United States v. LaBonte – Oral Argument – January 07, 1997

Media for United States v. LaBonte

Audio Transcription for Opinion Announcement – May 27, 1997 in United States v. LaBonte

del

William H. Rehnquist:

We’ll hear argument now in Number 95-1726, United States v. LaBonte.

Michael R. Dreeben:

Mr. Chief Justice and may it please the Court:

This case involves the validity of commentary in the Federal sentencing guidelines that governs sentencing of career offenders.

Congress directed that the sentencing guidelines specify a sentence at or near the maximum term authorized for the identified categories of career offenders.

In Amendment 506 to the guidelines, however, the commission specified that the statutory sentence enhancements for recidivists shall not be used in calculating the maximum term authorized under the career offender guideline.

Thus, where a Federal narcotics law specifies that a first offender shall receive a sentence with a maximum of 20 years and a second offender shall receive a sentence subject to a 30-year maximum, the commission treats the maximum term authorized as 20 years.

In our view, the commission’s disregard of recidivist enhancements conflicts with the Sentencing Reform Act and is invalid.

The starting point for analysis of this question is the text of the Sentencing Reform Act, which is set out in our brief in the appendix at page 21a, and it provides in section 994(h) of title 28 that the commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants, and then it goes on to specify that the defendants must be 18 years of age or older and be convicted of a felony that was a crime of violence or a specified Federal drug offense and have two prior convictions of the same type.

The text of this statute in our view is clear.

The maximum term authorized refers to the maximum, the uppermost limit of a range, thus, where there is a range consisting of two possible uppermost limits the higher of the two is the maximum.

Antonin Scalia:

Your position is that maximum means maximum.

Michael R. Dreeben:

That is absolutely correct, Justice Scalia.

Stephen G. Breyer:

But authorized by what?

Michael R. Dreeben:

Maximum term authorized by statute.

Stephen G. Breyer:

No, I know, but by what statute?

I mean, what we have are, we have statutes that authorize a maximum of 15 years or 30 years for a second offense, this intent with… possession with intent to distribute a–

Michael R. Dreeben:

Controlled substance.

Stephen G. Breyer:

–controlled substance, and then we have statutes that say if you do this near a school it’s an extra thing, and then if you did it with… another extra thing… I mean, like, there… does it mean the maximum authorized by whatever combination of statutes put together produces the most individually tailored, statutorily tailored sentence for this defendant, or does it mean authorized by the statute that deals with the substantive crime, or some combination in between?

Michael R. Dreeben:

Well, I think that it actually means the maximum term authorized by statute for the particular offender.

Stephen G. Breyer:

So in other words they have to have a whole proliferating schedule within the guidelines so that you’d have, for a person who, in fact, is a second offender of a cocaine possession with intent to distribute, and in the course of that he injures another person, and he does it near a school, and you know, there you have a footnote with about six other things, and then there are… and there has to be one schedule for that person.

And then you have to have another schedule for somebody who did exactly the same thing but not near a school, and then you have to have another schedule for somebody who did the exact same thing but it didn’t involve an injury or death.

Is that the view–

Michael R. Dreeben:

I think this would have been the easiest statute in the commission’s repertoire for it to implement.

All the commission would have had to say is–

Stephen G. Breyer:

–Yes, but I mean I understand that we could have taken it that way, but I’m–

Michael R. Dreeben:

–a sentence at or near the maximum is a sentence within 15 or 20 percent or 25 percent of the maximum, and for any defendant who’s covered by section 994(h), when the sentencing court determines what his authorized statutory maximum term is, the range is X percent less than that up to the top.

Stephen G. Breyer:

–Well, this is pretty much near a two-thirds.

It’s two-thirds, or 75 percent–

Michael R. Dreeben:

Well, it is not… it is not for an offender like LaBonte, and I think that it’s important to keep in mind exactly what is going on here.

LaBonte is exposed to a maximum term… I don’t think there’s any dispute whatsoever… by statute of 30 years, which is 360 months, and under the career offender guideline as it existed prior to the time of Amendment 506, that would have produced a base offense level of 34, which is 262 months to 327 months, or 21 to 27 years.

Michael R. Dreeben:

That is 72 percent to 90 percent of the 30-year maximum.

Under the commission’s approach, Amendment 506, an offender like LaBonte is treated as if his maximum term is 20 when it’s actually 30, and he’s assigned a base offense level of 32, which produces a sentencing range of 210 months to 262 months, or 58 percent to 72 percent of the 30-year max, so I think that there’s quite a significant drop-off–

Stephen G. Breyer:

–Yes but… I’m sorry, I didn’t get an answer to my original question, which I… because I unfortunately got distracted.

Is it your view, is it the Government’s view that when a person commits a second cocaine offense and a death results, and it occurs within a thousand… leave the death out, a thousand feet of the highway truck stop with a weapon, that the maximum authorized means the maximum authorized by the combination of those sentences, of all those statutes together?

Michael R. Dreeben:

–Yes.

Stephen G. Breyer:

So you’d have to go through the… that’s the only way… and you think that’s clear?

I mean–

Michael R. Dreeben:

I think that the term, maximum statutory term authorized means maximum statutory term authorized–

Stephen G. Breyer:

–For this individual–

Michael R. Dreeben:

–for an individual.

Stephen G. Breyer:

–So one would have to go through and individualize all of these–

Michael R. Dreeben:

Well, that is done, of course–

Stephen G. Breyer:

–You have to do that in any sentence.

Michael R. Dreeben:

–Any time a sentencing court–

Stephen G. Breyer:

No, no, that’s a–

Michael R. Dreeben:

–It will do a presentence–

Anthony M. Kennedy:

–Under that reading, why do you need the word categories?

