The Supreme Court's New Criminal Docket: Five Cases That Could Change Federal Defense in Florida
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Part 1: The Supreme Court's New Criminal Docket: Five Cases That Could Change Federal Defense in Florida
Eleven of the twenty five cases the Court agreed to hear this term are criminal. Four touch how long you serve, how much the government takes, and who sits in the jury box.
Eleven of the twenty five cases the Supreme Court has agreed to hear this term are criminal or criminal-adjacent, roughly forty percent of the docket, with more grants expected after the September 28 long conference. For anyone under federal investigation in Florida, this is not academic. Four of these cases touch the machinery that decides how long you serve, how much the government takes, and who sits in the jury box. The rulings land months from now. The decisions you make about your case do not wait for them.
Four cases on this term's docket touch the machinery that decides how long you serve, how much the government takes, and who sits in the jury box.
Key Takeaways
- The Court hears argument October 13 on whether judges must still defer to Sentencing Guidelines commentary that conflicts with the Guideline text.
- A December 1 Eighth Amendment case asks whether excessive fines are measured against a defendant's actual conduct or the offense in the abstract.
- Criminal forfeiture under 18 U.S.C. 981 and 982 runs on gross proceeds, and the constitutional ceiling on it is now squarely before the Court.
- A Florida case on whether the Sixth Amendment requires twelve jurors rather than six is granted but unscheduled, and would reach every Florida felony trial.
- Pre-indictment defense in the Southern District of Florida does not pause for a pending Supreme Court term. Charging decisions are being made now.
What Is Actually on the Docket
The Court has issued its December argument calendar. Two criminal cases are set for the October sitting, three for November, and the two that will draw the most attention are scheduled for December 1 and 2.
The list is broader than the headlines suggest. Beaird v. United States raises a sentencing guidelines question. Jouppi v. Alaska raises an excessive fines question. Nielsen v. Watanabe tests the damages remedy against federal agents. Kian v. Florida raises jury size. Viramontes v. Cook County is the semi-automatic rifle case.
Beaird v. United States is set for argument October 13 on whether federal courts must follow Sentencing Commission commentary that conflicts with the unambiguous text of a Guideline. Jouppi v. Alaska is set for December 1 on whether the Eighth Amendment's Excessive Fines Clause is measured by a defendant's specific conduct or by the gravity of that type of offense in the abstract. Kian v. Florida, on whether the Sixth Amendment requires twelve jurors rather than six, is granted but unscheduled, which means argument will not happen until 2027. More grants are expected after the September 28 long conference.
Forty percent is a healthy share by recent standards and still well short of what the Court could take. A Congressional Research Service report on Circuit Splits from 2025 counted close to one hundred of them, and criminal law and procedure was the largest category, with twenty eight unresolved. Those splits are why two defendants with identical conduct can draw different outcomes depending on which circuit charged them.
The Sentencing Case Most Federal Defendants Should Be Watching
On October 13 the Court hears argument in Beaird v. United States on whether federal courts must follow commentary published by the United States Sentencing Commission when it conflicts with the unambiguous text of a Guideline. The question is whether a 1993 decision, Stinson v. United States, is still good law.
This sounds technical. It is not. Commentary drives real time in custody. It defines what counts as relevant conduct, how loss is calculated, which priors trigger enhancements, and what a defendant's role means for the final range. When commentary expands a Guideline beyond its text, the gap between the two positions can run years.
The federal government ended up supporting the defendant's position, which is why the Court appointed outside counsel to defend the lower court rulings. When the Solicitor General declines to defend a sentencing rule that has run for three decades, pay attention to what replaces it.
For anyone with a sentencing date on the calendar, this is a live preservation issue. An objection to a commentary-driven enhancement that is not made at sentencing is generally not available later. Preserving the issue costs nothing. Failing to preserve it can cost the benefit of a favorable ruling that arrives after your judgment is final.
If your Guidelines range depends on a commentary-driven enhancement, the objection has to be specific and it has to be on the record at sentencing. A general objection to the range does not preserve it.
Excessive Fines, Forfeiture, and the Number That Is Usually Bigger Than the Sentence
On December 1 the Court takes up Jouppi v. Alaska, which asks whether the Eighth Amendment's Excessive Fines Clause is applied by reference to a defendant's specific conduct or to the gravity of that type of offense in the abstract. The case arrives from a state forfeiture, but the answer governs federal practice.
The framework comes from United States v. Bajakajian, decided in 1998, which held that a punitive forfeiture is unconstitutional when it is grossly disproportional to the gravity of a defendant's offense. Courts have split on what that phrase means. Some measure the offense as the defendant actually committed it. Others measure the offense category, which almost always produces a result favorable to the government.
This matters in Florida fraud practice more than almost anywhere. Criminal forfeiture in a health care fraud case runs through 18 U.S.C. 982(a)(7) and reaches gross proceeds, not profit. In a wire fraud case it runs through 18 U.S.C. 981(a)(1)(C). When the money is gone, the government reaches substitute assets under 21 U.S.C. 853(p), including untainted property.
