The Law Review Forum

Misplaced Abstention: How the Supreme Court’s Deference to an Incapacitated Sentencing Commission Hurts Criminal Defendants

Aliza Hochman Bloom

May 11, 2022

Aliza Hochman Bloom is a Faculty Fellow at New England Law, where she teaches and writes in the area of criminal law and criminal procedure.

Following notable advocacy efforts, President Biden today announced seven nominees to fill the vacant spots on the United States Sentencing Commission. The administration had before only focused on the also important task of appointing federal judges who add needed perspective and diversity to the bench. Despite today’s meaningful announcement, six out of seven seats on the Sentencing Commission are officially vacant, and the Commission’s lone voting member can only stay through the end of this year. Even with President Biden’s announced slate of bipartisan nominees, recent history indicates that it may take up to a year for the Senate to confirm new Commissioners, and these nominations could even expire before the individuals are confirmed.

Without a quorum of at least four voting Commissioners, the Commission cannot conduct its important work of promulgating and amending the Sentencing Guidelines nor clarify circuit court conflicts regarding the interpretation of the existing guidelines. This inability to address conflicting interpretations of its own guidelines means that criminal defendants are punished more severely for the same conduct in some federal courthouses than others, purely because of their geographic happenstance.

The federal sentencing guidelines, though not mandatory, provide the “lodestone” and starting point for every federal carceral sentence in this country. These Guidelines are a mathematical formula, created by the Sentencing Commission, for district courts to calculate federal criminal sentences. The perception that federal judges imposed “an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances,” motivated the 1984 Sentencing Reform Act, and uniformity in federal criminal sentencing was the primary goal for establishing the Sentencing Commission and its comprehensive sentencing guidelines. The Commission was empowered to correct circuit conflicts by clarifying the Guidelines in order to avoid unwanted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. The Supreme Court has reiterated that Congress’s primary goal for the Guidelines was achieving uniformity in federal criminal sentencing: “Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing, i.e., to increase the likelihood that offenders who engage in similar real conduct would receive similar sentences.” Indeed, even advisory sentencing guidelines are only useful if they are reliable, consistent guideposts.

Determining a defendant’s applicable sentencing guideline range is a three-step process. First, a district judge calculates the defendant’s base offense level corresponding to his crime of conviction. Second, the judge resolves the parties’ requests for sentencing enhancements and reductions, provided for in the Guidelines, by making findings about the defendant’s actual conduct. Third, the judge takes the final offense level, combined with a separately calculated “criminal history category,” and determines the defendant’s applicable sentencing range based on the guidelines chart. Finally, having fulfilled the statutory requirement to correctly calculate a defendant’s applicable guidelines range, a district judge hears the parties’ arguments for mitigation or aggravation, and decides the carceral sentence. Importantly, when there is a circuit conflict concerning the interpretation of a particular guideline or its enhancements, similarly situated defendants will be punished for equivalent conduct for different lengths of time.

Notwithstanding the presently incapacitated Sentencing Commission, the Supreme Court is declining to resolve guideline splits based on the premise that the Commission—not the Court—should resolve them. Indeed, the Solicitor General recently noted that it has become the Court’s “usual practice” to decline “review of issues that the Commission may address.”

Yet one of the Supreme Court’s principal roles is to address conflicts between the courts of appeals to promote uniformity and coherence in the application of federal law. The Court exercises its limited jurisdiction sparingly, rejecting most of the petitions that it receives. And the current Court has been granting certiorari in relatively few criminal appeals. In February 2022, for example, the Court declined to hear an appeal where the defendant’s trial attorney was also representing a key witness for the prosecution. Justice Sotomayor forcefully dissented from the Court’s denial of certiorari, insisting that the attorney’s joint representation created a nonwaivable conflict of interest, and the Florida courts failed to protect the “core constitutional guarantee” of the Sixth Amendment and related federal precedent. As in other criminal appeals, however, the present Court lacked the four votes needed to exercise its discretionary certiorari review power.

When abstaining from the resolution of Sentencing Guidelines circuit splits, the Court has been misinterpreting Braxton v. United Statesa 1991 case where it refrained from interpreting a sentencing guideline dispute in part because the Sentencing Commission had already scheduled a hearing to resolve that exact conflict. In March 2021, the Court declined to review “an important and longstanding split” among the courts of appeals over the proper interpretation of a federal sentencing guideline that affects tens of thousands of federal criminal defendants per year. This case, Longoria v. United States, addressed whether a federal criminal defendant who pleads guilty—as 98% of them do—can be punished for exercising his constitutional right to file a suppression motion prior to pleading guilty. For federal defendants living within the circuits that punish their choice to challenge the search or seizure leading to their arrest, the Court’s abstention left them incarcerated longer than their counterparts in circuits that do not permit withholding a guidelines reduction on that basis. The Court’s deference to an incapacitated Sentencing Commission with one voting member thus left these individuals without any actual recourse.

