Deputy AG Rod Rosenstein to Make First Supreme Court Appearance in Sentencing Case, Even as Rumors Continue to Swirl of Potential Firing

By: Ifrah Law

Deputy Attorney General Rod Rosenstein will be arguing before the Supreme Court today for the first time in his nearly thirty-year government career even as rumors abound that Donald Trump is talking about firing him to cut off investigations into his administration’s Russia ties.

Although the United States is usually represented before the Supreme Court by the Solicitor General, it is not uncommon for Attorneys General and certain other senior Justice Department officials to take on at least one oral argument during their term in office.  And though this is Rosenstein’s first foray into Supreme Court advocacy, he is by no means a green hand in the courtroom.  Rosenstein has served as a government prosecutor for his entire career, trying numerous cases and arguing numerous appellate cases before federal circuit court.  Rosenstein is also a particularly well-respected member of the federal bar—he spent a dozen years the United States Attorney for Maryland, being appointed by George W. Bush and reappointed by Barack Obama—a rare instance of bipartisan agreement for a prestigious political appointment position.

The case, Chavez-Mena v. United States, addresses important questions about how carefully a judge must explain her reasoning when a change in sentencing law requires the modification of a sentence.  This issue comes up frequently—particularly in drug cases, as legislators and the U.S. Sentencing Commission have come to reconsider a long history of overly harsh Sentencing Guidelines.  Under federal law, when a Sentencing Guideline is revised downwards, people sentenced under the original Guideline can seek to be re-sentenced to take advantage of the new, more lenient provisions.  According to the Guidelines themselves, this reduction should be proportional—that is to say, a revised sentence should fall in the same relative to the applicable Guideline as the original one did.

That is exactly what happened to Chavez-Mena, who originally pleaded guilty to possession of methamphetamine in 2013.  When a judge sentences a convicted defendant, he is required to make a series of findings and announce his reasoning in open court, so that appellate courts can review his decision and ensure that the judge’s reasoning was proper.  Although a judge who applies the relevant Sentencing Guidelines is presumed to be reasonable, a judge still must give a detailed statement of reasons explaining why a given sentence was appropriate in a specific case.  Based upon the details of the plea—including, most notably, the quantity of methamphetamine—the Sentencing Guidelines recommended a range between 135 and 168 months.  The judge, after providing his findings and reasons on the record, sentenced Chavez-Mena to the low end of this range—135 months.

Then, in 2014, the Sentencing Guidelines were amended, lowering the Guidelines for Chavez-Mena’s conviction to 108 to 135 months.  Chavez-Mena applied to have his sentence reduced to account for this new Guidelines range, expecting—as is typical—that the judge would locate his sentence in the same place under the new range, leading to a low-end, 108-month sentence.  The government consented to the reduction.  But although the judge granted a reduction, he did not grant a proportional one to the low end of the new range; instead, he sentenced Chavez-Mena to a higher, 114-month sentence with no hearing and virtually no explanation.  The only reasoning was contained in a boilerplate form that said that the court had “taken into account” the relevant legal principles.  This did not explain what had changed in the intervening period to render a sentence at the low end of the Guidelines range inappropriate.

The Tenth Circuit appellate court upheld the sentence, finding that although the judge was required to consider certain factors on modifying Chavez-Mena’s sentence, there was no requirement to explain how those factors led to the new sentence.  Although the court acknowledged the importance of enabling appellate review of improper decisions, it found that it was appropriate to presume that a judge acted properly unless there was a reason to believe otherwise.

Rosenstein will, of course, be arguing to uphold the 114-month sentence and, more generally, to not require federal judges to explain themselves on re-sentencing.  According to the government, the modification of Chavez-Mena’s sentence was not even a true resentencing but, rather, a “congressional act of lenity” where a defendant’s usual sentencing rights do not apply.  Because the law at issue is intended to create a simpler procedure for modifying sentences, the law does not expressly require that a court explain its reasoning when reducing a sentence and, according to the United States, it would be improper to transfer that proposition from an initial sentencing to a sentencing reduction proceeding.

This is a questionable—and even dangerous—proposition.  Judges necessarily have extremely broad discretion over sentencing and the only meaningful way to rein them in is by ensuring that every sentence is justified and based upon proper reasons. There is no good reason why a judge who chooses not to honor the intent of Congress and the Sentencing Commission in granting a full reduction of a sentence should be able to do so with no explanation or oversight.  It also is always slightly concerning to see the government fighting to uphold a sentence that is harsher than what prosecutors had originally advocated for.  However, it is unclear how many justices will elect to force district judges to devote more time and energy to the review of defendants who—like Chavez-Mena—are looking at a lengthy prison term either way.

There is, of course, another potentially interesting aspect to this argument: when high-level Justice Department officials choose to argue a case before the Supreme Court, they often do so near the end of their term, as a capstone on their term in office.  It is possible that Rosenstein has chosen to argue this case now—during his second year in office—because he has legitimate questions about how long it will be before he is fired.

As significant as this case could be for sentencings and resentencings of criminal defendants, it could be even more significant if it turns out to be Rosenstein’s valediction.