Sentencing Law and Policy

Sixth Circuit panels splitting over many aspects of reasonableness review

Anyone longing for some juicy federal circuit court opinions on reasonableness review to discuss over the long weekend now need look no further than a couple of split panel rulings — dare I say turkeys? — handed down by the Sixth Circuit this morning.  Specifically, via US v. Petrus, No. 08-1706 (6th Cir. Nov. 23, 2009) (available here), and US v. Simmons, No. 07-3449 (6th Cir. Nov. 23, 2009) (available here), two different Sixth Circuit panels talk lots of turkey concerning both substantive and procedural reasonableness review after Booker and its progeny. 

Neither Petrus (which runs 17 pages) or Simmons (which runs 76 pages!) can be easily summarized, and thus I will be content here to quote a key section from the start of Judge Clay's potent 50-page dissent in Simmons:

Even more troubling [than doctrinal errors] is just how fundamentally unbalanced and unjust the approach endorsed by the majority is.  On the one hand, the majority is willing to speculate as to what the district court “appears” to have “implicitly” considered, while on the other hand faulting defense counsel for not “specifically” identifying the procedural errors to which she was objecting.  The majority also insists that the procedural rule confirmed in Vonner somehow eliminates the need for a contextual inquiry when determining the sufficiency of a defendant’s objection, despite the fact that Vonner explicitly requires us to conduct such a contextual review when evaluating the sufficiency of the district court’s sentencing pronouncement. See Vonner, 516 F.3d at 387 (explaining that a “lengthy explanation” of the sentence chosen may not be required in all cases “because ‘circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence’” (quoting Rita v. United States, 551 U.S. 338, 357 (2007)); see also Rita, 551 U.S. at 356 (“The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.”).

In both respects, the majority’s decision typifies a troubling imbalance that plagues our case law in this area.  It also reveals that the majority’s professed concern for clarity in this area is disingenuous.  If the majority truly was interested in adopting rules that will lead to a clear record for appeal, then its first order of business obviously should be to hold the district court accountable for failing to address Simmons’ primary, repeated, and nonfrivolous argument in favor of downward departure.  Instead, the majority bends over backward to guess at whether the court considered Simmons’ argument.  It makes no sense, and is fundamentally unfair, to place the burden for creating an adequate record for appeal on criminal defendants rather than district court judges.

Let me be clear: I acknowledge that we are bound to apply the rule that the en banc majority announced in Vonner, but I emphatically reject the assertion that Vonner requires the outcome reached by the majority.  The narrow scope of the majority’s inquiry and its insistence on a rigid application of the plain-error standard is contrary to the “common-sense” approach required under Vonner, and repeatedly confirmed in subsequent reported decisions.  If the majority is right, however, and Vonner requires either the inquiry undertaken or the outcome reached by the majority, then the time has come for this Court to reconsider the wisdom of our decision in Vonner.  And if this Court is unwilling to acknowledge its mistake, then perhaps the Supreme Court should intervene to rectify this imbalance.

Notably, the "swing" voter helping to make up the majority opinions in Petrus and Simmons  — both of which declare procedurally reasonable a sentence imposed in a procedurally questionable manner — both happen to be district judges sitting by designation.  Though I do not generally have a problem with district judges sitting by designation, I think there is a worrisome sort of conflict-of-interest for district judges to be very involved in defining a circuit court's standards for when district judges are sentencing in a reasonable manner. 

Ninth Circuit judges talking about meaning and import of Paul reversal(s)

Federal sentencing fanatics know that the Paul case in the Ninth Circuit is significant because it was arguably the first (and might still be considered the only) circuit ruling that a within-guideline sentence should be reversed as substantively unreasonable.  The initial story of Paul is discussed in this 2007 post and a subsequent 2009 ruling after a remand for resentencing is discussed in this post. 

Now, as evidenced by this new order refusing en banc review, the Ninth Circuit has added an extra chapter to this story.  Specificaly, consider this opening paragaph from a dissent from the denial of rehearing en banc in Paul (which was joined by four other circuit judges):

This case decides whether a district court violated a mandate from the court of appeals.  It does not decide whether Paul’s sentence was substantively unreasonable, despite language in the opinion that could mislead readers.  I write separately in an attempt to forestall the confusion that has already arisen from the way in which the majority has chosen to draft its disposition.  I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul’s sentence was substantively unreasonable.

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.

Circuits continue to have no trouble finding within-guideline sentences reasonable

Though Gall and Kimbrough dealt with non-guideline sentences, they indirectly provide further support for the instinct of most circuit courts to affirm nearly every within-guideline sentence as reasonable.  (Of course, Rita provides both direct and indirect support for this instinct.)  Two more notable circuit court decisions this week bring home this message. 

