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February 21, 2007

A first quick take on the Rita transcript

I have now had a chance to read quickly the oral argument transcript in Rita (first discussed here).  Here are a few first-cut reactions:

1.  Though first QP in Rita asked "Was the district court's choice of a within-Guidelines sentence reasonable?," the Court spent most of its time focused on the presumption of reasonableness for within-guideline sentences.

2.  Counsel for defendant Rita from the outset framed the case in general terms that played into the government's emphasis on the importance of the guidelines to foster sentencing uniformity.  I think counsel should have focused the Court explore the first QP noted above.

3.  Counsel for the Government made concessions about the application of the Booker remedy that seem to be in tension with some of DOJ's arguments in lower court post-Booker litigation.

4.  There was disturbingly little discussion or exploration of the text of 3553(a).  Because this text seems to favor defendants, I am not surprised the Government avoided it, but I was disappointed this provision was not more central to the defendant's arguments.

5.  Justice Breyer is clearly interested in continuing a guideline-centric sentencing system, but that's no surprise.  Questions from other Justices left me unsure about whether others are personally committed to preserving a guideline-centric universe.

6.  I still think Justice Kennedy is an intriguing and uncertain vote in Rita.  As noted here, last week he told Congress that "I am not comfortable with anything in the federal correctional system and with our sentencing policy."  Is someone who makes this statement, and who has repeatedly lamented the severity of federal sentencing terms, likely to embrace the notion that the federal sentencing guidelines are always presumptively reasonable?

February 21, 2007 at 08:40 AM | Permalink


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Justice Kennedy has been very publicly "not comfortable" for many years now, but as a matter of law, he has consistently supported Guidelines based sentencing.

Posted by: Marc Shepherd | Feb 21, 2007 9:04:37 AM

Marc, thant's not really accurate. He has supported judicial fact-finding at sentencing as a constitutional matter, but he has supported judicial discretion to lower sentences in cases like Koon (and he also expressed concerns about acquitted conduct sentencing in Watts).

Posted by: Doug B. | Feb 21, 2007 9:12:33 AM

As you all know, I live in the Booker trenches. I have an HIV safety valve sentencing in Jacksonville this week. I have presented hte Court compelling non guideline arguments. However, in almost every case, it is like moving a mountain to get Court's to cut the guideline umbilical cord or to use a different starting point. My client has 65 grams of meth and is looking at 6 years. It is horrendous. The appeals courts have basically rubber stamped all sentences. Booker's remedial portion killed heightened standard. I think is funny that this is where are are now three years later, begging for yet, another remedy. If SCOTUS doesn't snap or sever the guideline system, WE STILL HAVE A MANDATORY REGIME, PERIOD. All of this discussion has no further application based in the reality of sentencing. Even under the old regime, you could move a mountain once in a while. NOTHING HAS CHANGED.

Posted by: Ronald Richards | Feb 21, 2007 10:13:54 AM

I thought that the Government's approach in the Rita argument was very interesting. First, the Government stated that any system in which a district court has to make a factual finding that the case is somehow "unique" violates Booker (page 33-34). The Government also said that district courts must be free to impose non-Guideline sentences in the even that they disagree with the Guidelines as a matter of policy (page 35). These statements by the government are in direct conflict with the holdings of several circuits, including the Second and the First.

It seems a little odd to me that the courts of appeals are taking a more mandatory approach to post-Booker sentencing than Main Justice . . .

Posted by: C.Hessick | Feb 21, 2007 10:26:34 AM

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