A deeper look at Braxton shows that it does not support the expansive interpretation that the Supreme Court should abstain from resolving circuit splits over the meaning of the sentencing guidelines. And a closer review of Longoria shows how the Court’s avoidance of guidelines cases hurts criminal defendants by perpetuating the disparate application of severe carceral sentences.

Braxton Misinterpreted

Braxton addressed a circuit conflict in the interpretation of USSG § 1B1.2(a). This guideline requires that a district court judge use the base offense level applicable to the “offense of conviction,” unless the defendant’s guilty plea “contained a stipulation that specifically establishes a more serious offense,” enabling the government to ask for the more severe sentencing guidelines.

Deputies were sent to arrest Mr. Braxton for having left the mental hospital to which he had been committed after being found not guilty by reason of insanity in a prior bank robbery case. Mr. Braxton ignored the repeated knocks and announcement of the deputies, and then fired two shots from his revolver into the door and door jamb, before additional officers arrived and he was arrested. Mr. Braxton was charged with a serious offense—attempting to kill a deputy U.S. marshal—and pled guilty to the lesser included charge of assault. Despite having pled guilty to the offense of assault, at Mr. Braxton’s sentencing, the government sought to sentence him pursuant to a higher base offense level—for attempted murder—because it insisted that, despite his plea, Mr. Braxton had admitted facts establishing that more serious offense. The district court agreed that Mr. Braxton’s stipulation sufficed to support the higher base offense level, and then sentenced him pursuant to the higher sentencing guideline.

The Fourth Circuit agreed with the government’s interpretation of USSG § 1B1.2(a), concluding that the guideline permitted Mr. Braxton to be sentenced as if he had been adjudicated guilty of the more severe crime. Meanwhile, however, other circuits precluded defendants who pled guilty to lesser included offenses from later being punished according to the more severe offense guideline, and thus Mr. Braxton’s appeal brought the circuits’ conflicted interpretations of § 1B1.2(a) before the Supreme Court.

Writing for a unanimous Court, Justice Scalia explicitly recognized the Court’s role in resolving conflicts among the federal courts regarding the sentencing guidelines. Scalia explained that a “principal purpose for which we use our certiorari jurisdiction, and the reason we granted certiorari in the present case, is to resolve conflicts among the United States courts of appeals and state courts concerning the meaning of provisions of federal law.” While Congress and agencies share that duty by clarifying statutory provisions and regulations, the Supreme Court “regard[s] the task as initially and primarily ours.”

At the same time, Justice Scalia recognized that the Sentencing Commission has the authority and responsibility to address such conflicts. By charging the Sentencing Commission to “periodically review and revise” the Guidelines, “Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would make whatever clarifying revisions to the guidelines conflicting judicial decisions might suggest.” Justice Scalia explained why it would be inappropriate for the Court to resolve the guidelines split—where “[e]vents that have transpired since our grant of certiorari in the present case have focused our attention on the fact that this may not be Congress’ intent with respect to the Sentencing Guidelines.” After certiorari was granted in Braxton, the Sentencing Commission demanded public comment on “the precise question raised by the first part of Braxton’s petition,” and scheduled a hearing to review the guideline’s application. As a result, Justice Scalia declined “to resolve the first question presented in the current case, because the Commission ha[d] already undertaken a proceeding that will eliminate circuit conflict over the meaning of 1B1.2.” Braxton thus cabined the Court’s abstention as a result of the Commission’s concurrent resolution of the conflict.

In addition, the Court determined that its resolution of the guidelines conflict would not be dispositive because the case could be decided on alternative grounds. Justice Scalia concluded that Mr. Braxton’s stipulation did not “specifically establish[]” that he attempted to murder one of the marshals, and it was thus insufficient to establish the more severe crime of an attempt to kill a deputy United States marshal. Thus, the Court reversed the Fourth Circuit’s decision on these alternative grounds, and the guidelines issue was not dispositive.

