August 17, 2011, on en banc review, we expressly overruled Harp in United States v. Simmons,
In August 2012, Petitioner filed a successive habeas petition under 28 U.S.C. §§ 2241 and 2255 seeking relief from his sentence. In particular, Petitioner asserted that, in light of Simmons, his sentence rested on an improper construction of Section 841(b)(1). Commendably, as acknowledged by another of my colleagues, the government agreed that Petitioner was entitled to relief under Section 2241 and supported resentencing. Surratt v. United States, No. 3:12-CV-513,
We agreed, thereby rejecting the government’s argument that Petitioner was entitled to relief under Section 2241. United States v. Surratt,
Petitioner moved for rehearing en banc, which we granted, thereby vacating the panel opinion. On March 23, 2016, we reheard argument on Petitioner’s appeal, and the government continued to argue that Petitioner was entitled to invoke Section 2255’s savings clause and thereby seek relief under Section 2241. See Gov. Supp. Br. at 13 (“An erroneously imposed mandatory minimum sentence is the type of fundamental defect cognizable under the savings clause.”).
On January 19, 2017 — nearly 10 months after the rehearing en banc, and still without a decision from us — the President commuted Petitioner’s life sentence to a 200-month term of imprisonment. Petitioner’s commutation was part of a broader effort by the President to commute the sentences of inmates sentenced in accordance with the severe mandatory mínimums and unjust powder-to-crack quantity ratio applicable under the earlier version of Section 841(b)(1). Sari Horwitz, Obama Grants Final 330 Commutations to Nonviolent Drug Offenders, Wash. Post (Jan. 19, 2017), https://www.washingtonpost.com/ world/national-security/obama-grants-final-330-eommutations-to-nonviolent-drug-offenders/2017/01/19/41506468-de5d-11e6-918c-99ede3c8cafa_story.html?utm_term=. de835df4el64; Ann E. Marimow, N.C. Man Serving Life for Nonviolent Crime Among Hundreds Granted Early Release, Wash. Post (Jan. 25, 2017), https://www. washingtonpost.com/local/public-safety/nc-man-wrongly-given-life-sentence-is-among-hundreds-granted-early-release/2017/01/25/ f4959cd8-e311-11e6-a453-19ec4b3d09ba_ story.html?utm_term=.54519ebcc5c8; Charlie Savage, Obama Commutes Sentences for 8 in Crack Cocaine Cases, N.Y. Times, Dec. 19, 2013, at A1.
Soon after Petitioner accepted the commutation, we sua sponte asked the parties to address whether the commutation mooted Petitioner’s collateral attack on his sentence. Apparently, our request arose from taking judicial notice of the news reports of the President’s action, because neither party supplemented the record before us to provide information on the commutation. Nonetheless, in response to our sua sponte request, the government argues that Petitioner’s action is now moot. Notably — although the government previously took the position that Petitioner was entitled to relief under Section 2241 — in its brief addressing mootness, the government now argues that “[t]here is no ‘fundamental defect’ in [Petitioner’s current sentence, see In re Jones,
II.
A.
The mootness doctrine derives from the Constitution’s limitation on federal judicial authority to “Cases” and “Controversies.” U.S. Const. art. III, § 2; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
Here, there is no dispute that if we vacate Petitioner’s commuted sentence and remand for resentencing, Petitioner will likely face a sentence shorter than that imposed by the commutation. In particular, whereas the President commuted Petitioner’s life sentence to 200 months’ imprisonment, Petitioner’s applicable Guidelines range is 120 to 137 months, less than his time-served. Accordingly, Petitioner has a continuing “concrete interest” — namely, his liberty — in having us vacate his current sentence and remand for resentencing under the applicable Guidelines.
I am not alone in my view that an injustice continues by declaring this matter now moot. Indeed, the Seventh Circuit, the only circuit that appears to have squarely addressed the issue, refused to find mootness in analogous circumstances, holding that a petitioner may collaterally challenge his original sentence, notwithstanding that the challenged sentence was commuted during the course of litigating that collateral challenge, when the commuted sentence exceeds the mandatory minimum the petitioner would face if he prevailed on his collateral challenge. See Simpson v. Battaglia,
Like in Simpson and Madej, the error in Petitioner’s original sentence was of constitutional dimension, as it raised serious separation-of-powers and due process concerns by infringing on Congress’s authority to define crimes and punishments, see United States v. Newbold,
B.
The government nevertheless argues that Petitioner’s appeal is moot for four reasons. First, it maintains that “a federal court has no power to alter a sentence that results from an exercise of the President’s pardon power.” Gov. Resp. at 4; see also id. (“Given this plenary power vested in the President, no other branch may alter the effect of a presidential pardon”). Second, it asserts that the Supreme Court’s decision in Schick v. Reed,
1.
