Criminal case arguments in the November sitting

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

While all media eyes will be on the tariff cases set for oral argument on Nov. 5, the fact is that over half of the 11 cases set for the two-week November sitting are criminal-and-related cases. (Because a few cases have been consolidated, two each on different days, you might say only nine separate merits cases are at issue. And don’t forget my perspective that the justices have the “easiest job” in the judiciary: for November, they have five days of oral argument over only two weeks, and this is normally no more than three hours of argument each day – then they have “off” until Dec. 1.) Here is a brief summary of some things to listen for (no video allowed) in cases of interest to criminal practitioners.

Monday, Nov. 3

First up is Rico v. United States. In 2018, Isabel Rico left her federal supervised release term, moving to another California county without getting permission from or notifying her probation officer. That term had been imposed after Rico served time in prison for methamphetamine and heroin distribution and had absconded from supervised release once before.

By the time Rico was rearrested in 2023, the 42-month term of her supervised release would have expired. But the district court (summarily affirmed by the U.S. Court of Appeals for the 9th Circuit) applied what is known as the “fugitive-tolling doctrine,” which means that it did not count the time when Rico had been a fugitive. So the court sentenced Rico to prison time again, with a Sentencing Guidelines range that was increased because she had absconded. The question before the Supreme Court is whether a fugitive-tolling doctrine can be applied to federal supervised release, when there is no explicit authority for it in the statute. 

U.S. Solicitor General D. John Sauer argues that statutory text implies congressional intent to apply the doctrine, which the government says is consistent with a “longstanding common law” principle that prisoners cannot profit from their own wrongdoing. 

Rico relies primarily on the absence of express statutory text, and she adds that if federal laws are ambiguous, a doctrine known as the rule of lenity should apply in her favor. The latter argument is likely a wave to Justice Neil Gorsuch, who has often invoked that doctrine. I would expect a spirited discussion among the justices on statutory interpretation, but I’d find it surprising if a majority votes for Rico.

The second case for argument on Nov. 3, Hencely v. Fluor Corporation, presents an act of tragic combat violence. The Fluor Corporation is a government contractor that employed (negligently, it is alleged) a local Afghan civilian who turned out to be a suicide bomber. Army Specialist Winston Hencely was tragically injured by the bomb, and he sued the contractor in South Carolina state court. The question is whether a state law claim against a government contractor is preempted under the Federal Tort Claims Act by extending a 1988 decision (Boyle v. United Technologies Corp.) that immunized the government itself from suit. 

The facts of Fluor’s actions are disputed, and Fluor and the solicitor general now argue for a constitutional immunity rather than just applying Boyle. The legal question may be influenced by the sympathic facts of Hencely’s case, but going beyond that is outside my expertise, other than to feel certain that strong respect for the military and its contractors in combat zones is likely to be unanimous.

The week of Nov. 10

There are only two days of argument during the week of Nov. 10, because Veterans Day is Tuesday, Nov. 11. But all four cases that week relate to criminal law topics.

Landor v. Louisiana Department of Corrections and Public Safety: The facts here add to a history of extreme Louisiana “correctional” (prison) cases, so extreme that the solicitor general has entered on the side of the prisoner. Damon Landor had only a few weeks left on a five-month sentence when he was transferred to the Raymond Laborde Correctional Center. A devout Rastafarian, Landor had not cut his hair for 20 years, and he carried with him an opinion from the U.S. Court of Appeals for the 5th Circuit holding that cutting Rastafarians’ hair violates the Religious Land Use and Institutionalized Persons Act, or RLUIPA (“ruh-loo-puh”). Landor showed a copy of the 5th Circuit ruling to the intake officer, who summoned the warden when Landor objected to his hair being cut. The warden demanded proof of Landor’s religious belief and said “too late for that” when Landor said he could get documentation from his lawyers. Prison officials then cuffed Landor to a chair, held him down, and “shaved his head to the scalp.”

Although the Supreme Court has previously ruled that lawsuits against individual officials for damages are permitted as “appropriate relief” under the very similar Religious Freedom and Restoration Act, or RFRA (“riff-rah”), the 5th Circuit distinguished the two statutes and upheld the district court’s dismissal of Landor’s RLUIPA claims. 

Six 5th Circuit judges dissented from a denial of en banc rehearing. Louisiana’s main defense here is to argue that RLUIPA is unconstitutional. It seems, however, too late for that argument, as the court has previously upheld RLUIPA. There may be some debate about specific constitutional authority for Congress to enact statutes, but the intersection of the facts and respect for religious freedom suggests a possible unanimous reversal.

The GEO Group, Inc. v. Menocal presents a technical (but important) question of appellate procedure. GEO is a private, for-profit company that runs an immigration detention center in Colorado. GEO allegedly used solitary confinement to force detainees to work and paid them $1 per day while providing inadequate food. Alejandro Menocal sued GEO for a class of detainees; after discovery, the district court issued a detailed 100-page opinion denying GEO an immunity defense under the 1940 case of Yearsly v. W.A. Ross Construction Company for contractors whose conduct is “authorized and directed” by the government.

GEO sought to take an interlocutory appeal (that is, an appeal on a legal question before a final judgment on the merits is issued), invoking the “collateral order” doctrine, which sometimes, but rarely, allows such a premature appeal. But the normal rule (and the appellate jurisdictional statute) generally requires a “final decision” before appeal is permitted; pre-judgment objections are usually required to be accepted until a full merits ruling is entered and appealed. The U.S. Court of Appeals for the 10th Circuit dismissed GEO’s case for lack of jurisdiction because no final order had been entered. 