As at least one scholar has noted, Braxton does not support the Supreme Court’s expansive abstention from circuit conflicts over sentencing guidelines. Instead, Justice Scalia highlighted the Court’s important role in resolving these conflicts and cabined the Court’s abstention as the result of the concurrent Commission consideration of the guidelines issue as well as the Petitioner’s alternative basis for relief.

Longoria Presents a Persistent Guidelines Conflict

Fast forward thirty years. Last spring, the Supreme Court denied certiorari on an “important and longstanding split” among the courts of appeals on another guidelines interpretation issue: whether a suppression hearing is a valid basis for the government to withhold its motion to reduce a defendant’s offense level at sentencing. Suppression motions are typically grounded in the Fourth and Fifth Amendments. A typical Fourth Amendment motion to suppress will argue that law enforcement either obtained evidence without a warrant, when no exceptions to the warrant requirement applied, or without sufficiently particularized suspicion as required by the Constitution. And a Fifth Amendment suppression motion may argue that a defendant’s statements to police were obtained in violation of Miranda, and therefore should be suppressed. The district court’s resolution of these motions determines what evidence the government will be permitted to present at a potential trial. They are thus critical to the decision of whether a defendant should plead guilty.

Longoria presented a circuit split of critical importance to criminal defendants. The calculus of whether to plead guilty or exercise the right to a jury trial is deeply intertwined with the understanding that pleading guilty typically reduces a defendant’s base offense level by three points. Pursuant to USSG § 3E1.1(b), if a defendant timely notifies the prosecution of his intent to plead guilty, “thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently,” he receives a one-level reduction to his applicable sentencing guidelines. The one-point swing at issue in Longoria has dramatic effects on a defendant’s applicable guidelines range, especially for serious federal crimes.

First, the scope of the guidelines conflict in Longoria must be appreciated. USSG § 3E1.1(a) affects every federal criminal defendant who pleads guilty, and involves one of the few downward adjustments in the Sentencing Guidelines. In 2019, 97–98% of federal criminal defendants convicted of a felony pled guilty. Pursuant to USSG § 3E1.1(a), courts routinely reduce the guidelines offense level by two points when defendants accept responsibility for their offenses. And, pursuant to USSG § 3E1.1(b), when the base offense level, determined by the severity of the charge, is sixteen or more, the government can move the court to reduce the total offense level by a third point. The possibility of a three-level reduction is a fundamental consideration to the criminal defendant and his defense attorney when they weigh pleading guilty versus fighting the charges at a jury trial.

Most circuits do not permit withholding the third point, holding that a defendant’s litigation of a motion to suppress is not the same as a jury trial, and thus filing a suppression motion is an invalid basis for denying the one-point reduction. In reaching this conclusion, for example, the D.C. Circuit pointed to the guideline’s “plain language,” stating that a defendant is eligible for the third-level reduction if he timely notifies “authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial.” The Tenth Circuit explains that the government cannot deny this reduction to a defendant’s guidelines level because a defendant litigated a non-frivolous motion to suppress in order to safeguard his constitutional rights. And the Tenth Circuit rejects the government’s argument that its preparation to defend a motion to suppress is tantamount to preparation for trial.

The Second and Fifth Circuits, however, have permitted courts to withhold the reduction on the basis of a suppression motion. For over twenty-five years, the Fifth Circuit has held that the government can deny the one-level reduction described in § 3E1.1(b) when it has had to prepare for a suppression hearing. In Longoria, for example, the court accepted the government’s refusal to move for a one-point reduction, and the government’s accompanying explanation that its preparation for a one-day suppression hearing was tantamount to a trial. Similarly, the Second Circuit has affirmed the government’s denial of this one-point reduction on the basis that it had to litigate a suppression hearing, explaining that “in terms of preparation by the government and the investment of judicial time, the suppression hearing was the main proceeding in this case.” More recently, the Second Circuit has required the government to make some showing of its extensive preparation when it wants to withhold the benefit of the third point reduction in § 3E1.1(b) from a defendant.

In respecting the denial of certiorari in Longoria, Justice Sotomayor cited Braxton for the proposition that the Sentencing Commission “should have the opportunity to address this issue in the first instance, once it regains a quorum.” But Longoria’s reliance on Braxton for abstaining from guidelines circuit conflicts is misplaced. Whereas in Braxton, the Sentencing Commission was actively considering the disputed guideline during the pendency of the petition for certiorari, the Commission has not addressed the circuit split in Longoria for a quarter of a century. And because the Commission will not have a quorum for the foreseeable future, it lacks the ability to resolve this circuit split now. The Supreme Court’s abstention from resolving circuit conflicts over the Guidelines’ interpretation makes little sense where the Sentencing Commission has not indicated that it intends to correct a persistent guidelines conflict.

