Sentencing Law and Policy

Potent scholarship about reasonableness review and sentence explanations

The University of Chicago Law Review has published this new comment, titled "Determining 'Reasonableness' without a Reason?: Federal Appellate Review Post–Rita v United States."  As detailed in these passages from the introduction, the piece provides a potent and wise account of how appellate courts should assess procedural reasonableness:

This Comment explores the circuits’ conflicting readings of the Booker and Rita rulings with respect to the adequacy of judges’ sentencing explanations and argues that a sentence is procedurally reasonable only when the appellate court can follow, recreate, and assess the district court’s basis for the sentence. Not only is this conclusion supported by Booker and Rita’s emphasis on the importance of thoroughly reasoned sentencing opinions for the evolution of the Guidelines, but also by the SRA’s focus on increased transparency and rationality in the sentencing process....

Part V discusses the centrality of explicit and thoroughly reasoned sentencing explanations to SRA’s vision of the federal judiciary’s role in the development of sentencing policy and procedures. It proposes that the First and Sixth Circuits’ reading of Rita— that a sentence is procedurally unreasonable when neither the context nor the record clearly reveals the district court’s consideration of relevant § 3553(a) factors and the reasoning for imposing the sentence — most closely comports with both the purpose and text of the SRA, and with meaningful sentencing reform more generally.

Some related posts with some recent reasonableness review scholarship:

• New article looking at post-Booker sentencing appeals
• More scholarship to add to the fall reading pile
• Some recommended sentencing reading
• Must-reads (again) on the post-Booker world in the Yale Law Journal

Examining some circuits' unreasonable efforts at reasonable review

A helpful reader called my attention to a new federal sentencing note (which will appear in the William & Mary Law Review this fall) now available here via SSRN.  The note critically examines the effects of Rita and Gall in the Sixth and Tenth Circuits; here is the abstract:

Paul Sedore pleaded guilty to two counts for defrauding the Internal Revenue Service, conspiracy to defraud the IRS and identity theft. Based only on the facts that Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended 12 to 18 months in prison.  But based on the facts that the sentencing judge found, by a preponderance of the evidence, which Sedore did not admit and the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months.  The court sentenced Sedore to 84 months. Had another judge sentenced Sedore to 84 months without finding those additional facts, the court of appeals would likely reverse this hypothetical sentence as unreasonable.

The Sentencing Guidelines are hardly as advisory as the Supreme Court imagines.  In United States v. Booker, the Supreme Court tried and failed to establish an appellate standard of review of sentences that both promotes uniformity and does not violate the Sixth Amendment right to a jury trial.  In Rita v. United States and Gall v. United States, the Court considered mechanisms that federal appellate courts use to enforce the Sentencing Guidelines, the presumption of reasonableness and proportionality review.  As in Booker, the Court tried and failed to rein in the courts' infringements on the jury trial right.  By closely examining the Sixth and Tenth Circuits, this Note demonstrates how the combination of the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review still violate the Sixth Amendment.  Short of Congressional overhaul, this Note argues that the Supreme Court should solve its inherently flawed Booker remedy by prohibiting substantive reasonableness review and requiring uniform sentencing explanations from district courts.

Two notable Rita remands from the Eighth Circuit

The Eighth Circuit today has two notable (and notably similar) remands based on Rita.  My friends cut and paste help me provide these unofficial summaries from this official circuit webpage:

US v. William Greene, No: 07-1479 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.
 
US v. Nathan Huff, No: 07-1500 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.

Sixth Circuit continues taking reasonableness review seriously

For many reasons, including the fact that the case has been bouncing around the federal courts for more than 5 years, the Sixth Circuit might have been inclined to summarily approve the within-guideline sentence at issue in US v. Peters, No. 05-6101 (6th Cir. Jan. 14, 2008) (available here).  Instead, in a brief published opinion, the Peters panel remands for another resentencing because "the District Court did not address the defendant's 'time-served' argument or the mitigating factors indicating that a 'time-served' sentence would satisfy the so-called 'parsimony provision' of 18 U.S.C. § 3553(a)."  Peters thus serves as another reminder that district courts, at least in the Sixth Circuit, need to make sure they always show their sentencing work after Booker.

AFDA webcast on lastest federal sentencing developments

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized another of his great audio webcast for this Wednesday (December 19) at 12noon ET to allow me to discuss Kimbrough, Gall, the new crack guidelines and related federal sentencing happenings  and its possible aftermath. 

Unlike other groups seeking big bucks for webcasts, the AFDA usually only charges a nominal fee and the Greg has made this webcast free for everyone.  The webcast will be an informal interview conducted over live streaming audio, with accompanying text posted to a viewing screen and links to PDF files containing materials relevant to the topics discussed. To attend this webcast, simply:

• Go to the AFDA home page and put your cursor on the Audio Webcast bar, then...
• In the drop-down menu that appears, select "Attend A Webcast," then...
• Enter the following: Username: AFDA (all caps; case-sensitive); Password: 121907

Though I plan primarily to recap and expand upon some commentary already appearing here, I'd be grateful if readers might use the comments to note any issues that seem particular important for me to cover during this webcast.

A significant (unpublished?!?!?) Second Circuit Rita ruling

The Second Circuit today has a lot of effective sentencing analysis in its unpublished(!?!) ruling in US v. Baker, No. 05-4693 (2d Cir. Nov. 16, 2007) (available here).  The summary order reverses for lack of adequate explanation a within-guideline sentence by stressing the importance of giving sentencing reasons after Booker and Rita.  Here are some snippets from a strong opinion that, in my view, should be published:

Sentencing judges are not relieved of their obligation to provide their rationale for sentencing because they impose a sentence within the Guidelines....  The increased discretion granted to judges by the Booker decision only amplifies the importance of articulating the reasons for a particular sentence and requires sentencing judges’ compliance with § 3553(c)’s requirements.

Here, although Baker argued that he was entitled to a sentence below the Guidelines range and raised numerous arguments to that effect, the district court made clear from the outset of the sentencing hearing that it would only consider a sentence within the Guidelines.  The district court did not articulate why a Guidelines sentence was appropriate....

Baker specifically argued that there are no findings by Congress or the Sentencing Commission to support the assumption that people who possess or transport child pornography are likely to engage in the sexual victimization of children, and that, when crafting the heightened Guidelines range for these offenses, the Sentencing Commission failed to consider this fact. The district court’s reticence to discuss how Baker’s conduct fits within the range of child pornography offenses targeted by the Guidelines is especially problematic in light of its specific finding that there was no evidence that Baker engaged in any sort of sexual abuse.

Given the circumstances presented by Baker’s case, as well as the non-frivolous arguments made on his behalf for a below Guidelines sentence, at the very least, the district court needed to articulate why it did not consider or choose a non-Guidelines sentence.  Even though the district court stated that it had considered the § 3553(a) factors, that it was not bound by the Guidelines and that it found a sentence within the Guidelines to be “necessary, reasonable, and appropriate to address the nature and seriousness of the offense, the criminal history category, and the characteristics of the [d]efendant to serve the overall objectives of punishment, general deterrence, incapacitation, and rehabilitation,” there is nothing in the record which showed that the district court actually complied with these statements.

This was not a “typical case” where “the context and the record make clear” the reasoning underlying the judge’s conclusion.  Rita, 127 S. Ct. at 2468-69.  The district court’s lack of analysis of the positions presented by defense counsel and relevant under § 3553(a) precludes proper appellate review of the reasonableness of Baker’s sentence.

Rooting for the Sixth Circuit to take acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  I believe an en banc petition was filed last week in White, so now I am eagerly awaiting word on whether the White panel has convinced the majority of the Sixth Circuit to take up the acquitted conduct issue. 

As regular readers know (and as posts linked below highlight), I find acquitted conduct enhancements especially troublesome in the wake of Blakely and Booker.  Moreover, Justice Scalia's concurring opinion in Rita indicates that some within-guideline sentences depending too much on judicially found facts would trigger "as-applied" Sixth Amendment concerns even within an advisory guideline scheme.  Justice Scalia's discussion of "as-applied Sixth Amendment challenges" in Rita provides further support for a constitutional attack on use of acquitted conduct as a sentencing enhancement.