Michael R. Dreeben:

–I don’t think the word categories does add a lot under the statute, Justice Kennedy, and I wouldn’t suggest to the Court that under our view of the statute it has huge operative significance, but I think in the context of section 994(h) it has plenty of significance in the following respect:

994(h) identifies basically two different categories of defendants that Congress singled out from among the welter of other defendants and said, Sentencing Commission, assure that these offenders receive a sentence at or near the maximum: either, you commit a crime of violence, or you commit one of the Federal drug offenses that are identified and listed in the statute, and you have two prior convictions of the same type.

So you have the category of violent offenders with two prior convictions, you have the category of drug offenders with two prior convictions, and the structure of section 994(h) supports the view that that is the intended reading of categories, the types of defendants that are covered.

John Paul Stevens:

May I ask a fact question before you get too deeply into the argument?

Michael R. Dreeben:

Certainly.

John Paul Stevens:

You say that under the career view of the statute the maximum is 30 years.

Michael R. Dreeben:

Correct.

John Paul Stevens:

And it’s… under the commission’s view the maximum is 20 years.

Michael R. Dreeben:

Correct.

John Paul Stevens:

Because you’re not taking into the career offender factors there.

What would the guideline sentence have been when you… without a requirement that it be at or near the maximum, under a 20-year maximum?

Do you understand my question?

Michael R. Dreeben:

Yes.

Michael R. Dreeben:

Yes, I do.

I don’t recall the exact guideline sentence for the three respondents in this case, but suffice it to say that it would have been substantially lower than the career offender sentence.

The career–

John Paul Stevens:

Would it have been roughly a third, or… a third or a half, something like that?

Michael R. Dreeben:

–I’d be willing to accept that.

John Paul Stevens:

If… so in other words, if it was a third it might have been 7 or 8 years.

Michael R. Dreeben:

Correct.

John Paul Stevens:

Whereas… and if you then say that you should take… and the normal third of the 30 years would have been 10 years, absent the requirement that it be at or near the maximum, but now the… under the commission’s view it is at or near the maximum of 20 years because of the guideline provision, isn’t it?

Michael R. Dreeben:

Right.

If the maximum were in fact 20 years we might not have any quarrel with what the commission had done, but the maximum isn’t 20 years.

John Paul Stevens:

No, I understand that, but even interpreting the at or near maximum the way the commission does, you do get a substantially higher sentence for a career offender than you would absent the statute.

Michael R. Dreeben:

Yes, you do.

John Paul Stevens:

Yes.

Michael R. Dreeben:

And if the statute had only said substantial sentence, or substantially higher sentence, we would have a different case.

I was trying to elucidate the meaning of categories, and I think that this will tie in with your question, Justice Stevens.

Section 994(i) of the statute, which is on page 22a of our appendix, lists another group of offenders that the commission wanted… that the Congress wanted the commission to treat in a special way.

In section 994(i), the commission is directed to assure that the following categories of defendants receive a substantial term of imprisonment, and then it goes on to list five categories of defendants that are to receive a substantial term of imprisonment.

Now, substantial is certainly a qualitative word that admits of a broad range of meanings, and the commission may very well have fulfilled a duty to impose a substantial sentence on the career offenders under the guidelines as it has written it, but Congress has singled out the career offenders identified in section 994(h), the categories of career offenders there, for different treatment.

That treatment is perhaps the most specific direction that Congress gave the commission anywhere in the sentencing guidelines.

It was to assure a sentence at or near the maximum, and it’s our view that that provision means exactly what it says.

Now, the implausibility of the commission’s approach of disregarding recidivists in the enhancements is particularly implausible in light of the various statutes that are identified in the career offender provision as calling for career offender treatment.

Sandra Day O’Connor:

Mr. Dreeben, the problem we have in this case stems from a new commentary adopted by the commission to section 4B1.1 of the guidelines.

Michael R. Dreeben:

That is right, Justice O’Connor.

Sandra Day O’Connor:

And what precise relief are you asking us to provide if that commentary is wrong?

Michael R. Dreeben:

Invalidate–

Sandra Day O’Connor:

What are you asking us to do, invalidate… invalidate the commentary?

Michael R. Dreeben:

–That is right.

Sandra Day O’Connor:

And we treat the commentary as a rule or regulation or something?

Michael R. Dreeben:

Well, not even so exalted a status as rule or regulation.

I think this Court made clear in Stinson v. United States that commentary plays generally the role of elucidating what the guidelines mean.

Michael R. Dreeben:

They’re not legislative rules in their own right.

But the Court–

Sandra Day O’Connor:

Have we ever struck down a commentary?

I mean, it just comes–

Michael R. Dreeben:

–Well, I think the point of Stinson is that the commentary does carry the force of law in this sense.

If it is not inconsistent with the Federal Constitution or a Federal statute, it is to be given controlling weight unless it conflicts with the plain text of the guideline or is otherwise arbitrary.

That’s what this Court held in Stinson, and our submission here is that this commentary doesn’t pass the Stinson test, not because it’s inconsistent with the sentencing guideline as written.

It is inconsistent with the overarching authorizing statute that Congress directed the commission to follow when it promulgated sentencing guidelines, and because of its direct conflict with a Federal statute it is invalid.

The Court strikes it down and leaves in place a totally operative and valid sentencing guideline that governs career offenders.

At least insofar as this case is concerned, we’re not raising any other issue about the career offender guideline and its compliance with Federal law but for this one precise point.

The commission has defined maximum to mean something less than the maximum.

The commission can’t do that.

Now, I would–

Stephen G. Breyer:

–It’s… I mean, the ambiguity, if there is one, I think is in the word authorized.

Authorized by what?

I don’t know if there is an ambiguity, but that’s where it would be, and the problem that I see is if you… it’s obviously a close question.

I’m not sure what I think about it.

But the authorized, if you take your interpretation of it you’ll suddenly discover a, you know, very bizarre set of sentences, what I would think of.

For example, if you distribute cocaine or amphetamines or barbiturates, or one ounce of marijuana near a truck stop, and you do that twice, you’re going to get three times the normal sentence.

