Sentencing Law and Policy

Transcript for Claiborne Arguments

[Posted by Ron Wright]

The transcripts for the oral arguments in Claiborne are now available here.  Now's the time to dive in, rummage among the rich arguments, and bring back to the comments section what you've found. Jump in there with Bermanesque enthusiasm! 

Justice Scalia's Theory of Appellate Review and the Sixth Amendment

[Posted by Ron Wright]

The oral argument transcripts for Rita are now available online. On a quick first read, something interesting jumped out at me. Justice Scalia seems to be constructing an argument that a specialized form of Sixth Amendment violation happens when appellate courts review sentences:

Mr. Cochran, I have this concern: If we accept your submission that the district court should just consider the guidelines together with everything else, give them a presumption of validity, anything else, just something to consider, that would presumably eliminate any Sixth Amendment problem with the district court's findings of fact. 

But the district court's sentence is going to go on appeal. And the appellate court in reviewing it for reasonableness, let's assume in this case the appellate -- the appellate court says oh, no, this person had -- we find as a matter of fact, given the record, military service, you know, which we think should have been taken into account. And, therefore, we set it aside.

Now, the next case that comes up, which doesn't have the element of military service, in all other respects the same as your client's case, it comes up to the court of appeals, and the court of appeals would say, ah, we don't have that different fact here and therefore we affirm the sentence. Isn't -- in other words isn't the finding of a fact necessary for the process of judicial review, even if it is not made necessary for the purposes of the district court's determination? He would not get that sentence but for this fact.

So it appears that Justice Scalia is adding new reasons to believe that the Booker remedy is, in practice, inevitably going to conflict with the requirements of Blakely. Very active questioning also came from Justices Breyer and Ginsburg, with fewer questions from Justices Kennedy, Souter, and Alito, and from Chief Justice Roberts.   

Off-line for the rest of fat sentencing Tuesday

After putting off commitments to cover all the morning SCOTUS action, a day of transit now means I will be off-line the rest of today and thus unable to post immediately about the oral arguments in Claiborne and Rita (background here).  Fortunately, same-day transcripting means that, at this SCOTUS link later this afternoon, everyone can read the actions for themselves. 

Comments to this post about what transpired in the reasonableness debate and what it might mean for post-Booker realities are, of course, highly encouraged.  I should be able to consume the transcripts and provide some initial commentary be very late tonight or early tomorrow.

Reviewing Claiborne/Rita rev up

With oral arguments in Claiborne and Rita now less than 24 hours away, I thought it useful to review the posts in my "Revving up" series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Claiborne and Rita: shameless self-promotion
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence
• Revving up for Claiborne and Rita: will due process play any role?
• Revving up for Claiborne and Rita: sentencing law in four dimensions

In addition, a lot more information (including all the briefs) and other commentary can be found in this Claiborne and Rita reasonableness case category archive.

Two reads before tomorrow's SCOTUS excitement

Oral arguments in Claiborne and Rita are now just a day away, and here are two good reads to help gear up for all the fun:

• At SCOTUSblog, Lyle Denniston has this extended post entitled "Salvaging the Guidelines" which reviews the issues and the briefing in these cases.  Among other notable details, Lyle's post indicates that Rita will be argued first and that Deputy SG Michael Dreeben will be arguing both cases for the federal government.

• At FindLaw, Douglas Kmiec has this essay praising Justice Roberts for "encouraging his colleagues toward rulings ... that are sufficiently clear and unified."  Give all the issues in play in Claiborne and Rita, producing clear and unified opinions in these cases would be a significant accomplishment.

UPDATE:  Another piece on CJ Roberts' rules of order comes today from Howard Bashman in this "On Appeal" column where he notes that "the chief justice's own actions demonstrate that achieving a majority holding or avoiding a slim five-justice majority are not significant enough goals to abandon one's own firm convictions as to the correct outcome in a case."

