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June 15, 2007

Could the Libby case be impacting the Justices' views and work on Rita?

As I have highlighted in posts here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for seemingly less serious instances of perjury and obstruction than the crimes that have led to Lewis Libby's 30-month within-guideline sentence.  Meanwhile, as public debate over Libby's sentence has raged for nearly a month, the Supreme Court has been finalizing its ruling concerning whether Victor Rita's sentence is constitutional and reasonable under Booker and 18 U.S.C. § 3553(a).

Notably, the Libby outcome has already led a number of persons known for tough-on-crime views and rhetoric to decry the length of Libby's 30-month within-guideline sentence: former federal prosecutors Rudy Giuliani and William Otis have both made statements suggesting that Libby's sentence is unreasonably long.  Though not stated in these terms, these high-profile criticisms of the length of Libby's sentence certainly spotlight the suspect nature of post-Booker doctrines that essentially apply a conclusive presumption that any and every within-guideline sentence is reasonable. 

Though Supreme Court rulings are probably rarely impacted by inside-the-Beltway Sturm und Drang, it would be quite difficult for the Justices not to see the shadow of Lewis Libby hanging over their work in Rita.  Though I doubt Libby's name will appear in the eventual Rita ruling, I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.

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June 15, 2007 at 04:37 AM | Permalink


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In what possible way? Surely you don't think there is any realistic chance that this late in the day any of the justices changed his or her vote on how appellate courts should review within guidelines sentences! And again, the outright grant of two cases where the district judge sentenced below the guidelines to be decdided next term, instead of holding the cases for a GVR, means it is almost certain that Victor Rita has lost his case.

Posted by: Jacob Berlove | Jun 15, 2007 9:08:24 AM

Jacob, I have seen your numerous assertions that the new sentencing certs show Rita has lost, but I do not quite see the logic of your views. Rita's sentence could be reversed and/or remanded on any of these possible grounds:

1. A presumption of reasonableness for within-guideline sentences is unconstitutional under Booker merits if/when the guideline range was enhanced based on judicial fact-finding, and so a fresh review is required by the 4th circuit.

2. A presumption of reasonableness is only proper if/when a district/circuit court thoroughly grapples with relevant 3553(a) factors to support the within-guideline sentence, and in this case the record shows insufficient analysis.

3. Rita's sentence is just too long because nearly 3 years for this defendant is "greater than necessary" for him in light of 3553(a)(2).

It is not clear to me that a reversal on any of these grounds necessarily provides lower courts guidance as to what reasonableness review means when a district judge has given a below-guideline sentence. Indeed, I have a hard time understanding how either a reversal or an affirmance in Rita would provide much clear guidance on how circuits should deal with below-guideline sentences UNLESS the Justices put a lot of dicta into their Rita opinion.

For these reasons, I view the new grants as an example of SCOTUS acting like a court --- opting to address distinct issues in suitable case rather than opine at length on issues now not properly before them.

Moreover, whether the majority affirms or reverses in Rita, they could (and arguably should) discuss at length how within-guideline sentences should be reviewed. In light of Libby, they might arguably say, e.g., that a presumption of reasonableness is not appropriate for anyone with a long history of good works (which are not factored into the guidelines) or who will suffer special collateral consequences (as they suggested in Koon).

Posted by: Doug B. | Jun 15, 2007 9:48:34 AM

If the SC upholds a presumption of reasonableness for guideline sentences than it will be the final nail in the Post Blakely Pre Booker coffin. Give me a break already. You all know the statistics. A guideline sentence that would now enjoy a presumption of reasonableness would be a terrible, groundless decision that would not hold true to the Booker majority striking down the guidelines. It would be the second worst decision since the Breyer majority which was equally disasterous for defendants. They need to distance themselves from the guidelines, as far as they can get.

Posted by: Ronald Richards, Esq. | Jun 15, 2007 11:03:55 AM


With all due respect, I don't at all understand your post. First of all, it does matter if a within-Guidelines sentence is given a *presumption of reasonableness.* All that means is that the burden of proving unreasonableness is on the party challenging the sentence -- a point so fundamentally correct as to be beyond argument.

Assuming that district courts are not violating the Constitution by continuing to engage in post-Booker judicial fact-finding (more on that point in a moment), the *only* thing that matters is whether a *below* or *above* Guidelines sentence is given a presumption of *unreasonableness* (which is the same as saying that a variance has to be supported by *extraordinary circumstances*). One reason why district courts are giving Guidelines sentences even when they seem to harsh is that the circuits have *restricted* the district courts' ability to give a downward variance. Thus, the Rita case is almost irrelevant -- Gall and Kimbrough are the ones that matter (which is why I think it possible that we won't see an opinion issued in Rita anytime soon).

Let me go back to the fact-finding point: What's bad for defendants is not the "presumption of reasonableness" given to a Guidelines sentence. What is bad for defendants is that district courts are continuing to engage in fact-finding to determine *what the Guidelines range is* and then the circuits are *relying on those judicially found facts* to support the "reasonableness" of the sentence. It is *that* practice that needs to stop (see Judge Young's recent opinion in Griffith). I think that this is where the Court is moving and, ultimately, Rita will be demonstrated to be the mere blip in the radar that it is.

Posted by: Aaron | Jun 15, 2007 11:43:36 AM

That second sentence should read: "it does not matter"

Posted by: Aaron | Jun 15, 2007 11:44:49 AM

Aaron, I think you miss a couple of points.

According to the Breyer remedial opinion, sentencing courts are required to engage in fact-finding to determine the Guidelines range. There is very little possibility that that will change, unless Justice Ginsburg has had a change of heart.