The normal sentence has already been doubled because you did that twice, so you’re going to end up with life sentences for things like an ounce of cocaine, or let’s say an ounce of marijuana distributed twice in a truck stop.

And moreover, rather than what Congress suggested, that these are maxes, so you could have a lesser sentence, they suddenly become mandatory minimums.

They’re mandatory minimums because nobody would have any choice, and are we really to attribute that intent to Congress, that they wanted to turn all these things like truck stop distributions and so forth into life sentences?

Michael R. Dreeben:

–Well, I think, Justice Breyer, that the only thing that you can clearly attribute to Congress is that it identified a category of repeat offenders who are worse than other categories of repeat offenders–

Stephen G. Breyer:

Yes.

Michael R. Dreeben:

–that came to the legislature’s mind.

Stephen G. Breyer:

All right.

Tell me the argument against the other way.

The argument the other way is, what they meant by maximum authorized was maximum authorized by the statute that describes the substantive crime.

Michael R. Dreeben:

Okay.

That is an alternative meaning that one could advance.

Stephen G. Breyer:

Yes.

Michael R. Dreeben:

The court of appeals advanced something similar.

Stephen G. Breyer:

No, they didn’t get… yes, all right.

That’s–

Michael R. Dreeben:

They did it on the basis of–

–Right.

Right.

Michael R. Dreeben:

–the word categories, but their point was there was some ambiguity here because you could either look to the highest sentencing statute or you could just look at the category of offenders who were covered by the basic statutory violation.

That doesn’t work, I think, on anybody’s theory if you look at it closely.

Under section 841(a), which is the basic Federal drug law covered in the career offender guideline, there is one violation.

The violation is possession of a controlled substance, any controlled substance, with intent to distribute.

That is the statutory violation.

Section 841(b) is the sentencing provision.

Right.

Michael R. Dreeben:

And if you lump together everybody who violates section 841(a) and say, what is the highest sentence that all of them could receive under section 841(b), you end up with 5, or maybe 10 years under section 841(b)(1)(D), which covers marijuana offenders who… first time offenders get 5 years, second time offenders get 10 years, and it can’t possibly be that Congress intended that these most serious offenders in the Federal system would be subject to a maximum that lumps together everybody, no matter what kind of drug they distributed, no matter how many prior offenses they had.

The point of our case here is that in section 841(b), as well as section 952(a) and the maritime drug law, which is also referenced in the career offender guideline, Congress has tiered the maximum–

Stephen G. Breyer:

Wait, where did you get… my… the code at that time says that in the case of the controlled substance in schedule 1 or 2, that’s the cocaine, the max that I have here is not more than 15 years, so at that time in ’84 I’d suppose if you read it to apply just to the… you call it the first offense, the crime of substance.

It would have mandated a 15-year sentence.

Now, why is that odd?

Michael R. Dreeben:

–Well, actually I don’t… I’m not–

Stephen G. Breyer:

I’m reading… what I have is 841(b)… 841(b)(1)(A), which–

Michael R. Dreeben:

–Well, Congress didn’t freeze the maximum terms.

–No.

Michael R. Dreeben:

And in fact it revised–

Stephen G. Breyer:

Well, then, what–

Michael R. Dreeben:

–what the maximum terms were.

Some of them went up, some of them went down.

It recalibrated basically how the maximum terms worked in section 841(b), and it’s done that over time, but right now, which is the operative time for assessing what somebody would get if the theory of the statute were accepted that you proposed, section 841(b)(1)(D) says that for less than 50 grams of marijuana zero to 5 years is the range, one prior felony, zero to 10.

And remember, the kind of controlled substance is not an element of the offense.

Stephen G. Breyer:

–That’s for less than… that’s for an ounce of marijuana.

Michael R. Dreeben:

That’s right.

And since all violators of any Federal… who possess any kind of Federal controlled substance violate section 841(a), and then you have to look for 841(b) for the sentencing factors, I don’t think it’s possibly reasonable to suppose that Congress intended a category consisting of all 841(a) violators without regard to their recidivist enhancements, or without regard to the kind of controlled substance that they possess.

Congress very carefully calibrated the statutory maximums that are applicable to a controlled substance offender depending on the type of controlled substance, the harm that resulted, and the prior record.

Now, what makes it particularly inapposite to adopt the commission’s view is that section 840… section 994(h) is designed to target recidivist offenders.

The statutes that are referenced in section 994(h), the controlled substance sentences, each provide higher maximum terms for recidivist offenders, and in the context of that specific reference, Congress could not have meant by maximum term authorized to mean the term for first offenders.

The legislature would have had every reason to expect that there would be few, if any, first time drug offenders covered by the statute.

It was logically possible to have somebody with two prior crimes of violence and then committing a Federal drug offense and be covered by the statute, but most of the offenders who are covered by the career offender guideline and who have violated Federal drug law will have a prior conviction, and their maximum term will be the enhanced maximum.

That seems to us to be exactly what Congress had in mind.

Stephen G. Breyer:

I don’t… maybe I shouldn’t pursue this, but let me try once more.

My understanding of the structure of 841 drugs, then and now, is you have a basic crime in (a).

Michael R. Dreeben:

Correct.

Stephen G. Breyer:

And then (b) has a whole set of categories of punishments, and in each… and they have several subsets, really distinguished one from the other by the seriousness of the drug and the amounts, and as to each subset you have it broken typically into two parts.

One is a punishment for a first offender, and the second part is a punishment for a subsequent offender, and so what would be odd in Congress thinking what we mean by this word authorized is the part that is authorized for a first offender of the substantive crime?

What would be the odd result you would be distinguishing if you took that, among all the different categories of drugs, because A, B, C and D do that, and you would have quite different… you’d have quite different maximums authorized for a marijuana person from a cocaine person, from a big guy, from a little guy, all for the first offense, so what would be odd about Congress meaning that?