Further, a number of district court opinions suggest that sentencing courts may be taking a variety of post-Booker approaches to the consideration of acquitted conduct sentencing enhancements.  For example, a terrific district court opinion from the Eastern District of Virginia in Ibagna (discussed here) makes a strong case for why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making.  And, within the Sixth Circuit, another terrific district court opinion from the Southern District of Ohio in Coleman (discussed here) reaches a distinct conclusion about how to deal with acquitted conduct enhancements after Booker.

In short, in addition to a core constitutional issue, acquitted conduct enhancements after Booker raise interesting and important statutory interpretation and reasonableness review issues as well.  Because the Sixth Circuit has been among the most thoughtful and nuanced appellate courts trying to sort through Booker fall-out, I am very hopeful it will be the first circuit to assess these issues directly through an en banc proceeding.

Some related posts:

• Will the Sixth Circuit consider acquitted conduct enhancements en banc?
• Strong commentary on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• New (or renewed) ideas and arguments suggested by Rita
• Sincere questions about acquitted conduct sentencing

Read all about Rita (and get ready for Gall and Kimbrough)

I am pleased to see that the Denver University Law Review now has all the papers in its special symposium on Rita now available at this link.  A list of the titles and contributors shows why anyone interested in federal sentencing after Booker has to cruise over and check out all the paper in the symposium:

• Rerouted on the Way to Apprendi-land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction
  Sam Kamin 

• Rita, Reasoned Sentencing, and Resistance to Change
  Douglas A. Berman 

• Empirical Questions and Evidence in Rita v. United States
  Paul J. Hofer 

• Rita, District Court Discretion, and Fairness in Federal Sentencing   
  Hon. Lynn Adelman & Jon Deitrich

• Rita Needs Gall—How to Make the Guidelines Advisory
  Hon. Nancy Gertner

• An Appellate Perspective On Federal Sentencing After Booker and Rita
  Hon. Jeffrey S. Sutton

A few of my scholarly thoughts on Rita

I was honored to be asked by students at the Denver University Law Review to contribute my thoughts about the Supreme Court's work in Rita v. United States, and very pleased that the students at DULR were eager to get a special issue on Rita to press before the Court heard Gall and Kimbrough.  My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change," is now available at this link.

I will do a number of future posts about my piece and the other terrific pieces that DULR has assembled in short order, but for now let me just provide this snippet from my introduction:

As explained in Part I below, the Booker remedy transformed a constitutional debate into a multi-dimensional cacophony of sentencing issues that Rita could only begin to address.  Moreover, as detailed in Part II, though Rita does answer a few key post-Booker questions, the opinions in Rita have passages that present new puzzles for anyone trying to sort through the post-Booker world of federal sentencing.  Finally, as discussed in Part III, Rita and lower courts’ early reactions to the decision ultimately reveal, yet again, that dramatic legal changes face resistance from sentencing actors who become acclimated to the status quo. Indeed, the history of modern federal sentencing reforms demonstrates that changes in legal doctrines become revolutionary only when they ultimately transform the legal cultures in which these doctrines operate.  This lesson should be heeded not only by the Supreme Court as it considers another set of sentencing cases, but also by all would-be legal reformers in the field of sentencing and beyond.

Top-side briefs in Gall and Kimbrough

All the briefs on the petitioners/defendants' side of the two pending SCOTUS reasonableness cases, Gall v. United States and Kimbrough v. United States, were filed last week. I believe all of these briefs can be accessed at this page created on the New York Council of Defense Lawyers ("NYCDL") website.  (In addition, Paul Rashkind has assembled a lot of the briefs here, and I believe they will also appeal on this defender website eventually.)

I have only so far had a chance to read some of the briefs (in part because I was helping with this NYCDL brief in Gall).  There appears to be a lot of interesting and important post-Rita work being done in these briefs, and readers are encouraged to spotlight particular efforts and passages they consider especially notable.  I hope to find time after the bottom-side briefs are filed to comment on what the Justices might think about what they are being told.

UPDATE:  I have been told that briefs on the defender website are available here for Gall and here for Kimbrough.

Two Rita sightings (citings?) in the Eighth Circuit

I am still waiting for some circuit to issue a major Rita ruling (and perhaps I may have to wait forever).  While waiting, the Eighth Circuit today at least cites Rita in two notable sentencing opinions:

In US v. Jones, No. 06-3489 (8th Cir. July 10, 2007) (available here), the panel affirms a within-guideline crack sentence and cites Rita to support the sufficiency of the district court's limited sentencing comments.

In US v. Icaza, No. 06-2882 (8th Cir. July 10, 2007) (avaiable here), the panel reverses three within-guideline sentences because of a miscalculation of the number of victims involved when the defendants "shoplifted from approximately 407 Walgreens stores."  Interestingly, as interpretted in Icaza, the federal sentencing guidelines treat shoplifting hundreds of times from different outlets of one store as less serious than shoplifting once from a dozen different stores. 

Senator Biden picking up Scooter Libby and Victor Rita parallels

I am pleased to see from this post on Senator Joe Biden's blog that the senior senator from Delaware — where I am right now supposedly on vacation — is talking about the different treatment that the Bush Administration has shown toward Scooter Libby and Victor Rita.  Here is the text of Senator Biden's recent official statement:

“Tony Snow said that President Bush decided to commute Scooter Libby’s two and a half year-prison sentence for perjury and obstruction of justice, because it was ‘excessive.’

“Yet last year the Bush Administration filed a “friend-of-the-court brief” with the Supreme Court, in an attempt to uphold a lower court’s ruling that a 33-month prison sentence for Victor Rita, who was convicted of the same exact charges, perjury and obstruction of justice, was ‘reasonable.’

“The questions we should all be asking ourselves today are: Why is the President flip-flopping on these criminal justice decisions? Why is Scooter Libby getting special treatment?”

As is not uncommon, the politician has the law a little wrong.  The Bush Administration was filing as a party (the respondants) in the Rita case before the Supreme Court.  Also, I think SG's Rita brief was filed in this year.  But, legal technicalities aside, Senator Biden is right to wonder why President Bush viewed Scooter Libby's (within-guidelines) prison sentence to be excessive while his Justice Department has argued so forcefully that Victor Rita's (within-guidelines and longer) sentence is reasonable.

As detailed in many posts below, I have been noting the Libby-Rita parallels for quite some time:

• Revving up for Rita: harsh treatment for a lesser Libby
• Comparing Lewis Libby and Victor Rita
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
• Rita has something for everyone (except Victor Rita)
• NPR report noting the Lewis Libby and Victor Rita parallels

The opinion(s) in Rita

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

• Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Part III.
• Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined as to all but Part II.
• Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined.
• Souter, J., filed a dissenting opinion.

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.

Rita is here and...

Lyle Denniston is reporting here at SCOTUSblog that Rita is out and upholds a presumption of reasonableness for within-guideline sentences.  However, the vote count suggests the opinion may be very nuanced.  Here is the first report:

The Supreme Court ruled on Thursday that a federal criminal sentence within the Guidelines may be presumed to be reasonable when the case is on appeal. However, it said that such a presumption is not binding.  Although the Court was divided in some respects, the vote on the result was 8-1 with only Justice David H. Souter dissenting in Rita v. U.S. (06-5754).

A lot more to follow, of course.

MORE:  Here is Lyle's new paragraph describing the main opinion:

In key passages in Justice Stephen G. Breyer's main opinion, the Court said: "A non-binding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence.  Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone.  As far as the law is concerned, the judge could disregard the Guidelines and apply the same senence (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.  Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption."

I am now certain that one of the levels of hell involves trying to figure out what an important SCOTUS ruling says and means before being able to access the opinion itself.

Anticipating Rita reactions

Whenever the Supreme Court hands down a ruling in Rita — and, gosh, I hope it's soon — I will be watching closely reactions from other federal sentencing participants.  Of course, the nature and swiftness of reactions will depend greatly on whether the Court in Rita ratifies the reasonableness status quo for within-guidelines or instead rejiggers the post-Booker landscape.  But, even without seeing the opinion, we can already anticipate how key actors will likely respond:

• The Justice Department, as it has over the last 2 years, seems likely to continue to advocate for a Booker fix in the form of some kind of topless mandatory guideline system.
• The US Sentencing Commission, as it has over the last 2 years, seems likely to continue to champion the importance and centrality of its guidelines.
• Congress, as it has over the last 2 years, seems unlikely to have much interest in embarking upon a serious project of comprehensive sentencing reform.
• Individual district judges, as they have since Booker, seem likely to find support for either migrating from or migrating toward the guidelines.
• Circuit courts, as they have since Booker, seem likely to rule far more often in favor of the government on appeal than for defendants.

