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April 19, 2018

Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?

The question in the title of this post is prompted in part by my work, recently and in prior years, on amicus briefs in which I have noted to the US Supreme Court that many judges and many commentators have suggested that the appellate review of sentences — and all of federal sentencing under advisory Guidelines — would benefit significantly from the Court's further guidance on the contours of reasonableness review.   

A little more that a decade ago, the jurisprudential troika of Rita, Gall and Kimbrough provided an initial SCOTUS accounting of reasonableness review.  But it is now pretty easy to provide a string cite of commentary noting the mess that reasonableness review has become in the circuits.  See, e.g.,  Carrie Leonetti, De Facto Mandatory: A Quantitative Assessment Of Reasonableness Review After Booker, 66 DePaul L. Rev. 51 (2016) (lamenting disparate circuit approaches to reasonableness review creating a “patchwork of guideline sentencing in which defendants’ sentences are dictated more by the happenstance of geography than by the Supreme Court’s jurisprudence”); Note, More Than a Formality: The Case for Meaningful Substantive Reasonableness Review, 127 Harv. L. Rev. 951 (2014) (discussing a “number of notable circuit splits” concerning reasonableness review); D. Michael Fisher, Still in Balance? Federal District Court Discretion and Appellate Review Six Years After Booker, 49 Duq. L. Rev. 641, 649-61 (2011) (noting that “the courts of appeals have differed over how to apply the [reasonableness] standard” and “have split on several important legal questions”).

My decision to gripe on this front today is also prompted by this pending cert petition in Ford-Bey v. US recently brought to my attention.  Here is the question presented to the Supreme Court in this petition:

In Rita v. United States, 551 U.S. 338 (2007), the Court held that an appellate court could presume that a procedurally reasonable within-Guidelines sentence is also substantively reasonable. But the Court stressed that the presumption was rebuttable, reflecting only that a sentence is more likely to be substantively reasonable where the district judge and the Sentencing Commission agree.

A decade later, the majority of Circuits have never found Rita’s presumption rebutted. In that time, fewer than ten defendants nationwide have succeeded in rebutting Rita’s presumption.  Here, the Fourth Circuit issued a routine per curiam affirmance, despite petitioner’s extraordinary post-sentencing rehabilitation — and despite the Commission’s 2012 decision to withdraw all guidance on post-sentencing rehabilitation.

Has Rita’s non-binding presumption of reasonableness become effectively binding?

April 19, 2018 at 06:38 PM | Permalink


Reasonableness review is basically a rubber stamp, even in circuits like the Ninth, which have not adopted a presumption of reasonableness for within-GL sentences. As far as I know, the Ninth has only ever found one within-GL sentence to be substantively unreasonable: Amezcua-Vasquez, which resulted in an amendment to the illegal re-entry guideline.

Posted by: Anon AFPD | Apr 19, 2018 7:02:08 PM

Question: Has Rita’s non-binding presumption of reasonableness become effectively binding?

Answer: Yes.

Posted by: Hanna | Apr 20, 2018 12:26:16 AM

The 10th Circuit has never once found a within-guidelines sentence substantively unreasonable.

Posted by: career AFPD | Apr 20, 2018 9:21:25 AM

According to the SCOTUS docket sheet the Government waived its response and the case has been set for conference on April 27. I sense a swift denial (sadly).

Posted by: Another AFPD | Apr 20, 2018 3:21:09 PM

I don't necessarily think the government waiving a response means a quick denial. I've seen plenty of cases where they don't respond and the Supreme Court asks for a response anyway.

I mean, I don't think the Supreme Court wants to get involved in this anyway because all it'll do is make a tidy thing messy, but I wouldn't read too much into it. I mean, presumably a within guidelines sentence should be right most of the time. The only debate is whether we want the overturning of that sentence to be a rare occasion or an extremely rare occasion.

Posted by: Erik M | Apr 20, 2018 7:11:33 PM

Erik,in some circuits,it's more than extremely rare,it's non-existent.

Posted by: career AFPD | Apr 23, 2018 10:10:57 AM

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