Michael R. Dreeben:

What would be odd about it, Justice Breyer, is that this is a statute that targets all people who are not first offenders.

All of these people–

Oh, that’s true.

Michael R. Dreeben:

–who are targeted by the career offender guideline are recidivists.

The drug recidivists may have no prior drug crime.

They may have two prior crimes of violence, but most of the people who are Federal drug offenders covered by the career offender guideline are going to have prior offenses.

And Congress, at the same time that it enacted section 994(h), also deliberately went back to section 841 and changed the structure of the statute not to include recidivist enhancements for the first time… it had done that… but it changed the exact amounts of those recidivist enhancements.

So what you have is Congress, on its mind at the time it passes the Sentencing Reform Act, what are the maximum terms authorized for these categories of drug offenders, let’s raise them, and then a separate statute telling the commission here you have repeat offenders of specified Federal drug offenders… and we’re going to list them in the statute… sentence these people distinct from all others, add on your maximum terms authorized, and in that context I think that it becomes entirely implausible to suggest that Congress meant the first offender sentence that is applicable to someone who does not have prior crimes.

Ruth Bader Ginsburg:

Mr. Dreeben, you had a point in your brief that intrigued me.

You were responding to the double counting argument, and this is on page 27 of your brief, and you said, conceivably the commission could devise an alternative computation mechanism consistent with section 994(h) yet avoid the double counting of prior convictions.

What would the… what could the commission have done?

Michael R. Dreeben:

Justice Ginsburg, that depends in part on what one thinks the purported double counting objection might be.

The Sentencing Commission didn’t say.

There are two possible variations.

One is, the same conviction is used under section 841(b) to enhance the maximum term and to send somebody into the career offender guideline.

That form of alleged double counting, if it is double counting, cannot be eliminated by the Sentencing Commission.

Michael R. Dreeben:

It must do that, because the law specifies that the same conviction may have the effect of increasing the maximum term and making somebody a career offender.

But the other possible double counting objection is that the same prior conviction is used both to enhance an offender’s offense level and to increase his criminal history, and that that might have seemed to the commission to be double counting for some reason.

Anthony M. Kennedy:

I speculated that what you had in mind… maybe this is the first thing you said… is that the commission could say criminal history… essentially criminal history is not relevant in the guidelines when you have a maximum term under this statute.

Michael R. Dreeben:

I think that’s exactly right, Justice Kennedy.

What the commission could do in that situation is simply say, if you’re a career offender, go to the statute books, find the maximum term authorized, and sentence within 10 percent or 15 percent of that maximum term, instead using the grid provided in the sentencing table for most offenders.

The commission was not required to use the grid for everybody.

Career offenders are clearly to be treated differently than almost everybody else sentenced under the guidelines.

In fact, there’s no other provision that was handed to the Sentencing Commission to implement that is anywhere near as specific as this on how particular identified offenders are to be treated, and the commission could have quite easily said, sentence them all at their maximum.

The commission in fact had proposals before it before the guidelines were promulgated that said all career offenders shall be sentenced at their maximum.

Stephen G. Breyer:

The other reason against doing that… I’d be curious if you’d comment on it.

The… I mean, the choice is really between saying what Congress meant was where it says a first offender gets up to 20 years, up to, what they meant by this is, he gets 20 years, period, or what you’re arguing.

And one concern was, if you take what you argue, that really turns the power to decide what the sentence is directly over to the prosecutor, because in most of these cases you can’t go beyond 20 years unless the prosecutor files a specific piece of paper, and that decision, which is totally the prosecutor’s, is totally contrary to the whole philosophy of the guidelines.

Michael R. Dreeben:

Well–

Stephen G. Breyer:

I’m just putting that to you so you–

Michael R. Dreeben:

–I’m not sure, Justice Breyer, that it is totally contrary to the whole philosophy of the guidelines.

The impetus of the guidelines was to eliminate unwarranted disparity by different judges who have different sentencing philosophies.

The guidelines do not and cannot eliminate prosecutorial discretion and, given that Congress has vested the prosecutor with the authority, as you say, to raise the maximum by filing a reply or pretrial notice of crimes, Congress has vested discretion in the prosecutor.

I don’t think the commission can say that is an unwarranted disparity.

That is a product of prosecutorial discretion which is an endemic and universal feature of Federal criminal law, and the Sentencing Commission was not given the task, which would probably be unconstitutional anyway, of attempting to eliminate prosecutorial discretion in the enforcement of Federal criminal law, and so I don’t think that there’s any argument there that the disparity is unwarranted.

For the reason that I expressed earlier, I don’t think that there’s any ambiguity in the intent of Congress when it said maximum term authorized to mean the recidivist term for career offenders.

If the Court has no further questions, I’ll reserve the remainder of my time.

William H. Rehnquist:

–Very well, Mr. Dreeben.

Mr. Yellen, we’ll hear from you.

David N. Yellen:

Mr. Chief Justice, and may it please the Court:

Justice Breyer’s colloquy with Mr. Dreeben I think fairly clearly points out that there are various ways of reading the language of the maximum term authorized for categories of offenders, and a critical point that did not come out in the Government’s argument is that Congress considered and expressly rejected giving a directive to sentencing courts to impose a maximum, ordinary maximum term.

That was in the 1982 bill that passed the Senate but the Senate the next time, the next year rejected that and instead gave this more general instruction to the Sentencing Commission, putting this obligation under 994(h) in the context of all of the commission’s obligations.

And what the Sentencing Commission did here was looked at all of its obligations, including first and foremost under the statute to provide certainty and fairness and reducing unwarranted sentencing disparity, and the commission decided that the prosecutor having the ability to in effect determine the sentence by this 851 mechanism was something that would contribute to unwarranted disparity.

William H. Rehnquist:

Well, how… why was Congress… why was the commission in a position to second guess Congress on that?

