1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - -X 3 PAULA L. BUFORD, : 4 Petitioner : 5 v. : No. 99-9073 6 UNITED STATES : 7 - - - - - - - - - - - - - - - -X 8 Washington, D.C. 9 Monday, January 8, 2001 10 The above-entitled matter came on for oral 11 argument before the Supreme Court of the United States at 12 11:03 a.m. 13 APPEARANCES: 14 DEAN A. STRANG, ESQ., Federal Defender, Milwaukee, 15 Wisconsin; on behalf of the Petitioner. 16 PAUL R. Q. WOLFSON, ESQ., Assistant to the Solicitor 17 General, Department of Justice, Washington, D.C.; on 18 behalf of the Respondent. 19 20 21 22 23 24 25 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 DEAN A. STRANG, ESQ. 4 On behalf of the Petitioner 3 5 ORAL ARGUMENT OF 6 PAUL R. Q. WOLFSON, ESQ. 7 On behalf of the Respondent 23 8 REBUTTAL ARGUMENT OF 9 DEAN A. STRANG, ESQ. 10 On behalf of the Petitioner 49 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 P R O C E E D I N G S 2 (11:03 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 now in Number 99-9073, Paula Buford v. The United States. 5 Mr. Strang. 6 ORAL ARGUMENT OF DEAN A. STRANG 7 ON BEHALF OF THE PETITIONER 8 MR. STRANG: Mr. Chief Justice, and may it 9 please the Court: 10 Paula Buford's case presents the very type of 11 mixed question well-suited to de novo review, and that's 12 particularly true here because of the overriding, indeed 13 the pervasive importance of uniformity in the current 14 Federal sentencing scheme. 15 Paula Buford serves a prison sentence roughly 16 twice as long as it would have been because of the way in 17 which the district court interpreted and applied 18 guidelines and commentary on relatedness and 19 consolidation. In her view, the Court of Appeals of the 20 Seventh Circuit erred by declining to give independent 21 review to the question of consolidation incorporated into 22 the meaning of relatedness, specifically declined to 23 review de novo whether her prior convictions, her prior 24 cases in fact had been consolidated. 25 I think there are several specific reasons that 3 1 make this an appropriate case, an appropriate mixed 2 question application of the guidelines -- 3 QUESTION: Well, Mr. Strang, isn't there one, 4 perhaps, factor that cuts against your argument the fact 5 that district courts probably see this kind of case -- 6 kind of an argument in connection with sentencing, a 7 typical district judge, much more often than a typical 8 judge of a court of appeals? 9 MR. STRANG: It is true, Your -- Mr. Chief 10 Justice that but a fraction of sentences ever are appealed 11 on any ground, but there is no reason to assume that the 12 district judge would be reviewing the act of a State court 13 in his own district or her own district or of any court 14 familiar to that district judge. The fact that the prior 15 convictions here arose in Milwaukee County, the seat of 16 the Eastern District of Wisconsin, I think is fairly 17 described an accident. 18 QUESTION: That's where the Federal judge sits, 19 is it not? 20 MR. STRANG: Yes. 21 QUESTION: In Milwaukee County? 22 MR. STRANG: Yes, and that's an accident of the 23 facts here. There's no reason that Ms. Buford's prior 24 convictions could not have arisen in Tuscaloosa, Alabama, 25 or San Fernando, California -- 4 1 QUESTION: Let me ask you another question. I 2 guess that the guidelines provide that sentences are 3 related where the offenses occurred on the same occasion, 4 or were part of a common scheme or plan, and those 5 questions seem to involve certain factual determinations. 6 Do you think that on appellate review there would be a de 7 novo review? 8 MR. STRANG: Never of historical facts, 9 regardless which path one takes to relatedness. The 10 basic, or what this Court has called historical facts, 11 would be subject only to clear error review. 12 QUESTION: How about mixed questions of fact and 13 law? 14 MR. STRANG: The particular mixed question of 15 consolidation, which is the third prong of the definition 16 here, yes. 17 QUESTION: Well, in the example that I gave you 18 of common scheme or plan there might be mixed questions of 19 fact or law, and would there be de novo review there? 