Sentencing cases aplenty when SCOTUS returns, with notable friends chiming in

The Supreme Court has already scheduled oral argument for a half-dozen sentencing cases at the start of its October 2025 term, and lots of amicus briefs make for lots of interesting reading.

This is the first in a series of essays about sentencing and corrections law cases on the Supreme Court’s docket in the upcoming October 2025 term.

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The Supreme Court last week unofficially kicked off its October 2025 term by releasing its oral argument calendar for October and for November. By my count, over half of the 19 cases so far scheduled for oral argument are criminal law cases or closely related to criminal law. And, as detailed below, nearly a third of the opening SCOTUS cases are sentencing cases (descriptions and links from SCOTUSblog):

Barrett v. United States, No. 24-5774 [Arg: 10.07.2025]

Issue(s): Whether the double jeopardy clause of the Fifth Amendment permits two sentences for an act that violates 18 U.S.C. § 924(c) and (j).

Ellingburg v. United States, No. 24-482 [Arg: 10.14.2025]

Issue(s): Whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution's ex post facto clause.

Rico v. v. United States, No. 24-1056 [Arg: 11.03.2025]

Issue(s): Whether the fugitive-tolling doctrine applies in the context of supervised release.

Hamm v. Smith, No. 24-872 [Arg: 11.04.2025]

Issue(s): Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.

Rutherford v. United States, No. 24-820 [Arg: 11.12.2025]

Issue(s): Whether a district court may consider disparities created by the First Step Act’s prospective changes in sentencing law when deciding if “extraordinary and compelling reasons” warrant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).

Fernandez v. United States, No. 24-556 [Arg: 11.12.2025]

Issue(s): Whether a combination of “extraordinary and compelling reasons” that may warrant a discretionary sentence reduction under 18 U.S.C. § 3582(c)(1)(A) can include reasons that may also be alleged as grounds for vacatur of a sentence under 28 U.S.C. § 2255.

As Jonathan noted in last week’s essay, we hope to continue to bring in new voices and new perspectives into this space, and essays concerning any aspects of any of these cases (or other sentencing matters vying for the Justices attention) would be very welcome. We expect to publish a series of essays on Supreme Court activity in OT’25, and the considerable number of sentencing cases already on the Court’s docket certainly provides plenty worth discussing.

With the Supreme Court’s merits docket so small (at least relative to other eras), any and every sentencing case that makes the SCOTUS docket is certainly a big deal. Hamm v. Smith will surely get considerable attention because it is a capital case even though the Court’s eventual ruling seems likely only to impact a handful of defendants. I am tempted to peg Ellingburg v. United States as the sleeper case of the Fall because it may require the Justices to grapple with the definition of “punishment” for constitutional purposes. The issues raised in the two sentencing reduction cases, Rutherford v. United States and Fernandez v. United States, have long captured my attention – so much so that I worked with a great team of lawyers at Holwell Shuster & Goldberg to file amicus briefs in both cases.

The array of amicus briefs already filed in all these cases make for interesting reading. Though I have not had a chance to read them all (and more will be filed in the weeks and month ahead), it is quite intriguing to see just who has taken the time to share friendly advice with the Justices and also how that advice is presented. In Ellingburg, for example, a significant number of legal academics have filed distinct briefs in support of the defendant. I was particularly struck by the number of amicus briefs filed on behalf of the defendant in the Rutherford case (13 by my count), as well as by the fact that a set of former U.S. Sentencing Commissioners filed an amicus brief in order “to explain the validity” of the current Commission’s work when promulgating the policy statement at issue in that case. (This is the first time I can recall former Commissioners of the U.S. Sentencing Commission filing an amicus brief in the Supreme Court.)

I will close this opening pitch for the coming SCOTUS term by setting out my opening argument summary from my amicus brief in Rutherford:

In the Sentencing Reform Act of 1984 and the First Step Act of 2018, Congress provided and then expanded district-court authority to reduce a prison term “if it finds that extraordinary and compelling reasons warrant such a reduction … and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). Congress tasked the United States Sentencing Commission with “promulgating general policy statements … [that] describe what should be considered extraordinary and compelling reasons for sentence reduction.” 28 U.S.C. § 994(t).

In this way, Congress created an institutional structure for sentence-reduction policymaking and decisionmaking in keeping with the Sentencing Reform Act’s approach to initial sentencing. In both settings, subject to statutory instructions, the Commission develops systemwide sentencing policy by promulgating and revising guidelines and policy statements. In both settings, district courts apply these guidelines and policy statements as they make sentencing decisions in individual cases (with their discretion further guided by constitutional limits and statutory instructions).

Congress in the Sentencing Reform Act also created a role for federal circuit courts to review, if a party appeals, a district court’s individual sentencing decision. 18 U.S.C. § 3742. But “Congress did not intend, by establishing limited appellate review, to vest in appellate courts wide-ranging authority over district court sentencing decisions.” Koon v. United States, 518 U.S. 81, 97 (1996). As this Court explained in Koon, “Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance,” because “for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policymaking authority vested in the Commission.” Id. at 106–07.

In Rutherford, the Third Circuit transgressed the policymaking authority vested in the Commission by doing precisely what Koon explained was improper. In the face of a contrary policy statement promulgated by the Commission after it exercised its policymaking authority through a deliberative and transparent amendment process, the Third Circuit held that the First Step Act’s nonretroactive changes of law can never be considered by a district court when assessing whether “extraordinary and compelling reasons” may warrant a discretionary sentence reduction. In other words, the Third Circuit essentially declared, contra Koon, that certain relevant sentencing factors “must not be considered under any circumstances.” 518 U.S. at 106–07. Because circuit courts overstep their role within the Sentencing Reform Act when they declare “what sorts of sentencing considerations are inappropriate in every circumstance,” id. at 106, this Court should reverse the decisions below.

A quick review of other amicus briefs filed in Rutherford reveals a lot of distinct arguments that I am looking forward to reviewing. And, as noted before, folks interested in these topics or others before the Court are encouraged to write up their thoughts for this space.