If the prosecutorial discretion comes from the very provisions that the commission is supposed to be proposing sentences for, why is that any business of the commission?

David N. Yellen:

Mr. Chief Justice, the discretion that the prosecutor has under 851 and 841 is to raise the ceiling, to raise the maximum term allowed, and it’s then not up to the prosecutor to decide what the actual sentence is.

David N. Yellen:

That’s the way the 851 mechanism has always worked.

It authorizes the judge to apply… to impose a sentence longer than the unenhanced maximum but only if it’s a truly bad case that warrants a longer sentence.

If Congress wishes to impose a specific sentence enhancement, they know how to do that.

They’ve passed mandatory minimums, and they’ve passed mandatory sentences.

William H. Rehnquist:

When they passed 994(h).

David N. Yellen:

That’s right, and 994(h) directs a sentence at or near the maximum applicable to the categories of defendants, not defined clearly as Mr. Dreeben suggested in this statute, but very broadly.

I think it’s quite plausible to read that language to say that one way to categorize all of the offenders defined in 994(h) is to take everyone who’s been convicted of violating the same statute and treat them as one category, and then those defendants against whom the Government has filed 851 information and are therefore eligible for, say a 30-year sentence rather than a 20-year sentence, they will receive that longer sentence if there are aggravating factors–

David H. Souter:

Well–

David N. Yellen:

–under the guidelines or aggravating factors that warrant a departure above the guidelines.

David H. Souter:

–Well, that goes to explain the ambiguity, I guess, but even assuming the ambiguity… I do assume the ambiguity… it’s difficult for me to understand why the authorization would be to eliminate the possibility, if not the effect of prosecutorial discretion when Congress has expressly granted prosecutorial discretion.

Congress in effect says prosecutorial discretion is a good thing.

Why, therefore, is it appropriate for the commission to say we should somehow, if not eliminate, at least liminate… limit the effects of this discretion which Congress has expressly conferred?

David N. Yellen:

Well, Justice Souter, the discretion… the prosecutorial discretion that Congress has said is a good thing is the prosecutor’s discretion to seek a higher maximum term, not to seek a higher specific term.

The 851 mechanism, the way it always worked before the guidelines came into effect and the way it continues to work today for people who are not career offenders is that the filing of the information allows a sentence of more than 20, to use the facts of these cases, and up to 30 years, but not automatically at the prosecutor’s choice.

The prosecutor gets to–

David H. Souter:

Well, that’s quite true, but the presumed effect will be, by giving prosecutors that discretion and by giving courts authority based upon the prosecutorial exercise of that discretion, the natural effect in the mind run of cases will be to increase sentences, and why should… why is it an appropriate policy to eliminate an effect which has so explicitly been granted and, I have to assume, intended?

David N. Yellen:

–But the effect is still there, the effect of raising the ceiling, that all of the defenders in this case could have received sentences… under the commission’s Amendment 506 they could have received sentences longer than 20 years, up to and including 30 years, if, as is very commonly the case with career offenders, there was a large quantity of drugs, or there was the use of a gun, or there were any other aggravating factors.

If I could answer Justice Stevens’ question before on the facts of the case, because I think it illustrates something here, this was not a threefold increase from the original guideline range based on Amendment 506 interpretation of the career offender level, but in respondent Dyer’s case it was a 13-fold increase.

It took… the regular guideline range for Dyer was 18 to 24 months.

After applying the career offender guideline with Amendment 506 the range would be 210 months to 262 months, a 13-fold increase.

William H. Rehnquist:

Well, that was because in addition to his violation of 841 he had, what, two prior convictions?

David N. Yellen:

That’s right, Mr. Chief Justice, and–

William H. Rehnquist:

What were those for?

David N. Yellen:

–One was another drug offense and one was a commercial burglary that the lower court considered to be a crime of violence.

But even including all of his prior criminal record he was a category 6 under the guidelines, but his drug offense on this occasion was so minor that the Sentencing Guideline said even though you’re in the highest criminal history category, your guideline range is 18 to 24 months, but because you’re a career offender, it now goes all the way up to 210 months to–

Antonin Scalia:

Mr. Yellen, why is that unthinkable?

I mean, there are jurisdictions in the country which are passing things called three-strikes-you’re-out laws.

Now, they may be wise, they may be unwise, and in those cases, I mean, you’re out, it means you’re in permanently.

They may be very unwise, but I don’t know that I can say that when that seems to be the fairest reading of the statute as a judge I can say well, since it’s unwise I’m not going to adopt the fairest reading.

David N. Yellen:

–Justice Scalia, I’m not saying it’s unwise at all.

David N. Yellen:

In fact, my… the numbers I gave you, 210 to 262, that’s the range that Mr. Dyer will be eligible for on remand if we win here, so if we prevail in this case the commission’s–

Antonin Scalia:

Well then, give me the more horrible example that will apply if you will lose–

David N. Yellen:

–His sentence–

Antonin Scalia:

–and I will make the same comment.

You know, it may be very unwise, but is that the fairest reading of the statute is the question before us, and if the fairest reading is three strikes you’re out and you’re in jail permanently, so be it.

David N. Yellen:

–Certainly, I understand that position completely, but the issue here is not what any member of this Court thinks is the appropriate sentence, of course, but did Congress intend precisely to answer this question about–

Antonin Scalia:

I’m saying I’m not shocked by the notion that they would have been… much of your argument has gone to that Congress couldn’t have meant to increase the sentence.

They very well may have meant that.

Many States have done worse.

David N. Yellen:

–I don’t suggest that they–

Antonin Scalia:

Or better, depending on whether you like it or don’t like it.

David N. Yellen:

–Congress has certainly enacted statutes that are more punitive than this.

