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January 26, 2009

Nelson's key language and the SCOTUS spirit: guidelines are really, truly advisory

For the second week in a row, the Supreme Court has issued a little per curiam opinion to make sure, yet again, that lower courts really, truly understand that the Booker remedy means that the guidelines really, truly are advisory.  Today's opinion, in Nelson v. US, No. 08-5657 (S. Ct. Jan. 26, 2009) (available here), includes this key language (cites edited): 

Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.  In Rita we said as much, in fairly explicit terms: “We repeat that the presumption before us is an appellate court presumption. . . . [T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.”  551 U. S., at 351.  And in Gall we reiterated that district judges, in considering how the various statutory sentencing factors apply to an individual defendant, “may not presume that the Guidelines range is reasonable.” Id..

In this case, the Court of Appeals quoted the above language from Rita but affirmed the sentence anyway after finding that the District Judge did not treat the Guidelines as mandatory.  That is true, but beside the point.  The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable. We think it plain from the comments of the sentencing judge that he did apply a presumption of reasonableness to Nelson’s Guidelines range.  Under our recent precedents, that constitutes error.

One might initially view this decision as just an example of the Justices making sure that the Fourth Circuit takes prior decisions to heart.  But the fact that Justice Breyer (with Justice Alito) concurred separately to assert that the Court should have just done a GVR rather than a summary reversal suggests to me that a lot more is afoot.

Specifically, with Gall and Kimbrough and now Spears and Nelson, I sense that the Justices (perhaps save Justices Breyer and Alito) are persistently troubled by how prominent the federal sentencing guidelines remain in both district and circuit sentencing decision-making.  Through Spears and now Nelson, the Justices have made extra efforts to say to lower courts that they need not, perhaps even should not, keep gravitating toward the guidelines.  Though one would have hoped this message came through loud and clear through the rulings in Gall and Kimbrough, it is important to see the Justices willingness to keep smacking down the circuits that seem so unwilling to get with the full 3553(a) post-Booker program.

January 26, 2009 at 11:26 AM | Permalink


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Tracked on Jan 26, 2009 11:50:53 AM


Question: Does anyone have a sense. Does making the guidelines more discretionary -- i.e. giving judges a freer hand -- is that leading to longer or shorter sentences?

Posted by: | Jan 26, 2009 3:03:16 PM

Recent Sentencing Commission data show that advisory guidelines have led to shorter sentences, albeit by less of a margin than many expected.

Posted by: mjs | Jan 26, 2009 3:57:22 PM

for us non-lawyer types, what's the difference between summary reversal and grant, vacate, and reversal?

Posted by: | Jan 26, 2009 4:30:16 PM

A summary reversal decides, without oral argument, the lower court got it wrong. It is generally reserved for obviously wrong decisions.

A "GVR" order simply sends the case back to the lower court to reconsider, usually in light of some new development such as an important new Supreme Court decision. With these orders, the Supreme Court is not saying the lower court was necessarily wrong. It's not unusual for the lower court to come to the same answer even after considering the new precedent.

Posted by: Kent Scheidegger | Jan 26, 2009 5:22:28 PM

To complete the thought, one reason to make a summary reversal, rather than a GVR, is the concern that the court will get it wrong on remand, forcing SCOTUS to take up the case yet again.

Posted by: ohwilleke | Jan 26, 2009 8:38:50 PM

And at least the Chief Justice thinks that a summary reversal is harsh medicine--too bad some judges on the Ninth (a court oft-summarily reversed) seem to like it.

Posted by: | Jan 26, 2009 9:06:23 PM

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