The most extended opinion on these matters is from from the Tenth Circuit in US v. McComb , No. 07-5003 (10th Cir. Dec. 18, 2007) (available here).  McComb includes an extensive discussion of Rita and procedural reasonableness.  In addition, a shorter treatment of these issues comes today from the Seventh Circuit in US v. Mendoza, No. 06-2999 (7th Cir. Dec. 20, 2007) (available here).

Eighth Circuit shows yet again that within-guideline sentences are essentially per se reasonable

I was hopeful — though not especially optimistic — that circuit courts would review within-guideline sentences with a bit more rigor after Rita.  But today's Eighth Circuit ruling in US v. Otterson, No. 06-3555 (8th Cir. Nov. 7, 2007) (available here), reveals yet again that some circuits view any within-guideline sentence as essentially per se reasonable.

In Otterson, the defendant was sentenced to just under 20 years' imprisonment after pleading guilty to sending child porn to an undercover officer posing as a thirteen-year-old girl.  At sentencing,

Otterson emphasized the fact that he came from a troubled home, he was the victim of sexual abuse, his father sexually abused his sisters, and his mother was committed for mental health issues while Otterson was still a minor.  He discussed his own well-documented history of physical and mental disabilities, including the fact that he suffered from Bell’s palsy which, together with other conditions, Otterson claimed made social contact difficult and ensured he lived essentially as a hermit.  Finally, he admitted that he had been using drugs at the time of the offense.

Otterson argued primarily that his social history and physical and mental infirmities provided justification for a lower sentence.  He also argued that because he did not actually produce child pornography or physically touch any children related to the present offense, his sentence should not be at the top of the Guidelines range.  Finally, he argued that his criminal history was overstated given his characterization of his prior property offenses as minor and his light sentence on the Missouri sex crime charge.

In response, "the district court imposed the sentence of 235 months [the top of the 188-235 guideline range] to be followed by supervised relief [sic] for life." To justify this outcome,

the district court specifically stated its view as to the severity of the offense, referenced the sadistic and masochistic nature of the materials, and referenced Otterson’s online discussions with the undercover officer who posed as a thirteen-year-old girl.  The district court stated the sentence was appropriate “to address the sentencing objectives of just punishment, general deterrence, and incapacitation.”  The district court did not expressly address other factors under 18 U.S.C. § 3553(a) or discuss the issues Otterson raised as mitigating factors.

On this record, the Eighth Circuit panel rejects the defendant's reasonableness challenge.  It asserts simply that all the mitigating issues raised by Otterson "were clearly presented to the court in the PSR and at the sentencing hearing and are accounted for in the undisputed Guidelines range." 

As an initial matter, I do not quite understand the basis for the panel's assertion that Otterson's mental and physical condition and his social history "are accounted for" in the Guideline range.  The guidelines do not provide any mitigating adjustments for any of these factors.  Though a judge might reach a reasoned conclusion not to reduce a sentence based on these factors under § 3553(a), Rita stresses that, even when giving a guideline sentence, a judge should "explain why he has rejected those arguments" put forward by defendants for a different sentence.  The district court's silence in this case does not seem to me to be an adequate explanation in light of Rita.

Moreover, and perhaps even more disturbing, neither the district court or the Eighth Circuit panel explained why they view as "sufficient but not greater than necessary" for Otterson a prison sentence of 235 months (at the top of the applicable guideline range), instead of a sentence of, say, 188 months (at the bottom of the range).  Despite making numerous non-frivolous mitigating argument, Otterson was given four more years in prison than the (presumptively reasonable) guideline range demands, and it is hard for him or anyone else to understand exactly why.

Crunching the numbers on a presumption of reasonablenss

I was very pleased to learn of this new article on SSRN, which examines empirically the impact of the presumption of reasonableness for within-guideline sentences.  The article by Alex Robbins and Lynda Lao is entitled "The Effect of Presumptions: An Empirical Examination of Inter-Circuit Sentencing Disparities After United States v. Booker," and here is the full abstract:

In the two years since United States v. Booker, the circuits have divided over how to use the Federal Criminal Sentencing Guidelines when reviewing sentences imposed by district courts. Seven circuits have held that a sentence within the Guidelines range is entitled to a presumption of reasonableness on appeal; five have held that it is not.  Although the Supreme Court's recent holding in Rita v. United States allows the courts of appeals to adopt a presumption of reasonableness for within-Guidelines sentences, it does not require them to, and so the circuit split remains.

Using this circuit split as a natural experiment, we undertake what we believe to be the first statistically robust analysis of the effect of a presumption of reasonableness on sentences imposed at the federal district court level.  Specifically, using 145,047 individual-level observations recorded by the United States Sentencing Commission (comprising all recorded federal sentences in all twelve circuits for a one-year period beginning in November 2004 and ending in October 2006), we perform a multivariate regression analysis to determine how a circuit's adoption or rejection of a presumption of reasonableness for within-Guidelines sentences affects the frequency with which district courts impose below-Guidelines sentences.  We find that a circuit's adoption of a presumption of reasonableness decreases the frequency of below-Guidelines sentences by less than one percent, although this result is statistically significant.

