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June 21, 2007

The sweet(?) mysteries of Rita... annotated

A delicious French beer with dinner has not helped me fully understand the Rita opinion for the Court.  Here are some of the mysterious passages from Justice Breyer that I hope readers might help me understand:

MYSTERY #1, Rita opinion at slip op. at 7, 11: "For one thing, the presumption is not binding.  It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case.... [T]he presumption applies only on appellate review."

  • Berman's questions: Is there a different between binding and non-binding presumptions that apply on appeal?   Are there any other examples of appellate presumptions in the law?  Does this mean it is wrong for circuit courts to say, as they often do, that defendants bear the burden of rebutting the presumption of reasonableness or else they lose their appeal of a within-guideline sentence?

MYSTERY #2, Rita opinion at slip op. at 12: "[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."

  • Berman's question: Does this mean a district court has erred (and should be reversed on appeal) if and whenever it says to a defendant that it is following the guidelines because the defendant has failed to provide a good reason not to?

MYSTERY #3, Rita opinion at slip op. at 14: "In sentencing, as in other areas, district judges at time [sic] make mistakes that are substantive.  At times, they will impose sentences that are unreasonable.  Circuit courts exist to correct such mistakes when they occur."

  • Berman's questions: Does this mean that circuit court have to start reversing some within-guideline sentences as unreasonable?  In the 2+ years since Booker, not a single district court within-guideline sentence has been found substantively unreasonable on appeal; is SCOTUS suggesting that circuit courts have failed to recognize and correct district courts those (rare? not-so-rare?) "times" when district courts have made substantive mistakes by imposing unreasonable within-guideline sentences?

MYSTERY #4, Rita opinion at slip op. at 20:  "Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively."

  • Berman's questions: Does this mean that, in conceptually complicated cases with less clear records, the law requires a district judge to write more extensively to justify a within-guideline sentence?  And what might make a case conceptually complicated: intricate guideline calculations, acquitted conduct enhancements, a Sentencing Commission report on point, clever arguments by counsel?   

MYSTERY #5, Rita opinion at slip op. at 21:  "Rita and supporting amici here claim that the Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant, such as physical condition, employment record, and military service, under the view that these factors are 'not ordinarily relevant.'  USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it."

  • Berman's questions: What exactly would Rita and his counsel have had to say/assert to make "this argument" below?  Might Rita have won at least a remand from SCOTUS if he had made "this argument" below?  Did Lewis Libby sufficiently make "this argument" at his sentencing before Judge Walton in order to preserve the issue for consideration on appeal?

if you think you can help solve these mysteries, please first identify in your comments which mystery you are addressing in an effort to help me (and others) obtain Rita clarity.

June 21, 2007 at 09:23 PM | Permalink


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Mystery #2 is baffling me most at the moment: "[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply." Slip op. at 12.

Okay . . . but then there's this:

"[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of §3353(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under §3553(a) . . . or argues for departure, the judge normally need say no more." Slip op. at 17-18 (emphasis added).

If a court "rests its decision" on the Guidelines and gives minimal explanation, how could that possibly not be giving the Guidelines "the benefit of a legal presumption"? How is the presumption that a Guidelines sentence is the correct one in a typical case not a legal presumption that the Guidelines should apply? I think I need one of those good French beers. Or ten.

Prof. Berman, my best guess is that the answer to your question is "no," there wouldn't be error. I base this on two things. (1) The "no legal presumption" language is in Section II, signed by six justices, whereas the "it's OK to rely on the Guidelines" language is in Section III, signed by eight justices. Having to split hairs like this is ridiculous, but here we are. (2) Your hypothetical ruling is what happened to Rita, and it was obviously fine with the SCOTUS majority. "Like the District Court . . . we simply cannot say that Rita's special circumstances are special enough that, in light of §3553(a), they require a sentence lower than the sentence the Guidelines provide." Slip op. at 21 (emphasis added).

Posted by: CN | Jun 21, 2007 10:33:50 PM

Mystery #6: What does this mean - "As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range." Maj. Op. at 14.

What does the first parenthetical mean? I understand the first half: even if the judge disregards the Guidelines, he must sentence above the statutory minumum. THat is uncontroversial. But what did the Court indent by mentioning the "bottom of the unenhanced Guidelines range" too? That concept is fairly foreign to the jurisprudence.

I think the best reading is that the Court is seeking to impose a Guidelines mandatory minimum equivalent to the Guidelines range associated with the unenhanced base offense level (i.e., what is derivable from the jury verdict alone). Why would they do this? Where did it come from? (It is almost surely dicta.) Indeed, the only places I've ever seen it given significance is in David D'Addio's Yale L.J. note and in Judge Young's Griffin opinion.