Of course, all this does not mean the outcome in Rita is inconsequential.  Rather, my main point is to highlight some structural realities that will shape Rita reactions no matter what the ruling.  (Also, adding to these status quo dynamics is the fact that SCOTUS will not drop other reasonableness review shoes until probably 2008 when it eventually rules in Gall and Kimbrough.)

Some recent related posts:

• A coming reasonableness clusterf#@k?  Ruminations while waiting for Rita
• Could the Libby case be impacting the Justices' views and work on Rita?
• SCOTUS scratches my sentencing itch, but also has me scratching my head
• Thinking through Kimbrough and the state of crack sentencing
• Talk about having Gall
• Reasonableness review revisions (and revolutions?)
• Rita reasonableness case archive

A coming reasonableness clusterf#@k? Ruminations while waiting for Rita

SCOTUS guru Tom Goldstein is now predicting here that Justice Alito is writing the opinion for the Court in Rita, after having previously predicted that Justice Stevens and then that Justice Breyer was in charge of Rita.  I think all of Tom's predictions may be right because, as I wait impatiently for a ruling on reasonableness from the Court, I am now thinking we could get many opinions in Rita.  Let me detail my latest (wholly speculative) ruminations on Rita:

1.  The Sixth Amendment's impact: Given the Court's recent ruling in Cunningham and the affinity shown by Justices Stevens, Scalia and Thomas for the Sixth Amendment jury trial right, there likely will be at least one Rita opinion stressing the impact and import of the Sixth Amendment in post-Booker sentencing.

2.  The SRA's impact: Given the remedial opinion in Booker and the Court's unanimous work a decade ago in Koon, there likely will be at least one Rita opinion stressing the impact and import of the statutory provisions of the Sentencing Reform Act (and especially 3553(a)) in post-Booker sentencing.

3.  The USSC's impact: Given the remedial opinion in Booker and also the the affinity shown by Justices Breyer and Alito for the US Sentencing Commission, there likely will be at least one Rita opinion stressing the impact and import of the guidelines in post-Booker sentencing.

Perhaps one impressively comprehensive opinion for the Court can cover all this ground.  But the disaffinity of Justices Kennedy and Breyer for the Sixth Amendment jury trial right suggests they won't join an opinion praising Blakely's view of jury trial rights.  And the apparent disaffinity of Justice Scalia for the USSC (and for Justice Breyer?) suggests he won't join an opinion praising the guidelines.

Throw into this mix the two new Justices — whose contrasting votes in Cunningham suggest they look at these issues and the Court's recent sentencing jurisprudence quite differently — and we could have a real mess on our hands with perhaps multiple plurality opinions in Rita. 

Indeed, the Court's cert grants in two new sentencing cases set for argument next term perhaps makes the most sense if the Justices have been struggling with a messy set of opinions in Rita.   Perhaps the Justices realize that their work in Rita will raise as many questions as it answers, and thus they want and will need another big bite at the post-Booker sentencing apple to provide guidance to lower courts still trying to sort through the post-Booker world.

Some recent related posts:

• Could the Libby case be impacting the Justices' views and work on Rita?
• SCOTUS scratches my sentencing itch, but also has me scratching my head
• Thinking through Kimbrough and the state of crack sentencing
• Talk about having Gall
• Reasonableness review revisions (and revolutions?)
• Rita reasonableness case archive

Could the Libby case be impacting the Justices' views and work on Rita?

As I have highlighted in posts here and here, decorated veteran Victor Rita received a within-guideline 33-month sentence for seemingly less serious instances of perjury and obstruction than the crimes that have led to Lewis Libby's 30-month within-guideline sentence.  Meanwhile, as public debate over Libby's sentence has raged for nearly a month, the Supreme Court has been finalizing its ruling concerning whether Victor Rita's sentence is constitutional and reasonable under Booker and 18 U.S.C. § 3553(a).

Notably, the Libby outcome has already led a number of persons known for tough-on-crime views and rhetoric to decry the length of Libby's 30-month within-guideline sentence: former federal prosecutors Rudy Giuliani and William Otis have both made statements suggesting that Libby's sentence is unreasonably long.  Though not stated in these terms, these high-profile criticisms of the length of Libby's sentence certainly spotlight the suspect nature of post-Booker doctrines that essentially apply a conclusive presumption that any and every within-guideline sentence is reasonable. 

Though Supreme Court rulings are probably rarely impacted by inside-the-Beltway Sturm und Drang, it would be quite difficult for the Justices not to see the shadow of Lewis Libby hanging over their work in Rita.  Though I doubt Libby's name will appear in the eventual Rita ruling, I think it is quite possible (and arguably quite appropriate) that the Libby case is impacting the Justices views and work on Rita.

Some recent related posts:

• Revving up for Rita: harsh treatment for a lesser Libby
• Comparing Lewis Libby and Victor Rita
• Rudy Giuliani suggests Libby's within-guideline sentence is unreasonable
• Another former federal prosecutor suggests Libby's within-guideline sentence is unreasonable
• Libby sentencing archive
• Rita reasonableness case archive

SCOTUS still keeping us sentencing fans waiting

According to this post at SCOTUSblog, the three opinions issued by the Supreme Court today include nothing exciting for criminal justice fanatics (though there was a 5-4 split ruling against a defendant on a technical appellate jurisdiction issue).  So, we will all have to wait until at least next week for a Rita ruling.

I must admit that I'm not too disappointed because now I can focus on other important matters over the next few days.

Are we just a day away from a ruling in Rita?

Word on the street is that the Supreme Court could issue as many as four opinions tomorrow morning.  And, as regular readers may recall from this post, Deputy SG Michael Dreeben last month predicted that Claiborne and Rita would be decided in the second week of June. 

Of course, Dreeben's prediction predated the unexpected demise of Claiborne and the new federal sentencing cert grants.  Nevertheless, it is surely only a matter of weeks before we get a decision in Rita, and perhaps in fact now it is only a matter of hours.

Any (last-minute?) guesses about what Rita will say and how many opinions there will be? 

SCOTUS scratches my sentencing itch, but also has me scratching my head

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here).  Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit.  But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable.  In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit.  Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence?  I am still scratching my head, but let me venture a few ruminations:

1.  Based on the 1996 Koon decision, I have long thought that even anti-Blakely Justices favor significant district court discretion over circuit court lawmaking in the sentence arena.  Consequently, I have always expect that the post-Booker cases would champion district court discretion (and perhaps fault excessive circuit court intervention) in sentencing determinations.

2.  The "problem" with Rita is that championing district court discretion by affirming the sentence imposed by the district court also serves, at least indirectly, to praise the guidelines.  (And, conversely, reversing in Rita might suggest reasonableness review should be aggressive.)

3.  Without the Claiborne companion, the Justices may be worried that Rita alone wont allow the development of the complete message they wish to send to lower courts about post-Booker doctrines and practices.

4.  But all the timing (and the many options) have me really puzzled.  Whatever the court does with Rita, the holding and the dicta will reverberate through the federal sentencing world ASAP.  And yet, as the Rita pebble (or boulder) ripples through the federal sentencing pond, everyone will know that the Justices have just picked up two more rocks to throw into the pond.  And, under usual timelines, we shouldn't expect rulings in Gall and Kimbrough until perhaps January 2008 or later.

5.  Sadly, I am now worried we might know who's the next President before we know what Booker really means for federal sentencing.  Oy vey.... though I guess it's good for my business.

A legal eulogy for the Claiborne case

The St. Louis Post-Dispatch has this new article, entitled "Death leads to dismissal of key Supreme Court case," that discusses the legal aftermation of the death of Mario Claiborne.  Here are excerpts:

Investigators are still sorting out why Mario Claiborne was following a stolen pickup last week and just how the pursuit led to gunfire and Claiborne's death.  But the killing has created other legal twists, as it forced the dismissal of Claiborne's closely watched case before the U.S. Supreme Court, which was expected to rule within the next few weeks. J ustices were to clarify how much discretion federal judges have when applying sentencing guidelines....

Claiborne's case already had traveled an improbable road by reaching the Supreme Court, where oral arguments were held in February.  Thousands of people seek review by the high court and few succeed. And of those who get the court's attention, even fewer are killed before their case is heard.  "Once people make it to the Supreme Court, we don't tend to lose them," said Tom Goldstein, who heads the Supreme Court practice of Washington law firm Akin Gump Strauss Hauer & Feld.