Our results do not, however, robustly support the inverse hypothesis that a circuit's rejection of a presumption of reasonableness increases the frequency of below-Guidelines sentences. The effect of such a rejection is insignificant when we control for circuit-specific fixed effects, and appears to be driven almost entirely by the particular behavior of the Second Circuit.  Finally, we are similarly unable to find robust empirical support for the hypothesis that intercircuit differences in sentencing after Booker can be explained simply by a circuit's underlying characteristics.

SCOTUS order list includes two Rita GVRs

As first noted in comments by Peter G, the Supreme Court returned from its summer break by denying cert in early October to a lot of federal criminal appeals that perhaps could have justified Rita GVRs.  That reality makes somewhat notable that today's Supreme Court order list, which is available here, includes two Rita GVRs in cases captioned Ibarra and Heavner from the Eighth Circuit.

I am not sure why Ibarra and Heavner get the benefit of Rita GVRs when so many other cases did not.  Anyone in the know about these cases or (any Rita-related) others are encouraged to offer enlightenment in the comments.

Is Gall the most important SCOTUS sentencing case?

The long-standing debate over crack sentencing policy ensures that the Kimbrough case gets lots of media attention (see here and here), and national fixation with the death penalty ensures that Baze will always be an above-the-fold story (see here and here).  Nevertheless, as we gear up for a major SCOTUS sentencing term, I think Gall may end up being the case and ruling with the greatest long-term significance and impact. 

Whether the Supreme Court uses Gall to broaden or restrict the scope of post-Booker discretion, the decision in Gall is likely to impact greatly how all district courts sentence after Booker.  The decision will also likely frame future debates over Booker as a new Attorney General (and eventually a new administration) takes stock of federal sentencing realities. 

For more on the Gall case and related issues, the Des Moines Register has this helpful article and this effective editorial.  The article notes that the Gall case "could affect criminal sentences in every federal courtroom in America," and the editorial calls for "Congress [to] eliminate the garden-variety drug prosecutions and return the federal courts to their original purpose of hearing major criminal cases that cut across state lines and exceed local authority and resources."

Some related SCOTUS new Term posts:

• A big SCOTUS sentencing Term in the works?
• Serious SCOTUS sentencing fun soon to begin
• Baze lethal injection case index
• Gall reasonableness case index
• Kimbrough reasonableness case index

UPDATE:  This CNN piece about the new SCOTUS Term is headlined "Law-and-order issues top Supreme Court docket."

A favorite footnote from my Rita reflections

As noted here, the Denver University Law Review allowed me to contribute my thoughts about the Supreme Court's work in Rita v. United States in its special speedy issue on Rita.  My contribution, entitled "Rita, Reasoned Sentencing, and Resistance to Change" and available at this link, covers lots of ground and cannot be readily summarize here.  But I cannot help but flag my favorite substantive footnote from the piece, which spots a bit of a head-scracther from Justice Scalia's Rita concurence.

Justice Scalia’s opinion in Rita seems to suggest that a within-guidelines sentence depending too much on judicially found facts would trigger “as-applied” Sixth Amendment concerns even within an advisory guideline scheme. B ut Justice Scalia’s opinion for the Court in Blakely argued for a “bright-line” approach to what types of judicial fact-finding violates the Sixth Amendment because of the “need to give intelligible content to the right of jury trial.”  Blakely v. Washington, 542 U.S. 296, 305-08 (2004).  It is ironic and surprising that Justice Scalia in Rita now seems to be advocating a vague, judicial-administered, not-yet-very-intelligible standard for applying the Sixth Amendment in the context of advisory guideline systems.

Rita rehearing request rejected by SCOTUS

Lyle Denniston reports here at SCOTUSblog that the Supreme Court has refused to reconsider its decision in Rita. Here's the basics:

Rita's counsel had asked for rehearing by seeking to rely upon President Bush's clemency order in the CIA leak case.  The petition also had urged the Court to reconsider its 2005 decision in U.S. v. Booker that salvaged the federal Sentencing Guidelines by making them advisory, not mandatory. 

This was one significant order on the summer list released at 10 a.m. Monday -- the second of three summer lists.  The third and final of these orders will be released Aug. 31.

This is not at all surprising, but it would have been exciting if the Justices has at least required the Government to respond to the rehearing request.

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.

Another exposition on Rita reasonableness from the Sixth Circuit

Following up on its work last week in Liou (discussed here), the Sixth Circuit today in US v. Wilms, No. 06-1896 (6th Cir. July 23, 2007) (available here), provides another important discussion of the Supreme Court's work in Rita and what it means for post-Booker sentencing.  Here is how the opinion starts:

Defendant-Appellant Blake Wilms appeals his sentence of sixty-three months in prison following his plea of guilty to four counts of bank robbery and one count of attempted bank robbery.  Wilms argues that the district court improperly applied a presumption of reasonableness to the applicable Guidelines range, thereby failing to consider properly the sentencing factors set forth in 18 U.S.C. § 3553(a).  Because the record indicates that the district court applied a rebuttable presumption that Wilms should be sentenced within the applicable Guidelines range, we VACATE Wilms’s sentence and REMAND the case for resentencing.