Revving up for Claiborne and Rita: shameless self-promotion

I am so eagerly anticipating the Supreme Court's work in Claiborne and Rita in part because I have written so much over the last few years about Blakely, Booker and modern sentencing reforms in light of the Court's modern sentencing jurisprudence.  With the arguments in Claiborne and Rita now only days away, I cannot resist this self-serving post assembling some of my major writings (with dates of publication):

Major Articles

• Conceptualizing Booker (Spring 2006)
• Conceptualizing Blakely (Fall 2004)
• Beyond Blakely and Booker: Pondering Modern Sentencing Process (Spring 2005)
• Reconceptualizing Sentencing (Summer 2005)
• Distinguishing Offense Conduct and Offender Characteristics (Fall 2005)
• Tweaking Booker: Advisory Guidelines in the Federal System (Summer 2006)
• Making Sentencing Sensible (with Stephanos Bibas) (Fall 2006)

Major Commentaries

• Reasoning Through Reasonableness (Summer 2006)
• What's the Future of Federal Sentencing? (with Frank Bowman) (Winter 2006)
• Perspectives on Booker's Potential (Winter 2006)
• Now What? The Post-Booker Challenge for Congress and the Sentencing Commission (Spring 2006)

Major Amicus Efforts

• Claiborne and Rita: Reasonableness review in the Supreme Court (Winter 2007)
• Crack sentencing in many circuits (Spring 2006)
• Reasonableness review in the Ninth Circuit (Summer 2006)
• Reasonableness review of veteran's variance (Fall 2006)

Bowman Sorts the Rita/Claiborne Arguments

[Posted by Ron Wright]

Just in time for the oral arguments in Claiborne and Rita, Frank Bowman has drafted a reader's guide to the briefs of the parties and amici in the cases. His intelligent critiques of the briefs and suggestions for the best ordering of affairs in Blakely-land could make a real difference in crafting a new path forward. The essay will be published later this year in the Federal Sentencing Reporter, but this preliminary version is available at the link below. 

Download bowmanthe_question_is_which_is_to_be_master217.doc

Revving up for Claiborne and Rita: sentencing law in four dimensions

With less than a week until the SCOTUS oral argument in Claiborne and Rita, I now see these cases as so interesting because of how four sources of multi-dimensional sentencing law and policy intersect.  Let me explain:

1.  Constitutional Law:  Booker struck down the mandatory federal sentencing system on Sixth Amendment grounds, but then set out a remedy that seems to undermine Sixth Amendment principles.  As highlighted in posts here and here, the recent Cunningham decision suggests that Claiborne and Rita could have important Sixth Amendment dimensions.  Moreover, as stressed here and by the Third Circuit's work in Grier, there are also important sentencing due process issues lurking after Blakely and Booker.

2.  Statutory Law:  The Booker remedy was premised on Congress's legislative intent when passing the Sentencing Reform Act (SRA), and it championed the statutory instructions to sentencing judges in 18 U.S.C. § 3553(a) as the controlling law for both district judges at sentencing and circuit judges reviewing sentences.  But the Booker remedy did not say much about the "multiple and vague" factors set out in 3553(a).  And, as suggested here and here, lower courts have struggled greatly to make sense of the express text of the SRA and the perceived goals of federal sentencing reform.   

3.  Administrative Law:  The US Sentencing Commission is an administrative body and the guidelines are a form of administrative law.  But the Mistretta case showcased that the USSC and the guidelines are not easily fit into standard administrative law models.  Some post-Booker lower court rulings have emphasized the importance of the guidelines as the product of an expert agency, and yet traditional administrative law doctrines like Chevron have never really been brought to bear in the context of federal sentencing.

4.  Common (or Case) Law: Formally, Claiborne and Rita are assessing the reasonableness standard of appellate review that was created out of whole-cloth by Justice Breyer in the Booker remedy opinion.  There is no obvious constitutional, statutory or administrative law tether or guideposts for the application of this standard (which in part explains why the guideline have been so central to circuit rulings).  Also lacking any obvious legal source are the circuit doctrines concerning the "presumption of reasonableness" at issue in Rita and the "proportionality doctrine" at issue in Claiborne. 

Adding to the intrigue, of course, is that these sources of sentencing law overlap and connect in various ways.  As in Mistretta and Jones, constitutional avoidance doctrines might push the Court to adopt a particular view and interpretation of applicable statutes; as in Koon and Watts, the Court might interpret the Constitution and the SRA to enhance the power of the USSC as an adminstative agency while undercutting the development of common-law doctrines by circuit courts.