20 MR. STRANG: There may well be mixed questions, 21 and I think the common scheme or plan is the application 22 here that next to consolidation most calls or most invites 23 de novo review. If we look at the question of an 24 intervening arrest, which is the initial screening device 25 in the definition under the application note, I think that 5 1 one is most factual, that an intervening arrest rarely, if 2 ever, would arise beyond fact, it seems to me. 3 QUESTION: I mean, technically I think you're 4 right in saying the words which come out of an application 5 note in a guideline about, that you could deem a thing 6 consolidated when it's -- what is the exact word? -- when 7 it's functionally consolidated, when it's -- you know, 8 what are the words I'm thinking of, functionally 9 consolidated when the cases -- when sentencing was joined, 10 okay. 11 Now you want to know -- this is somebody writing 12 an application note in the guideline, and logically 13 speaking nobody's disputing the brute facts. They're 14 disputing whether sentencing was joined, those words, 15 sentencing was joined, do or do not apply to this 16 undisputed factual situation in the world, so if you're 17 going to go on a, all legal questions are for the court, 18 and the court of appeals, all factual questions are for 19 the trial judge, and this is a legal question, in that 20 rubric I guess you win. 21 But I would have thought that there were 22 millions of legal questions of this kind that are really 23 for the trial judge, because what they call for is the 24 expertise of the trial judge, and they are so minor that 25 if you start getting court of appeals into all that thing, 6 1 what you will produce is an unbelievable mess, where the 2 courts of appeals try to figure out every possible 3 ramification of the application of every application note 4 in the guideline. That's what I'm worried about, with 5 accepting -- 6 MR. STRANG: Sir, I understand the concern. I 7 think -- first let me note, Justice Breyer, that the 8 functional consolidation term comes only from the Seventh 9 Circuit and some of the other court of appeals, the 10 application on the guideline themselves refers simply 11 to -- well, the application note refers simply to 12 consolidation. 13 It is a question of what type of guideline are 14 we applying here, and clearly if we confine ourselves 15 today to the realm of Federal sentencing, United States 16 sentencing guidelines, I would submit clearly that some 17 guidelines never rise above fact in their application. 18 Others I think are altogether discretionary in their 19 application. Many of the Chapter 5 guidelines would fall 20 into that category. 21 Still others, including the consolidation 22 question here, I think are the sort of mixed question -- 23 QUESTION: What I'm thinking is that the words, 24 joint sentencing, are words that every trial judge in the 25 United States would understand reasonably well, and 7 1 they're words that I as an appellate court judge would 2 have a very crude understanding, and therefore I'd like to 3 know what the trial judge thinks about it rather than what 4 I think about it. 5 MR. STRANG: I don't know that Your Honor's 6 understanding would be any cruder. 7 QUESTION: I haven't done joint sentencing. 8 Every one of them has. 9 MR. STRANG: But the determination is one that I 10 think peculiarly is made here on court documents -- 11 transcripts, pleadings, orders, at least in the ordinary 12 case. 13 QUESTION: Well, I suppose you could have a case 14 where the trial judge says, if there are two different 15 attorneys for the State appearing, asking -- at a single 16 sentencing proceeding, that there are two different 17 attorneys for two different offenses and there are two 18 different sentences, that, as a matter of law, is not a 19 consolidated sentencing. 20 I suppose a judge could say that, and if he said 21 that, then I think that you have a fairly strong case that 22 this would be a statement of such generality, that is 23 reviewable de novo. 24 MR. STRANG: And -- 25 QUESTION: Is that your point? 8 1 MR. STRANG: Well, yes, and I -- 2 QUESTION: All right. Now, but won't there be 3 some other cases where it's not quite so clear, and where 4 the judge said, well now, you know, I know how these State 5 court judges work, and it's clear to me that the two 6 sentences were related because the length of the drug 7 sentence term must have been calculated by reference to 8 what he gave for the robbery term. That might be a 9 different case, or would it? 10 MR. STRANG: I don't know that it would, because 11 it really turns, I think, on the guideline one is 12 applying, and if anything is true of the scheme that the 13 Sentencing Reform Act established, it is that an exercise 14 of discretion, if that's what Your Honor is describing, 15 must be explained so that it can be assessed for 16 reasonableness. 