I agree completely, but–

Stephen G. Breyer:

But that’s… Justice Scalia I think has put his finger on what’s really the difficult underlying question here, because he said the fairest reading of the statute, and I suppose what’s really at stake is… and sometimes you’ll be on one side of this and sometimes the other side.

What’s really at stake is how much authority to give the Sentencing Commission to interpret its authorizing legislation, and you might want to comment on that.

David N. Yellen:

–Yes.

I think the question here is not what is the fairest reading of the statute, but has the commission engaged in a permissible reading of the statute, and that’s a very different question, and I think in this case the commission clearly has engaged in a permissible reading of this statute.

Anthony M. Kennedy:

Have we said the commission enjoys full-fledged Chevron deference?

David N. Yellen:

The Court has not said that specifically, but the lower courts have generally said that and the statute, 994(h) in particular, instructing the commission to do all of these things, says quite clearly that the commission has very broad authority.

And whether or not Chevron per se applied, in a case like this where Congress has said in so many words that the commission has a great deal of authority to make decisions that used to be made much more independently by individual sentencing judges and individual prosecutors, I think deference to the commission is entirely consistent with Chevron and other… and well-established principles.

Ruth Bader Ginsburg:

Mr. Yellen, before we get to Chevron, Judge Stahl on the First Circuit said that he didn’t consider the reading you’re proposing a plausible one.

He said that he found it inherently implausible because it effectively nullifies criminal history enhancements carefully enacted into statute by 841, and I think you have agreed that it does do that.

The Sentencing Commission has effectively taken away the effect of the enhancements.

David N. Yellen:

No, Justice Ginsburg, I disagree with that, and maybe I haven’t said it clearly.

I’ll try again.

I disagree with that very strongly.

When the sentence enhancements of 841 with the 851 mechanism were enacted, what it did was, if the prosecutor files under 851 the maximum is higher.

Before the guidelines, no defendant was required ever to receive one day longer in prison because the prosecutor bumped up the maximum.

That was up to the judge, and that’s the way that rule continues to exist today for people who are not career offenders.

So under the commission’s interpretation of section 4B1.1, it works like this.

David N. Yellen:

The defendant committed a crime that would have had a 20-year maximum.

Because of his prior record and the Government’s filing under 851, he now could receive a 30-year sentence.

The guideline is based on the 20-year maximum, but if there are any aggravating factors in the case that make him a worse than normal offender… large amount of drugs, use of a weapon, a leadership role in the offense, or anything else that the guidelines don’t consider which warrant a departure… the judge can impose a sentence above the career offender level, above 20 years all the way up to 30 years, so in fact it’s the Government’s view of the case that would dramatically alter the intended effect of an 851 filing.

Congress in 851 isn’t saying we want prosecutors to have the power to set sentences.

They’re saying we want prosecutors to have the power to raise the maximum, and it’s up to the other actors in the system, judges and now the Sentencing Commission–

Ruth Bader Ginsburg:

Mr. Yellen, I’m not sure I fully grasp your answer, because I thought the very purpose of the Sentencing Commission’s exercise here was to treat alike cases where the prosecutor had asked for enhancement and cases where they hadn’t where the defendant’s conduct was the same.

David N. Yellen:

–They’re only alike as a starting point.

The way the career offender guideline works is, you get a level 32.

But you only get a level 32 if the regular application of the guidelines isn’t higher.

The judge also has to go through the regular routine rules of the guidelines… look at the amount of drugs, the use of a weapon, injury, leadership role… and if that comes out to a level 34 or 5 or 6, that’s the sentence the judge must impose, not the level 32 that the career offender guideline points to.

Secondly, if there are other aggravating factors that the guidelines don’t take into account, the judge can decide under the standards in Koon that this is a case that warrants an upward departure, so level 32 isn’t high enough because this guy is not only a career offender but he’s got a criminal record a mile long, and therefore level 32 is not enough.

I want to go all the way up to 30 years.

Ruth Bader Ginsburg:

But it’s still… it lets the judge then treat alike two defendants who have the same history in every respect, but in one case the prosecutor went for enhancement and the other the prosecutor didn’t.

David N. Yellen:

That’s right, and the commission’s rationale for that is to do otherwise would be to invite unwarranted disparity.

We’ve provided records from the Sentencing Commission–

David H. Souter:

But why is the disparity unwarranted when the authority which is the predicate of the disparity… that is, the prosecutor’s discretion… is specifically conferred by law?

Why does the commission have the authority to say that that is an unwarranted disparity?

David N. Yellen:

–In the commission’s view it’s unwarranted because you have, under the Government’s view of the statute, two defendants who have committed the same crime.

They have the same criminal record.

The only difference is that the defendant in one of the cases is one of the 2.5 percent of eligible people against whom the Government has filed–

David H. Souter:

Oh, I think I understand that.

The commission I take it is really saying, look, we have an obligation here within certain limits to equalize sentences for given offenses, and we’re taking that obligation seriously.

But in taking that obligation seriously, as they do here, they are in effect saying the obligation to equalize sentences for a given offense, forgetting extraneous details which might raise it up or raise it down, is more important than the effect of the specifically conferred prosecutorial discretion in authorizing judges to go higher than they might otherwise do for that offense.

Is that a legitimate choice for the commission to make?

David N. Yellen:

–It is, because Congress has not expressly answered this question before the court.

David H. Souter:

Well, it hasn’t expressly answered it, but what it has done is to give a general rule and then a very specific authorization to prosecutors, which will in the natural course have an effect of creating, in fact, two different levels of sentencing for the base offense, and don’t we generally say the specific governs the general, and if that’s the case here, does the commission really have a legitimate option to say no, we think the general philosophy is more important than the effect of the specific authorization to prosecutors?

David N. Yellen:

The specific authorization to prosecutors in 851, as I’ve tried to suggest, doesn’t mandate any sentencing–

David H. Souter:

It doesn’t mandate it, but its natural effect is to facilitate it, and it must have been the intention of Congress that in a certain number of cases that judicial option would be exercised.

