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June 23, 2007

Circuit splitting headaches after Rita

In this post last year, I noted four major circuit splits on basic and fundamentally important post-Booker issues.  Ironically, the opinion for the Court in Rita did not resolve the one circuit split that the case seemed poised to address, but the opinion does indirectly suggest resolution of two other splits.  Let me review:

1.  The presumption of reasonableness:  As discussed here and here, Rita declared permissible a non-binding appellate presumption that within-guideline sentences are reasonable.  But Rita did not demand, or even suggest, that circuit must apply such a presumption.  Rita also arguably added confusion about how the presumption should operate and how it can be rebutted on appeal.

2.  The persistence of Rule 32(h):  The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range.  Though Rita does not formally address this issue, the opinion cites Rule 32 when asserting that, post-Booker, sentencing decision-making should be subject to "the thorough adversarial testing contemplated by federal sentencing procedure."  The Rita opinion also cites Burns , saying it recognizes the "importance of notice and meaningful opportunity to be heard at sentencing."  Thus, it seem that the Rita Court favors the view of circuits applying Rule 32(h) to variances.

3.  The role of "traditional" departures:  As previously noted here, Rita suggests the continued validity of "traditional" departure analysis after Booker, and thus casts serious doubt on the Seventh Circuit's repeated assertion that departures are obsolete after Booker.   As I long ago discussed here and here, this is practically a very important issue that needs to settled in order to have a uniform and consistent federal sentencing system.

4.  The applicable version of the guidelines:  Rite does not address directly or even indirectly the Seventh Circuit's view (discussed here and here) that, after Booker, district courts should apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime.  Other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime.

There have been, of course, lots of other post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues.  These specific substantive issues are not addressed at all in Rita (though such issues may arise indirectly in the Court's forthcoming work in Gall and Kimbrough).

In short, Rita clearly resolved very few issues that have embroiled lower courts after Booker, and yet arguably it did stir up some still-simmering debates.  It will be very interesting to see how different circuits come to integrate Rita into their existing post-Booker jurisprudence.  I suspect most circuits will find ways to read Rita to confirm and ratify their particular circuit's chosen post-Booker doctrines.

June 23, 2007 at 08:58 AM | Permalink


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In the work-a-day world, i.e., the average defendant, how much does this really matter?

Posted by: federalist | Jun 23, 2007 5:32:05 PM

federalist, the Guidelines are the hammer that the DOJ holds over the head of a defendant, ready to fall the moment that the defendant refuses to plea. DOJ's ability to resolve cases through pleas, therefore, is directly related to how mandatory the Guidelines are. The less DOJ can guarantee a long sentence for those who do not cooperate, the harder it will be. For the average defendant, making it easier to insist that the government be put to its proof is a big deal -- and should be supported by those who care anything about the Bill of Rights.

Posted by: | Jun 23, 2007 6:04:09 PM

I understand that, and I understand that prosecutors have a lot of power simply because of the charging decision, something which people have decried, but I am wondering whether the average defendant will experience much of a difference here. Something tells me that the answer is no.

I'm not trying to be flippant. I really don't know the vagaries of the federal sentencing process and what effect Rita will have in the real world.

Posted by: federalist | Jun 23, 2007 11:57:56 PM

Ugh... why can't we just submit the sentencing facts to the jury to prove beyond a resonable doubt and go back to mandatory guidelines. Is the DOJ really afraid that the jury which convicted the defendant is not going to find whatever facts they say are true beyond a reasonable doubt? How'd we ever get here? Why has the DOJ always been opposed to submitting sentencing factors to the jury?

Posted by: brucem | Jun 24, 2007 1:05:24 AM

brucem, that is something I have never understood either. Judge Young, despite Remedial Booker, has submitted Guidelines facts to the jury for advisory findings and has gotten results that should not frighten DOJ. Note in his recent Griffin opinion how the jury found both the amount of the tax loss exactly as the DOJ presented it as well as that the defendant had used "sophisticated means" - finding this latter enhancement after asking what the term meant and having the judge read the definition out of the Guidelines manual. Juries can do this, and they are not hostile to the Government.

federalist, I'm not trying to be flippant either. Though I don't know the exact answer to your question of how many defendants this will realistically effect, my starting place in answering that question would be to compare the rate of cases plea bargained (1) before the mandatory Guidelines, (2) after the mandatory Guidelines, (3) post-Koon, (4) post-PROTECT Act, (5) post-Booker, and (6) post Rita/Gall/Kimbrough. I suspect 2 & 4 are be much higher than 1. I don't know where we end up after all this has settled, but I doubt it will be back at 2 & 4. The answer, though, will tell you how many criminal defendants this line of cases has tangibly affected.

Posted by: | Jun 24, 2007 11:19:36 AM


Posted by: kajetan | Nov 3, 2009 12:21:10 PM

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