The Supreme Court has recognized that some potentially dispositive issues can be appealed interlocutorily, however, if they are entirely “collateral” to (that is, separate from) the merits of the case. Nevertheless, the court has made clear that exceptions to the final order rule should be rare and “stringently construed.” The question in GEO is whether the collateral order doctrine should permit GEO’s interlocutory appeal. Interestingly, as in Landor, the solicitor general has entered the case on what might be viewed as the “liberal” side, for the Menocal detainees, likely because the government generally dislikes the delay and expense of interlocutory appeals. Nevertheless, in the closing (and frankly intellectually mushy) pages of his brief, the solicitor general says that some “valid concerns” are raised regarding the costs of government contractor liability in some circumstances, but should be addressed by rulemaking or “other avenues,” not an interlocutory appeal.

The last day of the November sitting, Nov. 12, consists of three First Step Act cases raising slightly different questions: Fernandez v. United States; and the consolidated cases of Rutherford v. United States and Carter v. United States. I warn you now that summarizing them is complicated. The First Step Act was enacted in 2018 to permit district courts to reduce some lengthy drug and firearm sentences if (among other requirements) there is an “extraordinary and compelling reason.” Each of these cases ask whether certain facts can lawfully be considered as “extraordinary and compelling reasons” under the statute. 

In Fernandez, which will be argued first on Nov. 12, the district judge found (seven years after imposing the sentence) a combination of “extraordinary and compelling reasons” to reduce Joe Fernandez’s sentence – for example, that Fernandez was “possib[ly] innocent” due to a perceived lack of credibility in the testimony of the drug-dealing informant who had hired Fernandez to kill another drug dealer, and also the disparity between that lead drug dealer’s 30-year sentence (on a plea deal) and Fernandez’s life sentence after trial. But the U.S. Court of Appeals for the 2nd Circuit reversed, because those reasons could be raised under a separate federal statute (28 U.S.C. § 2255, which permits federal prisoners to challenge their sentences) and so cannot also be counted under the First Step Act. When it granted review, the Supreme Court rewrote the question that Fernandez had asked it to decide, framing the question before it as “whether a combination of ’ ‘extraordinary and compelling reasons’ that may warrant a discretionary sentence reduction under [the First Step Act] can include reasons that may also be alleged as grounds for vacatur of a sentence under 28 U.S.C. § 2255.”

In the second case (consolidated by the court for one argument), the defendants, Daniel Rutherford and Johnnie Carter, presented a different “extraordinary and compelling” reason for reduction: the fact that defendants sentenced after the First Step Act can receive imprisonment terms decades shorter than the mandatory terms imposed for the same offenses prior to the act. That’s because Section 403 of the First Step Act reduced the mandatory imprisonment sentences for using a firearm during a crime of violence from 25 to seven years, for defendants whose convictions came in the same proceeding. Section 403 also provided that its possible reductions could apply “if a sentence for the offense has not been imposed as of [the] date of enactment” of the First Step Act. Thus, the statute  necessarily caused sentencing disparities, between defendants convicted of the same firearms offenses whose sentences were final, and defendants whose sentences were not yet final before the act took effect.

Specifically, Rutherford received a mandatory 32-year term of imprisonment and Carter received 57 years for carrying a firearm during robberies (on top of imprisonment sentences for robberies). Had their sentences not yet been final on the date of enactment, both men would have received substantially shorter – 18 years less for Rutherford and 36 for Carter – sentences. When the First Step Act became law, they both sought reductions, arguing that the sentencing disparities were “extraordinary and compelling reasons” to reduce their terms.

Both district courts denied relief even though the defendants had received additional 25-year mandatory imprisonment terms that would not have applied if their sentences had not been final before the First Step Act. The U.S. Court of Appeals for the 3rd Circuit affirmed in both, ruling that the prospective nature of the First Step Act for sentences not yet final reflected Congress’ intent to not permit First Step relief for sentences that were final prior to the date of enactment (rejecting the Sentencing Commission’s contrary view because the statute controls over the Sentencing Commission).

Last term, in Hewitt v. United States, the court decided a First Step Act case by an energetically disputed 5-4 vote. Justice Ketanji Brown Jackson wrote for the majority, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Neil Gorsuch. Justice Samuel Alito wrote for the dissenters, accusing the majority of displaying “a thinly veiled desire to march in the parade of sentencing reform.” The case involved very different interpretations by the justices of the statute’s terms and the sentencing philosophies behind the words. I expect heated oral arguments in both Fernandez and Rutherford; keep your ears open for questions from the chief and Gorsuch, as they were the deciding votes in Hewitt last year.

Conclusion

As is often the case, much of the court’s work in November will interest those who follow developments in criminal law. We think we know the “politics” of all the justices, but the usual labels do not always dovetail with results in criminal cases these days. The “liberal” justices, as well as defense-side advocates, have become adept at finding ways to package their views and cases to attract some justices from “the middle.” I would posit last month’s arguments in Case v. Montana (about warrantless “emergency aid” home entries) as an example: Jackson and others proposed ways to rule against Case that may moderate more extreme Fourth Amendment theories. Add to that the entry of the solicitor general in both Hencely and Menocal, and you may find that the results on the criminal side of the docket are, once again, not exactly what you thought they might be.