Sotomayor, Barrett agree US Sentencing Commission needs members to act

U.S. Supreme Court Justices Sonia Sotomayor and Amy Coney Barrett expressed concerns Monday about disparities in federal sentencing for crimes involving controlled substances and the fact that the U.S. Sentencing Commission, which was formed to address the disparities, has lacked enough members to reach a quorum for the last three years.

U.S. District Court Judge Charles R. Breyer, based in San Francisco, is the chair, and only voting member of the nine-member commission. "I agree completely with the urgency that is expressed by Justices Sotomayor and Barrett," he said in a phone interview.

The statement from Sotomayor, joined by Barrett, was posted on the Supreme Court's website after the court's denial of a writ of certiorari in a controlled substance case out of Virginia.

"It is the responsibility of the Sentencing Commission to address this division to ensure fair and uniform application" of the Federal Sentencing Guidelines, Sotomayor wrote. "In March 2021, I wrote concerning an unresolved circuit split over the proper interpretation of a guideline. ... The Sentencing Commission lacked a quorum of voting members then, and it still does today."

Due to a lack of members, the commission has not been able to exercise its duties, Breyer said. Those duties include establishing sentencing guidelines and advising and assisting the federal government in the development of crime policy.

Breyer's six-year term on the commission was set to expire in October, but he remains on holdover status for up to a year until his successor is appointed. The commission has seven vacancies including Breyer's successor. The seven voting members are appointed by the president and confirmed by the Senate.

Breyer's colleagues on the commission are two nonvoting members, representing the U.S. Parole Commission and the Department of Justice.

Sotomayor and Barrett highlighted a division among the courts of appeals over the proper definition of a controlled substance crime. The federal guidelines define the crime as the manufacturing, importing, exporting, distributing, possessing or dispensing of a controlled substance, but does not define what a controlled substance is.

As a result, the 9th and 2nd U.S. Circuit Courts of Appeal have defined a controlled substance offense as one involving a substance listed on the Controlled Substances Act. In contrast the 4th, 7th, 8th and 10 Circuit Courts define a controlled substance on the basis of relevant state law.

The Virginia case challenged the status of Thomas J. Guerrant as a career offender on the basis of his two prior felony controlled substance convictions.

"As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants' sentences. I hope in the near future the commission will be able to resume its important function in our criminal justice system," Sotomayor wrote.

Myron Moskovitz of Moskovitz Appellate Team in Piedmont said the justices' comment on the denial is all they can do and it is up to the president to fill the commission seats.

"It's a kind of issue that an administrative agency should address before it goes to court," Moskovitz said in a phone interview. "The court, of course, is supposed to give significant deference to the agency. And the purpose of the sentencing guidelines is to provide uniformity across the country and that's not what's happening. ... So they're applying pressure. They could grant cert. and sim365165ply resolve it themselves without input from the sentencing commission, but that's not the best way to proceed and they're saying, 'Come on, President, get off the dime and make this thing happen, because as it's happening now, it's unfair."

Moskovitz explained the commission should clarify the definition and if there are any challenges to their clarification, the court would then decide whether or not it should address the challenge.

The fact that the statement was one from two justices, who are from two different sides of the political spectrum, makes the statement even more powerful, Moskovitz said.

"It's very unusual and very powerful. If the president takes their advice, you can't be accused of acting for ideological or political purposes. It's coming from both sides of the fence," he continued. He predicted the court will most likely continue to deny hearing these guideline cases and wait for the commission to address the discrepancies.