Rejecting the views of 10 courts of appeals, the U.S. Supreme Court today sided with an Orrick appellate team and its client Erik Hughes in an important case at the intersection of the Federal Sentencing Guidelines and rules of stare decisis. The 6-3 ruling provides Mr. Hughes an opportunity to lower his sentence by years—to the level available to every other defendant who’s sentenced for the same crime today.
The case focused on criminal sentences that are lowered by the Sentencing Commission under federal law. The Commission can make those reductions available retroactively because defendants who were sentenced yesterday shouldn’t be deprived of the chance at a lower sentence that’s available to someone who’s sentenced for the same crime today.
But a wrinkle was at the heart of the arguments in Hughes. Defendants may apply for a reduced sentence only if the sentence was “based on” a Guidelines range that has since been lowered. And there’s been great controversy about whether the type of plea agreement that Mr. Hughes entered into—a so-called “Type-C” agreement—is “based on” a Guidelines range at all, or if it’s just based on the plea agreement between the defendant and the government. In 2011, the Supreme Court tried to answer this question in Freeman v. United States but fractured 4-1-4. Until now, courts interpreting Freeman have been badly divided over whether to follow the plurality of 4 justices; to follow Justice Sotomayor’s sole concurrence; or if they’re not bound at all.
An Orrick team led by partner Eric Shumsky (Picture) persuaded the Supreme Court to resolve this confusion in Mr. Hughes’s favor.
In addition to Eric, the Orrick team included Josh Rosenkranz, Mel Bostwick, Tom Bondy, Danny Rubens, Alison Kilmartin, Katie Kopp, Cynthia Stein, Ben Aiken and Mike Abrams. Orrick partnered on this case with Stephanie Kearns and Brian Mendelsohn of the Federal Public Defender’s Office in the Northern District of Georgia.
Involved fees earner: Eric Shumsky – Orrick; Joshua Rosenkranz – Orrick; Mel Bostwick – Orrick; Thomas Bondy – Orrick; Daniel Rubens – Orrick; Alison Kilmartin – Orrick; Katherine Kopp – Orrick; Cynthia Stein – Orrick; Ben Aiken – Orrick;
Law Firms: Orrick;
Clients: Erik Hughes;