Will there be any Rita circuit fireworks this week?

Though there have been a few circuit rulings noting the Supreme Court's Rita decision (see here), last week brought more major sentencing decisions from the circuits that did not discuss the Justices' latest Booker wisdom.  (In addition to the Seventh Circuit's notable reversal of a below-guideline sentence in Goldberg (discussed here), on Friday the Eighth Circuit upheld a below-guideline sentence in US v. Jimenez-Guiterrez (available here) and the Tenth Circuit discussed the obligation to state reasons in US v. Romero (available here) without any mention of Rita.)

Though this week ought to be relatively slow with the coming holiday, I suspect that appellate pacing ought to allow circuit judges to cacth up with Rita this week.  And yet, the big question is not when circuits will start citing Rita regularly, but rather whether and how Rita might change how circuits unpack various post-Booker issues.

Some related Rita posts:

• Rita has something for everyone (except Victor Rita)
• The sweet(?) mysteries of Rita... annotated
• Are within-guideline crack sentences now presumptively unreasonable after Rita?
• New (or renewed) ideas and arguments suggested by Rita

Nice simple account of Rita from the Seventh Circuit

Though I am still awaiting (and may wait a long time for) a blockbuster post-Rita opinion from the circuit courts, the Seventh Circuit on Thursday provided this effective brief account of the Rita decision in US v. Sachsenmaier, No. 05-3505 (7th Cir. June 28, 2007) (available here):

[T]he Supreme Court has now expressly endorsed the rebuttable presumption of reasonableness for appellate review of a district court’s sentencing decision.  See Rita v. United States, No. 06-5754, 2007 WL 1772146 (June 21, 2007); United States v. Nitch, 477 F.3d 933, 937- 38 (7th Cir. 2007); United States v. Gama-Gonzalez, 469 F.3d 1109 (7th Cir. 2006). The Rita decision emphasized that this is a standard for appellate review only. Rita, 2007 WL 1772146, at *9.  The district courts must calculate the advisory sentencing guideline range accurately, so that they can derive whatever insight the guidelines have to offer, but ultimately they must sentence based on 18 U.S.C. § 3553(a) without any thumb on the scale favoring a guideline sentence.  If, however, a district court freely decides that the guidelines suggest a reasonable sentence, then on appellate review the defendant must explain why the district court was wrong.

Will there be lower court Rita reactions this week?

As I stressed in this post (and other insightful folks have also noted here and here), the Supreme Court's Rita decision seems to approve a guideline-centric approach to post-Booker sentencing, but also seems to condone any reasoned decision by lower courts to take other approaches to post-Booker sentencing law and procedure.  Consequently, Rita's "meaning" may only became clear as lower courts revise (or reiterate) their approach to post-Booker sentencing. 

Thus, I am especially eager to see if this week there are some early rulings from district or circuit courts articulating views about how Rita changes (or does not change) their views of the post-Booker federal sentencing landscape.  As I have noted in posts listed below, there are lots of new (and old) issues and questions left unresolved by Rita:

• Rita has something for everyone (except Victor Rita)
• The sweet(?) mysteries of Rita... annotated
• Are within-guideline crack sentences now presumptively unreasonable after Rita?
• New (or renewed) ideas and arguments suggested by Rita

As first noted here and detailed here, Gregory Nicolaysen of the Association of Federal Defense Attorneys (AFDA), has organized an audio webcast for today at 12noon EDT to allow me to discuss some of these post-Rita issues and the ruling's possible aftermath.

New (or renewed) ideas and arguments suggested by Rita

Drawing in part on the mysteries of Rita and issues left unresolved, here is a (surely incomplete) list of new or renewed ideas and arguments suggested by the Supreme Court's work in Rita.

Some new or renewed ideas and arguments for District Courts:

1. After Booker, a district court may not legally presume that the guidelines sentence should be given (and may commit reversible error if guidelines are given presumptive force at initial sentencing).  Slip op. at 12.

2. The guideline sentence ought not be given, and a traditional departure is justified, if the offense or offender is "atypical" and thus not within the "mine-run of similar" cases.  Slip op. at 4, 20.

3. Even when a traditional departure is not justified, a non-guideline sentence can be appropriate "because the Guidelines sentence itself fails properly to reflect §3553(a) considerations, or perhaps because the case warrants a different sentence regardless."  Slip op. at 12.

4. The district court must exercise "reasoned sentencing judgment" by making "an effort to filter the Guidelines' general advice through §3553(a)'s list of factors" and by subjecting the "defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure."  Slip op. at 12, 18-19.