Someone please explain why I am wrong (as I hope I am).

Posted by: | Jun 21, 2007 11:07:47 PM

Apparently, this is the way it works. The guidelines set up a target for run of the mill cases. When judges hit the target anyplace, the sentence is reasonable from the appellate point of view. Judges are on their own when it comes to hitting the bulls-eye. In cases that are out of the ordinary, judges need a larger target, making variances necessary.

Posted by: Tom McGee | Jun 21, 2007 11:56:55 PM

#1: Seems to me that this presumption is shorthand for some kind of deferential standard of review--something akin to a "due deference" standard (although the dissenters seem to worry that it is more similar to an abuse of discretion standard).

Posted by: | Jun 22, 2007 1:07:56 AM

Perhaps this passage from the very recent decision by the 7th Circuit in U.S. v. Vallejo, 2007 WL 1674972 (7th Cir. June 12, 2007) can help clarify Mysteries #1 and #2:

The district court's remarks at sentencing show that the court explicitly rejected the argument that the presumption of reasonableness that was discussed in United States v. Mykytiuk, 415 F.3d 606 (7th Cir.2005), was directed toward appellate review only. Counsel for Vallejo respectfully suggested that the court was mistaken, and that the court was free, once it had properly calculated the advisory guideline range, to select any sentence consistent with the factors set out in 18 U.S.C. § 3553(a). But the court held that unless the defendant could rebut the reasonableness of the advisory guideline sentence, then the district court was required to impose that sentence.

At the time the district court ruled, the decisions of this court were unfortunately not as clear or consistent as they should have been on this point. As we have since had occasion to stress, however, Mykytiuk addressed only the approach that a court of appeals should take to a sentence selected by a district court. We did not have before us a claim that district judges ought to apply any kind of presumption in favor of a guidelines sentence, nor did we mean to endorse that idea. Recent decisions have, we hope, eliminated whatever confusion existed. As we said in United States v. Gama-Gonzales, "To say that a sentence within the range presumptively is reasonable is not to say that district judges ought to impose sentences within the range. See United States v. DeMaree, 459 F.3d 791, 794-95 (7th Cir.2006). It is only to say that, if the district judge does use the Guidelines, then the sentence is unlikely to be problematic." 469 F.3d 1109, 1110 (7th Cir.2006). As we put it in Demaree:

The judge is not required--or indeed permitted, United States v. Brown, 450 F.3d 76, 81-82 (1st Cir.2006)--to "presume" that a sentence within the guidelines range is the correct sentence and if he wants to depart give a reason why it's not correct. All he has to do is consider the guidelines and make sure that the sentence he gives is within the statutory range and consistent with the sentencing factors listed in 18 U.S.C. § 3553(a).

459 F.3d at 794-95.

Posted by: David | Jun 22, 2007 5:57:27 AM

11:07:47 PM: In the passage that you quote, Breyer is making a point about the Sixth Amendment, not the operation of post-Booker sentencing dynamics...

Posted by: Doug B. | Jun 22, 2007 6:41:54 AM

Re: #3: "Does this mean that circuit court have to start reversing some within-guideline sentences as unreasonable?"

I don't necessarily think so. The legitimacy of the presumption allegedly comes from the fact that by the time a Guideline sentence reaches the Circuit Court it's been vetted by two bodies - the Sentencing Commission and the District Court - that concluded a Guideline sentence is appropriate. If anything, that would seem to make it more difficult for the Circuits to reverse a Guideline sentence for being substantively unreasonable, if they were ever disposed to do so in the first place.

I'd love to be wrong, tho'.

Posted by: JDB | Jun 22, 2007 8:21:33 AM

In regards to #1, I noticed this sentence myself-- it seems to say you have a presumption, but that this presumption doesn't put a burden of proof on either side. How is that possible? How can you have a presumption without putting the burden on one side to overcome that presumption, however slight or weighty that burden may be? Even if a court of appeals were to retract the language Prof. Berman notes about placing the burden on one side, how would that same burden not be generated by default? Is this language simply mean that it isn't mandatory for the circuits to apply a presumption of reasonableness?

As a practicing defense attorney, I'm also interested in Mystery #6. Given the enormous amounts of deferential language in Justice Breyer's opinion regarding how the USSC crafts its Guidelines to mirror congressional objectives, what happens when the Guidelines specifically preclude facts that would clearly be relevant under the direct language of 3553(a) standing alone? I suspect right now that if I were to convince a sentencing judge that this is a problem, the court of appeals would consider that decision as de facto unreasonable as a misapprehension of 3553(a). At least in some circuits, it seems that the courts of appeal consider that because the Guidelines were based around 3553(a), 3553(a) must mean what the Guidelines have concluded it means. Rita's love letter to the Sentencing Commission will do nothing to help that opinion.

