Sentencing Law and Policy

Revving up for Rita: harsh treatment for a lesser Libby

In this recent post, I noted that the specifics of Claiborne and Rita are quite interesting and nuanced, and I provided a quick account of facets of Mario Claiborne sentencing fortunes.  In this post, I wish to note intriguing aspects of Victor Rita's case — which has some parallels to the on-going trial of Lewis Libby.

1.  The nature of Victor's crime.  Like Lewis Libby, Victor Rita got caught up in a criminal investigation and ultimately was indicted on five felony counts based on allegations that he lied while giving grand jury testimony.  And, like Libby, Victor Rita asserted his innocence and exercised his right to a jury trial.  (Victor was convicted of all counts at trial; Libby's trial fate is still to be determined, of course.)

2.  The impact of a guideline cross-reference.  Though lying to government investigators is surely a crime to be taken seriously, Martha Stewart only faced a guideline sentence of 10 months after her conviction on a similar charge.  In Victor's case, his guideline range was 33 to 41 months because of the operation of cross-reference provisions in the guidelines — provisions which essentially held him accountable for crimes beyond those which were the basis for his jury conviction.

3.  The (in)consequence of a remarkable personal history.  As first noted here, Victor Rita is a very sympathetic defendant: he served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, and has received over 35 military medals and awards.  Also, he is an elderly gentleman who suffers serious health problems.  None of these factors played any role in the calculation of his guideline sentencing range, and the imposition of a within-guideline sentence indicates these factors had little or no impact at all at Victor's sentencing.  (To spotlight another Lewis Libby parallel, I would expect Libby 's lawyers to stress his government service at sentencing if he gets convicted.)

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 Claiborne: a crack(ed) safety-valve sentence

Revving up for Claiborne and Rita: more resources

I have noted before that the briefs Claiborne and Rita are helpfully assembled by the NYCDL on this page.  But, as we rev up for the oral arguments on February 20, everyone should also know about the amazing resources and materials assembled by Office of Defender Services at this webpage. 

As detailed at this link, the ODS not only has assembled all the briefs, but it has also collected or created various supporting documents helpful to anyone watching Claiborne and Rita closely.  Of particular interest in light of prior posts here and here, National Sentencing Resource Counsel Amy Baron-Evans has produced this interesting description of the amicus brief filed by Senators Kennedy, Hatch and Feinstein on behalf of the government discussing crack cocaine sentencing.  The site also has additional coverage of "Data on post-Booker Sentencing and Appellate Review."

Posts in this series:

• Revving up for Claiborne and Rita: a series and background
• Revving up for Claiborne: a crack(ed) safety-valve sentence

Revving up for Claiborne: a crack(ed) safety-valve sentence

Though the briefs in Claiborne and Rita discuss federal sentencing guideline generalities at length, these cases are ultimately about the sentencing fortunes and fates of two men: Mario Claiborne and Victor Rita.  It will be interesting to see if the Justices at oral argument (and in the opinions) focus on the specifics of Mario and Victor or instead talk mostly about guideline generalities.  (History provides no clear guide: the Justices focused on facts in Koon, but relatively little in Booker.)

The specifics of both cases are quite interesting and nuanced.  I will discuss Victor Rita's case  — which has many parallels to the on-going trial of Lewis Libby — in a future post.  This post presents a quick account of some interesting Mario Claiborne specifics.

1.  The impact of harsh crack guidelines.  Mario Claiborne pleaded guilty to two minor crack offenses, and his sentence of 15 months would not have been below the guidelines had he been dealing with powder cocaine.  But, because of the crack guidelines — which the US Sentencing Commission has itself repeatedly called unfairly harsh — the applicable guidelines range advised a sentence of at least 3 years.  The district court, likely influenced by the USSC's analysis that the crack guidelines are too harsh for low-level offenders, decided to sentence below the guideline, but the Eighth Circuit declared that choice unreasonable.  But is it really unreasonable for a district court not to follow crack guidelines that everyone recognizes are unreasonable in some cases?