The case had been watched across the country and potentially could have affected thousands of criminal defendants and a growing backlog of cases awaiting resolution of the issue.  About 9,800 of the more than 70,000 defendants sentenced in federal court in fiscal year 2006 got similar departures from guideline sentences, according to Justice Department statistics.  "You've got a lot of different parties that see this as having a far-reaching effect," [Assistant U.S. Attorney Cris] Stevens said.

Some related posts:

• Mario Claiborne killed in strange robbery... now what?!?!?
• Could SCOTUS address below-guideline sentences in another case?
• SCOTUS dismisses Claiborne, again rules 5-4 in a capital case
• Shouldn't SCOTUS just do Rita right and go from there?
• Reasonableness review revisions (and revolutions?)

Reasonableness review revisions (and revolutions?)

As highlighted by two posts at SCOTUSblog, the state and fate of reasonableness review in the Supreme Court may be evolving even though the Rita decision may still be weeks away.  First, Tom Goldstein here, rethinking his prior authorship prediction, now says Justice Breyer is likely "writing at least one of the opinions in the sentencing cases."  Of course, as of this writing, there is only one remaining sentencing case, Rita, after the Claiborne case went away due to the defendant's death (basics here).

But, as detailed in this post by Lyle Denniston, the Solicitor General, through this new filing, has now "urged the Supreme Court ... to grant review in a new Sentencing Guidelines case replacing one that has been ordered vacated, and suggested that the new case could be decided before the Court finishes the current Term, perhaps later this month."  The new case, as previously previewed here, is Beal v. US (docket 06-8498). 

As I explained in this post, I am not too keen on SCOTUS rushing through a new set of facts in Beal to address the issues raised Claiborne.  That said, I think the SG is absolutely right when he says, in this latest SCOTUS filing, that the "federal criminal justice system has a great need for this Court's guidance concerning the nature and scope of review of out-of-guidelines sentences under Booker." 

Because so many issues of sentencing law and policy intersect in the Supreme Court's sentencing cases (as I detailed in this post), I still believe the Supreme Court would be wise now to invest its time and energy in getting Rita right and then subsequently gear up to hear and decide out-of-guidelines issues next Term.  However, the SG obviously has a uniquely informed perspective on these federal criminal justice issues, and this Beal might be on the fact track to the Supreme Court reporter.

Anyone want to hazard a new prediction on what exactly the Justices will now do with reasonableness review (and when they will do it)?

Some recent related posts:

• Mario Claiborne killed in strange robbery... now what?!?!?
• Could SCOTUS address below-guideline sentences in another case?
• Can the Claiborne case survive Mario Claiborne's demise?
• SCOTUS dismisses Claiborne, again rules 5-4 in a capital case
• Shouldn't SCOTUS just do Rita right and go from there?
• Claiborne and Rita reasonableness case archive

Shouldn't SCOTUS just do Rita right and go from there?

As noted here, the Supreme Court officially took the Claiborne case off its docket through this per curiam opinion that vacates the Eighth Circuit's opinion in the wake of Mario Claiborne's death (basics here).  But this expected move now raises a host of questions about what the Justices will and should do with the important issues raised and extensively briefed in Claiborne. 

As detailed here, Claiborne's lawyer has suggested an alternative case, Beal v. U.S. (docket 06-8498), for the Court to take up in order to be able to address directly reasonableness review in a case involving a below-guideline sentence.  I believe the SG's office has not yet officially weighed in on this suggestion, though perhaps something will be filed soon in the wake of the Court's official ruling in Claiborne.

For a variety of reasons, I hope SCOTUS does not take up and rush through another case to replace the Claiborne case.  Claiborne involved a distinct set of facts built on a unique lower court record.  Though perhaps the Justices had a view of the Claiborne case that was not focused on its unique facts, all sound sentencing determinations are necessarily fact- and context-specific.  (Indeed, as I argued in various amicus filings in Claiborne and Rita (available here), 3553(a) can be understood to demand fact- and context-specific reasoned judgments by district courts at initial sentencings and by circuit courts applying reasonableness review.)

Though lower courts certainly need additional SCOTUS guidance on how to deal with below-guideline arguments and sentences, the Justices still can and should address the most pressing post-Booker issues through a complete ruling in Rita.  Though the Roberts Court has tended toward narrow rulings, I believe both judicial modesty and doctrinal clarity can be best served if the Court provides a thorough analysis and ruling in Rita and then just waits to consider and address other post-Booker issues through the Court's standard review procedures.

SCOTUS dismisses Claiborne, again rules 5-4 in a capital case

After a few quite sentencing weeks, SCOTUS did a lot this morning that sentencing fans will find interesting.  SCOTUSblog is, of course, the place to get all the early reports, and here are the sentencing highlights thanks to Lyle Denniston:

The Supreme Court on Monday threw out the case of Claiboirne v. U.S. (06-5618), because the individual involved, Mario Claiborne of St. Louis, Mo., had died last week.  The Court ordered an Eighth Circuit decision in the case vacated as moot.  The case involved the question of whether it is presumed to be unreasonable for a federal judge to impose a below-Guidelines range sentence, if there were no extraordinary circumstances in the case.  The Court took no immediate action on a plea to grant review in a substitute case from the Eighth Circuit raising the same issue....

The Supreme Court, dividing 5-4, ruled on Monday that federal courts must defer to trial courts in deciding whether to remove a juror from a death penalty trial because of the potential juror's views about capital punishment.  The Court said that the trial judge "is in a superior position" to make that decision.  The case was Uttecht v. Brown (06-413), with the Court reversing the Ninth Circuit Court.  Justice Anthony M. Kennedy announced the decision of the majority, and Justice John Paul Stevens responded from the bench for the dissenters.

Commentary will follow on both of these developments later in the day.

Will SCOTUS address Claiborne's fate on Monday?

On Monday morning, the Supreme Court will release orders and probably a few new opinions.  Before last week, I thought there was a chance that we might decisions in the Claiborne and Rita reasonableness case as early as this Monday (although wiser folks than me had predicted the middle of June for these critical rulings on Booker's meaning and impact on federal sentencing).

However, the death of Mario Claiborne (details here) would seem to ensure that SCOTUS will need more time to sort out these matters.  Thus, I think the chief issues now are whether the Supreme Court's orders on Monday will include some formal action on the Claiborne case and will provide some indication on how the Justices plan to handle these matters going forward.  Any predictions, dear readers?

Related posts:

• Mario Claiborne killed in strange robbery... now what?!?!?
• Could SCOTUS address below-guideline sentences in another case?
• Can the Claiborne case survive Mario Claiborne's demise?
• Claiborne and Rita reasonableness case archive 

Can the Claiborne case survive Mario Claiborne's demise?

As detailed in this post from Lyle Denniston at SCOTUSblog, an effort is underway to help the Supreme Court resolve the issues raised by the Claiborne case even though Mario Claiborne died last week (details here).  Here are the basics from Lyle's post:

A public defender in St. Louis has urged the Supreme Court to find a way to decide in the current Term a significant issue about federal criminal sentencing law that was at stake in a case involving an individual who died last week.  The case is Claiborne v. U.S. (docket 06-5618)...

Michael Dwyer, assistant federal public defender in the Eastern District of Missouri, on Friday filed a motion asking the Court either to go ahead and decide the Claiborne case as presented, or to grant expedited review of another case from Dwyer's office involving the same Guidelines question. The alternative case suggested is Beal v. U.S. (docket 06-8498) -- like Claiborne, from the Eighth Circuit Court. The Supreme Court considered the Beal case at a Conference in February, but took no action on it, apparently intending to hold it until after it had decided Claiborne....

Dwyer contended in his motion that "the close similarity of the facts and decisions of the districts courts and appellate panels in Claiborne and Beal makes the latter case an efficient and effective vehicle to resolve the urgent issues presented in Claiborne.  Because of his representation of Claiborne, the Federal Public Defender for the Eastern District of Missouri could expeditiously prepare Beal for briefing and argument."

Could SCOTUS address below-guideline sentences in another case?

A thoughtful reader asks:

Wouldn't it be possible for the Surpeme Court simply to...

