Latest Case: United States v. Foreman (Criminal Law)

Department of Justice Once Again Proves Its Loyalty to the President, Not the Rule of Law

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on the recent news that the Justice Department will seek dismissal of charges against Michael Flynn. Sarat suggests that because the decision does not seem to advance the fair administration of justice in this case, the court should take the unusual step of refusing to grant the prosecutor’s motion to dismiss.

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United States v. Foreman

Docket: 19-1827

Opinion Date: May 7, 2020

Judge: Gibbons

Areas of Law: Criminal Law

In 2006, Foreman pled guilty to possession with intent to distribute 50 or more grams of cocaine base, possession with intent to distribute cocaine powder, and possession of a firearm during and in furtherance of a drug trafficking crime. Foreman admitted that he was responsible for approximately 135 grams of crack cocaine and 250 grams of cocaine powder. Foreman had a final Guidelines range of 322-387 months; he was sentenced to 240 months’ imprisonment with respect to each drug conviction, to run concurrently, and 60 months’ imprisonment for the firearms conviction, to run consecutively. When the First Step Act of 2018 made the Fair Sentencing Act retroactive, Foreman sought relief. The district court held that Foreman was not entitled to a plenary resentencing and declined to revisit his career offender status or hold an in-person hearing, then weighed the new statutory range applicable to Foreman’s drug offenses, his recalculated Guidelines range, and the 18 U.S.C. 3553(a) factors, and reduced Foreman’s total sentence to 172 months on each drug offense, to run concurrently, plus the mandatory consecutive 60 months on the firearms offense. The Sixth Circuit affirmed. Nothing in the First Step Act entitles a defendant to a plenary resentencing. First Step Act resentencings are not shielded from review for reasonableness; the district court thoroughly explained its rationale, carefully examining Foreman’s circumstances, the amended penalty provisions, and the resulting changes to Foreman’s Guidelines range.