2.  The impact of the safety valve.  One reason the government may have appealed and the Eighth Circuit reversed is because Mario Claiborne got a lot of credit for pleading guilty and for being a minor offender.  Though federal guidelines have many factors that drive sentences up, Claiborne benefited from two provisions that drive sentences down: a reduction for accepting responsibility and for fitting within the so-called "safety-valve" criteria allowing a sentence below applicable mandatory minimums.  Though many federal defendants (such as Victor Rita) can rightly complain that the guidelines do not give credit their mitigating circumstances, Mario Claiborne cannot make that charge.

3.  The impact of post-sentencing realities.  As first noted here, Mario Claiborne has served his original 15-month prison sentence and has bee free from federal custody since May 1, 2006.  Assuming Mario has been a good egg since his release, is there a strong reason he should now be resentenced and given a longer prison term?  Of course, Mario's actions since he was first sentenced nearly two years ago are not formally relevant to whether the district judge sentenced him unreasonably in March 2005.  But, if he has been super Mario this year and has thus shown the wisdom of the sentencing break he got from harsh crack guidelines, the Justices may not be especially eager to declare that break unreasonable.

Posts in this series:

• Revving up for Claiborne and Rita: a series and background

Revving up for Claiborne and Rita: a series and background

Two weeks from today, the Supreme Court will hear oral arguments in Claiborne and Rita, two cases that will explore what Booker really means for federal sentencing. (The briefs Claiborne and Rita are helpfully assembled by the NYCDL on this page).  Because these cases have so many dimensions, I have decided to start this series of "revving up" posts to better unpack all the interconnected elements in these cases.

In this first post I want to highlight some important potential distinctions (and similarities) in Claiborne and Rita.  Though much of the amicus briefing addresses both cases in one brief, there are notable factual and legal distinctions in the cases the Supreme Court has taken up:

1.  The facts and fact-finding:  Mario Claiborne pleaded guilty to two relatively minor drug offense and admitted to all the facts the district court considered at his sentencing; Victor Rita went to trial and the district court considered a number of disputed facts at his sentencing.  Therefore, for those most concerned about Sixth Amendment issues, Rita would appear to be the case to watch.

2.  Offenses and offenders:  Mario Claiborne's offenses involved crack offenses that Congress and the Sentencing Commission has treated very harshly; Victor Rita's offenses involve misstatements to a grand jury that seem very minor compared to the usual federal offender.  Both defendants lack any significant criminal history and seem to have positive personal attributes, though Victor Rita's background is particular notable given his long and honorable military service.

3.  Proceedings below:  Mario Claiborne received a below-guideline sentence of 15 months in prison in the district court, but the Eighth Circuit reversed this sentence as unreasonably low on the government's appeal; Victor Rita received a within-guideline sentence of 33 months in prison in the district court, and the Fourth Circuit affirmed this sentence as reasonable.  The circuit rulings are similar in their post-Booker emphasis on the guidelines, but dissimilar in their respect for district court post-Booker discretion.

In future posts, I will explore some of the constitutional and non-constitutional issues raised in these cases and also speculate about how particular Justices might view these cases.  In the meantime, I encourage reader to send me any "revving up" thoughts for possible posting.  I am eager in this series to present perspectives other than just my own on Claiborne and Rita.

Will the USSC have more data for Claiborne and Rita?

It's been two months since the US Sentencing Commission released any additional post-Booker data and now nearly a year since USSC has produced any new type of Booker data.  As I noted here a few months ago, to my knowledge, the USSC has never publicly disclosed post-Booker data on dynamic issues such as defendants' fates after post-Booker remands and outcomes in white-collar cases and post-Booker appeal rates/outcomes.