1. take another case on cert for the same issue in Claiborne (there are a ton of appeals out there on the same issue; US v. Eura, which is on cert from the 4th Cir, to name just one),
2. decide in its discretion that it doesn't need oral argument or briefing to decide the case (certainly, it has discretion to do so),
3. and write effectively the same decision with a different facts section? 

Is there anything stopping it from doing this?

Mario Claiborne killed in strange robbery... now what?!?!?

I have been hearing rumors since yesterday that the defendant in Claiborne v. US, Mario Clairborne, had been killed in Saint Louis.  I have now confirmed through various sources that the "Morio Claiborne" mentioned in this article as having been killed in a car robbery incident is the same person whose case is right now pending before the Court. 

My sources tell me that something will be filed officially with the Supreme Court today.  But exactly what this means for the Claiborne case (and the companion Rita case) remains to be seen.  Needless to say, I am stunned by this remarkable development, and I wonder if there is any recent precedent about what exactly should be done in circumstances like this.

Wow... and I'm very interested in reader comments.

UPDATE: SCOTUSblog is now reporting the news and has this analysis of now what:

Under Supreme Court Rule 35, when a party to a case has died, a personal representative may be named if the legal interests would survive the death.  That would not be possible in a case involving a convicted and sentenced individual, who has the sole legal interest in the outcome. Thus, it would appear that the Claiborne case would simply be dismissed by the Court, leaving that aspect of the Guidelines reasonableness inquiry unsettled -- unless the coming decision in the Rita case goes beyond the single issue presented there.

Who's writing how many opinions in Claiborne and Rita?

In the this post and its comments, Tom Goldstein speculates that Justice Stevens is writing the opinion for the Court in Claiborne and Rita.  Others suggest that Justice Breyer might have the assignment.  I am pretty convinced that they will both author something in these cases.  (After all, these two Justices combined for four opinions in Booker).

In addition to speculating about who is writing for the Court, it is also fun to ponder how many total opinions there will be in Claiborne and Rita.  Technically, these are two distinct cases that surely could produce different voting outcomes/patterns and thus might require distinct majority and dissenting opinions.  In addition, I would guess that, in addition to Justices Stevens and Breyer, at least three or maybe four or perhaps even five other Justices — Justices Scalia, Ginsburg, Alito and maybe also Justices Kennedy and Thomas — may want to speak their peace in these cases.

For all these reasons, I'll set the over/under for total opinions in Claiborne and Rita at six (which was the total number of opinions in Booker).  I am eager to hear readers make arguments for either the over or the under as we wait.

Should SCOTUS now just remand Claiborne in light of the new USSC report?

The new USSC cocaine report provides so much to discuss (basics here), I am not sure where to start.  In the hope generating a lawyerly debate, I'll start with these provocative questions:

1.  Should the Justices now just simply remand the Claiborne case — which concerns the reasonableness of a below-the-old-crack-guideline sentence — to the Eighth Circuit for reconsideration in light of the new USSC report and amendments?

2.  Should the Justices request letter briefs on this issue from the parties and/or should Claiborne's lawyer or the Solicitor General request a remand?

Put simply, the new report and amendments from the USSC provides powerful new evidence about the reasonableness of crack sentences, especially for low-level offenders like Mario Claiborne.  Though I thought that Claiborne's below-guideline sentence was reasonable before the USSC latest analysis, the USSC report provides a lot of new information and perspective on any decision to give a below-the-old-crack-guideline sentence.

As question 2 suggests, this issues seems lively enough to justify soliciting input from the parties.  And, in my view, some (or all) of the lawyers might reasonably decide their client's interests would be best served by a simple remand without SCOTUS consideration on the merits. 

(Of course, I would be greatly disappointed if the Supreme Court does not fully address post-Booker sentencing realities this term.  But SCOTUS can and will speak to many post-Booker issues in Rita even if it were to remand Claiborne without any discussion of the merits.)

Conclusive proof old crack guidelines unreasonable

Though it's still a few more days until the US Sentencing Commission releases its new cocaine sentencing report (background here and here), the USSC has now posted on its website this reader-friendly version of all its new proposed guidelines amendments.  (It also has released online this Spring 2007 newsletter which summarizes the new amendments and other USSC developments.)

The reader-friendly document describing the reasons for the USSC's new crack changes provides further support for my long-held view that the old crack guidelines were presumptively unreasonable.  Consider these paragraphs (and especially the highlighted sections):

Current data and information continue to support the Commission’s consistently held position that the 100-to-1 drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere.  These findings will be more thoroughly explained in a forthcoming report that will present to Congress, on or before May 15, 2007, a number of recommendations for modifications to the statutory penalties for crack cocaine offenses. It is the Commission’s firm desire that this report will facilitate prompt congressional action addressing the 100- to-1 drug quantity ratio.

The Commission’s recommendation and strong desire for prompt legislative action notwithstanding, the problems associated with the 100-to-1 drug quantity ratio are so urgent and compelling that this amendment is promulgated as an interim measure to alleviate some of those problems.  The Commission has concluded that the manner in which the Drug Quantity Table in §2D1.1 was constructed to incorporate the statutory mandatory minimum penalties for crack cocaine offenses is an area in which the Federal sentencing guidelines contribute to the problems associated with the 100-to-1 drug quantity ratio....

Having concluded once again that the 100-to-1 drug quantity ratio should be modified, the Commission recognizes that establishing federal cocaine sentencing policy ultimately is Congress’s prerogative. Accordingly, the Commission tailored the amendment to fit within the existing statutory penalty scheme by assigning base offense levels that provide guideline ranges that include the statutory mandatory minimum penalties for crack cocaine offenses.  The Commission, however, views the amendment only as an interim solution to some of the problems associated with the 100-to-1 drug quantity ratio. It is neither a permanent nor a complete solution to those problems.

This fully up-to-date and expert analysis from the USSC provides, in my view, conclusive evidence that a sentence imposed within the old crack guidelines is NOT likely to serve the purposes of punishment Congress set forth in 3553(a)(2).  Consequently, each every defendant sentenced within the old crack guidelines has a very strong basis for arguing on appeal that his sentence is unreasonable (and certainly that a presumption of reasonableness should not apply to any within-the-old-crack-guideline sentence).

Related posts on the USSC new crack work:

• USSC provides (yummy?) half-a-loaf crack amendment
• Why the USSC's new crack work is soooooo significant
• How will the new USSC crack work impact present (and past) cases?
• Previewing the (quite unpredictable) new federal politics of crack sentencing

The multi-front crack attack

Within the next few days, the US Sentencing Commission should release its highly-anticipated new cocaine sentencing report.  As highlighted here and here, I am very excited to see how this new report — which the USSC says will reiterate its "consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere" — might ripple through the current federal sentencing pond.

Meanwhile, the crack-cocaine sentencing ratio is still being assailed through cert petitions filed in the Supreme Court.  Coincidentally, today I received a copy of an initial petition filed in the Young case from the Third Circuit and a copy of a reply brief filed in the Spears case coming from the Eighth Circuit.   (These documents, which are great reads for folks following the crack story closely, can be downloaded below.)

Both Spears and Young would present great opportunities for the Supreme Court to remedy the ugly ways in which most circuits have been approaching crack sentencing after Booker.  However, it seems to me quite possible that the Justices will (at least indirectly) address some of these issues in Claiborne (and perhaps also Rita).  Consequently, I would anticipate post-Claiborne GVRs in both these cases.

Download young_crack_cert_petition.pdf

Download spears_cert_reply.pdf

Will Claiborne or Rita address the status of "traditional" departures?

As I noted here last year, there is a consequential circuit split over the status of "traditional" departures after Booker.  The Seventh Circuit pioneered the notion that "traditional" departures are obsolete after Booker, and the Ninth Circuit has echoed this sentiment.  But most other circuits (and the Sentencing Commission) have expressly called for district courts to conduct a "traditional" departure analysis before considering 3553(a) factors.

Today the Seventh Circuit in US v. Simmons, No. 06-3894 (7th Cir. May 10, 2007) (available here), reiterates its view that a district court errs by granting a traditional departure (although this error is deemed harmless in Simmons).   Technically, neither or Claiborne or Rita raises a departure issue, but the Justice may want to clear up the post-Booker status of departures if they are genuinely concerned about national sentencing consistency.   