The government maintains that federal courts are without power to review a commuted sentence. Gov. Resp. at 4; see ante at 219. To be sure, the Constitution vests the President with broad pardon and commutation authority. But neither the Constitution nor the ease law establish that “[t]he President’s commutation order simply closes the judicial door,” as my colleague asserts. Ante at 219. On the contrary, the Supreme Court has long held that, in commuting an inmate’s sentence, the President may not impose “conditions which ... in themselves offend the Constitution.” Schick,
Our sister circuits also have recognized that the President’s exercise of his pardon and commutation power does not preclude the beneficiary of the pardon or commutation from lodging a collateral attack against his or her underlying conviction. For example, the First Circuit held that a presidential pardon granted after a petitioner files for relief from his conviction under Section 2255 does not moot the collateral challenge because a “pardon[ ] does not relieve [the petitioner] from all the disabilities of a conviction.” Robson v. United States,
Accordingly, contrary to the government’s unsupported assertion, federal courts are not categorically precluded from collaterally reviewing sentences imposed under the President’s Article II, section 2 powers, and the length of those sentences, in particular. Rather, the relevant question is whether collateral review is appropriate in this case.
Here, against his own discomfort regarding the appropriate sentence for Petitioner’s offense, Judge Conrad sentenced Petitioner to a term of life imprisonment based on what we later found in Simmons to be an error attributable to our decision in Harp. Yet, despite the retroactive application of Simmons and the Fair Sentencing Act, Petitioner is currently serving a sentence that exceeds his applicable Guidelines range. In such circumstances, the separation-of-powers concerns that animate the application of the political question doctrine to presidential pardons and commutations must give way to the judiciary’s independent — and compelling — interest in remedying its errors. That is particularly true when the President’s commutation was targeted at correcting an independent injustice — here, the statutory sentencing framework for crack offenses that Congress and the President have since concluded was unjust and racially biased — attributable to the political branches. “[I]f the Great Writ, which has always been ‘a bulwark against convictions that violate fundamental fairness,’ Engle v. Isaac,
2.
The government also argues, incorrectly, that the Supreme Court’s Schick decision requires dismissal of Petitioner’s collateral attack on his sentence. In 1954, a court martial convicted the petitioner, Schick, of murdering an eight-year-old girl.
Twelve years later, in 1972, the Supreme Court ruled that the death penalty violated the Eighth and Fourteenth Amendments. Furman v. Georgia,
Schick—which does not mention mootness or -justiciability, the theories upon which the government seeks dismissal — is readily distinguishable. As an initial matter, the military justice proceedings giving rise to Schick were meaningfully distinct from the Article III proceedings that gave rise to Petitioner’s conviction and sentence. Notably, because the Constitution expressly vests Congress — and not the federal courts — with authority over military justice matters, courts have long recognized that the availability of ha-beas review of military justice matters is unusually narrow. See, e.g., Burns v. Wilson,
Additionally, the petitioner in Schick filed his collateral challenge to his sentence more than 10 years after his sentence was commuted. By contrast, Petitioner filed his habeas petition years before the President commuted his sentence. And whereas the petitioner in Schick was not serving his death sentence when Furman abolished the death penalty, Petitioner was serving his mandatory life sentence when we decided Simmons and made that sentence unlawful. The Schick Court found these distinctions meaningful, emphasizing
3.
Third, the government argues that Petitioner’s collateral challenge is moot because he is no longer serving the sentence that is the subject of his habeas petition. Yet in commuting a sentence, “the executive has superimposed its mind upon the judgment of the court; but the sentence remains, nevertheless, the judgment of the court, and, not of the executive, and is subject to the regulations of law respecting its enforcement.” Duehay v. Thompson,
And even if a commuted sentence did displace an earlier sentence, Petitioner would be entitled to relief because, unlike in Schick, the President determined the duration of the term of Petitioner’s commuted sentence against the backdrop of his original, concededly incorrect, sentence. In particular, the President may have concluded that the 200-month term was appropriate because the district court (wrongly, as we now know) found that Petitioner previously had committed three “felony drug offenses” and therefore deserved harsher punishment. That Petitioner’s commuted sentence exceeds the Guidelines range that was applicable to him at the time of his commutation suggests as much. Because we cannot be sure that Petitioner’s unlawful original sentence did not taint his commuted sentence, Petitioner suffers a continuing injury from that original sentence, an injury that this we can remedy by vacating Petitioner’s commuted sentence and remanding for resen-tencing.