To be sure, Justice Sotomayor—a former district court judge—recognized that the inconsistent application of this sentencing guideline causes significant carceral disparities. She explained that for serious offenses (carrying high base offense levels), the difference of a one-level reduction translates into a substantial difference in the defendant’s length of incarceration. Indeed, she acknowledged that “[t]he present disagreement among the Courts of Appeals means that similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced.” Justice Sotomayor further recognized that because the Commission lacks a quorum, it cannot address the guideline issue. She did not, however, note that this conflict over USSG § 3E1.1 has existed since at least 1997, or that during these three decades, the Commission has never indicated that it intends to clarify the split. Thus, unlike Braxton, where the Commission scheduled public comment on the disputed sentencing guideline after the Supreme Court granted certiorari, the Sentencing Commission has taken no action to address the conflicting applications of § 3E1.1(b) at issue in Longoria. To the contrary, the Commission has not addressed the circuit split in twenty-five years and is incapacitated from doing so now.

An example is illustrative. Imagine an individual has been charged in a two-count indictment: one count of conspiracy to possess with intent to distribute 500 or more grams of cocaine—in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B)—and one count of possession with intent to distribute—in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(B). Defendants are commonly charged with both a conspiracy count and a substantive count for the same conduct, and they are held responsible for the entire drug quantity of the conspiracy—not just the amount they personally possessed or distributed. Pursuant to the applicable sentencing guideline, USSG § 2D1.1, the base offense level for these two counts is 24. If we assume this defendant has no prior criminal history (Category I), and no additional enhancements—such as for the presence of a weapon—were applied, his applicable guidelines range would be 51 to 63 months of imprisonment. In the same scenario, had the defendant pled guilty to the counts as listed, and received all three levels of reduction accordingly, his applicable guidelines range would be 37 to 46 months of imprisonment. Further, defense counsel, when advising his client on the decision of whether to plead guilty, may have been able to negotiate with the prosecutor to drop the conspiracy count, thus further reducing his sentence of incarceration.

The Longoria split has a chilling effect on the filing of constitutional suppression motions for defendants in the Second and Fifth Circuits. A federal defendant’s decision of whether or not to file a suppression motion is critical to a defendant’s decision of whether to plead guilty to a charged offense. A motion to suppress can be a crucial step in an individual’s defense against criminal charges, and its resolution is essential to a defendant’s decision of whether or not to fight the charges at trial. For these circuits that permit the government to withhold the third-level reduction, such as the Fifth in Longoria, even the threat or possibility of losing that point could disincentivize the filing of a suppression motion.

In other words, this guideline provision, as it is interpreted by some federal circuits, is being applied in a way that functionally punishes criminal defendants seeking to vindicate their constitutional rights. A circuit split about this issue—a sentencing conflict that arguably suppresses constitutional rights—is especially appropriate for the Supreme Court’s intervention.


Although the Supreme Court recognizes its appropriate role in resolving circuit conflicts over federal statutes, it increasingly abstains from resolving circuit splits in guidelines interpretation issues. The Court’s denial of certiorari in Longoria, and its reliance upon Braxton in doing so, reveals a misplaced abstention doctrine, particularly in light of an inactive Sentencing Commission. To be sure, some criminal justice reform advocates may welcome the current Court’s abstention from sentencing splits, in light of the conservative majority’s noted distaste for leniency in carceral punishment. Nevertheless, from an institutional perspective, the Court’s misplaced reliance on Braxton in order to avoid the resolution of sentencing conflicts despite an inactive Commission is surely hurting federal criminal defendants.

These persistent circuit conflicts in the application of the Guidelines affect criminal defendants in federal court. Longoria presented for the Court a quarter-century circuit division in interpreting a guideline that affects thousands of criminal defendants pleading guilty every month in federal courts. Since many federal drug cases involve a conspiracy count for which venue could be proper in multiple districts, what would stop a prosecutor from choosing the federal district that interprets a conflicted sentencing guideline in a particularly favorable way? Instead of avoiding resolution of such conflicts, the Supreme Court should recognize its role in adjudicating lingering guidelines conflicts and use its authority to prevent similarly situated defendants from receiving substantially different sentences of incarceration depending on the happenstance of their geography.


Thank you to Professor Aaron Tang, a constitutional law scholar and longtime friend, for asking the questions sparking my interest in Longoria and Braxton.