Concepcion v. United States (20-1650)

argument 20-1650

Concepcion v. United States

Supreme Court of the United States 1h 15m 8 speakers 8 chapters transcribed 7 days ago official recording ↗

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What is the First Step Act’s “may‑impose” versus “must‑consider” sentencing rule?

John G. Roberts 0:00

We'll hear argument next in case 2016-50, Concepcion v. United States.

Eric M. McLeod 0:07

Mr. McLeod. Mr. Chief Justice, it may please the Court. The First Circuit held below that district courts are barred from considering intervening law and facts when deciding whether to impose a reduced sentence under the First Step Act. That holding conflicts with the law's text, and it flouts background principles of sentencing and judicial decision-making. The First Circuit's rule would also require courts to ignore information that is critical to the reasoned exercise of their sentencing discretion. Under the First Circuit's approach, the fact that a defendant was suspected in the murder of a prison guard would be an impermissible consideration when deciding whether to reduce that defendant's sentence.

Eric M. McLeod 0:46

The government does not defend the First Circuit's rule. The judgment should therefore be vacated because the district court in this case plainly did not recognize its authority to consider intervening developments. The question for this court is what rule should apply on remand. The first option is that courts must consider relevant intervening law and facts, just as they do in other sentencing proceedings. This is a modest requirement. Under a must-consider rule, the court has to pay respectful attention to arguments about intervening developments made by the parties. But the court, of course, does not have to be persuaded by those arguments, and it does not have to reduce the defendant's sentence.

Eric M. McLeod 1:23

Our backup option, which the government endorses, is that courts may consider intervening law and facts. We think that a must-consider rule will lead to more consistent results in district courts and be more consistently reviewable on appeal. But either alternative before the Court today is preferable to the First Circuit's rule. And the bottom line for both is the same. The First Step Act does not require courts to ignore relevant information. I welcome the Court's questions.

Clarence Thomas 1:51

Mr. McLeod, if you are going to make the must or mandatory argument On what language do you rely?

Eric M. McLeod 2:02

Justice Thomas, we have two textual bases for the must-consider argument. The first is Congress's use of the phrase impose a reduced sentence. We think that that's a clear textual indication that what Congress wanted courts to do is to apply the Section 3553A factors, the factors that courts consider when they impose a sentence more generally. And many of those factors incorporate consideration of intervening legal and factual developments because they go to things like the history and characteristics of the defendant and the severity of the offense. The alternative textual basis, we would say, for the must-consider rule is that Section 404 clearly sets up a statutory scheme where district courts are supposed to exercise their discretion.

Eric M. McLeod 2:45

And in the sentencing context, courts, of course, must be reasonable in exercising their discretion. And the way that Congress has established for courts to be reasonable is to apply the 3553A factors.

Clarence Thomas 2:58

Do you think that your discretionary or may permissive argument is a better, stronger argument than the mandatory argument?

Eric M. McLeod 3:08

Your Honor, I think that they're both strong arguments. I guess the one advantage I would say that the must-consider argument has is that we think it would be more predictable for district courts because the parties will know that the court is going to pay attention to arguments about intervening developments. And I think the same is probably true for appellate courts. They will have the hook of the 3553A factors when they review the case. But just to be clear, Your Honor, we would be perfectly happy with an opinion that said Courts may consider these developments. That's certainly better than the First Circuit's rule.

John G. Roberts 3:39

Thank you. I don't really understand, either through your presentation or the government's, what this may argument is. I understand the idea that you must consider the different things, and at the end of the day, you can come out and say, well, I'm not going to change anything.