Posted by: JP Davis | Jun 22, 2007 8:32:25 AM

"what happens when the Guidelines specifically preclude facts that would clearly be relevant under the direct language of 3553(a) standing alone? I suspect right now that if I were to convince a sentencing judge that this is a problem, the court of appeals would consider that decision as de facto unreasonable as a misapprehension of 3553(a)."

This was the holding, in fact, of the Fourth Circuit in Kimbrough. A per se violation not to treat crack and powder cocaine in the way the Guidelines do. I expect the Supreme Court to reverse that holding and give courts the power to engage in quite different weighings of the 3553 factors.

By the way, I think that's really a sleazy out by Breyer on the defects in the Guidelines, ignoring the fact they do not take account of important personal factors such as family life, employment, etc., because the issue was "not raised." It was surely comprised within the court's own question whether the within-guidelines sentence was "reasonable," it was implicit in the argument below that personal characteristics warranted a lower sentence, and it was dishonest for the court to duck the argument.

Posted by: David in NY | Jun 22, 2007 9:36:26 AM

"The sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."

The judge cannot simply begin with the presumption that the guideline calculation establishes the post-Booker sentence until someone convinces him otherwise. The judge can, after considering all the Section 3553(a) factors decide that it reflects the sentence "sufficient but not greater than necessary" to fulfill the goals of sentencing, but the judge cannot simply presume it. Isn't this what Steve Kalar wrote in the 9th Circuit blog yesterday (and isn't he right)? Just as a judge cannot simply dismiss the guidelines without considering them, neither can the judge simply presume they establish the sentence applicable to the case without considering everything else 3553(a) requires.

I think the biggest mystery is just how does a person overcome the presumption on appeal that a sentence imposed within the guideline range is unreasonable. I can think of one scenario: a judge imposes the maximum guideline range for an offense that doesn't seem to have any extraordinary or egregiously aggravating factors and the court makes no mention -- and apparently gives no weight -- to mitigating factors like the defendant's abuse as a child, complete cooperation with authorities investigating the crime. Justice Stevens stresses that Rita sends the message that the presumption of reasonableness is genuinely rebuttable. I think the Courts of Appeals are going to have prove this to be true. I wonder how long that will take. Most of them have yet to act as if the guidelines are "effectively advisory."

Posted by: caza | Jun 22, 2007 10:29:16 AM

In reflection on caza's comment, I think alot of what the future holds goes back to Prof. Berman's post a few days ago which stated, essentially, that all the big players will keep on keeping on in the way they've been doing all along. There is absolutely nothing in Rita that compels a sentencing judge who wants to treat the Guidelines as mandatory to really consider the 3553(a) factors, so long as he gives some kind of lip service to "having listened to the arguments" (which is what I read Rita as basically requiring, if that much, in terms of a judicial statement).

Likewise, there is nothing in Rita that compels a circuit court to reverse any within-guidelines sentence, so long as the court finds that the judge did in fact listen to the arguments. In a practical way, for those circuit courts who do wish to return as much as possible to a mandatory regime, the presumption of reasonableness allows them to effectively apply Justice Scalia's procedural reasonableness review standard, just only to within-guidelines sentences.

Posted by: JP Davis | Jun 22, 2007 10:45:27 AM

Answer: Isn’t the presumption-on-appeal just another way of saying that abuse of discretion review applies – per Stevens – and that sentencing within the guidelines is presumptively a reasoned exercise of discretion, given all the reasoning behind the guidelines, at least where all the proper procedural steps were taken by the district court at sentencing? Appellants must always show error, and a within-guidelines sentence is at least one step away from obvious error absent a showing of contrary reasons in a given case or with respect to a particular set of recurring factors. On the sentencing court level, the absence of a presumption implies that perhaps the term "variance" is no longer compatible with the statutory structure since it conveys a sense that a guideline sentence is the presumed-correct range.

Answer: Clearly, where a district court appears to apply a presumption of reasonableness – such as by putting a burden on the defendant to move the judge away from the guidelines – OR when a judge appears to view the sentencing task as limited to determining whether the guidelines are reasonable (i.e, virtual preemptive appellate review), rather than starting from the individualized question of what is the least severe necessary punishment, then the judge has not performed as required and has posed the wrong question at the sentencing hearing.

