By David McAleer, ACLR Featured Blogger
I recently wrote a post about the precedential effect of splintered Supreme Court decisions, analyzing theMarks narrowest opinion test in light of the D.C. Circuit’s decision interpreting Freeman v. United States, 131 S.Ct. 2685 (2011) (discussing the circumstances under which a plea agreement under Fed. R. Civ. P. Rule 11(c)(1)(C) should be understood as “based on” the Sentencing Guidelines). See United States v. Duvall, No. 10-3091, 2013 U.S. App. LEXIS 1658 (D.C. Cir. Jan. 25, 2013) (plea agreement “based on” the Guidelines to the extent explicitly referenced in the agreement). However, recently a new decision, United States v. Epps, No. 11-3002, 2013 U.S. App. LEXIS 2866 (D.C. Cir. Feb. 12, 2013), addressed the issue discussed in that post, resolving it in accordance with Senior Circuit Judge Williams’ concurrence.
In Duvall, the majority did not reach the question whether Justice Sotomayor’s concurrence in Freemanshould control, because both parties to the case agreed it did. Agreeing with the judgment, Senior Circuit Judge Williams nonetheless felt the court should reassess the assumption that Justice Sotomayor’s opinion is bindingsua sponte because of the peculiarity of “clos[ing] the door on a man’s chance at release from prison” by applying an unsupported legal framework. In response, the majority in Duvall admitted that “[i]n applying Justice Sotomayor’s opinion, there may of course be some close calls at the margins,” but felt that the question “is likely to be a relatively short-lived issue for the courts,” because the U.S. Attorney’s Office had begun drafting plea agreements “with the eye to avoiding later litigation on the Freeman issue.” This reasoning sidesteps the question whether unsupported legal reasoning (if, for instance, Judge Williams was originally correct that the legal standard should have been reconsidered) which changes the language of plea agreements is a good reason to close the door on a man’s chance of release. Presumably, the U.S. Attorney’s new “eye” drafting plea agreements would prefer to keep the door closed. By establishing a precedent that would allow parties to draft agreements that conclusively specify whether they are based on the guidelines, this result might in some measure justify Judge Williams’ concern that sentencing would depend more on the parties’ agreement than the sentencing court’s judgment.
However, the court decided the issue in reasoning almost identical to Judge Williams’ Duvall opinion. Judge Brown dissented on mootness. See United States v. Epps, No. 11-3002, 2013 U.S. App. LEXIS 2866 (D.C. Cir. Feb. 12, 2013). In Epps, the court examined several different methods of determining controlling precedent in splintered decisions, focusing on the fact that none, including the Marks test, would be applicable to every situation. By engaging in such detailed analysis and undermining the assumption that Marks is generally applicable, the court has suggested that anytime a splintered Supreme Court opinion involves the issue to be decided, a similar fact-specific analysis is called for. In Epps, the court frames the question narrowly: whether Justice Sotomayor’s opinion in the splintered case, Freeman, controls whether the retroactive adjustment of sentencing guidelines should apply to plea agreements. Relying on an en banc opinion, King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991), the Epps court concludes: “all the analytically necessary portions of a Supreme Court opinion must overlap in rationale in order for a controlling opinion to be discerned pursuant to Marks; if no such common rationale exists the Supreme Court precedent is to be read only for its persuasive force” (internal quotation marks omitted). As noted in Duvall and Epps, other circuits that considered the question have assumed that Sotomayor’s Freeman opinion controls. Disagreeing, the D.C. Circuit considers the Freeman plurality controlling.