5. Cases involving "straightforward, conceptually simple arguments" may generally require only a "brief" statement of reasons; cases with complicated issues may generally require "the judge to write more extensively."  Slip op. at 17, 20.

Some new or renewed ideas and arguments for Circuit Courts:

1. Any presumption of unreasonableness has to be non-binding and should not be used to "insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case."  Slip op. at 7.

2. After Booker, a circuit court reviewing a within-guideline sentence may fairly "assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  Slip op. at 11.

3. Despite the "rough approximation" of the Guidelines, there must be some within-guideline that do not achieve §3553(a)'s objectives and circuit courts have to identify the "times" when district judges impose sentences that are unreasonable.  Slip op. at 14.

4. Apart from reasonableness concerns, defendants can bring — and should sometimes prevail with? —  "as-applied Sixth Amendment challenges" to within-guideline sentences.  Slip op. at 14-15; Scalia concurrence at 8-9.

5. Defendants can bring — and should sometimes prevail with? — arguments that a "Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant."  Slip op. at 21.

Readers are, of course, welcome and encouraged to use the comments to identify other new or renewed Booker ideas and arguments in Rita's wake.

Circuit splitting headaches after Rita

In this post last year, I noted four major circuit splits on basic and fundamentally important post-Booker issues.  Ironically, the opinion for the Court in Rita did not resolve the one circuit split that the case seemed poised to address, but the opinion does indirectly suggest resolution of two other splits.  Let me review:

1.  The presumption of reasonableness:  As discussed here and here, Rita declared permissible a non-binding appellate presumption that within-guideline sentences are reasonable.  But Rita did not demand, or even suggest, that circuit must apply such a presumption.  Rita also arguably added confusion about how the presumption should operate and how it can be rebutted on appeal.

2.  The persistence of Rule 32(h):  The circuits are nearly evenly split on whether Rule 32(h) requires a district court to give advance notice before varying from the advisory guidelines range.  Though Rita does not formally address this issue, the opinion cites Rule 32 when asserting that, post-Booker, sentencing decision-making should be subject to "the thorough adversarial testing contemplated by federal sentencing procedure."  The Rita opinion also cites Burns , saying it recognizes the "importance of notice and meaningful opportunity to be heard at sentencing."  Thus, it seem that the Rita Court favors the view of circuits applying Rule 32(h) to variances.

3.  The role of "traditional" departures:  As previously noted here, Rita suggests the continued validity of "traditional" departure analysis after Booker, and thus casts serious doubt on the Seventh Circuit's repeated assertion that departures are obsolete after Booker.   As I long ago discussed here and here, this is practically a very important issue that needs to settled in order to have a uniform and consistent federal sentencing system.

4.  The applicable version of the guidelines:  Rite does not address directly or even indirectly the Seventh Circuit's view (discussed here and here) that, after Booker, district courts should apply the most recent version of the now-advisory guidelines even when they recommend a longer sentence than the guidelines applicable at the time of the defendant's crime.  Other courts and litigants have been operating under the pre-Booker rules for using the guidelines applicable at the time of the crime.

There have been, of course, lots of other post-Booker splits in the district courts about crack sentencing, fast-track policies, acquitted conduct, burdens of proof and other large and small issues.  These specific substantive issues are not addressed at all in Rita (though such issues may arise indirectly in the Court's forthcoming work in Gall and Kimbrough).

In short, Rita clearly resolved very few issues that have embroiled lower courts after Booker, and yet arguably it did stir up some still-simmering debates.  It will be very interesting to see how different circuits come to integrate Rita into their existing post-Booker jurisprudence.  I suspect most circuits will find ways to read Rita to confirm and ratify their particular circuit's chosen post-Booker doctrines.

AFDA webcast on Rita

As detailed on this page, Gregory Nicolaysen, the founder of the Association of Federal Defense Attorneys (AFDA), has organized an audio webcast for this Monday (June 25) at 12noon EDT to allow me to discuss Rita and its possible aftermath.  (Unlike other groups seeking big bucks for such webcasts, the AFDA only charges a nominal fee for participating and the webcast is made available free to all federal court personnel, federal public defenders, and full-time law professors and students.)

Though I plan primarily to recap and expand upon much of the Rita commentary already appearing on the blog, 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.

More strong Rita analysis at SCOTUSblog

All the post-Rita analysis at SCOTUSblog yesterday was fantastic, and the strong insights continue to flow today with new posts from Jeff Fisher and from Carissa Byrne Hessick and F. Andrew Hessick.  These paragraphs from the Hessick's effectively spotlight some particularly important appellate realities after Rita:

Rita does not say that the circuits have to adopt the presumption of reasonableness.  Indeed, the Court appears to have been careful in its phrasing, stating that the question was whether a court of appeals "may apply a presumption of reasonableness" to a district court sentence that reflects a proper application of the Sentencing Guidelines and that the presumption is "nonbinding" --- which seems to mean that a circuit that has adopted the presumption need not follow it.