Notably, many of the briefs in Claiborne and Rita (helpfully assembled by the NYCDL on this page) assemble and discuss post-Booker appeal data.  Interestingly, the USSC's brief in Claiborne and Rita only has a brief mention of post-Booker data; this discussion is focused on the fact that "the rate at which sentencing judges impose a sentence either within the Guidelines range or below the Guidelines range pursuant to a government-sponsored departure in circuits that apply a presumption of reasonableness (87.5 percent) is quite close to the rate (83.9 percent) in circuits that apply no presumption."  USSC Brief at 16.

I wonder if the USSC will have any additional public data releases in the run up to the Claiborne and Rita arguments (which are to be on February 20) or while SCOTUS is working on its opinions in Claiborne and Rita.  I hope so.

Just what does Cunningham mean for Claiborne and Rita?

In my first read of the Supreme Court's Cunningham decision (essentials here), I made particular note of this line: "Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless."  As evidenced by my Boyd bemoaning (here and here) and my complaints about continued reliance on acquitted conduct (details here and here), I think most district courts and really all circuit courts applying Booker reasonableness review have essentially cooked up post-Booker doctrines that functionally produce a "recipe for rendering [the Court's] Sixth Amendment case law toothless."

For that reason, I read Cunningham as previewing big fireworks in Claiborne and Rita.  (That's why I initially speculated that the SG might want a GVR after reading Cunninham.)  But perhaps I am over-reading Cunningham, and so I ask informed readers: what do you think Cunningham means for Claiborne and Rita?

Senators' brief supporting the government in Claiborne

In addition to the bottom-side briefs noted here, Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein have filed a "Brief in Support of Affirmance in Claiborne v. United States."  That brief can be accessed here thanks to the NYCDL, which now has updated its complete set of Claiborne and Rita briefs at this page.

I had heard that a Senators' brief was in the works, but I was hoping it might be filed not in support of either party (as was the brief I wrote for a group of law professors striking similar themes).  I am particularly disappointed that these Senators concluded that the district judge in Claiborne acted unreasonably when deciding that 15 months was a sufficient punishment for Mario Claiborne. 

Though I will have a lot more comments about all the bottom-side briefs in future posts, I find especially peculiar that the Senators' brief asserts that "The District Court Failed to State Clear and Principled Reasons for the Sentence It Imposed."  If their concern is ensuring that district courts state clear and principled reasons for sentences, the Senators really should have filed a brief in support of the defendant in Rita.  I have not heard a clear and principled reason — from the district court or the Fourth Circuit or from anyone else — as to why a decorated military veteran like Victor Vita should receive a prison sentence of 33 months for a seemingly minor, non-violent offense. 

UPDATE:  A partisan observer of federal sentencing had this immediate unvarnished reaction to the Senators' brief:

After a quick scan, the Senators' brief looks even more offensive than I expected.  And racist, I might add.

CLARIFICATION: A thoughtful and well-meaning reader has rightfully suggested that I not react to my disappointment over the Senators' brief by taking cheap shots or by indirectely suggesting anyone is a racist.  Indeed, this reader suggests I stress notable aspects of the substance of the Senators' brief, such as this interesting footnote:

[A]mici respectfully disagree with the proposition that sentencing decisions "must be done case by case and must be grounded in case-specific considerations," without reliance on broader principles that can be applied by courts in other cases.  See, e.g., United States v. Pho, 433 F.3d 53, 64-65 (1st Cir. 2006).  Uniformity is advanced by the development of rules of general applicability, not the exercise of unguided discretion on a case-by-case basis.

FURTHER EXPLANATION:  Highlighting the power of loaded charges, the term "racist" above has generated lots of reaction.  The partisan has sent me this further explanation: "if the Senators knew all of the facts regarding the crack guideline, they could not get behind affirmance of the Eighth Circuit's reversal of a perfectly reasonable application of 3553(a) that ameliorated the unreasonable effect of a guideline that everyone, including the Sentencing Commission, knows has a racially disparate impact."

