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.