17 It is also, I think, true here that facts must 18 be found, whether that's the whole of the inquiry or 19 whether that's simply the predicate, then, to applying the 20 legal standard to classify the facts. 21 QUESTION: Do we ask ourselves, does deference 22 mean that two different trial judges could reach different 23 conclusions and both would be accepted? 24 MR. STRANG: That is exactly what I think it 25 means, and to put it in concrete terms, I think what it 9 1 means here is that if Paula Buford had a twin, John, who 2 had done the very -- who had committed the State court 3 crimes in 1992 with her, also the 1998 Federal crime, but 4 he had been sentenced by the district judge below Judge 5 Stadtmueller and had received a 7-year or 84 to 105-month 6 sentence, whereas Paula for the exact -- in the exact same 7 situation had received nearly 16 years, a court of appeals 8 giving clear error review would be bound to affirm both of 9 those convictions and sentences. 10 QUESTION: I could see that happening if, in the 11 case, I suppose, the Federal judge was trying to ask what 12 the State judge likely did with reference to trying to 13 balance the two sentences. I think you'd have a stronger 14 point if he says, as a matter of construction of this 15 statute, that two attorneys, two offenses, two separate 16 sentences does not mean textually that they're 17 consolidated. They are not consolidated. 18 MR. STRANG: And that, of course, implicitly is 19 what this district judge said, and the relevant, or the 20 most important pages are 21 -- 21 QUESTION: I think he came pretty close to that. 22 MR. STRANG: Yes, he did. He took note that, 23 you know, the facts appeared undisputed. He was left to 24 try to apply the guideline and the -- I guess he called it 25 the applicable application notes, and then made comment 10 1 about there being two separate prosecutors, albeit from 2 the same D.A.'s office, pursuing separate interests. 3 There were two separate pieces of paper entered reflecting 4 judgments. 5 QUESTION: And there was no formal 6 consolidation. 7 MR. STRANG: That is true, there was no formal 8 order of consolidation. 9 QUESTION: And it's possible the court of 10 appeals could say, this is too complicated, unless there's 11 a formal consolidation we won't apply the guideline that 12 way, because that isn't even settled, is it, that this 13 notion of functional qualification doesn't come out of the 14 guideline, doesn't come out of any application note. It's 15 something that some courts made up. 16 MR. STRANG: Yes, in a word -- 17 QUESTION: And if there is to be any kind of 18 uniformity infused in this process, why should it come 19 from the court of appeals rather than the Sentencing 20 Commission? I mean, you could see common scheme. You 21 could see crimes that happened simultaneously. 22 But this notion of consolidation, a judge could 23 consolidate just because the guy happened to have 24 committed a number of crimes totally unrelated. It 25 doesn't have the coherence that the other two categories 11 1 have, so why shouldn't this be something for the 2 Sentencing Commission to straighten out, and then there 3 would be uniformity, to get the uniformity that way rather 4 than sticking the court of appeals into the picture? 5 MR. STRANG: The Sentencing Commission very well 6 can, and is empowered to address questions and to try to 7 advance clarity in that way. That, of course, says 8 nothing about the question on certiorari granted here, 9 which is the standard of review, and the Sentencing 10 Commission cannot tell this Court the standard of review. 11 I think also, if we're talking, then, about the 12 substantive rule of -- 13 QUESTION: No, but your argument -- I mean, if 14 this is the point of Justice Ginsburg's question, your 15 argument is that the only way to get uniformity is to have 16 de novo court of appeals review, and the point made in 17 response to that is no, you could achieve substantial 18 uniformity by having more detailed prescription by the 19 Sentencing Commission of what constitutes consolidation 20 and then having the usual deferential review. 21 MR. STRANG: I -- 22 QUESTION: So long as the details are 23 significant enough, you know, complete enough, you'll get 24 reversed even on deferential review if you fail to follow 25 them. Why isn't that a more sensible way of achieving the 12 1 uniformity that you're after here? 2 MR. STRANG: I -- in the world of could, I agree 3 with much of what Your Honor said. Uni