A REFRESHING READ FROM THE FOURTH

(Posted August 3, 2023) The US Court of Appeals for the Fourth Circuit hands down a single published opinion today. United States v. Smith is fairly breezy; the “guts” of the opinion are just 14½ pages. It’s a review of a district court’s refusal to reduce a criminal sentence in light of new retroactivity provisions.

From the procedural recitation, Smith richly earned a 20-year prison sentence fifteen years ago. That, in fact, was the statutory minimum at the time. With the advent of the Fair Sentencing Act in 2010 and the First Step Act in 2018, Smith looked at his sentence and figured that he should be eligible for immediate release, so he sought that relief.

The district judge agreed that Smith was eligible to apply for relief, but declined to grant it, noting that the 20-year term was well within the statutory maximum. Smith had accumulated several violations in prison, though he noted that he’d been of good behavior for the last six years. All of that wasn’t enough in the court’s mind to warrant an early release.

Today a panel of the Fourth Circuit affirms. It concludes that the district court erroneously calculated the new guidelines range – but the court had erred in Smith’s favor on doing so. The appellate court rules that the district court would be unlikely to change its mind after correction of that error.

I’ll add two observations about the opinion. First, the government gets a mild admonition from the court in a footnote. Last year, the court decided a sentencing appeal, US v. Swain. In calendaring this appeal for argument, the court asked the parties to address “how Swain applied here.” Smith’s lawyers did as asked, citing Swain “repeatedly”; but somehow the government’s brief never touched the case. That prompted this rebuke: “We remind the government—and all other litigants—that when we ask for the parties’ views on the import of a case to the appeal, we expect the parties to address it.”

Second, I commend the opinion to you for the writing style of Chief Judge Diaz. As a professional consumer of appellate opinions, I find his style refreshing; it isn’t clogged with legalese and obsolete language. After some of his quotations, you’ll find the parenthetical, “(cleaned up).” This is a modernization of old-style legal writing, and I encourage it at this point., because it makes the cited authorities far more readable. Judge Diaz also uses contractions liberally, and that aids readability, too; it reflects the way people talk.

That being said, I hesitate to recommend the use of contractions in your briefwriting. That’s probably a tad too informal, at least for now. (Legal writing may evolve in the coming years to the point where it’s perfectly normal.) I’ll confess that I’ve used contractions three times in appellate briefs in my legal career. In each instance, I did it because I wanted the sentence to stick out. Thus far, I’ve received no admonitions from the courts.