This seems a little odd.  Certiorari is usually granted to resolve differences in the circuits; but Rita appears to endorse differing treatment in different circuits.  The differing treatment also seems at odds with the goal of uniformity under §3553(a).  Basically everyone agrees that the presumption will result in more guidelines sentences in the district courts located in circuits that have adopted the presumption (Souter's dissent says this is bad; Breyer's majority says that it is good).  By contrast, guideline sentences will be less common in those circuits without the presumption.  It seems entirely possible that sentences for similarly situated individuals may vary depending on whether the sentencing court is in a presumption circuit.

Added to this foreordained split and potential for disparate sentences is Rita's failure, as David Stras observes, to explain what the presumption of reasonableness means.  Given the Court's statements that the presumption is not binding, something akin to Skidmore deference seems to be the best candidate.  But we can't be sure.  All that can be gleaned from Rita is that the presumption means that circuits have the option of concluding --- without conducting much analysis --- that within guideline sentences are lawful.  The lack of guidance plus the potential for disparity seems a good recipe for future Supreme Court intervention.

A few other related Rita analysis posts:

• The sweet(?) mysteries of Rita... annotated
• Are within-guideline crack sentences now presumptively unreasonable after Rita?
• Rita has something for everyone (except Victor Rita)
• Rita recap ... for now

Whither (or wither) Apprendi-Blakely rights in coming constitutional sentencing fights?

One (of many?) reasons why the Supreme Court's Sixth Amendment jurisprudence has been so quirky and unpredictable has the the fact that the Court has been, from the very beginning and even in all state cases, shadow-boxing about the validity, viability, virtues and vices of the federal sentencing guidelines.  Ever the persistent cutman, Justice Breyer has managed through the Booker remedy and his Rita opinion to keep the federal guidelines standing in round after round of the (now decade-old) modern Sixth Amendment jurisprudential bout.  (And, because of their procedural posture and facts, it seems very unlikely that Gall or Kimbrough could deliver a constitutional knock-out blow to the federal sentencing guidelines). 

But, as evidenced by rulings like Cunningham, Justice Breyer has limited ability to prevent — and perhaps limited interest in preventing — the Court's Sixth Amendment jurisprudence from knocking down other structured sentencing reforms.  And yet, even though Cunningham majority opinion had six votes for a seemingly strong view of the Court's Sixth Amendment work, reading all the opinions in Rita gives me the impression that only three Justices (Justices Scalia, Souter and Thomas) are deeply concerned with safeguarding, in Justice Souter's words, "the guarantee of a robust right of jury trial."

In the wake of Rita, I ultimately think we will need to await a district non-federal-guidelines case to know where the Court is prepared to go with its Apprendi-Blakely jurisprudence (e.g., a case dealing with the scope of the prior conviction exception or Blakely's applicability to supervised release revocation or to restitution awards). With the federal guidelines now likely to surviving — even though they may end up significantly bruised after Gall and Kimbrough get in their blows — perhaps Justice Breyer (and others in the Rita majority) will be prepared to spend more time in Apprendi land when the fate of the federal sentencing guidelines do not hang in the balance.

On second read, evidence of Breyer brilliance in Rita

As I re-read Justice Breyer's opinion for the Court in Rita, a particular sentence (at slip op. 18-19) kept drawing my attention:

[The sentencing judge's] reasoned sentencing judgment, resting upon an effort to filter the Guidelines' general advice through §3553(a)'s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission.

Because this phrasing sounded strangely familiar, I went back to the amicus brief I primarily authored and found this sentence describing my vision of post-Booker sentencing realities:

Booker thus now requires judges to exercise reasoned sentencing judgment by filtering the Guidelines' advice through the dynamic, multi-faceted, purpose-oriented provisions of §3553(a).

The Rita Court's repeated emphasis on judicial sentencing decisions as "reasoned decisions" (see slip op. at 17-19) leads me to conclude that Rita has largely embraced my vision (as well as my nomenclature) for understanding Booker and how Booker reshaped the federal sentencing universe.  A fuller account of this vision appears not only this amicus brief, but also in these recent law review pieces:

• Making Sentencing Sensible, 4 Ohio State Journal of Criminal Law 37 (2006) (with Professor Stephanos Bibas)
• Reasoning Through Reasonableness, 115 Yale Law Journal Pocket Part 142 (2006).
• Conceptualizing Booker, 38 Arizona State Law Journal 387 (2006)
• Beyond Blakely and Booker: Pondering Modern Sentencing Process, 95 Journal of Criminal Law and Criminology 654 (2005)

The sweet(?) mysteries of Rita... annotated

A delicious French beer with dinner has not helped me fully understand the Rita opinion for the Court.  Here are some of the mysterious passages from Justice Breyer that I hope readers might help me understand:

MYSTERY #1, Rita opinion at slip op. at 7, 11: "For one thing, the presumption is not binding.  It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case.... [T]he presumption applies only on appellate review."

