Thursday, June 17, 2010

The Commission Giveth...and the Commission Taketh Away

The U.S. Supreme Court released its opinion today in Dillon v. United States, a case FAMM has been following closely because of how many federal crack offenders it could impact.

Dillon isn’t a simple case, but I’ll try to break it down. Dillon was convicted and sentenced way back in 1993 for a crack cocaine crime, long before Booker made the U.S. Sentencing Guidelines advisory. The judge never liked the sentence Dillon got – it was a whopping 18 years too long. It wasn’t until 2008, though, that Dillon had a real chance to change that sentence.

In 2007, the U.S. Sentencing Commission passed the so-called “crack minus two” amendment to the guidelines. This change shortened crack sentences for all offenders sentenced after November 1, 2007. On December 11, 2007 – after a lot of urging by FAMM and its members, among others – the Commission unanimously voted to make those changes to the crack guideline retroactive, so that crack offenders sentenced before the March 3, 2008 effective date could try to benefit from the new, shorter crack terms.

To control how the new sentence reductions would be handed out to those in prison, the Commission also amended its policy statement in § 1B1.10 of the guidelines, which tells judges how to apply retroactive guidelines. The bottom line: judges could award sentence reductions that line up with the new amendment, but couldn’t do a complete resentencing under the (now advisory) guidelines. In other words, Dillon could go back to court but, at most, get the benefit of the new crack amendment. The judge couldn’t go back to square one and apply the now-advisory guidelines to give Dillon the shorter sentence the judge believed he deserved.

Dillon, understandably, was upset with this and presented a challenge: if Booker made all the guidelines advisory, isn’t § 1B1.10 advisory, too? That would mean that judges could revisit the entire sentence under the advisory guidelines at the same time they’re applying the Commission’s new retroactive crack amendment.

The Supreme Court answered Dillon’s question with a resounding “no.” According to the Court, getting a retroactive amendment applied to your sentence is just not the same thing as a full sentencing hearing – it doesn’t trigger the same Sixth Amendment concerns that resulted in Booker in the first place. So, judges have to follow the limits of § 1B1.10. The Commission giveth, and the Commission taketh away.

But maybe there’s a silver lining here. A Dillon win could have dampened the Commission’s penchant for making lowered guidelines retroactive. If Dillon had won, judges could treat § 1B1.10 as advisory and resentence people under the advisory guidelines every time an amendment was made retroactive. Maybe this Dillon loss can reassure the Commission it still controls some aspects of sentencing.

Or, at least, let’s hope so. Like I said, I’m trying to see a silver lining.

But Percy Dillon may still get some relief. If another Supreme Court case, Abbott and Gould, goes our way, he might get five years shaved from his sentence. See more about that case, which will be argued sometime in the fall, here. There you will find FAMM’s amicus brief, complete with a profile of Percy Dillon. For more discussion of the Dillon case, see the good coverage on TalkLeft here.