In addition, various Justices have interesting histories with the various sources of law in the context of federal sentencing jurisprudence:

• Justice Breyer, who helped draft the SRA and was an original member of the USSC, obviously has a unique perspective on (and perhaps an unhealthy affinity for) the SRA and the guidelines.
• Justice Scalia, who was the lone dissenter from the Supreme Court's initial blessing of the SRA in Mistretta, also has a unique perspective on (and perhaps an unhealthy disaffinity for) the SRA and the guidelines. 
• Justice Kennedy, who authored the unanimous opinion in Koon which asserts (perhaps inaccurately) that Congress in the SRA sought to ensure "that district courts retain much of their traditional sentencing discretion,"  has delivered numerous potent speeches lamenting the severity of federal guideline sentences (examples here and here).
• The new Justices are the yin and yang on federal sentencing law and policy: as detailed in this post, former federal prosecutor (and FSR author) Justice Alito had lots of exposure to federal sentencing realities on the Third Circuit and through his involvement (until his SCOTUS nomination) with the Constitution Project's Sentencing Initiative; former civil lawyer CJ Roberts comes at these issues without much history and he may be far more interested in achieving consensus among the Justices than in achieving any particular outcome.

And, of course, Claiborne and Rita puts all these elements into the awlways-bubbling soup of modern debates over the Court's role in law and politics.  Consequently, I thik the only really safe prediction about to the final product in Claiborne and Rita is that the decisions will be (like the Blakely and Booker precursors) unpredictable.

Reply briefs filed in Claiborne and Rita

With now just a week to go before the SCOTUS oral argument Claiborne and Rita, the final official piece of the briefing puzzle was filed in today as the defendants filed thier reply briefs.  Thanks to this page at the Office of Defender Services, you can access the reply brief for Mario Claiborne here and the reply brief for Victor Rita here.  The Rita reply gets off to this flying start:

The presumption of reasonableness is a legal fiction. It is based not on the objective language of the Sentencing Reform Act ("SRA"), but on a subjective preference for a determinate sentencing regime and mandatory Sentencing Guidelines.  Crafted from whole cloth, the presumption is supported only by vague references to an ambiguous legislative history and repeated allusions to the "expertise" of the United States Sentencing Commission ("USSC").  These considerations cannot justify reaching beyond the text of the statute, particularly when application of the presumption raises serious constitutional concerns in all cases and so plainly results in an unreasonable sentence in this one.

Posts in my "Revving up" series:

• Revving up for Claiborne and Rita: will due process play any role?
• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Revving up for Claiborne and Rita: will due process play any role?

In an article that's now almost two years old, entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process" (available here), I spotlighted that the Apprendi cases involve, both expressly and implicitly, an array of constitutional provisions and principles beyond just the Sixth Amendment's jury trial right.  (Stephanos Bibas and I highlighted this point as well in our more recent article, "Making Sentencing Sensible" (available here).)

This weekend, when I finally read closely the Third Circuit's recent en banc magnum opus on sentencing burdens of proof in Grier (discussed here), I started wondering if constitutional principles other than the jury trial right might play a role in Claiborne and Rita.  Significantly, early rulings in the Apprendi line of cases (especially Jones) made repeated mention of due process and notice concerns implicated by judicial fact-finding at sentencing.  But later rulings like Blakely and Cunningham and especially the Booker remedy have dodged any real discussion of due process principles distinct from jury trial rights.

All of the thoughtful opinions in Grier (available here) provide an extraordinary account of how uncertain and debatable due process holdings and doctrines are after Blakely and Booker.  Pre-Blakely rulings like Harris and Watts and McMillan are formally still good law.  But many passages in Blakely and Booker raise many new questions, and new Justices (and the evolving views of old Justices) might be drawn to due process issues as they reflect on ugly aspects of post-Booker jurisprudence in lower courts.

Of course, due process questions are not formally before the Court in either Claiborne and Rita.  Nevertheless, Judge McConnell's great recent work in Medley (discusses here) highlights yet again that potential due process issues can lurk around every corner of any complex guideline-based sentencing system.

Posts in this series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Revving up for Rita: harsh treatment for a lesser Libby

In this recent post, I noted that the specifics of Claiborne and Rita are quite interesting and nuanced, and I provided a quick account of facets of Mario Claiborne sentencing fortunes.  In this post, I wish to note intriguing aspects of Victor Rita's case — which has some parallels to the on-going trial of Lewis Libby.

1.  The nature of Victor's crime.  Like Lewis Libby, Victor Rita got caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that he lied while giving grand jury testimony.  And, like Libby, Victor Rita asserted his innocence and exercised his right to a jury trial.  (Victor was convicted of all counts at trial; Libby's trial fate is still to be determined, of course.)