David N. Yellen:

–In a certain number of cases.

Right.

David N. Yellen:

In the worst cases.

David H. Souter:

And the effect of the commission’s interpretation here is to minimize or to nullify the effect of that discretion which the court has as a result of the prosecutorial discretion.

That’s true, isn’t it?

David N. Yellen:

I don’t agree with that, Justice Souter–

David H. Souter:

I think that was the premise of Justice Ginsburg’s question–

David N. Yellen:

–Yes.

David H. Souter:

–and I make the same assumption.

Yes.

David N. Yellen:

Yes, and it gets to the–

David H. Souter:

Well, why are we wrong?

David N. Yellen:

–It gets to what Congress did here.

When Congress raises–

David H. Souter:

No, but–

–No.

David N. Yellen:

–the maximum sentence–

David H. Souter:

No… answer the question.

I think you’re not answering the question.

I want to hear what you say, but before you get there, Justice Ginsburg and I seem to be making in your view just an incorrect assumption about how the law works in fact, and if we are wrong, we need to know that first.

David N. Yellen:

–Yes.

The… I… the way the law works is that when a prosecutor seeks an enhanced maximum it does not automatically enhance the sentence.

David H. Souter:

All right, but in those cases in which the judge says I am going to exercise this authority which the prosecutorial option has provided me with–

David N. Yellen:

Right.

David H. Souter:

–and I’m going to impose a higher sentence than I would otherwise do, in those cases, isn’t it true that the commission’s interpretation either minimizes or nullifies, I’m not mathematically sure how it works, the effect of the judge’s option which he’s exercised or she’s exercised to go higher?

David N. Yellen:

No.

David H. Souter:

Isn’t that true?

David N. Yellen:

No, it is not, Justice Souter.

David H. Souter:

Okay.

Then that’s what we need to understand.

The strongest argument… I think this is the same point, but I thought one of the strongest arguments the SG made was in the very same statute where the sentencing guidelines were enacted into law, there… Congress enacted a provision that said 20 years for a first offender, being cocaine, or… up to 20 years, or up to 40 years for a second, okay.

Now, why would they have done that if, in fact, this provision that we’re talking about is keyed to the first offense, because the provision keyed to the first offense would have given everybody, everybody who is the second offender the 20 years that’s the max for the first offender?

David H. Souter:

And your response to that is, oh, but there are some cases where you would have wanted to go higher, namely a case of a departure, or a case where the underlying substantive offense is in fact like distributing a pound of crack in a prison with a gun, so you get to level 36 or 38 anyway.

At which point Justice Souter says, yes, that’s true, I’m not saying there are no such cases, but there are so few that how could we really think that Congress meant the interpretation that you’re advancing, or wouldn’t it have viewed this as a kind of unnecessary provision to stick in?

Am I… I’m trying to basically rephrase, perhaps not as articulately as the SG phrased… in other words… all right.

I intended to help.

I don’t know if I have.

David N. Yellen:

I would disagree that these cases are rare, where we have serious drug offenders and violent offenders.

There are many cases in which the judge would want to exercise his discretion to go higher and is able to under the guidelines, but the judge can only do that under the system of guidelines if there is an aggravating factor in the guidelines or a basis for a departure, so the commission’s reading… the commission’s implementation of 4B1.1 doesn’t change that at all.

All unwarranted disparity that Congress was after came from the exercise of lawful discretion.

Congress was concerned about judicial discretion, the impact it had on disparity, but that was lawful, all lawful exercise of discretion.

Similarly here, prosecutors can through their exercise of discretion wind up with disparities that the commission is charged with trying to regulate.

I was mentioning before that in only 2.5 percent of all cases, according to Sentencing Commission data that we submitted to the Court, does the Government seek these enhanced maximums, so you wind up with a case where two defendants who have committed the same violation and have the same criminal record can get vastly different sentences, not because the judge or the Sentencing Commission thinks that any difference is appropriate, but rather simply because the Government has filed the enhancement.

William H. Rehnquist:

As Congress authorized them to do.

David N. Yellen:

But Congress authorized them to increase the maximums, not to increase the sentence.

Congress has on many occasions given prosecutors the tools to actually increase sentences.

The Government can get a mandatory–

William H. Rehnquist:

But the fact that the prosecutor makes the filing can result in a more severe sentence.

David N. Yellen:

–Absolutely, under the guideline that we’re defending.

That’s exactly the result.

Antonin Scalia:

Mr. Yellen, I’m… explain to me why it is that the only thing you excise from the precise offense for which the individual is being sentenced is this element that the prosecutor has the ability to increase or not to increase.

Why is it not the case, as Mr. Dreeben was saying, that if you’re going to be consistent you would have to excise from the particular characteristics of the defendant’s crime other elements as well, so that if you’re doing 841, for example, you would not be able to include the particularized factors of how many grams, or what kind of a drug?

Why aren’t those factors equally particularizing, and if you’re going to be consistent as to the meaning of… well, are you using the phrase categories, or whether you’re relying on that or not, why doesn’t it bring you all the way down to the most minimum offense possible under 841?

David N. Yellen:

I think that would be a permissible reading, but my view of it doesn’t matter.

What matters is the Sentencing Commission, which has been delegated this authority, has said that we think this is the logical, rational–

Antonin Scalia:

I don’t see how it’s logical.

I mean, I can see how that reading is logical, produces an extraordinary result, and I can see how the Government’s reading is logical, but I can’t see how something in the middle… we’re going to pick and choose among the individuating characteristics of the crime.

I think you can say none of the individuating characteristics is taken account of.

It’s only the base crime, and therefore you end up with nothing but a 3-year sentence under 841.

Or you can say everything’s included, which is the way the Government does it.

But I don’t see how you can possibly say, we’re going to pick something in between.

