New (or renewed) ideas and arguments suggested by Rita

Drawing in part on the mysteries of Rita and issues left unresolved, here is a (surely incomplete) list of new or renewed ideas and arguments suggested by the Supreme Court's work in Rita.

Some new or renewed ideas and arguments for District Courts:

1. After Booker, a district court may not legally presume that the guidelines sentence should be given (and may commit reversible error if guidelines are given presumptive force at initial sentencing).  Slip op. at 12.

2. The guideline sentence ought not be given, and a traditional departure is justified, if the offense or offender is "atypical" and thus not within the "mine-run of similar" cases.  Slip op. at 4, 20.

3. Even when a traditional departure is not justified, a non-guideline sentence can be appropriate "because the Guidelines sentence itself fails properly to reflect §3553(a) considerations, or perhaps because the case warrants a different sentence regardless."  Slip op. at 12.

4. The district court must exercise "reasoned sentencing judgment" by making "an effort to filter the Guidelines' general advice through §3553(a)'s list of factors" and by subjecting the "defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure."  Slip op. at 12, 18-19.

5. Cases involving "straightforward, conceptually simple arguments" may generally require only a "brief" statement of reasons; cases with complicated issues may generally require "the judge to write more extensively."  Slip op. at 17, 20.

Some new or renewed ideas and arguments for Circuit Courts:

1. Any presumption of unreasonableness has to be non-binding and should not be used to "insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case."  Slip op. at 7.

2. After Booker, a circuit court reviewing a within-guideline sentence may fairly "assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  Slip op. at 11.

3. Despite the "rough approximation" of the Guidelines, there must be some within-guideline that do not achieve §3553(a)'s objectives and circuit courts have to identify the "times" when district judges impose sentences that are unreasonable.  Slip op. at 14.

4. Apart from reasonableness concerns, defendants can bring — and should sometimes prevail with? —  "as-applied Sixth Amendment challenges" to within-guideline sentences.  Slip op. at 14-15; Scalia concurrence at 8-9.

5. Defendants can bring — and should sometimes prevail with? — arguments that a "Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant."  Slip op. at 21.

Readers are, of course, welcome and encouraged to use the comments to identify other new or renewed Booker ideas and arguments in Rita's wake.