2.  The impact of a guideline cross-reference.  Though lying to government investigators is surely a crime to be taken seriously, Martha Stewart only faced a guideline sentence of 10 months after her conviction on a similar charge.  In Victor's case, his guideline range was 33 to 41 months because of the operation of cross-reference provisions in the guidelines — provisions which essentially held him accountable for crimes beyond those which were the basis for his jury conviction.

3.  The (in)consequence of a remarkable personal history.  As first noted here, Victor Rita is a very sympathetic defendant: he served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, and has received over 35 military medals and awards.  Also, he is an elderly gentleman who suffers serious health problems.  None of these factors played any role in the calculation of his guideline sentencing range, and the imposition of a within-guideline sentence indicates these factors had little or no impact at all at Victor's sentencing.  (To spotlight another Lewis Libby parallel, I would expect Libby 's lawyers to stress his government service at sentencing if he gets convicted.)

Posts in this series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Revving up for Claiborne and Rita: more resources

I have noted before that the briefs Claiborne and Rita are helpfully assembled by the NYCDL on this page.  But, as we rev up for the oral arguments on February 20, everyone should also know about the amazing resources and materials assembled by Office of Defender Services at this webpage. 

As detailed at this link, the ODS not only has assembled all the briefs, but it has also collected or created various supporting documents helpful to anyone watching Claiborne and Rita closely.  Of particular interest in light of prior posts here and here, National Sentencing Resource Counsel Amy Baron-Evans has produced this interesting description of the amicus brief filed by Senators Kennedy, Hatch and Feinstein on behalf of the government discussing crack cocaine sentencing.  The site also has additional coverage of "Data on post-Booker Sentencing and Appellate Review."

Posts in this series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Revving up for Claiborne: a crack(ed) safety-valve sentence

Though the briefs in Claiborne and Rita discuss federal sentencing guideline generalities at length, these cases are ultimately about the sentencing fortunes and fates of two men: Mario Claiborne and Victor Rita.  It will be interesting to see if the Justices at oral argument (and in the opinions) focus on the specifics of Mario and Victor or instead talk mostly about guideline generalities.  (History provides no clear guide: the Justices focused on facts in Koon, but relatively little in Booker.)

The specifics of both cases are quite interesting and nuanced.  I will discuss Victor Rita's case  — which has many parallels to the on-going trial of Lewis Libby — in a future post.  This post presents a quick account of some interesting Mario Claiborne specifics.

1.  The impact of harsh crack guidelines.  Mario Claiborne pleaded guilty to two minor crack offenses, and his sentence of 15 months would not have been below the guidelines had he been dealing with powder cocaine.  But, because of the crack guidelines — which the US Sentencing Commission has itself repeatedly called unfairly harsh — the applicable guidelines range advised a sentence of at least 3 years.  The district court, likely influenced by the USSC's analysis that the crack guidelines are too harsh for low-level offenders, decided to sentence below the guideline, but the Eighth Circuit declared that choice unreasonable.  But is it really unreasonable for a district court not to follow crack guidelines that everyone recognizes are unreasonable in some cases?

2.  The impact of the safety valve.  One reason the government may have appealed and the Eighth Circuit reversed is because Mario Claiborne got a lot of credit for pleading guilty and for being a minor offender.  Though federal guidelines have many factors that drive sentences up, Claiborne benefited from two provisions that drive sentences down: a reduction for accepting responsibility and for fitting within the so-called "safety-valve" criteria allowing a sentence below applicable mandatory minimums.  Though many federal defendants (such as Victor Rita) can rightly complain that the guidelines do not give credit their mitigating circumstances, Mario Claiborne cannot make that charge.

3.  The impact of post-sentencing realities.  As first noted here, Mario Claiborne has served his original 15-month prison sentence and has bee free from federal custody since May 1, 2006.  Assuming Mario has been a good egg since his release, is there a strong reason he should now be resentenced and given a longer prison term?  Of course, Mario's actions since he was first sentenced nearly two years ago are not formally relevant to whether the district judge sentenced him unreasonably in March 2005.  But, if he has been super Mario this year and has thus shown the wisdom of the sentencing break he got from harsh crack guidelines, the Justices may not be especially eager to declare that break unreasonable.

