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June 21, 2007

Rita has something for everyone (except Victor Rita)

Though I am going to have to read all the opinions a few more times to really take stock of what's here, my first reaction to the Rita decision (basics here) is that it has something for everyone except Mr. Victor Rita.  Indeed, for an opinion that many hoped could help clarify post-Booker sentencing realities, Rita strikes me as more likely to create continued confusion because everyone will be able to find some passages to their liking.  Let me explain:

On the one hand, those circuits that have been applying a presumption of reasonableness to within-guideline sentences now have conclusive authority that they can continue to do so.  However, the opinion for the Court in Rita does not say that those circuits which have resisted this presumption have to adopt the presumption (though I would suspect some now might).

But, on the other hand, and perhaps even more importantly as a practical matter, the opinion for the Court in Rita suggests that at least some within-guideline sentences in some cases have to be, at some point, found unreasonable by circuit courts.  Justice Stevens makes this point explicitly when he says that the Court's opinion "makes clear ... that the rebuttability of the presumption is real."  The fact that the opinion of the Court rejects Justice Scalia's suggestion that reasonableness review is only procedural provides additional fodder for those defendants, on appeal, asserting that their within-guideline sentence is unreasonable.

And yet, the opinion for the Court lauds the Sentencing Commission for its "serious, sometimes controversial" efforts to carry out its mandate "to embody in the Guidelines the factors and considerations set forth in 3553(a)," and it asserts that "it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  (It is fair to assume that this sentence, insofar as practicable, might achieve a rough record for the number of qualifiers in an important sentence.)

But still, and perhaps even more importantly as a practical matter, the opinion for the Court suggests it is quite possible to make the argument that a particular "Guidelines sentence itself fails properly to reflect §3553(a) considerations" and that "the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."

Also, just in case anyone was looking for some procedural clarity, we also are told that "a statement of reasons is important," perhaps especially so if a party "argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way." And yet, the "appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances," which sometimes "will call for a brief explanation" and other times "will call for a lengthier explanation."

Got that everyone?

June 21, 2007 at 12:23 PM | Permalink


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Cryptically ass-tastic. And yet, unbelievably complicated

Posted by: RW | Jun 21, 2007 12:31:39 PM

Wow. What a mess! This is the hallmark of the Roberts court, though, isn't it? Take forever to say substantively nothing? Rather than a fractured court with all sorts of plurality opinions, each advocating a very strong stance, we have a relatively unified court taking mostly no stance at all (except for a very wishy-washy "presumption may apply").
I can't imagine that in my circuit, the 8th Circuit, this will change business as usual... and I bet the next "decision-o-meter" that you publish will simply show that the 8th Circuit will recognize the presumption and apply it (unless, of course, the government wants an upward departure or variance).

Posted by: (Former) District Clerk Battling Booker | Jun 21, 2007 12:32:59 PM

Doug's "something for everybody" analysis seems spot-on. This case took rather a long time to decide. You get the sense that all of those wishy-washy statements were added gradually, to keep a shaky majority together. When he finally got to an opinion that five other justices would join, the merry-go-round stopped.

Posted by: Marc Shepherd | Jun 21, 2007 12:40:46 PM

Can someone explain the meaning of this sentence on page 14 of the majority opinion: "As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range."

I am particularly concerned with the first parenthetical. Is the Court establishing the bottom of the unenhanced Guidelines range (i.e., using just the base offense level) itself as a mandatory minimum? Unfortunately, I think it does.

Posted by: | Jun 21, 2007 12:42:50 PM

Amazingly, for all the anticipation, this changes nothing. The Court appears to believe that district courts operate in some sort of vacuum, and therefore should feel completely free to go outside of the Guidelines whenever they feel a variance is warranted. As Souter points out, though, to call this an "appellate presumption" is to turn a blind eye to the fact that the trial courts are all keenly aware of what their Court of Appeals is looking for--a within-Guidelines sentence. And bolstering their faith in the presumption by claiming that it is based on the district court and the Sentencing Commission agreeing that a particular sentence is appropriate also ignores the fact that the district court has the Sentencing Commission's recommendation when it makes its decision on the sentence. It's not like the district court and the Commission are separately reaching the same conclusion with regard to each defendant's sentence.

