U.S. Supreme Court Backs Orrick Appellate Team in Major Federal Sentencing Case


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 persuaded the Supreme Court to resolve this confusion in Mr. Hughes’s favor.  The majority held that defendants who enter into these plea agreements indeed can be eligible for a retroactive sentence reduction.  Justice Sotomayor changed her vote from Freeman and joined the majority opinion in full, as did Justice Gorsuch (whereas Justice Scalia, whose place he took, had sided with the Freeman minority).  Justice Sotomayor explained that although she still believed her Freeman concurrence “sets forth the most convincing interpretation of” the law, she had been persuaded that the divided opinions in Freeman had caused unacceptable confusion.  “I therefore join the majority in full,” she wrote, “because doing so helps to ensure clarity and stability in the law….”  And the rule announced in Hughes “ensures that similarly situated defendants are subject to a uniform legal rule.”

“Today’s decision will have dramatic consequences for people, like Mr. Hughes, who are serving sentences based on Sentencing Guidelines that Congress and the Sentencing Commission now recognize were too harsh,” Eric said. “They’ll now get the chance to explain to a judge why they should get months or years of their lives back to spend with family and contribute to society.

Congress decided that people serving unduly harsh sentences, imposed under outdated guidelines, should be eligible to have their sentences reduced.  As six Justices explained today, that relief shouldn’t be denied on the basis of a formality—the type of plea agreement a particular defendant signed.”

The win in Hughes marked a highly successful term for Orrick’s Supreme Court and Appellate Practice, which secured five successful outcomes in all five cases heard by the justices. Four different partners from the group argued the cases, including Josh Rosenkranz, head of the practice group, and partners Bob Loeb and Kelsi Brown Corkran, in addition to Eric.

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.