« Rita is here and... | Main | Judge Walton explains his Libby bail ruling »

June 21, 2007

The opinion(s) in Rita

Here is the vote breakdown in the Rita opinion (which How Appealing makes available via westlaw at this link):

A very quick read suggests the main opinion is very supportive of the work of district courts, circuit courts and the Sentencing Commission, all of which adds up to a loss for Mr. Rita on appeal (and generally bad news for Lewis Libby and other defendants seeking to challenge within-guideline sentences).

UPDATE:  The full 59-page effort is now also at this link.  My printer is working overtime, and I'll likely need a few hours to digest what's here.  Separate posts on each of the four opinions will follow.

June 21, 2007 at 10:46 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The opinion(s) in Rita:

» Round-Up: Today's Opinions from SCOTUSblog
This post will be updated with news and blog coverage of the Court's three opinions throughout the day. Bloomberg's Greg Stohr has this article on the Court's decision in Tellabs; Reuters reports here on 8-1 ruling, which sets a stricter... [Read More]

Tracked on Jun 21, 2007 11:34:21 AM

» Rita has something for everyone (except Victor Rita) from SCOTUSblog
The following post is from Doug Berman, William B. Saxbe Designated Professor of Law, Moritz College of Law at The Ohio State University, and editor of Sentencing Law and Policy. Though I am going to have to read all the... [Read More]

Tracked on Jun 21, 2007 1:36:51 PM


Having already read through the entire opinion in order to highlight the pertinent passages for my judge, there seems to be lots of good "practical" explanation in the opinion, which should provide some additional guidance to district judges -- guidance that is certainly lacking under many circumstances.

I think the most reasonable (no pun intended) and practical justification for upholding the presumption is the conclusion that the presumption does not apply to the Guidelines themselves. In other words, the presumption does not hold that the guidelines are presumptively reasonable (probably unconstitutional) and perhaps even more important (and obvious?) is the understanding that the presumption does not have a reverse effect that would render a out-of-range sentence presumptively unreasonable (definitely unconstitutional).

Rather, the presumption is a simple recognition by some circuits that by the time a within-range sentence reaches the circuit, two entities have concluded that the ultimate sentence imposed constitutes a proper reflection of the Congressional sentencing factors found in 3553(a).

In other words, (1) the Commission thought that the offense and offender characteristics in a given set of facts warranted the particular sentence now manifested in the guideline calculations, and (2) the sentencing judge concurred that the guideline sentence was an adequate reflection of the factors in 3553(a) by imposing the sentence.

Thus, the end result is that the ultimate sentence imposed technically goes through two rounds of independent deliberations, one highly objective (the Commission) and the other somewhat subjective (the sentencing judge). Therefore, if both entities believe a within-range sentence is sufficient but not greater than necessary pursuant to the 3553(a) factors (the Commission obviously does by definition assuming the guidelines are accurately calculated), then those determinations CAN be collectively afforded a presumption of reasonableness at the appellate stage.

Makes sense...

Posted by: Shawn Davisson | Jun 21, 2007 11:57:55 AM

Though Victor Rita loses, the Court's opinion (with emphasis in Justice Stevens's concurrence) stresses the truly advisory nature of the Guidelines. It stresses that the presumption of reasonableness applies only at the appellate level, not in the original sentencing proceeding. In that sense, Rita could be slightly helpful to defendants, even though it was totally unhelpful to Rita himself.

Posted by: Marc Shepherd | Jun 21, 2007 12:04:34 PM

The Court pointedly does not adopt the presumption of reasonableness itself, stating only that circuit courts may employ such presumptions. It seems to me that this will create "circuit lock," fixing all of the circuits into their present positions, barring en banc review, because neither opponents nor proponents of the presumption will be able to claim the other side is "wrong" anymore. Thus, it seems we are likely to continue to have some circuits with the presumption and some circuits without ad inifinitum.