For me, this whole debate highlights the importance of taking a critical race perspective on the modern state of federal sentencing.  As but one example, I highlighted in this post, consider that the USSC's March Booker report reveals that, after Booker, roughly 1 in 5 first offenders get a below-guideline sentence after Booker, but for black first offenders, the number is roughly 1 in 6; for hispanic first offenders, the number about 1 in 9.  And yet, sadly, these Senators have chosen to file a brief arguing that one of the rarer below-guideline sentences given to a black, non-violent first offender is unreasonable. 

(All?) bottom-side briefs for Claiborne and Rita

Thanks to many kind readers, I now have received multiple copies of the government's briefs and the US Sentencing Commission's brief filed today in Claiborne and Rita.  I provide them for download here:

Download claiborne_sg_brief.pdf

Download rita_brief.pdf

Download ussc_amicus_brief.pdf

I am not certain if this comprises the total of all the briefs filed in Claiborne and Rita (and I have left out some of the appendices).  I will post any other amici briefs filed today upon discovery.  And commentary on these defenses of the federal guidelines will follow as time an energy permits.

Were bottom-side briefs filed in Claiborne and Rita today?

Though I have already speculated here on a new SG strategy for Claiborne and Rita, I am very curious about whether and what was filed by the government (and any amici) in these cases today.  I have not yet seen any bottom-side briefs, and perhaps I have my dates wrong.  But, if any readers have their hands on these filings, please consider sending me a copy for posting.

Should the SG now ask for a GVR in Claiborne and Rita?

I noted here that, after today's Cunningham ruling, my heart goes out to the lawyers who had to file bottom-side briefs in Claiborne and Rita.  Giving a bit more thought to federal sentencing in light of the broad discussion of Claiborne and Rita in the Cunningham opinions, I am wondering if anyone inside the SG's offices is now considering a really bold strategy — namely, conceding possible error in Claiborne and Rita and asking for a GVR so the lower courts can take stock of Cunningham.

It is not clear that SCOTUS would even grant a GVR in Claiborne and Rita, but the first issue is whether the SG ought to now ask for one.  Cunningham has reinforced my sense that the Supreme Court is currently the most pro-defendant appellate court in country on issues of sentencing procedure.  For that reason, I could see the SG being more eager to hash out the meaning of Cunningham with the generally pro-government circuit courts than with the generally pro-defendant Supreme Court.

Who will be supporting the government in Claiborne and Rita?

When cert was first granted in Claiborne and Rita, I wondered here how many amicus briefs might be filed.  When the top-side briefs were filed last month, as documented here, eight different amici briefs shared their insights with the Supreme Court.  And now that bottom-side briefs are due next week, I am wondering how many others will be giving SCOTUS friendly advice about post-Booker sentencing.

I suspect the US Sentencing Commission will file a brief supporting the government's emphasis on the guidelines in the post-Booker world.  (If USSC does file a brief, it will mark yet another ocassion in which it has opined about Booker while its guidelines chug along without even mentioning Booker.)  But I am quite uncertain about how many other briefs will be filed supporting the government's approach to the post-Booker world and the circuit outcomes in Claiborne and Rita.  I doubt there will be as many as were filed on the defense side, but one never knows.

All the amazing top-side briefs in Claiborne and Rita

As discussed here and here, the first sets of briefs were filed yesterday in Claiborne and Rita, the SCOTUS Booker reasonableness cases to be argued in February.  I am now pleased to report that the New York Council of Defense Lawyers has assembled, on this wonderful webpage, lots of background on the two cases, as well as links and summaries of all the briefs filed so far.

There is a lot of amazing information about the realities of federal sentencing on the NYCDL page — perhaps too much information to completely take in.  Still, I strongly urge everyone involved with or interested in the federal sentencing system — prosecutors, defense attorneys, probation officers, district judges, circuit judges, law clerks, members/staffers of the USSC and Congress — to read as much as they can from the NYCDL page.  There is SOOOO much information and insight in the briefs, and on-going federal sentencing cases and discussions should be informed by all the work therein.