• Berman's questions: Is there a different between binding and non-binding presumptions that apply on appeal?   Are there any other examples of appellate presumptions in the law?  Does this mean it is wrong for circuit courts to say, as they often do, that defendants bear the burden of rebutting the presumption of reasonableness or else they lose their appeal of a within-guideline sentence?

MYSTERY #2, Rita opinion at slip op. at 12: "[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."

• Berman's question: Does this mean a district court has erred (and should be reversed on appeal) if and whenever it says to a defendant that it is following the guidelines because the defendant has failed to provide a good reason not to?

MYSTERY #3, Rita opinion at slip op. at 14: "In sentencing, as in other areas, district judges at time [sic] make mistakes that are substantive.  At times, they will impose sentences that are unreasonable.  Circuit courts exist to correct such mistakes when they occur."

• Berman's questions: Does this mean that circuit court have to start reversing some within-guideline sentences as unreasonable?  In the 2+ years since Booker, not a single district court within-guideline sentence has been found substantively unreasonable on appeal; is SCOTUS suggesting that circuit courts have failed to recognize and correct district courts those (rare? not-so-rare?) "times" when district courts have made substantive mistakes by imposing unreasonable within-guideline sentences?

MYSTERY #4, Rita opinion at slip op. at 20:  "Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively."

• Berman's questions: Does this mean that, in conceptually complicated cases with less clear records, the law requires a district judge to write more extensively to justify a within-guideline sentence?  And what might make a case conceptually complicated: intricate guideline calculations, acquitted conduct enhancements, a Sentencing Commission report on point, clever arguments by counsel?   

MYSTERY #5, Rita opinion at slip op. at 21:  "Rita and supporting amici here claim that the Guidelines sentence is not reasonable under §3553(a) because it expressly declines to consider various personal characteristics of the defendant, such as physical condition, employment record, and military service, under the view that these factors are 'not ordinarily relevant.'  USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it."

• Berman's questions: What exactly would Rita and his counsel have had to say/assert to make "this argument" below?  Might Rita have won at least a remand from SCOTUS if he had made "this argument" below?  Did Lewis Libby sufficiently make "this argument" at his sentencing before Judge Walton in order to preserve the issue for consideration on appeal?

if you think you can help solve these mysteries, please first identify in your comments which mystery you are addressing in an effort to help me (and others) obtain Rita clarity.

Rita recap ... for now

Talking to colleagues and thinking about all this stuff more has generated dozens more Rita reactions in my sad little head.  But, I now need some time to digest (both ideas and food).  So, I'll sign off for a while by encouraging review of this post by Kate Stith and this post by David Stras on Rita at SCOTUSblog and also by recapping my own Rita work so far today:

• Anticipating Rita reactions
• Rita is here and... also the opinion(s) in Rita
• Rita has something for everyone (except Victor Rita)
• The notable Justices not barking in Rita
• When and how will lower court judges construct the post-Rita world?
• Another first view of Rita
• The one circuit indirectly reversed in Rita
• Are within-guideline crack sentences now presumptively unreasonable after Rita?

Whew...

Are within-guideline crack sentences now presumptively unreasonable after Rita?

As I have stressed repeatedly before (most recently here), the US Sentencing Commission has said officially, repeatedly and emphatically that the current crack guidelines are too harsh and thus "significantly undermine[] the various congressional objectives set forth in the Sentencing Reform Act."  (And, as detailed here and this archive, the USSC has this year put its long-held expert opinion into action by amending the guidelines, effective November 1, to lower all crack guideline ranges across the board.)

In Rita (opinion here), Justice Breyer's opinion for the Court speaks approvingly of arguments from counsel that "the Guidelines sentence itself fails properly to reflect §3553(a) considerations" and/or that "the Guidelines reflect an unsound judgment."  The Rita opinion for the Court further explains that "where judge and Commission both determine that the Guidelines sentences is an appropriate sentence for the case at hand, that sentence likely reflects the §3553(a) factors (including its 'not greater than necessary' requirement)."

Adding all this up — and again keeping in mind the USSC's own official, repeated and emphatic assertions that the crack guidelines are "greater than necessary" to achieve serve §3553(a) — shouldn't a circuit court view a within-guideline crack sentences as presumptively unreasonable?  Of course, after Rita, a district judge surely would have discretion, in the course of "exercising his own legal decisionmaking authority" to explain why he or she believes that, on the facts of a particular case, a defendant's sentence should be within or even above the current crack range.  But, unless and until a district judge explains why it is imposing a sentence that the Commission has officially, repeatedly and emphatically deemed inappropriate, I think that sentence logically ought to be reversed as greater than necessary.