Posted by: | Jun 21, 2007 12:09:39 PM


You post is a good example about why the "pragmatic" or "as applied" approach stinks. I don't fault your logic but I take exception to your perspective. The fundamental truth of the matter is that either a sentence is unconstitutional or it is not; the line is black and white. The correct solution is to scrap the Comission and the guidlines in their totality. I do understand the practical consequnces of such a course of action. But the Commission is an unconstitutional infrigement on the rights of the courts and that is a black and white fact. It's ironic to me that the SC, in another case today, tells a school it "needs to play by the rules" when, at the exact same time, won't tell congress that it is not playing by the rules with the guidelines. Well, technically it has told Congress it is not playing by the rules but then get frightened of the practical consequences of its actions.

From the prespective of people who are trying to get through the day, this opinion does make sense. But from the perspective of people who believe that the constitution is more than a "god of small things" and in fact represents the fundamental law of the land, the whole series of decisions in this area reveal a court that is, frankly, cowardly.

Posted by: Daniel | Jun 21, 2007 12:18:48 PM

What a terrible opinion. It tries to minimize the effect that a presumption of reasonableness will have on the gravitational pull towards within-guidelines sentences so much so that, I can't quite figure out what the point of a presumption of reasonableness ("POR") is? While the court stresses that this presumption is an appellate standard of review, and that it does not mean non-guideline sentences are presumptively unreasonable, the bottom line is that courts of appeals which have adopted a presumption of reasoanbleness have, in effect, all told the district judges that they will be reversed if they impose a non-guidelines sentence, and that they will be affirmed if they impose a within-guidelines sentence. Why have POR if judges will sentence pursuant to the 3553(a) factors? What is a POR meant to accomplish? I truly cannot tell from the Rita opinion.

The result is de facto mandatory guidelines, the very concern this appeal was intended to address. The court addresses this concern with nothing but ipse dixit that all will be well.

Every court that has not adopted a POR will do so soon. Every below guideline sentence the government appeals will be reversed as an abuse of discretion. The same, for some cosmic reason, won't be true of above guidelines sentences. They will be deemed reasonable even though not presumptively so.

I'm truly disappointed. The Apprendi/Blakely/Booker revolution is over.

Posted by: Bruce | Jun 21, 2007 12:20:25 PM

Oh, one more thing. The Rita opinion says when a within-guidelines sentence is imposed, "both the district judge and the sentencing commission evaluated it and deemed it proper in the circumstance" (paraphrased). The district judge didn't deem it proper, he/she felt compelled to impose it because, with a presumption of reasonableness, a non-guideline sentence would have been reversed. When people act based on duress, not only can their action not be deemed to be approved, in reality it's quite the contrary. When a judge, as in Rita's case, says "I don't see any reason to justify giving a sentence outside of the guideline range" he is really saying "I would but I can't." Does anyone think the judge sentenced Rita to 33 months for any reason other than that it was at the low end of the guideline range? Does anyone think he would not have sentenced Rita to 32 months if either (a) 32 had been the low end of the guideline range or (b) he felt he would not have been reversed by imposing a 32 month non-guideline sentence?

Posted by: Bruce | Jun 21, 2007 12:26:25 PM

I had to come back and agree with the post above. "Rather, the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular cazse. That double determination significantly increases the likelihood that the sentence is a reasonable one."

This is sheer mental deformity. First, the review by the Commission is in no way equal to the review by the judge. The Commission does not have the same fact pattern before it as the judge in the case does and it fact looks at sentences in a completely different light than the court does. Second, to treat the reviews as equal totally ignores the fact that judicial review of a another judge is a completely different mode of review than that of a judge looking at a Commission guidleline that is by its very nature advisory.

To claim that the *case* as gone through two reviews is simply a lie. To even claim that the fact pattern has gone through two reviews is simply a lie. And two confound two different types of review and treat them as equal is plain error.

Finally, that we will paltar with peoples lives based on some warped statistical probability is plainly immoral. The constitution is not based upon "liklihoods"; it is based upon good old fashioned truth.

This is a badly reasoned case.