In fact, I am right now heading off to a coffee house to read some more of these briefs.

My friendly efforts in Claiborne and Rita

As noted here, the first sets of briefs were filed in Claiborne and Rita, the SCOTUS Booker reasonableness cases to be argues in February.  I had the good fortune to be involved in some amicus briefing; here are the primary fruits of my efforts:

1.  Working with a terrific set of lawyers, I helped develop a pair of briefs in support of petitioners on behalf of the New York Council of Defense Lawyers.  As detailed in this webpage (which has links to the briefs in Claiborne here and Rita here), as part of the amicus effort, "NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases," which documented "that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government." 

2.  Working from some of my scholarly writings, I helped put together a joint brief for a group of law professors who study sentencing reform.  This brief is available at this link, and here is how it begins (along with some great quotes from Judge Marvin Frankel and Professor Norval Morris):

A set of long-standing federal sentencing principles should inform the Court's resolution of these cases.  These are principles that find expression in the writings of Judge Marvin Frankel and Professor Norval Morris, two leading advocates of reform proposals that resulted in the Sentencing Reform Act of 1984. These are principles that animate provisions of the Sentencing Reform Act of 1984 and the PROTECT Act of 2003, especially the detailed sentencing instructions Congress has set forth in 18 U.S.C. § 3553.  These are principles that have been emphasized by this Court in rulings from Mistretta v. United States, 488 U.S. 361 (1989), to Koon v. United States, 518 U.S. 81 (1996), to United States v. Booker, 543 U.S. 220 (2005).

These principles recognize the critical importance of judicial sentencing discretion and suggest the touchstone of federal sentencing should be district courts exercising reasoned judgment in response to case-specific factors and broader norms established by the Constitution and Congress.

Top-side briefing begins in Claiborne and Rita

I am pleased (and overwhelmed) that the first sets of briefs have now been filed in Claiborne and Rita, the SCOTUS reasonableness cases now set to be argued on February 20.  Specifically, counsel for the defendants and their amici filed briefs today, and my e-mail in-box is overflowing.

In this post when cert was granted, I placed the early over/under for amicus briefs at 10.  Looks like the over might win.  Here's what I know has been filed (in no particular order) in addition to the two petitioner briefs:

1. A joint brief from the NACDL
2. Two briefs (one for each case) from the NYCDL (which I help with some)
3. A joint brief from the FPCD and the NAFD
4. A joint brief from FAAM
5. A Claiborne brief from The Sentencing Project and the ACLU
6. A Rita brief on behalf of two veterans' groups
7. A joint brief from the WLF

Also, I know there are at least two law professor briefs in the mix.  I was involved in one, which was technically filed on behalf of none of the parties, and I know casebook co-authors Marc Miller and Ron Wright were working up another. 

I hope that someone soon will be creating a special page with all these briefs (and the parties briefs) in one place so I can avoid having to post them all here.  There is lots and lots of important reading in these works, and I will be posting details and copies as soon as a I figure out an orderly way to do so.

UPDATE: The New York Council of Defense Lawyers has created this helpful webpage spotlighting its amicus work and providing links to the other briefs filed today.  And in this post I discuss my chief amicus efforts.

What's happening during the reasonableness interregnum?

Inspired by a question from a practitioner, I am wondering how federal district and circuit courts around the country are dealing with post-Booker sentencing issues as everyone gears up for the Supreme Court's work in Claiborne and Rita (lots of background here).  It is fair to assume that SCOTUS took up these cases to disrupt the current status quo of reasonableness review, particularly the circuits' suspect tendency to reverse nearly all below-guideline sentences appealed by the government and to affirm virtually all within-guideline sentences appealed by defendants (ugly patterns noted here).  And yet, the status quo is the prevailing law until the Supreme Court says otherwise.

