Rod Rosenstein testifies in March 2017 during his confirmation hearing to be deputy attorney general at the U.S. Department of Justice. Credit: Diego M. Radzinschi / NLJ

For 30 minutes on Monday, Deputy Attorney General Rod Rosenstein traded political scrutiny of his duties overseeing special counsel Robert Mueller for judicial scrutiny of his arguments in a criminal sentencing challenge before the U.S. Supreme Court.

Rosenstein, attired in the government's traditional Supreme Court garb of morning coat and vest—borrowed for the event from the U.S. Solicitor General's Office—made his first high court appearance, arguing in the case Chavez-Meza v. United States.

Rosenstein appeared before eight justices, not the usual nine, because Justice Neil Gorsuch recused. The case came out of the U.S. Court of Appeals for the Tenth Circuit—Gorsuch's court before his Supreme Court confirmation.

The deputy attorney general arrived in the sparsely attended courtroom with briefcase in one hand and binder in another and was accompanied by three other Justice Department lawyers who sat at counsel's table with him. Principal Deputy Solicitor General Jeffrey Wall sat in the bar section behind Rosenstein. It is customary for someone from the Solicitor General's Office or one of the deputies to attend when a Justice Department attorney argues.

Before the argument, a smiling, seemingly relaxed Rosenstein greeted and shook hands with attendees in the first row of the bar section. A reporter commented on his borrowed traditional attire, and Rosenstein, flexing his arm, said, “Not bad.”

Rosenstein, who has a calm, conversational style, defended the Tenth Circuit's decision, which held that the district court, in resentencing Adaucto Chavez-Meza, did not have to explain its thinking when granting a partial reduction in sentence in response to a sentencing guideline change.

The deputy attorney general appeared completely at ease at the lectern, insulated and isolated for the moment, from ongoing rumors of his possible firing by President Donald Trump over his management of Mueller's investigation into Russian interference in the 2016 presidential election.

The circuits are split on how much explanation is required to satisfy a sentence reduction decision under Section 3582 when a sentencing range has been lower by the U.S. Sentencing Commission. The judge in Chavez-Meza's case issued a court order using a court form stating that applicable factors had been considered.

Chavez-Meza had been sentenced initially to 135 months in prison for possession and distribution of methamphetamine. After a change in the guideline range, which reduced offense levels, Chavez-Meza sought a 108-month sentence. He received only a partial reduction to 114 months.

The justices actively engaged Rosenstein and his opponent, Todd Coberly of Coberly & Martinez in Santa Fe, New Mexico. They repeatedly pressed Coberly on how much of an explanation a judge must give for a sentence reduction in order to provide meaningful appellate review.

Coberly told the court he was not asking for much, but for more than checking a box on a form.

“No matter what, whether within or outside [the guideline range], the district court has an obligation to explain the reason for the sentence,” Coberly argued.

Rosenstein countered that a federal judge is not required to provide reasons for a sentence that falls within the guideline range. The form that the judge checked in Chavez-Meza's case, he said, reflected what district courts are required to do by statute.

“It's not merely checking a box,” he said. “The judge is making a decision about the sentence.”

Although Monday's case was his debut in the Supreme Court, Rosenstein had argued before the en banc U.S. Court of Appeals for the Fourth Circuit twice when he served as U.S. attorney for Maryland.

With his Supreme Court appearance, Rosenstein follows in the footsteps of other Justice Department officials outside of the Solicitor General's Office who argued before the court.

William Rehnquist and Antonin Scalia made high court arguments while serving in the Justice Department. And it is not unusual for an attorney general also to appear. Attorneys general Janet Reno, William Barr, Michael Mukasey and Richard Thornburgh also took their turns at the lectern.

 

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