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June 21, 2007

When and how will lower court judges construct the post-Rita world?

Because Booker had so many competing parts, its "meaning" only became clear as lower courts constructed a mostly guideline-centric approach to post-Booker sentencing law and procedure.  Rita, by my lights, largely approves a guideline-centric approach to post-Booker sentence, but also seems to indirectly approve any reasoned decisions by lower courts to take other approaches to post-Booker sentence law and procedure.  Consequently, Rita's "meaning" may only became clear as lower courts revise (or reiterate) their approach to post-Booker sentencing law and procedure.

Notably, the Sixth and Ninth Circuits have on hold en banc actions about reasonableness review which might provide those courts a chance to construct a new post-Rita world.  Also, Judges Adelman and Cassell and Gertner and Presnell and other active and speedy district judges will surely chime in before long.

Then again, perhaps everyone will try to tread water until Gall and Kimbrough get decided, even though those ruling are likely at least six month away.

June 21, 2007 at 01:02 PM | Permalink


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Tracked on Jun 21, 2007 1:27:29 PM


Rita should be good news in the 8th Circuit and perhaps other circuits where the presumption has effectively been made conclusive, although it still constitutes a high hurdle to an already difficult task.

Rita gives an appellate panel convinced that an injustice has been done the authority to overturn a within guidelines sentencing determination in an unusual case, but it is hard to see how a reversal by an appellate court could ever be compelled under Rita. The Rita standard for a guidelines sentence seems to be an "abuse of discretion plus" standard of review.

On the other hand, Rita seems to strengthen the hand of a trial judge who doesn't want to use a guideline sentence. The ruling that makes clear that an appellate court can reverse a guidelines sentence, even when it is followed by the trial judge, implies far more latitude to deviate from the guidelines when the trial judge disagrees with the way the guidelines work in a particular case.

I think the result is likely to be that in practice, we see some judges continuing to be "guideline judges" who almost never deviate down except at the suggestion of prosecutors and rarely deviate up (and are almost never reversed), while other judges become "3553 judges" who routinely deviate from the guidelines, routinely have their sentences appealed by the unhappy party, and are infrequently, but occassionally reversed in such cases.

Posted by: ohwilleke | Jun 21, 2007 2:14:16 PM

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