Claiborne and Rita are not scheduled to be argued until late February, and I doubt we will see a decision from the Court until probably June.  And, in the meantime, tens of thousands of sentences need to be imposed by district courts, and thousands are subject to review in the circuits.  Will resolution of many cases (particularly the hard ones) be slowed down as we anticipate rulings in Claiborne and Rita?  Will there have to be hundreds, perhaps thousands, of resentencings no matter what is said in Claiborne and Rita.

Folks struggling with these issues "on the ground" are highly encouraged to use the comments to report what they are seeing (or what they think should be happening).

FSR pieces on Claiborne and Rita issues

As I previously noted here, the Federal Sentencing Reporter has already published a number of pieces about reasonableness review after Booker.  In addition, of course, FSR has run many pre-Booker articles on topics that relate to the facts and issues before the Supreme Court in Claiborne and Rita (lots of background here).  At my request, a terrific research assistant assembled for me a list of some of FSR's recent coverage of issues related to the Claiborne and Rita cases, and I have provided this mini-bibliography for downloading below.  (The Federal Sentencing Reporter can be ordered here and accessed electronically here.)

Download fsr_related_articles.doc

The person behind Claiborne

The St. Louis Post-Dispatch has this short article providing a bit of background on Mario Claiborne and highlighting the crimes and sentencing debates that have brought his case before the Supreme Court.  Though a sound piece, I am hoping someone will do a more in-depth story about Mr. Claiborne.  I am wondering, for example, if he has completed his 15-month sentence and what he is doing now.  I am also wondering whether he plans to attend the SCOTUS oral argument concerning his case (and his fate) in February.

UPDATE:  A helpful reader pointed me to this link showing that Mario Claiborne has been free from federal custody since May 1, 2006.  He was sentenced and remanded on March 28, 2005, and thus served less than his full 15 months in prison presumably because of earning good time credits while in custody.  Had he been given a guideline sentence, Mr. Claiborne would not have been realeased until sometime in 2008.

Lovely Rita, SCOTUS case...

The Supreme Court's decision to grant cert in Rita to consider reasonableness review for within-guideline sentences will sure lead to a lot of riffs on one of my favorite songs by The Beatles.  And I am now pleased to report that, thanks to the fine folks running the Middle District of North Carolina Federal Public Defender website, the cert petition in Rita, the Government's cursory 3-page response, and Rita's reply brief are all available at this link. 

The cert petition and other papers in Rita, just like the papers in Claiborne (provided here), should make fans of rigid guidelines quite concerned about the cases that SCOTUS selected for cert.  The underlying crime is Rita involves only mis-statements to a grand jury investigating the sale of machine-gun kits, and the defendant, Victor Rita, apparently still maintains his innocence.  Perhaps even more importantly, Victor Rita, according to the cert. petition, served 24 years in the Marine Corps, had tours of duty in Vietnam and the first Gulf war, and has received over 35 military metals and awards!  Also, Victor Rita is 57 years old and suffers serious health problems.  Talk about a sympathetic defendant.

The district court sentencing in Claiborne and cert briefing

A terrific reader sent me an electronic copy of the district court sentencing transcript in Claiborne, the case in which the Supreme Court will examine whether a below-guideline sentence is reasonable (basics here and here and here).  I have provided that transcript for downloading below, and it is a fascinating read.

As the transcript details, Mario Claiborne was given a 15-month sentence for two relatively minor crack offenses.  Especially because it appears that Claiborne was a non-violent first offender, one can readily assert that his sentence is clearly reasonable for his offenses.  And yet, in part because of how harshly the guidelines treat crack quantities, Claiborne's guideline range was 37-46 months' imprisonment.  Especially because there does not appear to be anything special about Claiborne, one could also readily assert (as did the Eighth Circuit) that nothing extraordinary about this case clearly justified a sizable deviation from the guideline range.