Answer: Not only are some within guideline sentences bound to be unreasonable, but the constitutional factors might come into play in the eventual substantive reversal of a within-guidelines sentence, such as in a case where the only thing that makes the sentence even potentially reasonable is a fact that the jury did not find. The advantage of this is that while appellate courts still bar appeals from the discretionary denial of downward departures, appellants now have the effective right of such appeal as to denial of requests for below-guideline sentences. (Indeed, it may be time for appellate courts to abandon their jurisdictional bar to appeals of discretionary denials of downward departures.)

Answer: Absolutely, where there are unique issues – not just a good military record, but some other special, distinctive factors that do not have a ready store of understanding on which to rely – more findings and analysis are required. Questionable guideline policy judgments, borderline guideline determinations (on law or evidence), acquitted conduct/constitutional concerns, and special individual personal factors – such as motive, potential for rehabilitation, collateral consequences – are matters requiring extending discussion. Procedurally, given that the judge must consider the guidelines, it is reasonable to impose on the parties a burden to point out to the court in what sense particular guideline factors are unreasonable generally or in a specific case.

Answer: Preservation of a challenge to the unreasonableness of a guideline prohibition would ordinarily begin with a departure request, but where departures are barred, then a formal challenge to the guideline’s reasonableness would seem to be called for; rather than just saying, ‘I know the guidelines say this, but I want you to do that,’ counsel should say that the guideline prohibition is unreasonable based on factors x, y, and z, and should therefore be limited or disregarded. The Koon analysis of different standards for departure arguments in relation to encouraged-to-discouraged factors may also come into play here.

Posted by: RCK-afpd | Jun 22, 2007 1:13:03 PM

Mystery #1 As a functional matter, no. I think Justice Scalia's opinion comes the closest of the 4 to recognizing this.

Mystery #2 is indeed a mystery, but I think the answer is probably not, except for the rare case in which the district judge goes so far as to say explicitly that the defendant "has not rebutted the presumption of reasonableness."

I think Rita recognizes a distinction between: (1) treating the Guidelines as "presumptively reasonable" and placing the burden on the defendant to rebut that presumption, and (2) starting with a Guidelines sentence and finding the defendant's arguments for a non-Guidelines sentence to be unpersuasive.

I think the difference would have to be that in (2) the sentencing court exercises some independent judgment in determining that the Guidelines sentence is appropriate, whereas in (1) the sentencing court does not.

As I read the opinion, though, this distinction will be invisible in practice. It's a weak distinction to begin with, Rita does not appear to require much in the way of explanation from the sentencing judge, particularly where the case before the judge is not unusual. Because Rita does not require much explanation, appellate courts will be unable to tell whether the district court rubber-stamped the PSR or whether it thought independently about whether the sentence was reasonable.

Mystery 3 I think this is truly a mystery, and that we'll have to wait for Gall to provide a clue as to the answer. I don't think the quoted phrase means anything other than that there is a substantive component to "reasonableness" review. The bulk of the Rita majority opinion basically says that this substantive component is unlikely to have any bite in the vast majority (indeed, probably in all, as Judge McConnell said in Pruitt) of within-Guidelines sentences. It may have bite if a defendant is lucky to draw an appellate panel on which 2 judges are particularly upset about crack sentencing.

Mystery 4 I think it just means that if the defendant raises a particularly compelling argument that seems almost indisputably correct, the district judge may not reject it without some explanation. Like the substantively unreasonable within-Guidelines sentence, this may be be something that only exists in theory.

Mystery 5 Not familiar enough with the facts to venture a response.

Great post, btw.

Posted by: | Jun 22, 2007 1:29:33 PM

One thing that perplexes me, which has to do with what you have labeled Mystery No. 1, is that the Court says -- on the one hand -- that its presumption does not require the defendant to offer any evidence or argument to avoid a Guidelines-range sentence. See Part II. A. Then, on the other hand, it says, in Part IV, that Rita's sentence is reasonable because he offered no evidence that he would be retaliated against in prison and because he did not argue that military service is deserving of leniency. In other words, Rita did not rebut the presumption of reasonableness.

Posted by: Tom | Jun 22, 2007 4:59:15 PM

As to Mystery 1, I think that Richard Klugh's view is most similar to mine. Justice Breyer strung together some words that sounded nice, but which evade meaning upon further scrutiny, in order to get as many of the other justices as possible to go along with him and put this case behind them. Any appellant in any area of law has the burden on appeal to show reversible error by the district court. No matter the standard of review, he loses if he fails to achieve some level of persuasion. His burden is least when the standard is de novo, in the middle when the standard is clear error, and at its greatest when the standard is abuse of discretion. Given that reasonableness review is (or is most akin to) abuse-of-discretion review, a within-Guidelines-range sentence that was achieved by the district court undertaking the correct procedures may be presumed reasonable by the court of appeals.

Posted by: Booker fan | Jun 25, 2007 4:55:12 PM

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