It's no secret that the Sixth Circuit is having some trouble with crack sentencing. But it's not just Fair Sentencing Act changes, or retroactivity, or their own muddled precedent that they keep botching. They're also having issues with differentiating a felony from a misdemeanor for purposes of priors and with statutes of limitations.
To be fair, this is all North Carolina's fault. Their determinative sentencing scheme, which takes into account past crimes, the nature of the present crime, and other individualized factors to determine an appropriate sentence is far more complicated than "give 'em a few decades." And the Sixth Circuit isn't the only circuit to struggle with NC's sentencing; the Fourth, being more local, has gone back-and-forth on the issue.
That being said, everything should be clear now, thanks to the Solicitor General. On Monday, the Supreme Court reversed two Sixth Circuit cases, with a note hinting that the Circuit Court should take a peek at the solicitor's briefs, which they were kind enough to share with us.
Michael Snipes v. United States (13-6733)
Snipes sold drugs. Crack, to be exact. Under the pre-Fair Sentencing Act guidelines, he sold enough to qualify for a life sentence, and in fact, per the courts' interpretation of his criminal past (two convictions in North Carolina), a life sentence was mandatory.
Joseph Story v. United States (13-7283)
Story also sold crack, but he got the benefit of a Booker resentencing, dropping his sentence from 360 months to 300. (Yay!). After another trip to the Sixth Circuit and a remand, it was dropped even further to 240 months. (Double yay!). He only had one North Carolina prior on his rap sheet.
NC Sentencing: Misdemeanor or Felony?
In order to nail someone with an enhanced sentence under the federal scheme, one has to point to prior felony convictions. What's a felony? Anything punishable by more than one year in prison, of course.
Easy enough, unless you look at North Carolina's complicated scheme, where the same crime means different time depending on the defendant.
Both Snipes and Story's convictions did not expose them to more than a year individually, but one of the first courts to touch the issue, the Fourth Circuit, held that the correct measure was whether any defendant, including the worst possible defendant, could receive a sentence of more than one year. Think "objective kingpin" rather than "subjective salesman."
In Carachuri-Rosendo v. Holder (2011), the U.S. Supreme Court held that for purposes of immigration laws, which also rely on prior felonies, an individual's maximum theoretical sentence is what counts.
The Sixth Circuit adopted that view, interestingly enough, three years earlier in Pruitt and rejected the Fourth Circuit's approach, though it was long after both men were sentenced. The Fourth Circuit itself came around in 2011, when an en banc court relied on Carachuri-Rosendo to reverse their prior holding.
Whose Statute of Limitations Defense is it Anyway?
If all of this discussion of landmark cases from 2008 and 2011 have you wondering about clocks and time limits, you're on the right track. In fact, the SOL defense was so obvious that in both of these cases, the trial court raised the issue sua sponte.
That, per the Solicitor General's briefs, was improper. A party should have its chance to be heard, and the government should have its chance to raise or waive the defense first (including for strategic and/or policy reasons), then the court can jump in sua sponte if the government hasn't purposefully waived the defense.
In fact, with Holder's War on Drugs, that might be exactly why the government took the position it did in the briefs that swayed the courts. A pre-FSA life (or 30-year) sentence for crack that looked unreasonable when it was imposed looks unconscionable now. The U.S. Attorneys' Office very well may have chosen to waive the SOL defense in order to allow resentencing because both defendants were sentenced incorrectly per Carachuri-Rosendo and the Sixth Circuit's own
In short: the court can sua sponte toss a case on time limits, but only after everyone gets to speak.
- Michael Snipes v. United States (Solicitor General's Brief via Scribd)
- Joseph Story v. United States (Solicitor General's Brief via Scribd)
- 6th Circuit Places Hold on Mich. Parole Hearings for Juvie Lifers (FindLaw's Sixth Circuit Blog)