In the transcript, Claiborne's attorney indicates that his guideline range would have been only 6-12 months' imprisonment if his offense had involved powder cocaine.  So Claiborne was still given a sentence harsher than what the guidelines would have advised for a powder offense, but less harsh than what the guidelines advised for a crack offense.

Download claiborne_transcript.pdf

I am still trying to get my hands on a copy of the the district court sentencing transcript in Rita, the case in which the Supreme Court will examine the reasonableness of a within-guideline sentence.  In addition, I am also still seeking electronic copies of the cert petitions in both cases.

UPDATE: Another helpful reader has sent along the cert briefing in Claiborne, which I set forth below:

Download claiborne_cert.pdf

Download claiborne_bio.pdf

Download claiborne_reply_brief.rtf

Recapping reasonableness review rush

Friday afternoon brought the exciting news that the Supreme Court has finally decided to take up Booker reasonableness issues through cert grants in Claiborne and Rita.  Here is a recap of the Friday rush of posts (many with valuable comments) that this news produced:

• SCOTUS to take up Booker reasonableness!!
• SCOTUS Booker questions presented ... and more questions
• How many amici briefs will there be in Claiborne and Rita?
• How do Cunningham and Claiborne and Rita intersect?
• The facts and decisions in Claiborne and Rita

I still have not yet seen the cert petitions in these case or the transcripts of the sentencings in the district courts.  I'll be grateful to anyone sending these materials my way, and I'll be sure to post anything significant I receive electronically.

Soliciting lightning-round commentary on reasonableness for FSR

The Federal Sentencing Reporter has already published a number of pieces about reasonableness review after Booker (see list here).  But the Supreme Court's cert grants in Claiborne and Rita (basics here and here) bring this debate to a whole new level.  And, fortunately, FSR may be able to clear out a little extra room in its December issue for some lightning fast — but still thoughtful and refined — commentary on reasonableness review after Booker.

To have a real chance of appearing in FSR's December issue, commentaries on Claiborne and Rita would need to be submitted before Thanksgiving — ideally, well before — and would need to be very polished so we could get it quickly to press.

Media coverage SCOTUS reasonableness grants

For media coverage of the Supreme Court's cert grants in Claiborne and Rita you can choose from this AP story and this New York Times story.  Here is a snippet from Linda Greenhouse's piece, which includes some more details about the cases:

While there was no suggestion in the court’s action on Friday that the Booker decision itself would be reconsidered, there remains much room for debate over how it should be applied.

Each of the appeals was brought to the Supreme Court by a federal public defender’s office. The defendant in the first case, from North Carolina, is a 57-year-old retired marine named Victor A. Rita Jr., who was convicted of making false statements in connection with a federal investigation into the sale of kits for making machine guns. While Mr. Rita’s sentence, 33 months, was within the range provided by the sentencing guidelines, he argued on appeal to the United States Court of Appeals for the Fourth Circuit that the sentence was unreasonably long, given his poor health and unblemished record of federal service, both as a marine and in two civilian agencies....

The defendant in the second case the court accepted on Friday is a 21-year-old first offender, Mario Claiborne, who was convicted in Federal District Court in St. Louis of possessing a small quantity of crack cocaine. Mr. Claiborne’s lawyer persuaded the trial judge to impose a sentence of only 15 months, sharply lower than the guidelines range of 37 to 46 months. The United States Court of Appeals for the Eighth Circuit, also in St. Louis, overturned the sentence and ordered resentencing, which has not yet taken place. The Eighth Circuit is among the appeals courts that regard deviations from the guidelines as inherently dubious, requiring special justification.

In complimenting Linda Greenhouse for a terrific article about these new grants, I cannot help but note that about a month ago Linda said when visiting OSU that she doubted that the Supreme Court would take up Booker issues anytime soon.