Posts in this series:

• Revving up for Claiborne and Rita: a series and background

Revving up for Claiborne and Rita: a series and background

Two weeks from today, the Supreme Court will hear oral arguments in Claiborne and Rita, two cases that will explore what Booker really means for federal sentencing. (The briefs Claiborne and Rita are helpfully assembled by the NYCDL on this page).  Because these cases have so many dimensions, I have decided to start this series of "revving up" posts to better unpack all the interconnected elements in these cases.

In this first post I want to highlight some important potential distinctions (and similarities) in Claiborne and Rita.  Though much of the amicus briefing addresses both cases in one brief, there are notable factual and legal distinctions in the cases the Supreme Court has taken up:

1.  The facts and fact-finding:  Mario Claiborne pleaded guilty to two relatively minor drug offense and admitted to all the facts the district court considered at his sentencing; Victor Rita went to trial and the district court considered a number of disputed facts at his sentencing.  Therefore, for those most concerned about Sixth Amendment issues, Rita would appear to be the case to watch.

2.  Offenses and offenders:  Mario Claiborne's offenses involved crack offenses that Congress and the Sentencing Commission has treated very harshly; Victor Rita's offenses involve misstatements to a grand jury that seem very minor compared to the usual federal offender.  Both defendants lack any significant criminal history and seem to have positive personal attributes, though Victor Rita's background is particular notable given his long and honorable military service.

3.  Proceedings below:  Mario Claiborne received a below-guideline sentence of 15 months in prison in the district court, but the Eighth Circuit reversed this sentence as unreasonably low on the government's appeal; Victor Rita received a within-guideline sentence of 33 months in prison in the district court, and the Fourth Circuit affirmed this sentence as reasonable.  The circuit rulings are similar in their post-Booker emphasis on the guidelines, but dissimilar in their respect for district court post-Booker discretion.

In future posts, I will explore some of the constitutional and non-constitutional issues raised in these cases and also speculate about how particular Justices might view these cases.  In the meantime, I encourage reader to send me any "revving up" thoughts for possible posting.  I am eager in this series to present perspectives other than just my own on Claiborne and Rita.

Will the USSC have more data for Claiborne and Rita?

It's been two months since the US Sentencing Commission released any additional post-Booker data and now nearly a year since USSC has produced any new type of Booker data.  As I noted here a few months ago, to my knowledge, the USSC has never publicly disclosed post-Booker data on dynamic issues such as defendants' fates after post-Booker remands and outcomes in white-collar cases and post-Booker appeal rates/outcomes.

Notably, many of the briefs in Claiborne and Rita (helpfully assembled by the NYCDL on this page) assemble and discuss post-Booker appeal data.  Interestingly, the USSC's brief in Claiborne and Rita only has a brief mention of post-Booker data; this discussion is focused on the fact that "the rate at which sentencing judges impose a sentence either within the Guidelines range or below the Guidelines range pursuant to a government-sponsored departure in circuits that apply a presumption of reasonableness (87.5 percent) is quite close to the rate (83.9 percent) in circuits that apply no presumption."  USSC Brief at 16.

I wonder if the USSC will have any additional public data releases in the run up to the Claiborne and Rita arguments (which are to be on February 20) or while SCOTUS is working on its opinions in Claiborne and Rita.  I hope so.

Just what does Cunningham mean for Claiborne and Rita?

In my first read of the Supreme Court's Cunningham decision (essentials here), I made particular note of this line: "Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless."  As evidenced by my Boyd bemoaning (here and here) and my complaints about continued reliance on acquitted conduct (details here and here), I think most district courts and really all circuit courts applying Booker reasonableness review have essentially cooked up post-Booker doctrines that functionally produce a "recipe for rendering [the Court's] Sixth Amendment case law toothless."

For that reason, I read Cunningham as previewing big fireworks in Claiborne and Rita.  (That's why I initially speculated that the SG might want a GVR after reading Cunninham.)  But perhaps I am over-reading Cunningham, and so I ask informed readers: what do you think Cunningham means for Claiborne and Rita?

Senators' brief supporting the government in Claiborne

In addition to the bottom-side briefs noted here, Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein have filed a "Brief in Support of Affirmance in Claiborne v. United States."  That brief can be accessed here thanks to the NYCDL, which now has updated its complete set of Claiborne and Rita briefs at this page.

I had heard that a Senators' brief was in the works, but I was hoping it might be filed not in support of either party (as was the brief I wrote for a group of law professors striking similar themes).  I am particularly disappointed that these Senators concluded that the district judge in Claiborne acted unreasonably when deciding that 15 months was a sufficient punishment for Mario Claiborne. 