Posted by: Daniel | Jun 21, 2007 12:45:36 PM

This is very disappointing. I agree with Daniel in that the Booker/Blakey revolution is over. Justice Souter said so expressly in his thoughtful dissent: "The upshot is that today’s decision moves the threat to the practical value of the Sixth Amendment jury right closer to what it was when this Court flagged it in Jones, and it seems fair to ask just what has been accomplished in real terms by all the judicial labor imposed by Apprendi and its associated cases." The power to review is the power to decide and if appellate courts embrace this presumption of reasonableness ("POR") regime—as many have with more to follow—district courts will surely follow the Guidelines rather than engage in the cumbersome rigors of the departure analysis. How this doesn't bump heads with the 6th Amendment is beyond me, even if the POR regime is not forced on the appellate courts. SCOTUS seemed more interested in resolving this issue once and for all, rather than rigorously following their significant Sixth Amendment line of cases of the last 10 years. Souter seems like the only one who really gives a damn about Blakely

Posted by: GB | Jun 21, 2007 12:47:43 PM


Don't give up the ship! Gall is going to clarify the degree of deference that non-Guidelines sentences will receive. Rita does not indicate which way the Court is going. We'll just have to wait to find out, but, I assure you, the DoJ strongly desires for the world to say "Rita=Mandatory Guidelines." Don't help them. Rita is truly a mess of an opinion, and the only thing that matters is the degree of deference that will be accorded to NON-GUIDELINES sentences. (Also, whether below- and above- Guidelines sentences will be reviewed with the same scrutiny.) Gall is the $64,000 question. Rita is just red herring, a chance for the Court to screw up the chance to establish a coherent sentencing regime post-Booker.


Posted by: Mark | Jun 21, 2007 12:51:16 PM


Only one justice (Scalia) has ever said that the Sentencing Commission is categorically unconstitutional. When a case is decided 8-1 (as Mistretta was), it's fair to say that it wasn't a close call.

While you decry the "pragmatic" or "as applied" approach, the law has been evolving that way for hundreds of years. It's rather late in the day to change that. Many conservatives feel that it is more appropriate for judges to rule modestly, based on the facts before them, than to make sweeping pronouncements that go beyond what is necessary to decide a particular case. Of course, there are other conservatives who favor that approach only when it produces the result they want.

Posted by: Marc Shepherd | Jun 21, 2007 12:53:45 PM

Mark: I admire your positive outlook, but what makes you think Gall will decide or clarify anything? Logic and precident dictate that Gall will be yet another fractured, inconsistent opinion that says nothing, solves nothing, and further frustrates the Sixth Amendment Jury Trial right.

Posted by: Bruce | Jun 21, 2007 1:06:14 PM

Correct me if I am wrong, but how can Gall come out any differently? Couldn't Rita mean the following: If appellate courts apply a presumption of unreasonableness to downward Guideline departures, but appellate courts have the ability to reject this presumption, then such a presumption does not violate the 6th Amendment. Distinguishing Gall from Rita would require a lot of intellecual handiwork, but I suppose that this has never stopped SCOTUS before.

Posted by: GB | Jun 21, 2007 1:24:02 PM

Rita completes the Court's journey out of Apprendi-land and into la-la-land. The total departure from reality is evident in the attempt to claim that a certain result is entitled to a presumption of reasonableness on appeal, but not at trial. Pure sophistry. Somebody name me one example -- just one -- elsewhere in the law where the same result is not entitled to a presumption of reasonableness in a lower court, but is presumed reasonable in an appellate court.

It looks like only Souter truly gets it.

Posted by: CN | Jun 21, 2007 2:18:36 PM

Bruce, I think you are absolutely correct that the reasoning of SCOTUS in Rita is inconsistent with the remedy. The judge at trial in Mr. Rita's case clearly would have come out differently if he had the Court's Rita opinion to read before making it. He acted based on a misapprehension of the law.

I think the message that Rita sends is that if a judge is willing to stick his neck out and deviate that he may likely get away with it, but that if you get stuck with a judge who doesn't believe that he is as free as he actually is under the controlling law that this is simply your bad luck.

Posted by: ohwilleke | Jun 21, 2007 2:25:22 PM

It is amazing that no one in the SC understands basic probability theory. The majority opinion in Rita states that “this double determination significantly increases the likelihood that the sentence is a reasonable one." An examination from the perspective of probability theory indicates that this statement is a mathematical impossibility.

