Notice & Comment

D.C. Circuit Review – Reviewed: The Meaning of Silence

It was a quiet week at the D.C. Circuit, with no arguments and only two* opinions. 

In United States v. Turner, the panel addressed the proper interpretation of the Sentencing Guidelines in determining a sentence for a supervised-release violation.  Under the Guidelines, the court must first determine the grade of violation based on the severity of the violation conduct.  The court then calculates the recommended term of imprisonment based on the Revocation Table, which dictates a range based on the violation grade and the defendant’s criminal history. 

The question in Turner is whether the sentencing ranges listed on the table are the total recommended punishment (in which case Turner would be subject to a 6-12 month sentence), or whether they are the recommended punishment for each underlying count for which the defendant is on supervised release (in which case Turner would be subject to a 12-24 month sentence). 

Judge Tatel, joined by Judge Edwards, held that the table represents the total sentence, regardless of the number of underlying counts.  As Judge Tatel’s opinion explains, neither of the two variables upon which the Revocation Table is based refer to the number of underlying counts.  The grade of violation depends on the conduct constituting the supervised-release violation, not the number of counts for which a defendant is on supervised release.  And the criminal history variable is determined as of the time the defendant was originally sentenced.  Judge Tatel thus found that the consideration of the number of underlying counts “lacks any textual basis in the Guidelines” and is “at odds with other language” in the Guidelines, which “speaks in term of total punishment.”  He also concluded that the interpretation is reinforced by the Guidelines’ structure and purpose.

Judge Tatel recognized that the Fifth Circuit and the Ninth Circuit have come to a different conclusion, however.  The Ninth Circuit has held that the Sentencing Guidelines’ silence on the issue requires courts to “revert to the statutory provision conferring discretion on the sentencing court,” United States v. Campbell, 937 F.3d 1254, 1258 (9th Cir. 2019), and the Fifth Circuit similarly relies on the district court’s discretion, United States v. Badgett, 957 F.3d 536, 541 n.20 (5th Cir. 2020).  This disagreement raises some interesting questions about how to interpret silence—whether it implies a prohibition on consideration of what is not mentioned, or whether there is another background principle that allows for more discretion. 

But while Judge Henderson dissented, she did not need to engage in that debate because she did not rely on the Guidelines’ silence.  Instead, she found textual support for her interpretation in the language introducing the Revocation Table, which states that “[t]he range of imprisonment applicable upon revocation is set forth in the following table.”  According to Judge Henderson, the next question is “what is being revoked?”  The answer to that question is: a term of supervised release.  And here, the district court stated that it had revoked “each of the supervised releases,” meaning that each revocation warranted a separate application of the calculation.  Unsurprisingly, Judge Henderson also disagreed that that the structure of the Guidelines led to the majority’s conclusion, and highlighted differences in what the majority claimed was similar. 

Note that while the panel’s opinion creates a circuit split on this issue, it’s not one the Supreme Court will resolve, per its decision in Braxton v. United States, 500 U.S. 344 (1991), which leaves issues regarding the interpretation of the Guidelines to the Sentencing Commission. 

*The Court’s second opinion was in Atchley v. AstraZeneca–a case involving the Anti-Terrorism Act and the Justice Against Sponsors of Terrorism Act. You will have to read the 61-page opinion yourself, because I am recused.

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