Though I will have a lot more comments about all the bottom-side briefs in future posts, I find especially peculiar that the Senators' brief asserts that "The District Court Failed to State Clear and Principled Reasons for the Sentence It Imposed."  If their concern is ensuring that district courts state clear and principled reasons for sentences, the Senators really should have filed a brief in support of the defendant in Rita.  I have not heard a clear and principled reason — from the district court or the Fourth Circuit or from anyone else — as to why a decorated military veteran like Victor Vita should receive a prison sentence of 33 months for a seemingly minor, non-violent offense. 

UPDATE:  A partisan observer of federal sentencing had this immediate unvarnished reaction to the Senators' brief:

After a quick scan, the Senators' brief looks even more offensive than I expected.  And racist, I might add.

CLARIFICATION: A thoughtful and well-meaning reader has rightfully suggested that I not react to my disappointment over the Senators' brief by taking cheap shots or by indirectely suggesting anyone is a racist.  Indeed, this reader suggests I stress notable aspects of the substance of the Senators' brief, such as this interesting footnote:

[A]mici respectfully disagree with the proposition that sentencing decisions "must be done case by case and must be grounded in case-specific considerations," without reliance on broader principles that can be applied by courts in other cases.  See, e.g., United States v. Pho, 433 F.3d 53, 64-65 (1st Cir. 2006).  Uniformity is advanced by the development of rules of general applicability, not the exercise of unguided discretion on a case-by-case basis.

FURTHER EXPLANATION:  Highlighting the power of loaded charges, the term "racist" above has generated lots of reaction.  The partisan has sent me this further explanation: "if the Senators knew all of the facts regarding the crack guideline, they could not get behind affirmance of the Eighth Circuit's reversal of a perfectly reasonable application of 3553(a) that ameliorated the unreasonable effect of a guideline that everyone, including the Sentencing Commission, knows has a racially disparate impact."

For me, this whole debate highlights the importance of taking a critical race perspective on the modern state of federal sentencing.  As but one example, I highlighted in this post, consider that the USSC's March Booker report reveals that, after Booker, roughly 1 in 5 first offenders get a below-guideline sentence after Booker, but for black first offenders, the number is roughly 1 in 6; for hispanic first offenders, the number about 1 in 9.  And yet, sadly, these Senators have chosen to file a brief arguing that one of the rarer below-guideline sentences given to a black, non-violent first offender is unreasonable. 

(All?) bottom-side briefs for Claiborne and Rita

Thanks to many kind readers, I now have received multiple copies of the government's briefs and the US Sentencing Commission's brief filed today in Claiborne and Rita.  I provide them for download here:

Download claiborne_sg_brief.pdf

Download rita_brief.pdf

Download ussc_amicus_brief.pdf

I am not certain if this comprises the total of all the briefs filed in Claiborne and Rita (and I have left out some of the appendices).  I will post any other amici briefs filed today upon discovery.  And commentary on these defenses of the federal guidelines will follow as time an energy permits.

Were bottom-side briefs filed in Claiborne and Rita today?

Though I have already speculated here on a new SG strategy for Claiborne and Rita, I am very curious about whether and what was filed by the government (and any amici) in these cases today.  I have not yet seen any bottom-side briefs, and perhaps I have my dates wrong.  But, if any readers have their hands on these filings, please consider sending me a copy for posting.

Should the SG now ask for a GVR in Claiborne and Rita?

I noted here that, after today's Cunningham ruling, my heart goes out to the lawyers who had to file bottom-side briefs in Claiborne and Rita.  Giving a bit more thought to federal sentencing in light of the broad discussion of Claiborne and Rita in the Cunningham opinions, I am wondering if anyone inside the SG's offices is now considering a really bold strategy — namely, conceding possible error in Claiborne and Rita and asking for a GVR so the lower courts can take stock of Cunningham.

It is not clear that SCOTUS would even grant a GVR in Claiborne and Rita, but the first issue is whether the SG ought to now ask for one.  Cunningham has reinforced my sense that the Supreme Court is currently the most pro-defendant appellate court in country on issues of sentencing procedure.  For that reason, I could see the SG being more eager to hash out the meaning of Cunningham with the generally pro-government circuit courts than with the generally pro-defendant Supreme Court.