Two justices on distinctly opposite sides of the Supreme Court ideological spectrum called out the United States Sentencing Commission recently in a denial of certiorari. The issue arose in Guerrant v. United States, a case in which the defendant appealed the application of the “career offender” enhancement under the federal sentencing guidelines. It’s a nuanced issue but it’s important for understanding the tone of the court.

There’s currently a split among the circuits surrounding the application of the “career offender” enhancement in federal criminal cases. A defendant who has two prior felony convictions for a controlled substance offense qualifies as a career offender and receives a substantially harsher federal sentence. But the problem is that the sentencing commission has not properly defined what constitutes a “controlled substance offense”. The commission defined a controlled substance offense as one under “federal or state law” but the guidelines do not determine what constitutes a controlled substance. Is it one defined by the Controlled Substance Act? Or one defined by the state law in the state the crime was committed? The guidelines remain silent on this.

In absence of a specific definition, courts of appeals have tried to wrangle with this issue and, of course, have split on its application. For instance, the Fourth, Seventh, Eighth, and Tenth Circuits define this under state law whereas the Ninth and Second circuits defer to federal law.

Justice Sotomayer raises concerns over the lack of action of the United States Sentencing Commission — Justice Sotomayer raises concerns over the lack of quorum and action by the Federal Sentencing Commission in resolving important issues

The Court denied Certiorari on this issue, likely believing that this was a policy consideration for the Sentencing Commission and not one for the court but their denial had some harsh words for the Sentencing Commission. Justice Sotomayer wrote that the sentencing commission has lacked the necessary quorum for three years to decide this issue, lacking enough members to vote and decide it once and for all. Needless to say, Justice Sotomayor was displeased and wrote: “I hope in the near future the Commission will be able to resume its important function in our criminal justice system”.

While the Court did not weigh in on this important issue, the booming voice from the bench should provide the proper motivation to bring the Sentencing Commission into compliance and resolve the split in circuits. The unfortunate fallout from this circuit split has caused defendants in different districts to receive different punishment for the same offenses under federal law. The comity here is that this is exactly what the U.S. Sentencing guidelines were created to resolve.

Once again, the bureaucracy in an effort to make something simple has made it endlessly more complicated and caused the problem that it seeks to solve.

If you are seeking a bit more understanding about the sentencing guidelines and their applications, click below to review ContraFed’s comprehensive sentencing guide.

ABOUT THE AUTHOR

Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.