Even if Petitioner’s original sentence did not taint his commuted sentence, the commutation does not foreclose the possibility that Petitioner will be held under his original sentence in the future. When an executive attaches a condition to a pardon or commutation, the pardon or commutation becomes void if the condition is breached. See, e.g., Vitale v. Hunter,
Here, the President conditioned Petitioner’s commutation on his enrollment in a drug rehabilitation program. The materials provided to us by the government regarding Petitioner’s commutation do not establish whether the government has in fact enrolled Petitioner in RDAP. If Petitioner fails to satisfy that condition — or if the government takes the position that Petitioner failed to satisfy that condition, and Petitioner is barred from filing a successive petition to challenge the government’s conclusion on that point — his commutation will be “null and void,” and he will serve out his unlawful life sentence. Id. This possibility, “however small,” is sufficient to give Petitioner a “concrete interest” in having us vacate that original sentence and remand for resentencing. Knox,
4.
Finally, the government maintains that Petitioner’s action is moot because “[b]y accepting the commutation and its conditions, [Petitioner] ‘substituted ... a lesser punishment than the law [had] imposed upon him, and he cannot complain if the law executes the choice he has made.’” Gov. Resp. at 5 (second and third alterations in original) (quoting Ex parte Wells,
A conditional commutation, like the commutation the President offered to Petitioner, is a private contract between the President and the individual to whom it is tendered. United States v. Wilson,
The Supreme Court has long disfavored the inferred or implicit waiver of rights, particularly constitutional rights, in plea agreements or otherwise. See Estelle v.
Here, the President’s Grant of Clemency did not expressly condition the commutation of Petitioner’s original sentence on his waiver of his right to collaterally attack that sentence. Likewise, the Grant of Clemency did not require that Petitioner dismiss the instant case as a condition of the commutation. There also is no evidence that, before accepting the President’s offer of commutation, Petitioner was informed that if he accepted the commutation he would be waiving his right to continue to pursue his challenge to his original sentence and, therefore, foregoing the opportunity to obtain an even shorter sentence than that imposed by the President.
In such circumstances, Petitioner could not have knowingly and voluntarily accepted a waiver of his right to collaterally challenge his sentence as a condition of his commutation. Cf. United States v. Ortiz-Garcia,
IV.
Petitioner’s life sentence resulted from an acknowledged error by us and a sentencing law that Congress — at the public’s behest — concluded was unjust and racially biased. The President’s commutation of Petitioner’s sentence, which was intended to address the unjust sentencing framework established by the previous version of Section 841(b)(1), provided Petitioner with only partial relief. But Petitioner’s commuted sentence, which the President determined against the backdrop of Petitioner’s unlawful original sentence, still exceeds the now-applicable Guidelines range. Notwithstanding its responsibility for (1)
V.
In declaring this matter now moot, after years of delay, we do little to enhance the public’s confidence and trust in the integrity of the judicial process. The sentence that' Raymond Surratt, Jr., a nonviolent drug offender, continues to serve remains a judicial sentence, not a newly created executive sentence. His challenge to that sentence is not moot, and we should no longer delay justice to Mr. Surratt or others like him.
With due regard for my colleagues, I most respectfully dissent.
Notes
. Recall that until we requested briefing regarding whether Petitioner's commutation mooted this action, the government supported resentencing Petitioner, meaning that there was no "concrete” adversity between the parties. There is some irony that, to resolve the lack of concrete adversity between Petitioner and the government, we appointed independent counsel to argue that Petitioner should remain in prison for the rest of his life, yet the majority now dismisses Petitioner’s action on mootness grounds, notwithstanding that we can still provide Petitioner meaningful relief — namely, his release from prison.
. Wells does not address,- much less support, the government’s mootness argument. At issue in Wells was whether Article II, section 2 empowers the President to grant conditional pardons.
. Schick's statement that “[i]t would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought,”
Lead Opinion
ORDER
By order dated February 14, 2017, the court directed the parties to address the impact of the President’s commutation of Appellant Surratt’s sentence and, in particular, the questions of mootness and jurisdiction. Upon consideration of the responses to the court’s order, the court finds this appeal to be moot.
The appeal is, accordingly, dismissed as moot.
Entered at the direction of Chief Judge Gregory for the Court.
Concurrence Opinion
concurring:
I concur in the court’s order dismissing this case as moot. Throughout this difficult litigation, the Government has conducted itself in a most admirable manner, offering us candid and insightful assistance. Even my dissenting colleague acknowledges that the Government acted “[cjommendably” in agreeing that Surratt was entitled to relief regarding his original sentence. I do not read the Government’s recent letter regarding mootness to present any departure from its previous commendable assistance to us.