Posted by: Steve | Jun 21, 2007 12:44:28 PM

Prof. Berman, you omitted one other point of importance: "We repeat that the presumption before us is an appellate court presumption....the presumption applies only on appellate review...the sentencing cout does not enjoy the benfit of a legal presumpton tha the Guideliens should apply."

Posted by: Michael Levine | Jun 21, 2007 1:16:22 PM

Yuk. SCOTUS gives us another lame co-out with the long-term consequence of screwing defendants. The one major effect of Rita will be to provide impermeable cover for those judges (i.e., many of them) who prefer to treat the Guidelines as mandatory.

Advisory, schmisory; Justice Breyer's opinion is a love letter to the Guidelines. He spends several pages explaining how they're designed to take into account all of the 3553(a) factors and how they meet that goal "in the mine run of cases." Slip op. at 11. He emphasizes that the Guidelines "embody the §3553(a) considerations, both in principle and in practice." Ibid. He states that "[a]n individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission's judgment in general." Ibid. After such a breathless endorsement of the Guidelines, the claim that they are not entitled to a presumption of reasonableness at sentencing rings a bit hollow.

(And remember, Stevens could get only one other justice to sign on to his concurrence emphasizing that "the rebuttability of the presumption is real" and arguing that non-Guidelines sentences should be treated with the same deference on appeal as within-Guidelines sentences. District judges will notice this.)

From now on, a sentencing judge's magic words will be: I have "considered the parties' arguments," (slip. op. at 17), but I find this to be a "typical case," (ibid.), and "simply cannot say that [the defendant's] special circumstances are special enough that, in light of §3553(a), they require a sentence lower than the sentence the Guidelines provide" (id. at 21). Say those magic words, and you have a guarantee against reversal.

Yes, Rita supposedly also gives cover to those judges who don't follow the Guidelines -- i.e., there's no presumption of unreasonableness. I have my doubts, given the Court's effusive praise for the Guidelines, about whether that will actually pan out in practice. If it does, we may see a new, different age of judicial discretion: judges who want to slavishly follow the Guidelines will be free to do so, and judges who want to take 3553(a) seriously and give non-Guidelines sentences will be free to do so.

Posted by: CN | Jun 21, 2007 1:30:52 PM

Thank you, S. Breyer, and R.B. Ginsburg, for making the mess in the first place. Amazingly, the Court has taken a hopefully complicated and impossible-to-work-out standard and actually made it worse.

Posted by: Anon | Jun 21, 2007 1:48:55 PM

CN, but isn't that apocalyptic scenario you lay out perfectly consistent with the traditional role of the judge as sentencer? As long as the sentence is not such that, without some evidence the judge found but the jury did not, it is outside the range specified by statute, can't the judge pretty much sentence however he wants, whether he wants to be a hardass or skeptic regarding the Guidelines?

Posted by: LJ | Jun 21, 2007 2:03:44 PM

This really is a mess. We've gotten what is essentially half an opinion-- it's useless to interpret this without the sister opinion of _Claiborne_ (now _Gall_). SCOTUS has made it very clear that it's okayfor circuit courts to apply a presumption of reasonableness, but I think it's also very clear that district courts cannot. What this measn in practice, though, is iffy.

If _Gall_ comes back saying extent-of-the-variance review is okay, then we essentially maintain status quo, and the majority of the circuit courts will continue to enforce an advisory-in-name-only Guidelines scheme. If _Gall_ shoots it down, though (which there is some indication they still might-- see page 8 of the opinion), then this whole "appellate presumption" loses alot of significance and district court judges have a lot more freedom to go outside of the Guidelines.

While the ultimate result today is, as CN noted, to give absolute license to district judges who want to make the Guidelines mandatory in their courtrooms, the cumulative effect with _Gall_ could be to give sentencing judges more discretion period, and I would have to be in favor of that. As it is, though, everyone can take what they want and run, and the people who will be running the farthest the fastest are going to be the Courts of Appeals who want the Guidelines to be mandatory again.

Posted by: JP Davis | Jun 21, 2007 2:07:40 PM

*change "outside the range specified by statute" to "reasonable" (or whatever the criterion/a is/are now)

Posted by: LJ | Jun 21, 2007 2:09:06 PM

There's still this silly idea that judges are just aching to give below-guidelines sentences but feel like they cannot. That is simply not the practice after 7 years of GWB appointments, Clinton centrist appointees who generally like the Guidelines, and 12 years of eariler GOP appointements, too. In fact, many judges may want to give ABOVE guidelines sentences. So we should always be aware that a more "flexible" approach is not in today's federal landscape always defendant-friendly. Discretion works both ways these days, you know.

