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January 20, 2007

Who will be supporting the government in Claiborne and Rita?

When cert was first granted in Claiborne and Rita, I wondered here how many amicus briefs might be filed.  When the top-side briefs were filed last month, as documented here, eight different amici briefs shared their insights with the Supreme Court.  And now that bottom-side briefs are due next week, I am wondering how many others will be giving SCOTUS friendly advice about post-Booker sentencing.

I suspect the US Sentencing Commission will file a brief supporting the government's emphasis on the guidelines in the post-Booker world.  (If USSC does file a brief, it will mark yet another ocassion in which it has opined about Booker while its guidelines chug along without even mentioning Booker.)  But I am quite uncertain about how many other briefs will be filed supporting the government's approach to the post-Booker world and the circuit outcomes in Claiborne and Rita.  I doubt there will be as many as were filed on the defense side, but one never knows.

January 20, 2007 at 10:15 AM | Permalink


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Rita (dealing with presumptive reasonableness) is an odd case. The "presumption of reasonableness" there functioned in a very different way than it functions in most circuits. It will be interesting to see whether any of the bottom-side briefs focus on this. Rita's unusualness could mean that the case will have less of an impact on the issue of presumptive reasonableness than many (including Professor Berman) are anticipating.

Most circuits divide reasonableness into procedural and substantive components. Part of procedural reasonableness is making sure that the district court considers a defendant's explicit arguments about any mitigating 3553(a) factors. Most circuits will vacate the sentence as procedurally unreasonable if the record doesn't show that the district court considered these arguments. The presumption of reasonableness, though, does not attach to this procedural component of a district court's decision. In most circuits, it's only *after* the appellate court is satisfied that the district court's sentence was procedurally reasonable that presumptive reasonableness comes into play. It does this by saying that a sentence is presumptively reasonable with respect to its substantive component--i.e. its length--provided that it is procedurally reasonable and it falls within the Guidelines range.

In Rita, the district court ignored the defendant's non-frivolous 3553(a) arguments for a shorter sentence. In most circuits, this would mean the sentence would be immediately vacated as procedurally unreasonable. The presumption of reasonableness wouldn't even be an issue because there would be no need to consider the length of the sentence. But in Rita, the appellate court appears to have concluded that a within-Guidelines sentence is presumed procedurally as well as substantively reasonable. Most other circuits don't approach presumptive reasonableness this way: they do it like I described in the previous paragraph. (Interestingly, Rita even appears to conflict with what the same court-- the Fourth Circuit-- has previously said about the difference between procedural and substantive reasonableness.)

This is why I think that the Supreme Court's decision to review Rita is so interesting. There are thousands of other cases out there that the Supreme Court could have chosen to review that reflect how the presumption of reasonableness typically functions. But for some reason it has chosen this unusual case. Based on the facts before it in Rita, it's difficult to see how the Court could reach a conclusion that would really have a bearing on how presumptive reasonableness functions in the other circuits. Presumptive reasonableness is not usually as "ugly" as it looks in Rita.

I wonder if any of the bottom-side briefs in Rita argue this point. I'm touching on it in a law review comment that's coming out early next month.

Posted by: Jeff Hurd (law student) | Jan 20, 2007 11:00:01 PM

Thanks for the insightful comment, Jeff. However, I think many circuits --- though claiming they will reverse for procedural unreasonableness when mitigating factors are not considered --- rarely do. I have seen only about a dozen within-guideline sentences reversed for procedural reasons, and yet I am sure more than a dozen of the thousands of appealed within-guideline sentences looked like Rita's situation (though perhaps without facts that are quite so dramatic).

I look forward to reading your comment. Send it to me if you'd like it posted on the blog.

Posted by: Doug B. | Jan 21, 2007 10:14:07 AM

Come November, we here in California expect to pass a series of laws that will legalize and tax marijuana for open recreational use. The legislature has been drafted and it appears that it is only a matter of time.

Posted by: Jordan Retro | Nov 14, 2010 1:32:58 AM

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