Simmons also highlights that district courts in the Seventh Circuit still have not quite gotten the message that "traditional" departures are obsolete.  Indeed, Sentencing Commission statistics indicate that district courts in the Seventh Circuit granted more traditional departures in the last 3 months of 2006 than did district courts in the neighboring Sixth and Eighth Circuits.

Some (needed?) help for SCOTUS on Sixth Amendment "first principles"

As detailed here and here, this morning was civil at the Supreme Court: the Court released opinions in three civil cases (and the vote alignments in all three cases seem notably unpredictable).  As Lyle Denniston notes, now the earliest-argued case still undecided is "James v. U.S. (05-9264), on whether a state conviction for attempted burglary can be treated as a violent felon under federal armed criminal sentencing law."  More opinions are to be released tomorrow, so maybe then we will finally see a SCOTUS version of "Sweet Baby James."

Of course, Claiborne and Rita are still pending, and my anticipation is starting to build (even though I doubt we will see these decisions until June).  Adding to my anticipation is an e-mail I received from YLS Professor Kate Stith, who reports to me that her student "Richard Re, YLS '08, has a nuanced exposition of the argument [that] Sixth Amendment 'first principles' resolve the apparent tension between Blakely and Booker I, on the one hand, and Booker II, on the other."  That explanation can be downloaded below, and here is a taste to whet your appetite:

If reasonableness review is to be consistent with the Sixth Amendment, then Sixth Amendment doctrine must be re-conceptualized so as to differentiate between sentencing guidelines imposed by legislatures and those generated by judges themselves.  But why would the Blakely and Booker rules apply only when the legislature is involved?  In order to answer this question, we have to return to Sixth Amendment first principles.

Download yls_solving_the_booker_paradox.doc

More on FSR issue on Claiborne and Rita

As detailed here, the Federal Sentencing Reporter's latest issue, entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court," is focused on the two post-Booker cases now pending before the Court.  The issue has now gone to press and will be available on-line here before long.  My Editor's Observations, which I have made available for downloading below, previews some of the issue's themes.  Here is a snippet:    

This Issue of FSR ... seeks to provide both context and concepts for understanding the federal sentencing realities that may have prompted the Claiborne and Rita cert grants and that may impact the Court's decisions.  The articles in this Issue, some of which directly address federal sentencing realities in Booker's wake and some of which address broader issues concerning the operation of guideline systems, provide varied perspectives on whether and how Claiborne and Rita could impact the current state and future direction of post-Booker federal sentencing.

The information, insights, and ideas in the articles that follow are not readily summarized.  But all the pieces point to two broad themes that have potentially profound implications not only for Claiborne and Rita but also for the future of all structured sentencing efforts.  One theme, which is most prominent in the articles by Professor Frank Bowman and Judge Nancy Gertner, is the difficulty of integrating the Supreme Court's Sixth Amendment jurisprudence and a judge-centered sentencing system.  The other theme, which is particularly prominent in other articles in this Issue, is the difficulty of integrating formal sentencing doctrines and practical sentencing dynamics.

Download berman_editor_observations_for_fsr_19.3.pdf

FSR Issue on Claiborne and Rita

I have finally put the finishing touches on the Federal Sentencing Reporter's latest issue, which is entitled "Claiborne & Rita: Reasonableness Review in the Supreme Court."  As the title suggests, this issue of FSR is focused primarily on the two post-Booker cases now pending before the Court.  Here's a review of the contents: 

EDITOR’S OBSERVATIONS

• Douglas A. Berman, Claiborne and Rita — Booker Clean-up or Continued Confusion?

ARTICLES ON POST-BOOKER SENTENCING

• Frank O. Bowman, III, "The Question Is Which Is to Be Master—That's All": Cunningham, Claiborne, Rita, and the Sixth Amendment Muddle (available via SSRN here)
• Nancy Gertner, Thoughts on Reasonableness
• Carissa Byrne Hessick & F. Andrew Hessick, Rita, Claiborne, and the Courts of Appeals' Attachment to the Sentencing Guidelines (available via SSRN here)
• Alexandra A.E. Shapiro & Nathan H. Seltzer, Guidelines or Higher: NYCDL's Study of Reasonableness Review Patterns Reveals the Courts of Appeals' Aversion to Parsimony
• Regina Stone-Harris, How to Vary from the Federal Sentencing Guidelines Without Being Reversed

ARTICLES ON BROADER GUIDELINE OPERATION

• Lynn D. Lu, Prosecutorial Discretion and Racial Disparities in Federal Sentencing: Some Views of Former U.S. Attorneys
• John F. Pfaff, The Vitality of Voluntary Guidelines in the Wake of Blakely v. Washington: An Empirical Assessment
• Frederick H. Weisberg & Kim S. Hunt, Voluntary Sentencing Guidelines in the District of Columbia: Results of the Pilot Program

The Federal Sentencing Reporter can be ordered here and accessed electronically here, though it will be a few days before this latest issue (Vol. 19, No. 3) comes on-line.

Other recent FSR issues on Blakely, Booker and federal sentencing dynamics:

• FSR Issue 18.5: Toward Real Reform: The Constitution Project Recommendations; Model Federal Sentencing Guidelines 
• FSR Issue 18.4: Sentencing at the Supreme Court
• FSR Issue 18.3: Taking Stock a Year after Booker
• FSR Issue 18.2: Defense Perspectives on the Post-Booker World
• FSR Issue 18.1: State of Blakely in the States
• FSR Issue 17.5: Is a Booker Fix Needed?

Another view of the Rita and Claiborne oral arguments

In recent posts set out below, I have (along with many thoughtful commentors) provided a take on the Rita and Claiborne SCOTUS oral arguments from this past week.  For another view, I have received from a favorite former student a brief summary of both arguments that he prepared for his defender office.  These summaries can be downloaded here: Download ritaclaiborne_argument_summaries.rtf

In addition, this student had these intriguing additional comments on the oral argument:

The govt. strongly argues that the "presumption" on appeal and "discretion" in the district are entirely compatible.  In theory, I can perfectly understand this argument.  But, in practice, that could not be further from the truth. I was just at a hearing yesterday where the District Judge said the 10th Cir. applies a "presumption" for within Guideline sentences and therefore the Cir. endorses rigid adherence to the Guidelines. No matter how strenuously we object or try to correct the District Judge, the "presumption" is always looming in the District Court. The govt.'s response is that it hopes District Judges would follow 3553(a) regardless of the appellate presumption, Rita pg. 29, but the govt. should know very well this is not the reality at sentencing.

Also, while predictions are doomed to fail, I essentially think Justice Stevens' question towards to end of Rita (pg. 45) foreshadows what could be a likely outcome: all sentences that consider 3553(a) will be presumed reasonable and on a case-by-case basis, with no proportionality requirement, the COA will determine if the appealing party can overcome the presumption.  With that outcome, you don't have the inconsistency of the govt.'s argument, and you can avoid unwarranted disparities through the development of a common law of sentencing under 3553(a).

Some related Rita and Claiborne oral argument posts:

• A first quick take on the Rita transcript
• A first quick take on the Claiborne transcript
• Revving up for Claiborne and Rita: sentencing law in four dimensions
• Reviewing Claiborne/Rita rev up
• Justice Scalia's Theory of Appellate Review and the Sixth Amendment
• Transcript for Claiborne Arguments

A first quick take on the Claiborne transcript

I have now had a chance to read quickly the oral argument transcript in Claiborne (noted here with nice comments from readers).  Here are a few first-cut reactions:

1.  Though counsel for defendant Claiborne did a nice job emphasizing some parts of the text of 3553(a), I still would have liked to have seen more engagement with the purposes of sentencing set forth in 3553(a)(2).  I think counsel should have said that the Eighth Circuit did not state (let alone explain) why any of the 3553(a)(2) purposes were not sufficiently served by the district court's sentencing determination.

2.  Counsel for the Government did an amazing job showing respect for the Booker constitutional ruling while still pushing the notion that the guidelines have to serve as a "tether" for post-Booker sentencing decision-making.

3.  There was an obvious effort by all the Justices to find an applicable standard by which to judge sentencing outcomes on appeal.  As point 1 above highlights, I think that standard can and should should be the express textual instructions that Congress set forth in 3553(a)(2).  If those instructions seem too vague or are hard to apply or do not result in sufficiently consistent outcomes, Congress can and should change those express statutory instructions (or make the guidelines mandatory again by providing for Sixth Amendment compliant fact-finding). 