You may be right that judges tend overwhelmingly to sentence within the guidelines, because they believe that extraordinary circumstances are required to do otherwise. But it still leaves open the question of when a within-guidelines sentence is both procedurally and substantively reasonable. Even if within-guidelines sentences are presumed reasonable, appellate courts have differed on the precise standard a party must meet to overcome that presumption.

Posted by: Marc Shepherd | Jun 15, 2007 12:56:48 PM


First, I agree with you that Breyer thought that he was inoculating judicial fact-finding by excising the mandatory nature of the Guidelines. I truly believe, however, that the Booker remedial opinion will, sometime soon, be put in the corner it deserves. The express "holding" of the Booker remedial opinion is that the Guidelines are no longer mandatory and that sentences should be reviewed for reasonableness. Any suggestion that the Sixth Amendment is thus unimplicated by further judicial fact-finding is (1) dicta (the *entirety* of Section II of the Booker remedial opinion is dicta), and (2) wrong.

The scope of that dicta's wrongness is unclear to be sure. It could be, as Judge Young's opinion in Griffith suggested, that the Sixth Amendment precludes the use of judicial fact-finding to sentence someone outside the "jury Guideline range." Or it could be that the district court may impose an upward variance but that, in assessing whether that sentence is "reasonable," a court of appeals must disclaim any reliance on non-jury found facts (a holding virtually compelled by Cunningham). But that it is "wrong" is indisputible after Cunningham.

Even assuming that Ginsburg still agrees with her vote in the Booker remedial opinion -- I don't share that assumption -- it should not be assumed that she agrees with all of the dicta in that opinion. She did, after all, write Cunningham. Also, we've yet to see if the Chief is a true believer (making his vote, not Ginsburg's, decisive). And I think that Alito's dissent in Cunningham did not represent his disagreement with Apprendi/Blakely, but rather his highly analytical view that the California regime is indistinguishable from the post-Booker regime as envisioned in Breyer's Booker dicta. I don't think his dissent in Cunningham indicates that he actually *agrees* with Breyer's Booker remedial vision.

Finally, if someone could explain to me how, in and of itself, a "presumption of reasonableness" tells us *anything* about when a within-Guidelines sentence is unreasonable, I'm all ears. The question of what facts must be shown to overcome the presumption of reasonableness cannot be answered unless we know whether a downward variance must be supported by "extraordinary circumstances." If an appellate court adopts a within-Guidelines presumption and a rule that a downward departure must be proved by extraordinary circumstances, the logical corrollary is that the presumption may only be defeated by a showing of extraordinary circumstances. If instead *all* sentences are presumed "equally reasonable," then what you'd have to show to demonstrate unreasonableness is just totally unclear to me.

Posted by: Aaron | Jun 15, 2007 2:17:58 PM

Ok, Aaron: I do understand you, although I am not sure the votes will fall the way you predict.

At the time of Booker, the consensus was that the Breyer remedial opinion had all but gutted the effect of the Stevens merits opinion. In terms of the practicality of federal sentencing today, that seems to be largely the case. The language in Breyer's opinion that you call "dicta" have, nevertheless, been taken seriously in most of the lower courts.

There certainly is language in Cunningham suggesting that the majority didn't intend Justice Breyer's Booker opinion to have the effects that it has had. I'll believe it when I see it, but you can certainly read Cunningham that way. If so, Rita is the Court's first opportunity to redress the error. That seems pretty important to me.

Posted by: Marc Shepherd | Jun 15, 2007 3:33:44 PM

"which is why I think it possible that we won't see an opinion issued in Rita anytime soon"

Aaron - Do you mean by this that Rita will be decided on the last day of the term, or that it will be held over until next term? If the latter, do you know of any recent -- and by recent I mean anytime since Rehnquist became Chief Justice in 1986 -- instances in which the Court has held a case over for decision or reargument from one term to the next?

Like you, I tend to think that Claiborne was the key case of the pair, and that Gall and Kimbrough will be the cases to watch next term. Nevertheless, I can't imagine that the Court will hold Rita, regardless of whether its ruling eventually becomes as unimportant as you suggest it might be.

Posted by: LT | Jun 15, 2007 3:42:01 PM

I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.

Actually, wouldn't it be rather inappropriate? As you've often pointed out, Victor Rita and Scooter Libby have quite similar cases (from a sentencing perspective). The only difference is that Libby is famous and well-connected to people in power; Rita is neither. It's actually possible that some of the justices met Scooter Libby at some point. They almost certainly never heard of Victor Rita until his case landed on their doorstep. If it took Libby's well publicized case to make them realize what's going on in federal sentencing, then the justices can't be paying very close attention. So, when you ask whether Libby's case is influencing their work in Rita, are you suggesting that justices are changing their votes at this late date?

It's true that "a number of persons known for tough-on-crime views and rhetoric [have decried] the length of Libby's 30-month within-guideline sentence." But notably, I don't think most of these folks have suggested that our criminal sentencing system is too harsh in general. You don't see any of them calling for Bernie Ebbers or Jeff Skilling to be let out of jail.

Posted by: Marc Shepherd | Jun 15, 2007 5:38:34 PM


I think that it might come down next term, even though such a delay seems unfair to Victor Rita. I don't recall the names of cases off the top of my head, but I seem to remember a case within the last 10 years or so that was held over to the following term.

Posted by: Aaron | Jun 16, 2007 11:01:22 AM

Reply to Mark:
You are right. You do not see them trying to get the other rich guys out of jail. It does not mean that they are not trying. Recall also that it was Scooter Libby who got Mark Rich a pardon from Bill Clinton in the final minutes of Clinton's presidency. Maybe Hilary would pardon Libby. Money talks brother.

Posted by: M.P. Bastian | Jun 18, 2007 8:54:46 AM

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