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November 3, 2006

SCOTUS Booker questions presented ... and more questions

With its cert grants in Claiborne and Rita (basics here), the Supreme Court is taking the Booker reasonableness bull by the horns.  As detailed in this order list, SCOTUS has specified the questions presented in each case to ensure all of the biggest post-Booker reasonableness issues are addressed. 

In Claiborne, the Court asks:

  1. Was the district court's choice of below-Guidelines sentence reasonable?
  2. In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

In Rita, the Court asks:

  1. Was the district court's choice of within-Guidelines sentence reasonable?
  2. In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences?
  3. If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. ยง3553(a) factors and any other factors that might justify a lesser sentence?

My mind is racing with this news and all of the different possible ripple effects.  In particular, I am wondering how the grants in Claiborne and Rita will impact (a) the reasonableness en banc in progress in the Sixth and Ninth Circuits, (b) the development of reasonableness doctrines in other circuits, (c) the work of the US Sentencing Commission, and (d) the adovacy of DOJ for a Booker fix.

November 3, 2006 at 03:26 PM | Permalink

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Comments

yes, no, yes, yes, no

Posted by: AF | Nov 3, 2006 3:54:51 PM

yes, no, yes, yes, no

Posted by: AF | Nov 3, 2006 3:54:51 PM

What is the point of a presumption if it cannot enable you to dispense with consideration of the rest of the 3553(a) factors? Questions 2 and 3 in Rita must be answered the same.

My prediction: Claiborne -- yes, no. Rita -- yes, yes, yes. Scalia, Thomas, and Ginsburg break with Stevens and Souter to approve a presumption.

The only thing I can see that these questions leave out is the status of the Guidelines as congressional policy. Can a district court vary from the Guidelines range because he/she disagrees with the effect of a particular factor on the sentence? Maybe this question will be addressed in the course of discussing the other issues, though.

Posted by: JDV | Nov 3, 2006 4:04:29 PM

For my prediction in Claiborne ... the Apprendi/Blakely majority holds.

Posted by: JDV | Nov 3, 2006 4:08:52 PM

If the answers to two questions are necessarily the same, there's not much point in asking two questions, is there?

Posted by: AF | Nov 3, 2006 4:19:47 PM

Nope. But my question remains.

Posted by: JDV | Nov 3, 2006 4:22:50 PM

Nope. The apprendi majority breaks up. Rita loses Ginsburg, maybe Souter. Picks up Kennedy. Souter is the swing. The majority is splintered. Scalia and Thomas rule on constitutional grounds, maybe even refuse to apply the Booker remedial scheme. Stevens holds that the presumption implcates the constitutional rule, and is better not applied on grounds of constitutional doubt. Kennedy holds that the presumption is simply not a rational application of 3553(a). Souter joins one of the latter two opinions, or swings the other way.

Claiborne picks up Souter and prevails in another splintered 5-4. Roberts and Alito are apprendi refuseniks.

Posted by: RW | Nov 3, 2006 6:22:50 PM

The difference between Q2 and Q3 in Rita lies in the word "explicit." The third question is about whether the court must articulate its consideration of the 3553(a) factors to justify adhering to the "presumption" (which I doubt will be upheld anyway), in cases where it finds that the presumption has not been rebutted.

Posted by: Peter G | Nov 3, 2006 10:10:23 PM

You never have to justify employing a presumption. That would defeat its purpose. The usefulness of a presumption is its burden shifting effects.

If a circuit court is presented with a within-Guidelines sentence and that circuit employs a presumption, then there is nothing more that it would require in order to affirm the sentence. No "explict" explaination. Nothing.

That's what a presumption is. It shifts the burden from the district court (to justify the sentence) to the defendant (to attack it). If there is a presumption, there is no need for the district court to have analyzed the 3553(a) factors. If you nevertheless would require an "explicit" analysis, then the presumption means nothing.

Posted by: | Nov 3, 2006 11:04:18 PM

Disagree. Remember the district court and appellate courts are called on to perform different tasks -- the dist ct evaluates which sentence is necessary but not greater than necessary to effectuate 3553(a). The appellate court determines whether this is reasonable. To say that a sentence within the range is reasonable as a substantive matter is to say that the defendant must provide a reason, like a mitigating fact, to believe otherwise in his case. To say that a dist. ct. must explain himself offers another procedural requirement -- i'm not sure where it comes from, certainly not 3553(c), which applies only to non-guideline sentences -- that may be useful even if the sentence is presumed reasonable. In other words, this additional requirement would help to weed out sentences that, though they fall in a range that COULD be justified by the 3553(a), are in fact actually attributable to faulty reasoning or an unreasonable view of the facts.

Or something.

Posted by: RW | Nov 4, 2006 6:34:52 PM

I leave out words a lot. Post should read as follows:

I Disagree. Remember the district court and appellate courts are called on to perform different tasks -- the dist ct evaluates which sentence is necessary but not greater than necessary to effectuate 3553(a). The appellate court determines whether this decision is reasonable. To say that a sentence within the range is presumed reasonable as a substantive matter is to say that the defendant must provide a reason, like a mitigating fact, to believe otherwise in his case. To say that a dist. ct. must explain himself offers another procedural requirement -- i'm not sure where it comes from, certainly not 3553(c), which applies only to non-guideline sentences -- that may be useful even if the sentence is presumed reasonable. In other words, this additional requirement would help to weed out sentences that, though they fall in a range that COULD be justified by the 3553(a), are in fact actually attributable to faulty reasoning or an unreasonable view of the facts.

Posted by: RW | Nov 4, 2006 7:09:35 PM

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