"A clinic that billed several million and kept a fraction of it gets no credit for payroll, rent, or supplies."— Aaron M. Cohen, AMC Defense Law
If the Court adopts the conduct-specific reading, asset forfeiture defense gets a real constitutional argument in cases where the money judgment dwarfs what the client actually received. That argument has to be built on a developed record, not asserted in a sentence at the end of a sentencing memorandum.
A Florida Jury Case With Statewide Consequences
The Court has granted review in Kian v. Florida, asking whether the Sixth Amendment right to a jury trial requires twelve jurors rather than six. Florida has used six-person juries in non-capital felony cases since a 1970 Supreme Court decision approved the practice.
The case is granted but unscheduled, which means argument will not happen until 2027. If the Court rules that a criminal jury means twelve, the effect on Florida state practice is immediate and large. A separate and harder question follows, which is whether the rule applies retroactively to convictions already final. The Court does not have to reach retroactivity to decide the case, and it may not.
Federal juries are already twelve, so federal trial practice does not change. It matters here because so many clients face parallel state and federal exposure, and a defendant weighing a state plea against a 2027 trial date is deciding under a rule that may not survive.
What This Changes About the Next Ninety Days, and What It Does Not
None of these cases will be decided before late spring at the earliest. Several will not be argued until December, and one has no argument date. Anyone telling you to wait for the Supreme Court before making a decision in your case is giving you a reason to do nothing.
What a pending term actually changes is preservation. Live issues must be raised in your case now, in writing, at the right procedural moment. That means a specific objection to a commentary-driven Guidelines enhancement. It means an Eighth Amendment proportionality challenge supported by a real record on the maximum authorized fine, the harm, and the client's role. It means not signing a plea agreement that waives appellate rights on a question the Court is actively considering without understanding what is being given up.
The rest of the calendar does not pause. The Southern District of Florida has led the country in white collar prosecutions this year. If you have received a target letter, if a federal grand jury subpoena has landed at your business, or if agents have come to your house, that investigation runs on the United States Attorney's timeline, not the Supreme Court's argument calendar.
Pre-indictment defense is the only stage where a competing account of the facts can change what the government charges. That window closes when the indictment is returned, and no pending Supreme Court case reopens it.
Mistakes That Cost People the Benefit of a Favorable Ruling
The first is treating a pending case as a reason to delay. Pre-indictment defense is the only stage where a competing account of the facts can change what the government charges, and that window closes when the indictment is returned.
The second is failing to preserve. A favorable decision issued after your judgment is final is worth nothing unless the issue was preserved or the rule is retroactive, and retroactivity is narrow.
The third is signing away the issue. Appellate waivers in plea agreements are enforced. A waiver signed while a dispositive question is pending at the Supreme Court is still a waiver.
The fourth is talking to agents without counsel because a case might be decided favorably next year. The interview happens now and the transcript does not improve with time.
Common Questions
Under Federal Investigation or Facing Sentencing in Florida?
AMC Defense Law represents individuals and businesses in federal investigations and prosecutions involving health care fraud, white collar and financial crimes, money laundering, and asset forfeiture, in Florida and nationwide. If you have received a target letter, a federal grand jury subpoena, or notice that assets have been seized, the questions pending at the Supreme Court may bear on your Guidelines calculation and forfeiture exposure, and they have to be preserved in your case to be worth anything. Consultations are confidential.
Aaron M. Cohen is the founder of AMC Defense Law, a federal criminal defense firm in Boca Raton, Florida.
If you or your loved ones have been arrested, call Aaron M. Cohen, 24 hours a day to get help.
About the author. Aaron M. Cohen is the founder of AMC Defense Law, a federal criminal defense firm in Boca Raton, Florida. He is admitted to practice in Florida (Florida Bar No. 541427) and New York, and before the United States District Courts for the Southern District of Florida and the Southern District of New York. The firm represents clients in federal investigations and prosecutions involving healthcare fraud, Anti-Kickback Statute matters, DME and telemedicine fraud, peptide and compounded-drug enforcement, controlled-substance and drug conspiracy cases, financial crimes, and complex federal litigation, in Florida and nationwide.
This article is provided for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. Outcomes depend on the specific facts and procedural posture of each matter. If you are under investigation or facing charges, consult qualified counsel about your own situation.
Listen to Article
Part 1: The Supreme Court's New Criminal Docket: Five Cases That Could Change Federal Defense in Florida
Eleven of the twenty five cases the Court agreed to hear this term are criminal. Four touch how long you serve, how much the government takes, and who sits in the jury box.
Aaron M. Cohen
Principal Attorney
Aaron M. Cohen is a nationally recognized criminal defense attorney with over 30 years of experience representing individuals and entities in complex criminal investigations and prosecutions across the United States.
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