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January 22, 2007

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.

January 22, 2007 at 12:51 PM | Permalink


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I have to admit, Prof. Berman, that I'm a bit puzzled by your suggestion. Perhaps those more familiar with Supreme Court practice generally and GVRs specifically will weigh in to the contrary, but I don't see why sending Claiborne and Rita back to the circuit courts would force those courts to reconsider the glosses on reasonableness review that they developed post-Booker. Indeed, the majority seems to go out of its way, especially in response to Alito's dissent, to emphasize that the Court itself will address the parameters of reasonableness review in Rita and Claiborne. IMHO, a GVR here would revisit the sin that you have rightfully identified in some of the Court's earlier decisions this term: unnecessarily postponing a decision on a major criminal law issue that can be resolved only by the Supreme Court.

Posted by: LT | Jan 22, 2007 1:42:28 PM

But, LT, if the SG were now prepared to give up on the presumption of reasonableness and say that it views such a presumption as perhaps constitutioanlly suspect, it might avoid getting a worse ruling from SCOTUS than from lower courts.

Please understand, I'm not advocating a GVR. I think we need some post-Booker guidance ASAP. But I'd like that guidance to perhaps come from DOJ-US Sentencing Commission-defense consensus, not from another deeply split SCOTUS ruling.

Posted by: Doug B. | Jan 22, 2007 1:47:44 PM

In any case, Doug, I don't think Cunningham tells anything useful about the likely outcome in Claiborne and Rita. First, if Blakely and the Booker merits majority were to remain good law, the Court could hardly reach any other conclusion than the one it did. Second, unless my quick first read missed something, Justice Ginsburg told us exactly nothing about the central question in Claiborne and Rita -- How MUCH weight can a guideline or rule premised on post-conviction judicial fact-finding have under the 6th Amendment? That question remains for the court in Claiborne/Rita (and, though the gov't will perhaps do better than the petitioners and amici to date, so far none of the parties or amici have given the Court any useful help on that point).


Posted by: Frank Bowman | Jan 22, 2007 1:59:59 PM

Professor - I take your point and largely agree with it, particularly with regard to the consensus that you advocate. I'm still not sure, though, how even consensus among those three actors would obviate the need for the Court, divided as it is, to pass upon the propriety of what the courts of appeals have been doing. For example, even if DOJ agreed not to argue in the lower courts that within-guidelines sentences are presumptively reasonable and also agreed never to seek above-guidelines sentences, the current presumptions and "extraordinary circumstances" requirements would remain on the book. Likewise with defense counsel seeking below-guidelines sentences. In short, the consensus that you propose might go a long way toward making the existing standards for reasonableness review a lot less important by altering charging and sentencing practices in the district courts. Without Supreme Court intervention, however, any changes implemented at that level will still be met by what you and others have quite rightly identified as a system of appellate review that may be constitutionally suspect and that improperly limits the discretion of trial judges.

Posted by: LT | Jan 22, 2007 2:09:17 PM

Great work on Cunningham, so far, Professor.

I must admit that I don't think a consensus is possible from the DoJ, USSC, and the defense bar, and I find it striking that you left Congress out of the mix. The Cunningham opinion takes pains to remind the nation that the Booker remedial majority "put the ball in Congress' court" to fix the SRA's inherent unconstitutionality. Surely Congress has a role here (although I recognize the great distrust on the part of many regarding Congress' ability to rise to the occasion).

As for "reasonableness" review, the Cunningham majority clearly stated (albeit in a footnote) that Rita and Claiborne are their chosen vehicles for deciding what "reasonableness" review should look like. While I sympathize with the folks in the SG's office who must brief & argue Rita and Claiborne in the wake of Cunningham, just because of the uncertainty involved and the time pressures involved, they still have plenty of room to argue those cases as they deem fit.

I hope that I'm wrong, but I don't think that the Supreme Court will clear up the "reasonableness" confusion in Rita and Claiborne. The Supreme Court does not want to diminish appellate review authority over the discretionary sentencing established in Booker, but the Courts of Appeals are institutionally unsuited to the task that the Supreme Court wants them to perform. They don't have the benefit of seeing and participating in the pretrial and, in some cases, the trial; they don't get to actually set a sentence (although some Circuits have effectively tried by their "remanded for a sentence of no less than X"); they have deep internal philosophical fissures; they are not predictable (at least, in some cases, until a panel is assigned); they are severely limited in terms of personnel and time. Unfortunately, the questions certified in Rita and Claiborne (focusing on the mechanics of "extraordinary variances" and the "presumption of reasonableness" of the Guidelines) do not resolve the fundamental issue of discretionary sentencing post-Booker: reasonable people disagree about the reasonableness of a BROAD RANGE of sentences for any particular case. Until the Supreme Court (or the Congress) recognizes this fundamental fact and creates a sentencing solution that is consistent with the Sixth Amendment, I fear that we will have sentencing uncertainty and confusion at the federal level for many years. I hope that I'm wrong, but I fear that the Supreme Court is not even asking the right questions (or, at least, the most important question) in Rita and Claiborne.


Posted by: Mark | Jan 22, 2007 2:20:33 PM

Alito's dissent portends the future, and it is a bleak one for the Booker remedial opinion. The current status of "reasonableness review" -- allowing a district court to justify the reasonableness of its departure sentence by judicially found facts -- is in fundamental conflict with the animating principles of Apprendi and Blakely. I think that's what Claiborne and Rita will end up holding, at least.

Posted by: Aaron Katz | Jan 22, 2007 4:46:15 PM

In Abdul-Kabir, the defense asked the Court to remand the cases, and the idea went over like the proverbial lead balloon. See the argument transcript: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-11284.pdf For the reasons Frank notes, I think a similar request in Claiborne and Rita would get a similar response.

Posted by: Kent Scheidegger | Jan 22, 2007 6:00:03 PM

We all know the SCOTUS will hold, unanimously, that as long as the guidelines are not mandatory, a presumption of reasonablness is perfectly fine, in fact, good. They will say the guidelines calculation is first among equals of the 3553(a) factors and should be the starting point for the advisory calculation. I firmly believe the statutory minimum should be the starting point, with the court working its way up to the statutory maximum using the 3553(a) factors until the sentence is sufficient but not greater than necessary to achieve those factors. But the SCOTUS will not be so logical.

Posted by: BruceM | Jan 23, 2007 6:50:37 PM

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