David N. Yellen:

–Your Honor, I think it’s very logical to say, as the commission did, that the most important category is what is the crime you committed, and what is your criminal record?

David N. Yellen:

That’s the whole structure of the guidelines, so what they did here was really try and integrate the career offender provision into the overall stru ture.

Antonin Scalia:

But when you say what is the crime you committed, you’re willing to include within the crime you committed many factors that are not within the base crime.

What?

Such as, the crime under 841 is, knowingly or intentionally manufacture, distribute, to create, distribute, dispense.

That’s the base crime.

And then you get different sentences under 841(b), depending upon how many grams, what kind of a drug, and so forth.

Those are all individuating characteristics.

Now, I can see taking them all into account or taking none of them into account, but to sort of arbitrarily say we’re going to take into account some and not others doesn’t seem to me a manner of interpreting the statute, but a matter of writing one.

David N. Yellen:

Well, in fact the commission is there deferring to Congress.

Congress has said drug amounts matter a lot, and it would have been more presumptuous of the commission to say that–

Ruth Bader Ginsburg:

But Congress said prosecutors have the discretion to go after the enhancement, and Mr. Yellen, frankly I don’t have a clear answer to my question, and I think Justice Souter has the same problem.

I can understand you saying, yes, that Judge Stahl was right, it effectively nullifies the enhancement, but that is exactly what the commission was trying to get at, because it wanted two people who committed identical conduct, who had the identical history, to be treated alike, and you can’t have both.

You can’t treat two people who are exactly alike in every other respect the same unless you… unless you erase what the prosecutor has done.

David N. Yellen:

–Justice Ginsburg, it does not nullify the prosecutor’s choice.

It nullifies the automatic sentence enhancement effect of the prosecutor’s choice that the Government asks for, but it does not at all nullify the effect of the prosecutor’s choice–

Antonin Scalia:

Yes, but that is the effect that the statute prescribes.

I mean, you say… in other words, in the automatic sense, it has been effective; what the statute prescribes is that the sentence will be enhanced automatically.

David N. Yellen:

–Well, there’s not one statute here, of course.

You’re talking about the relationships between two statutes, 851, which is the mechanism for the prosecutor to get the enhancement, and then there’s 994(h), which directs the Sentencing Commission to devise a guideline at or near the maximum.

851 does not authorize the Government to obtain a higher sentence.

If they have that power under the Government’s view it’s only because 994(h) mandates it.

David H. Souter:

All right, let’s just change the phraseology.

It authorizes the court to impose a higher sentence, and that authorization is effectively eliminated.

David N. Yellen:

No, Justice Souter.

The–

Stephen G. Breyer:

And you could say… is it right you say no because–

–Let him answer Justice Souter’s question.

David N. Yellen:

–The… when the Government files under 851 the authorization is there to impose a 30-year sentence.

The court has that power, and the court will do that if it either exercises its discretion to depart, or if there are aggravating–

David H. Souter:

But the effect of that, when the court then switches to the career offender provisions, is effectively nullified, is it not?

David N. Yellen:

–No, Justice Souter.

Maybe I didn’t explain this well.

The career offender guidelines presents an alternative method of computing the guideline sentence.

For these defendants under Amendment 506 the career offender level is 32 criminal history category 6, okay, which is 210 months to 262 months, but the judge can… is required to compute the guideline range without regard to the career offender guideline, look at the amount of drugs, the weapon, and all of the other factors.

And the way the guidelines were written, in many cases, particularly for career offenders who have long criminal records and are likely to be involved in very serious drug crimes, unlike the respondents in this case, those offenders will very often have guideline ranges that are above the unenhanced statutory minimum.

David H. Souter:

But I think you’re saying that there are bases other than the exercise of prosecutorial discretion to file the information upon which the court may nonetheless raise the sentence, and Justice Ginsburg’s question and mine is, other things being equal, if we look only at the effect that the prosecutor’s discretion to go after the person for the enhanced sentence has, that effect on at least the judge’s discretion is minimized or eliminated.

David N. Yellen:

And again I respectfully disagree, Justice Souter.

If you’re at level 32 and you have no enhancement motion filed under 851 the maximum is 20 years, or 240 months, so you could not even go to the top of the guideline range lawfully, the level 32.

You could not go to 262 months.

You would be capped, the judge would be capped at 240 months.

If the Government has filed under 851, now the judge can go above 240 months all the way up to 360 months, so it retains… the effect of the enhanced maximum remains precisely the way it has always operated, and operates for anyone who is not a career offender.

The… I hope I’ve explained that clearly.

The–

Stephen G. Breyer:

I don’t know if there’s really a disagreement in that it seems to me, too, that it cuts the heart out of the jump from 20 to 40 years.

I agree with you that there remain some circumstances where it was important to raise the cap.

The circumstances where it was important are where you depart, or where the crime at issue is greater than the 20 years under the guideline, and where you want to use the career offender and go all the way up to 262 months.

You characterize that as a big role for raising the cap to play.

I think Justice Souter was characterizing it as a role for it to play, but not the whole heart of the matter, and is that a fair… is that fair?

David N. Yellen:

–It will… yes.

Longer sentences will be less common under the commission’s amendment, absolutely.

But the question here is not whether that’s a good idea or a bad idea but whether, rather looking at the sentencing format in its entirety, and all the commission’s obligations, it’s a decision that it would have the authority to make, and again I point to the fact that Congress specifically decided to frame this as a general instruction to the commission and introduce the concept of categories.

The Government’s reading of this statute completely eliminates the meaning of the word categories.

It reads as if the commission was directed to call for a sentence at or near the maximum for any defendant who is 18 years of age or older, and Congress had to mean something by–

William H. Rehnquist:

Thank you, Mr. Yellen.

Mr. Dreeben, you have 3 minutes remaining.

Michael R. Dreeben:

Unless the Court has any questions, the Government waives rebuttal.

William H. Rehnquist:

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.