The facts and decisions in Claiborne and Rita

Among the interesting aspects of the cert grants in Claiborne and Rita are the underlying facts and circuit court rulings.  Though I do not know all the details, Lyle Denniston has these basics here:

The Claiborne case is from the Eighth Circuit. [Decision here.] Mario Claiborne of St. Louis was convicted of distributing cocaine base and possession of more than five grams of the illegal substance. He was sentenced to 15 months in prison.  The guideline range was 37 to 46 months. The Circuit Court ruled that a sentence within that range was presumed to be reasonable so it ordered new sentencing. It did say that a sentence outside the range could be found reasonable if the judge found "extraordinary circumstances" to exist.

Rita is from the Fourth Circuit.  [Decision here.] It involved a North Carolina man, Victor A. Rita, who was convicted of giving false testimony to a grand jury and obstructing justice in an investigation of illegal trafficking in machine gun kits. After his conviction on five counts, he was sentenced to 33 months on all counts -- within the guideline range.  The Fourth Circuit upheld that as reasonable, because it was within the range for his case.

Among the universe of federal crimes, both Claiborne and Rita appear to involve relatively minor offenses and, I would suspect, both defendants are first-offenders.  And, the crack context of Claiborne adds a lot of possible pro-defendant issues into the mix.  Moreover, I believe defendant Rita's offenses are for the same essential charges now facing Lewis "Scooter" Libby.  Hmmm....

How do Cunningham and Claiborne and Rita intersect?

As detailed here and here, last month's SCOTUS argument in Cunningham, which was technically about Blakely's applicability in California, ended up being a lot about reasonableness and federal sentencing.  In light of today's cert grants in Claiborne and Rita, I am trying to think through the relationships between what (and when) the Court will do with Cunningham.

It seems that the Claiborne and Rita argument won't be until February, but the top-side briefs are due in December.  I have been expecting to see Cunningham decided sometime in January, but now I wonder if its likely to come soon (or come later) because of Claiborne and Rita.  I am pretty confident (and happy) that the cert grants in Claiborne and Rita should limit the need to (over)interpret the meaning of Cunningham for the federal sentencing system.

How many amici briefs will there be in Claiborneand Rita?

One of the many interesting facets of Booker was the expedited briefing schedule during summer 2004, which likely depressed the number of amicus briefs filed.  Still, I believe there were six significant amicus briefs, including one from the US Sentencing Commission, one from a set of Senators, one from a retired federal judge and a number from defender groups.

With a more reasonable briefing timeline on reasonableness in Claiborne and Rita, I suspect there may be a lot more amicus brief for SCOTUS to ignore consider.  I will place the early over/under for amicus briefs at 10.  There will surely be at least 3 or 4 defense side amicus, and the US Sentencing Commission seems likely to file one.  Also, because Claiborne is a crack case and Rita may be a white-collar case (more on this later), there may be a lot of additional amici interested in discussing the underlying substance of the crimes and sentences through which SCOTUS will be exploring reasonableness.

SCOTUS Booker questions presented ... and more questions

With its cert grants in Claiborne and Rita (basics here), the Supreme Court is taking the Booker reasonableness bull by the horns.  As detailed in this order list, SCOTUS has specified the questions presented in each case to ensure all of the biggest post-Booker reasonableness issues are addressed. 

In Claiborne, the Court asks:

1. Was the district court's choice of below-Guidelines sentence reasonable?
2. In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

In Rita, the Court asks:

1. Was the district court's choice of within-Guidelines sentence reasonable?
2. In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences?
3. If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. §3553(a) factors and any other factors that might justify a lesser sentence?

My mind is racing with this news and all of the different possible ripple effects.  In particular, I am wondering how the grants in Claiborne and Rita will impact (a) the reasonableness en banc in progress in the Sixth and Ninth Circuits, (b) the development of reasonableness doctrines in other circuits, (c) the work of the US Sentencing Commission, and (d) the adovacy of DOJ for a Booker fix.