4.  Justice Stevens wonderfully started to gravitate toward an offense/offender distinction in his questioning of counsel for the Government.  As I suggested in a recent post, as well as in a recent Stanford Law Review article, I think an offense/offender distinction can be very illuminating for sorting through a lot of post-Booker issues.  It will be very interesting to see if this distinction (which Justices Kennedy and Breyer have some affinity for) ultimately finds expression in the opinions in Claiborne.

Debunking some myths about the quest for sentencing uniformity

As I read the Rita and Claiborne oral argument transcripts, I am aggravated by the persistent assumptions that (1) Congress is exclusively concerned with sentencing uniformity, and (2) a guideline-centric sentencing system with judicial fact-finding is essential to achieving sentencing uniformity.  These assumptions reflect a superficial understanding of the Sentencing Reform Act of 1984, subsequent sentencing legislation passed by Congress, and the federal guidelines in operation.  Let me explain.

The text of the SRA and its legislative history show that Congress in 1984 was interested not only in greater sentencing consistency, but also in creating a more principled, reasoned and transparent federal sentencing system.  As the crack sentencing debate spotlights, slavish adherence to certain guidelines can often produce an unprincipled form of uniformity.  That why the US Sentencing Commission has repeatedly said the crack guidelines undermine the goals of the SRA.

Further, in a major report in 1991, the USSC explained to Congress that mandatory minimums in operation produce unwarranted disparity.  Nevertheless, Congress has continued to embrace mandatory minimum statutes that undermine the sensible pursuit of sentencing uniformity.  In addition, Congress has rarely sought to regulate prosecutorial discretion even though the USSC has long detailed the myriad ways prosecutorial discretion can produce unwarranted disparities.  In fact, the 2003 PROTECT Act broadly expanded prosecutorial discretion in various ways, including formally embracing different prosecutorial fast-track policies throughout the country.  Obviously, Congress has many sentencing goals beyond just achieving sentencing uniformity.

Relatedly, after Booker, Congress could have readily returned the guidelines to their mandatory status simply by declaring that guideline fact-finding should conform to Sixth Amendment.  (This is how the majority of states responded to Blakely.)  But we have now had advisory guidelines in place for more than two years, and Congress has not seriously considered any legislative fix to make the guidelines mandatory again.  This shows, yet again, that Congress has many sentencing goals beyond just achieving sentencing uniformity.

As I explain in much of my scholarship, I am a strong believer in sentencing guidelines because they can and should enhance more consistent, principled, reasoned and transparent sentencing practices.  Unfortunately, the federal sentencing guidelines often champion superficial notions of uniformity over other equally important sentencing goals (even though the SRA as reflected in text of 3553(a) & (c) and other provisions rightfully stress other critical goals).  I am hopeful that the decisions in Rita and Claiborne will be sensitive to these realities to help ensure that the federal system still aspires to achieve principled, reasoned and transparent federal sentencing justice.

A first quick take on the Rita transcript

I have now had a chance to read quickly the oral argument transcript in Rita (first discussed here).  Here are a few first-cut reactions:

1.  Though first QP in Rita asked "Was the district court's choice of a within-Guidelines sentence reasonable?," the Court spent most of its time focused on the presumption of reasonableness for within-guideline sentences.

2.  Counsel for defendant Rita from the outset framed the case in general terms that played into the government's emphasis on the importance of the guidelines to foster sentencing uniformity.  I think counsel should have focused the Court explore the first QP noted above.

3.  Counsel for the Government made concessions about the application of the Booker remedy that seem to be in tension with some of DOJ's arguments in lower court post-Booker litigation.

4.  There was disturbingly little discussion or exploration of the text of 3553(a).  Because this text seems to favor defendants, I am not surprised the Government avoided it, but I was disappointed this provision was not more central to the defendant's arguments.

5.  Justice Breyer is clearly interested in continuing a guideline-centric sentencing system, but that's no surprise.  Questions from other Justices left me unsure about whether others are personally committed to preserving a guideline-centric universe.

6.  I still think Justice Kennedy is an intriguing and uncertain vote in Rita.  As noted here, last week he told Congress that "I am not comfortable with anything in the federal correctional system and with our sentencing policy."  Is someone who makes this statement, and who has repeatedly lamented the severity of federal sentencing terms, likely to embrace the notion that the federal sentencing guidelines are always presumptively reasonable?

Transcript for Claiborne Arguments

[Posted by Ron Wright]

The transcripts for the oral arguments in Claiborne are now available here.  Now's the time to dive in, rummage among the rich arguments, and bring back to the comments section what you've found. Jump in there with Bermanesque enthusiasm! 

Justice Scalia's Theory of Appellate Review and the Sixth Amendment

[Posted by Ron Wright]

The oral argument transcripts for Rita are now available online. On a quick first read, something interesting jumped out at me. Justice Scalia seems to be constructing an argument that a specialized form of Sixth Amendment violation happens when appellate courts review sentences:

Mr. Cochran, I have this concern: If we accept your submission that the district court should just consider the guidelines together with everything else, give them a presumption of validity, anything else, just something to consider, that would presumably eliminate any Sixth Amendment problem with the district court's findings of fact. 

But the district court's sentence is going to go on appeal. And the appellate court in reviewing it for reasonableness, let's assume in this case the appellate -- the appellate court says oh, no, this person had -- we find as a matter of fact, given the record, military service, you know, which we think should have been taken into account. And, therefore, we set it aside.

Now, the next case that comes up, which doesn't have the element of military service, in all other respects the same as your client's case, it comes up to the court of appeals, and the court of appeals would say, ah, we don't have that different fact here and therefore we affirm the sentence. Isn't -- in other words isn't the finding of a fact necessary for the process of judicial review, even if it is not made necessary for the purposes of the district court's determination? He would not get that sentence but for this fact.

So it appears that Justice Scalia is adding new reasons to believe that the Booker remedy is, in practice, inevitably going to conflict with the requirements of Blakely. Very active questioning also came from Justices Breyer and Ginsburg, with fewer questions from Justices Kennedy, Souter, and Alito, and from Chief Justice Roberts.   

Off-line for the rest of fat sentencing Tuesday

After putting off commitments to cover all the morning SCOTUS action, a day of transit now means I will be off-line the rest of today and thus unable to post immediately about the oral arguments in Claiborne and Rita (background here).  Fortunately, same-day transcripting means that, at this SCOTUS link later this afternoon, everyone can read the actions for themselves. 

Comments to this post about what transpired in the reasonableness debate and what it might mean for post-Booker realities are, of course, highly encouraged.  I should be able to consume the transcripts and provide some initial commentary be very late tonight or early tomorrow.

Reviewing Claiborne/Rita rev up

With oral arguments in Claiborne and Rita now less than 24 hours away, I thought it useful to review the posts in my "Revving up" series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Claiborne and Rita: shameless self-promotion
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence
• Revving up for Claiborne and Rita: will due process play any role?
• Revving up for Claiborne and Rita: sentencing law in four dimensions

In addition, a lot more information (including all the briefs) and other commentary can be found in this Claiborne and Rita reasonableness case category archive.

Two reads before tomorrow's SCOTUS excitement

Oral arguments in Claiborne and Rita are now just a day away, and here are two good reads to help gear up for all the fun:

• At SCOTUSblog, Lyle Denniston has this extended post entitled "Salvaging the Guidelines" which reviews the issues and the briefing in these cases.  Among other notable details, Lyle's post indicates that Rita will be argued first and that Deputy SG Michael Dreeben will be arguing both cases for the federal government.

• At FindLaw, Douglas Kmiec has this essay praising Justice Roberts for "encouraging his colleagues toward rulings ... that are sufficiently clear and unified."  Give all the issues in play in Claiborne and Rita, producing clear and unified opinions in these cases would be a significant accomplishment.

UPDATE:  Another piece on CJ Roberts' rules of order comes today from Howard Bashman in this "On Appeal" column where he notes that "the chief justice's own actions demonstrate that achieving a majority holding or avoiding a slim five-justice majority are not significant enough goals to abandon one's own firm convictions as to the correct outcome in a case."