Rita reactions around the blogosphere

Here are some early reactions to the Rita decision from sites on my blogroll:

• Lyle Denniston here at SCOTUSblog
• Mark Osler here at SCOTUSblog
• Steve Kalar here on the Ninth Circuit Blog
• Orin Kerr here at the Volokh Conspiracy
• Peter Henning here on the White Collar Crime Prof Blog
• Kent Scheidegger here on Crime and Consequences

Feel free to comment on the commentary or to note other good blog analysis in the comments.

The one circuit indirectly reversed in Rita

As I first noted here, the Supreme Court's decision in Rita upholds the Fourth Circuit's decision to adopt a presumption of reasonableness for within-guideline sentences, but also indirectly approves of other circuits' decisions to resist adopting this presumption.  So, it might seem that all circuit approaches to post-Booker law and practice have been sanctioned by Rita. 

But, because the Rita decision suggests the continued validity of "traditional" departure analysis after Booker, one of the Seventh Circuit's post-Booker views has been indirectly reversed.  Recall that the Seventh Circuit has said repeatedly that departures are obsolete after Booker, and this seem to be plain wrong after Rita.  (Notably, the Ninth Circuit also seemed to agree on this point, though less emphatically and it still have a pending en banc action to sort through post-Booker/Rita realities for its district courts.)

Another first view of Rita

My always very thoughtful colleague Alan Michaels sent me (and allowed me to post) this reaction to Rita:

Having read all the opinions, but once only so far, I think you are completely correct to emphasize the importance of lower-court reaction to Rita.

On the one hand, the Court's opinion, which six Justices joined, makes it clear that within Guidelines sentences will continue to not be reversed easily.  The Guidelines thus provide a safe-harbor for district judges, as well as a possible labor-saver, since it seems a within Guidelines sentence requires less explanation by the District Judge.  As both majority and dissent acknowledge, this could well encourage within Guideline sentences.

On the other hand, five Justices argue for broad discretion for district judges to go outside the Guidelines (on an abuse of discretion standard or even less review).  One can certainly argue that, in some ways, the Stevens opinion is the controlling one, at least to the extent that it empahsizes the scope of district court discretion, since Scalia, Thomas and Souter wanted more. Moreover, even the Court's opinion (perhaps to keep the votes of Stevens and Ginsburg) is careful to disavow any statement that district judges are constrained by the Guidelines. This suggests that a District Judge of a mind to give a sentence above or below the Guidelines will get the leeway to do so.

Whether district judges follow one path or the other will, as you say, determine the significance (though, of course, Gall could give them a push).

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

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

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

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

The notable Justices not barking in Rita

Though Rita has something for everyone (and, arguably, nothing for everyone) focused on federal sentencing issues, it has very little for folks deeply interested in figuring the deeper views of particular Justices.  Specifically, I am intrigued — and somewhat disappointed as an academic — that Chief Justice Roberts and Justices Kennedy, Ginsburg and Alito are all quiet in Rita.

Rita has something for everyone (except Victor Rita)

Though I am going to have to read all the opinions a few more times to really take stock of what's here, my first reaction to the Rita decision (basics here) is that it has something for everyone except Mr. Victor Rita.  Indeed, for an opinion that many hoped could help clarify post-Booker sentencing realities, Rita strikes me as more likely to create continued confusion because everyone will be able to find some passages to their liking.  Let me explain:

On the one hand, those circuits that have been applying a presumption of reasonableness to within-guideline sentences now have conclusive authority that they can continue to do so.  However, the opinion for the Court in Rita does not say that those circuits which have resisted this presumption have to adopt the presumption (though I would suspect some now might).

But, on the other hand, and perhaps even more importantly as a practical matter, the opinion for the Court in Rita suggests that at least some within-guideline sentences in some cases have to be, at some point, found unreasonable by circuit courts.  Justice Stevens makes this point explicitly when he says that the Court's opinion "makes clear ... that the rebuttability of the presumption is real."  The fact that the opinion of the Court rejects Justice Scalia's suggestion that reasonableness review is only procedural provides additional fodder for those defendants, on appeal, asserting that their within-guideline sentence is unreasonable.

And yet, the opinion for the Court lauds the Sentencing Commission for its "serious, sometimes controversial" efforts to carry out its mandate "to embody in the Guidelines the factors and considerations set forth in 3553(a)," and it asserts that "it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  (It is fair to assume that this sentence, insofar as practicable, might achieve a rough record for the number of qualifiers in an important sentence.)

But still, and perhaps even more importantly as a practical matter, the opinion for the Court suggests it is quite possible to make the argument that a particular "Guidelines sentence itself fails properly to reflect §3553(a) considerations" and that "the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply."

Also, just in case anyone was looking for some procedural clarity, we also are told that "a statement of reasons is important," perhaps especially so if a party "argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way." And yet, the "appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances," which sometimes "will call for a brief explanation" and other times "will call for a lengthier explanation."

Got that everyone?