As a proponent of the Stevens remedy in Booker, I'm moved by Souter's dissent. I just wish it garnered another vote or two from the usual suspect justices (ahem Scalia) who normally stick to their guns despite precedent.

Posted by: (Former) District Clerk Battling Booker | Jun 21, 2007 2:50:51 PM

LJ, I did not mean to imply that an "anything goes" scenario is necessarily apocalyptic. Just as some people take advice better than others, under Rita certain judges will always follow the "advisory" Guidelines, while other judges will decline to take the advice as often. This is absolutely not the best outcome of the Booker remedy, but it is intellectually consistent on a certain level.

The problem -- pointed out by Souter -- is that allowing a presumption of reasonableness leaves us with an Apprendi/Blakely issue. Judges who treat the Guidelines as mandatory, as the presumption will allow them to do, are violating the Sixth Amendment. The fact that the judges aren't required to treat the Guidelines as mandatory doesn't cure the violation.

Posted by: CN | Jun 21, 2007 3:08:51 PM

Judge Young's opinion in Griffith portends the future.

Posted by: Aaron | Jun 21, 2007 3:17:41 PM

Aaron, I think that the majority opinion expressly rejects Judge Young's logic in the Griffith opinion: It is acceptable for "the sentencing judge [to] impos[e] a sentence higher than the Guidelines provide for the jury-determined facts standing alone."

Posted by: | Jun 21, 2007 3:33:58 PM

I said only that Griffith portends the future, not that Griffith will be adopted by the Supreme Court. Remember, Judge Young is still operating under a regime where an outside the Guidelines sentence has to be supported by some sort of "extraordinary circumstance" (or whatever the First Circuit requires). This is why he felt compelled to stick to the "jury Guidelines." What I think will end up happening is that the Supreme Court will vacate and remand in Gall and Kimbrough, make clear that district judges have lots of authority to move up and down, and then eventually the Supreme Court will take on of Scalia's hypotheticals (there are undoubtedly cases in the pipeline that fit Scalia's hypotheticals). The Court will at that point hold that Judge Young was half right -- that a judge can't support the "reasonableness" of a sentence with non-jury found facts but that an upward variance from the "jury Guidelines" is not necessarily an "unreasonable" sentence.

Posted by: Aaron | Jun 21, 2007 3:42:45 PM

(Former) District Clerk Battling Booker,

I can offer only anecdotal evidence in response to your suggestion that the idea that many district court judges feel that the Guidelines are too harsh is "silly," but the district court judge for whom I clerk definitely feels that way and has imposed many below-Guidelines sentences since Booker (relatively few of which have been appealed by the government). According to my judge, many of the other judges in the district feel the same way. See also John S. Martin Jr., Let Judges Do Their Jobs, N.Y. TIMES, June 24, 2003, at A31, in which Judge Martin identifies the “unnecessarily cruel and rigid” Guidelines system as his principal reason for retiring from the bench.

Posted by: Anonymous | Jun 21, 2007 7:04:15 PM

That may be true in your district, and I'm familiar with Judge Martin's opinions. (By the way, logic would dictate that Judge Martin would likely be replaced with a judge who's expected to respect the Guidelines from a political point of view and perhaps being a new judge, only recognizes a world in which Guidelines sentences exist.... This reinforces my argument rather than contradicts it. The judges who want discretion and who may be looking to give defendants a break are few and dying away, being replaced with Clinton-esque judges who defer to the USSC or Bush judges who follow a hard-line approach.)
I agree that this is not the case in many parts of the country, but my only anecdotal evidence is from my experience in places where only 1 judge out of about 10 had any interest in regularly departing downward from the guidelines except for substantial assistance.

My only point in making my comment is that defendants in many areas of the country should not be automatically thrilled when judges get more discretion in these modern days where all sorts of criminals are demonized (from white collar guys to Scooter Libby to the worst, sex offenders) and "imprison, imprison, imprison" becomes the public cry. No matter how insulated federal judges may be, some of that will inflitrate the system, especially with new judges.

Posted by: (Former) District Clerk Battling Booker | Jun 22, 2007 10:40:46 AM

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