Imagine a jar with five objects in it. Three of these are apples and two oranges. There are two way to pick objects from this jar. If we pick an object and replace it before we pick again, this is called an independent draw. No matter how many times we pick, the odds of drawing an apples are the same (3/5) because the ratio of apples to oranges stays the same. On the other hand, if we pick an object out of the jar and don’t replace it, this is called a dependent draw. The ratio off apples to oranges changes with each pick depending on the number of draw we make (up to five).

Now lets assume that as a case makes its way through the system there is a 10% chance that the case will be declared unconstitutional at some level. Each level of review (commission, judge, appellate) then represents one draw from a jar with nine oranges and one apple, with the apple representing an unconstitutional ruling. If the draw is an independent one, then the likelihood that the decision is unconstitutional remains the same: 10%. (Now here is where it gets interesting.) If the draw is a dependent draw, then the likelihood that the prior rulings were correctly decided as constitutional actually *decreases*. If we have nine oranges and one apple and we take away two oranges, the odds of the next ruling being constitutional are no longer 9:10 but have fallen to 7:8.

Of course, what I have explained here is merely what is better known as the “gambler’s fallacy”. What is striking is that not only would the SC fall for such a fallacy but make it a critical part of a significant legal ruling.

Posted by: Daniel | Jun 21, 2007 2:30:10 PM

“Most of the fundamental ideas of science are essentially simple, and may, as a rule, be expressed in a language comprehensible to everyone.” Albert Einstein

Therefore, the Sentencing Commission is far from scientific. An interesting study would answer this question: How many months does it take a defendant to understand his/her sentence after sentencing?

A defendant would likely never understand all the factors, but my guess is that after asking other inmates, reading everything possible and trying their best to comprehend it, maybe after about 3-6 months it would start to sink in. I still don't understand it despite having the benefits of this site.

There is no deterrent effect for a perjury statute when it is so complex. Another interesting survey would ask this question of the general public: "If someone is convicted of perjury, what is the underlaying offense?"

Perjury, of course. No it's not, and I didn't know that until reading this opinion.

Convoluted opinions are necessary because of the convoluted laws.

The reason the laws are so complex, as the Rita opinion suggests, is because the Commission, like the rest of the country, is so politically divided. A "scientific" study of 10,000 cases did not help. Congress should fire the Sentencing Commission and do its job.

Alternately, someone should challenge the whole scheme as a violation of the basic tenets of statutory construction, since plain meaning isn't even plain to sentencing experts.

What a mess.

Posted by: George | Jun 21, 2007 2:54:59 PM


It's even worse than that. A better analogy is that the sentencing court knows it's supposed to pick an apple, and will be reversed if it picks an orange, because the United States Fruit Commission determined it must be an apple under the circumstances (even though the SCOTUS says any reasonable fruit will suffice). So the trial court looks into the jar and picks an apple (not a random pick). On the next level of review, there is not a second pick by the court of appeals, just a review that the trial court picked a reasonble fruit, which must be an apple apple, and didn't abuse its discretion in picking an orange.

There is only one level (the USFC) of determination, not two. The sentencing court was bound to pick the apple, and did not decide that an apple was the best fruit under the circumstances.

One could expand this analogy to say the trial court has the option of picking red apples or green apples (granny smiths, etc), but it must be within the range of fruit known as apples. No oranges, peaches, watermelons, limes, or cherries (whatever else may be an 'option' in the jar).

It's asinine.

Posted by: BruceM | Jun 21, 2007 3:11:29 PM

Bruce. You are correct in the broader sense. I wasn't trying to challange all aspects of the ruling with that post. I was merely expressing dumbfoundment at the particular and pecuilar notion that you could get an *increase in probability*. If the system is random then the odds must stay the same. If the legal system is not random, if it is dependent, if it has "memory" (which seems to be the assumption the SC is working on) then the odds of the next ruling also finding a sentence constitutional must decrease. But you can't get an "significant increase in liklihood". That is just not possible.

Posted by: Daniel | Jun 21, 2007 3:51:03 PM

Daniel: Point well taken and you're absolutely right

Posted by: Bruce | Jun 21, 2007 4:52:30 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB