[We’re working on a hot project for next week, which originally was to be for this week, but production was interrupted due to lack of research materials. Sorry, we won’t review a book until we have it in our hot little hands. We aren’t pundits on major media. They get paid to do that kind of thing; we don’t get paid at all; so we have the luxury of standards.

So, lacking anything publishable in the in-box, I polled the staff for ideas. What can we do very quickly, I asked, to publish something this week? One guy said he’s been experimenting with his new phone, and found out how to take a picture with it. He could donate a great picture of a bagel from a nearby coffee bar. [At least it wasn’t a donut.] It was appetizing for sure, and very artistic; but, frankly, not our kind of thing. There’s no policy or social commentary inherent in bagels; at least not right now. So I turned it down.

Then there was the guy who wanted to do a rant on gender-bending sociologists, and how they threaten the English language. Look at the nonsense they teach! I turned that down also, at least for now. My theory was this: Apparently there are 50 or more of the new genders, or sub-genders; at least that’s what I’m told. How can that be a threat to our language? No students will remember any of that stuff after the exams they’re cramming for are over, so they won’t use it, either. Only the Government would adopt that kind of thing. Can you imagine the furor it might cause if someone incorrectly identified his or her [or …?] gender on a federal form and is prosecuted for it?[1] Now that would be a blog! Come back when something like that happens.

So that leaves me with Larry’s suggestion, which is to commemorate the end of the 8 judge Supreme Court. Will the new justice inject more partisan rancor into the Court’s deliberations? Will his presence mark the end of the occasional “unanimous” Court decision? Frankly I don’t know, but perhaps Larry does.]

I don’t either and won’t speculate. There aren’t many unanimous opinions in a year, and I don’t know if they will increase or decrease with the advent of Justice Gorsuch. Only time will tell. But I do have an interesting one, Dean v. United States,[2] that came out just this month and shows what the pre-Gorsuch Court could do when the Government clearly overreached. Let me explain.

Levon Dean, Jr. and his brother were not nice people. They robbed a methamphetamine dealer in a motel, and another at home, and used a modified semiautomatic rifle both times. Apparently the gun wasn’t fired: it was used to threaten the victims, and later to club them.[3] At the end of the trial Levon Dean was convicted of:

  • one count of conspiracy to commit robbery,
  • two counts of robbery,
  • one count of possessing a fire­arm as a convicted felon, and
  • two counts of possessing and aiding and abetting the posses­sion of a firearm in furtherance of a crime of violence.[4]

Dean did not challenge these convictions, but disputed the way his sentences were calculated.

The last charge was brought under 18 U.S.C.  §924(c). That statute “criminalizes using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or possessing a firearm in furtherance of such an underlying crime.” The two robbery convictions “qualified as predicate crimes of violence” under that statute.[5] However, §924(c) was very important for sentencing purposes: it provides that, in addition to any other sentences, someone who uses a firearm in a “drug trafficking crime” will get a mandatory minimum sentence of 5 years for the first offense, plus 25 years for the second. So someone like Dean, who had a first offense and a second in the same incident, was facing a mandatory minimum of 30 years, plus whatever might be assessed for the other counts.

The mandatory minimums had to be run consecutively – that is, in addition to – anything imposed for the other offenses. “For Dean, this meant a 30-year mandatory minimum, to be served after and in addition to any sentence he received for his other counts of conviction.”[6] The trial judge recognized that the 30 years was, indeed, mandatory, but saying that Dean “was ‘clearly the follower’ and that he lacked ‘any significant history of any violence,’ agreed that 30 years plus one day was ‘more than sufficient for a sentence in this case.’”[7] There were guidelines that recommended more than 1 day for the remaining crimes, and the trial judge felt constrained by Circuit precedent to do more; but due to the severity of the mandatory minimum sentences, he still imposed less than the guidelines.[8]

Sentencing decisions are guided by statute, specifically by 18 U.S.C. §3553(a) and the factors it specifies:

The list of factors is preceded by what is known as the parsimony principle, a broad command that instructs courts to “impose a sen­tence sufficient, but not greater than necessary, to comply with” the four identified purposes of sentencing: just pun­ishment, deterrence, protection of the public, and rehabili­tation ... A sentencing court is then directed to take into account “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as “the need for the sentence imposed” to serve the four overarching aims of sentencing … The court must also consider the pertinent guidelines and policies adopted by the Sentencing Commission.[9]

The Government argued, and the appellate court agreed, that the trial court should have calculated the proper sentences for each count without adjusting any of them to account for the impact of mandatory minimum sentences impose by §924(c). The mandatory minimums are imposed to prevent “district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory mini­mum under §924(c) is already punishment enough.”[10]

But the Court found “no such intent [to limit judges] in the language of §924(c).” That language “simply requires any mandatory minimum under §924(c) to be imposed ‘in addition to’ the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sen­tencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.”[11] In short, while the mandatory minimums can’t be changed, other sentences can.

So what conclusions do we draw from this? Well, perhaps that the Court doesn’t much care for mandatory minimum sentences; that it thinks sentences should be tailored to the crimes; that it will give mandatory minimums force and effect when they are expressly required by law; but that it’s not eager to expand them beyond their obvious scope and intent. Anyway, that’s what looks to be the view of 8 judges on the Court. What about Justice Gorsuch? Who knows, perhaps he agrees that enough is enough?



[1] That’s for making a “false statement,” of course. See, e.g., 18 U.S.C. §1001(a): “Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both ….” The statute is available from the GPO, at https://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-chap47-sec1001.pdf There are lots of other “false statements” provisions in the U.S. Code, but this is the one you often see cited on federal forms, like those you might use to apply for a government job.

[2] Dean v. United States, 581 U.S. ___ (2017) (slip opinion) (hereafter cited as Dean at ___.) The Court was unanimous; the opinion of the Court was delivered by Chief Justice Roberts.

[3] See Dean at p. 1 – 2.

[4] Id. at 2. See 18 U. S. C. §§2 & 924(c).

[5] Id. at 2.

[6] Id.

[7] Id.at 3.

[8] Id. at 3: “. Viewed on their own—and not as part of a combined package—those counts plainly warranted sentences longer than one day. In the end, the judge still granted a significant downward variance from the 84–105 month Guidelines range. Dean received concurrent sentences of 40 months for each non ­§924(c) conviction ….”

[9] See Dean at 4.

[10] Id. at 8.

[11] Id.