Revving up for Claiborne and Rita: shameless self-promotion

I am so eagerly anticipating the Supreme Court's work in Claiborne and Rita in part because I have written so much over the last few years about Blakely, Booker and modern sentencing reforms in light of the Court's modern sentencing jurisprudence.  With the arguments in Claiborne and Rita now only days away, I cannot resist this self-serving post assembling some of my major writings (with dates of publication):

Major Articles

• Conceptualizing Booker (Spring 2006)
• Conceptualizing Blakely (Fall 2004)
• Beyond Blakely and Booker: Pondering Modern Sentencing Process (Spring 2005)
• Reconceptualizing Sentencing (Summer 2005)
• Distinguishing Offense Conduct and Offender Characteristics (Fall 2005)
• Tweaking Booker: Advisory Guidelines in the Federal System (Summer 2006)
• Making Sentencing Sensible (with Stephanos Bibas) (Fall 2006)

Major Commentaries

• Reasoning Through Reasonableness (Summer 2006)
• What's the Future of Federal Sentencing? (with Frank Bowman) (Winter 2006)
• Perspectives on Booker's Potential (Winter 2006)
• Now What? The Post-Booker Challenge for Congress and the Sentencing Commission (Spring 2006)

Major Amicus Efforts

• Claiborne and Rita: Reasonableness review in the Supreme Court (Winter 2007)
• Crack sentencing in many circuits (Spring 2006)
• Reasonableness review in the Ninth Circuit (Summer 2006)
• Reasonableness review of veteran's variance (Fall 2006)

Bowman Sorts the Rita/Claiborne Arguments

[Posted by Ron Wright]

Just in time for the oral arguments in Claiborne and Rita, Frank Bowman has drafted a reader's guide to the briefs of the parties and amici in the cases. His intelligent critiques of the briefs and suggestions for the best ordering of affairs in Blakely-land could make a real difference in crafting a new path forward. The essay will be published later this year in the Federal Sentencing Reporter, but this preliminary version is available at the link below. 

Download bowmanthe_question_is_which_is_to_be_master217.doc

Revving up for Claiborne and Rita: sentencing law in four dimensions

With less than a week until the SCOTUS oral argument in Claiborne and Rita, I now see these cases as so interesting because of how four sources of multi-dimensional sentencing law and policy intersect.  Let me explain:

1.  Constitutional Law:  Booker struck down the mandatory federal sentencing system on Sixth Amendment grounds, but then set out a remedy that seems to undermine Sixth Amendment principles.  As highlighted in posts here and here, the recent Cunningham decision suggests that Claiborne and Rita could have important Sixth Amendment dimensions.  Moreover, as stressed here and by the Third Circuit's work in Grier, there are also important sentencing due process issues lurking after Blakely and Booker.

2.  Statutory Law:  The Booker remedy was premised on Congress's legislative intent when passing the Sentencing Reform Act (SRA), and it championed the statutory instructions to sentencing judges in 18 U.S.C. § 3553(a) as the controlling law for both district judges at sentencing and circuit judges reviewing sentences.  But the Booker remedy did not say much about the "multiple and vague" factors set out in 3553(a).  And, as suggested here and here, lower courts have struggled greatly to make sense of the express text of the SRA and the perceived goals of federal sentencing reform.   

3.  Administrative Law:  The US Sentencing Commission is an administrative body and the guidelines are a form of administrative law.  But the Mistretta case showcased that the USSC and the guidelines are not easily fit into standard administrative law models.  Some post-Booker lower court rulings have emphasized the importance of the guidelines as the product of an expert agency, and yet traditional administrative law doctrines like Chevron have never really been brought to bear in the context of federal sentencing.

4.  Common (or Case) Law: Formally, Claiborne and Rita are assessing the reasonableness standard of appellate review that was created out of whole-cloth by Justice Breyer in the Booker remedy opinion.  There is no obvious constitutional, statutory or administrative law tether or guideposts for the application of this standard (which in part explains why the guideline have been so central to circuit rulings).  Also lacking any obvious legal source are the circuit doctrines concerning the "presumption of reasonableness" at issue in Rita and the "proportionality doctrine" at issue in Claiborne. 

Adding to the intrigue, of course, is that these sources of sentencing law overlap and connect in various ways.  As in Mistretta and Jones, constitutional avoidance doctrines might push the Court to adopt a particular view and interpretation of applicable statutes; as in Koon and Watts, the Court might interpret the Constitution and the SRA to enhance the power of the USSC as an adminstative agency while undercutting the development of common-law doctrines by circuit courts.

In addition, various Justices have interesting histories with the various sources of law in the context of federal sentencing jurisprudence:

• Justice Breyer, who helped draft the SRA and was an original member of the USSC, obviously has a unique perspective on (and perhaps an unhealthy affinity for) the SRA and the guidelines.
• Justice Scalia, who was the lone dissenter from the Supreme Court's initial blessing of the SRA in Mistretta, also has a unique perspective on (and perhaps an unhealthy disaffinity for) the SRA and the guidelines. 
• Justice Kennedy, who authored the unanimous opinion in Koon which asserts (perhaps inaccurately) that Congress in the SRA sought to ensure "that district courts retain much of their traditional sentencing discretion,"  has delivered numerous potent speeches lamenting the severity of federal guideline sentences (examples here and here).
• The new Justices are the yin and yang on federal sentencing law and policy: as detailed in this post, former federal prosecutor (and FSR author) Justice Alito had lots of exposure to federal sentencing realities on the Third Circuit and through his involvement (until his SCOTUS nomination) with the Constitution Project's Sentencing Initiative; former civil lawyer CJ Roberts comes at these issues without much history and he may be far more interested in achieving consensus among the Justices than in achieving any particular outcome.

And, of course, Claiborne and Rita puts all these elements into the awlways-bubbling soup of modern debates over the Court's role in law and politics.  Consequently, I thik the only really safe prediction about to the final product in Claiborne and Rita is that the decisions will be (like the Blakely and Booker precursors) unpredictable.

Reply briefs filed in Claiborne and Rita

With now just a week to go before the SCOTUS oral argument Claiborne and Rita, the final official piece of the briefing puzzle was filed in today as the defendants filed thier reply briefs.  Thanks to this page at the Office of Defender Services, you can access the reply brief for Mario Claiborne here and the reply brief for Victor Rita here.  The Rita reply gets off to this flying start:

The presumption of reasonableness is a legal fiction. It is based not on the objective language of the Sentencing Reform Act ("SRA"), but on a subjective preference for a determinate sentencing regime and mandatory Sentencing Guidelines.  Crafted from whole cloth, the presumption is supported only by vague references to an ambiguous legislative history and repeated allusions to the "expertise" of the United States Sentencing Commission ("USSC").  These considerations cannot justify reaching beyond the text of the statute, particularly when application of the presumption raises serious constitutional concerns in all cases and so plainly results in an unreasonable sentence in this one.

Posts in my "Revving up" series:

• Revving up for Claiborne and Rita: will due process play any role?
• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Revving up for Claiborne and Rita: will due process play any role?

In an article that's now almost two years old, entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process" (available here), I spotlighted that the Apprendi cases involve, both expressly and implicitly, an array of constitutional provisions and principles beyond just the Sixth Amendment's jury trial right.  (Stephanos Bibas and I highlighted this point as well in our more recent article, "Making Sentencing Sensible" (available here).)

This weekend, when I finally read closely the Third Circuit's recent en banc magnum opus on sentencing burdens of proof in Grier (discussed here), I started wondering if constitutional principles other than the jury trial right might play a role in Claiborne and Rita.  Significantly, early rulings in the Apprendi line of cases (especially Jones) made repeated mention of due process and notice concerns implicated by judicial fact-finding at sentencing.  But later rulings like Blakely and Cunningham and especially the Booker remedy have dodged any real discussion of due process principles distinct from jury trial rights.

All of the thoughtful opinions in Grier (available here) provide an extraordinary account of how uncertain and debatable due process holdings and doctrines are after Blakely and Booker.  Pre-Blakely rulings like Harris and Watts and McMillan are formally still good law.  But many passages in Blakely and Booker raise many new questions, and new Justices (and the evolving views of old Justices) might be drawn to due process issues as they reflect on ugly aspects of post-Booker jurisprudence in lower courts.

Of course, due process questions are not formally before the Court in either Claiborne and Rita.  Nevertheless, Judge McConnell's great recent work in Medley (discusses here) highlights yet again that potential due process issues can lurk around every corner of any complex guideline-based sentencing system.

Posts in this series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne and Rita: more resources
• Revving up for Rita: harsh treatment for a lesser Libby
• Revving up for Claiborne: a crack(ed) safety-valve sentence