Whither the Guidelines?

These arguments are demonstrably inconsistent with the Fifth and Sixth Amendments, the language of the Sentencing Reform Act, and the record of the Commission's work. A system that is 'de facto' mandatory allows courts to find facts by a preponderance of evidence (such as the dollar amount of a fraud scheme) that drive the sentence to a particular level. But fact-finding is the province of the jury, not the judge, who must find such facts beyond a reasonable doubt. Put simply, the Fifth and Sixth Amendments are violated when the district court sentences for what amounts to an 'aggravated' version of the crime, but the jury was never asked to find all of the facts necessary for imposing that sentence.

Further, the Act itself requires a district court to impose the sentence that, in its own judgment, is 'sufficient but not greater than necessary' to satisfy the goals of sentencing. 'Uniformity' is but one consideration and cannot serve as the sole driving force behind sentencing. Even if it could, many commentators have recognized that the Guidelines suffer from a host of methodological flaws, including an overemphasis on retribution, making them a poor means by which to balance penological purposes specified in the statute or to ensure uniformity. The Commission itself has acknowledged that the Guidelines ' in their mandatory form ' did not achieve uniformity and, in fact, gave rise to significant disparities among sentences for similar conduct.

Nevertheless, DOJ has been remarkably successful in advocating the 'presumption of reasonableness.' A majority of the circuit courts of appeals have agreed that the desire for uniformity and deference to the Sentencing Commission warrant granting the Guidelines 'presumptive' or 'special' weight. These holdings have the effect of withdrawing the discretion that had been granted by Booker. A sentencing judge must, under these decisions, impose a sentence within the Guidelines range absent 'extraordinary' circumstances. See, e.g., United States v. Moreland, 437 F.3d 424, 434 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). The further outside of the Guidelines range the judge wishes to sentence, the more 'extraordinary' those circumstances must be. In the Rita and Claiborne cases, DOJ and the Commission seek to make their victories in some of these circuits the law of the land.

Not surprisingly, then, the statistics on recent sentences show little separation between the 'presumptive' and the 'mandatory' Guidelines. Of the 1152 post-Booker cases reviewed for the briefing in Rita and Claiborne, in only about 1% was a non-Guidelines sentence imposed. And, of those cases in which the government challenged the sentence on appeal, more than 85% were vacated. It is clear that courts still view themselves as bound by the Guidelines under the presumption of reasonableness.

More Mandatory Than Mandatory

In fact, district courts operating under the presumption of reasonableness may be said to have less discretion than they did in the pre-Booker 'mandatory' system. Prior to Booker, judges enjoyed limited discretion to sentence outside of the Guidelines based on circumstances 'not adequately taken into consideration' by the Guidelines. In other words, if the judge found that the facts of the case were not contemplated by the Sentencing Commission in drafting the Guidelines, the judge could impose a sentence outside of the original range.

Under the presumption of reasonableness, courts must still impose a sentence within the Guidelines range absent additional facts 'not adequately taken into consideration' by the Guidelines. However, even if the defendant is able to satisfy this threshold, he or she must now go on to prove that the facts are somehow 'extraordinary' in order to justify a variance. Indeed, this showing becomes more difficult as the proposed variance becomes larger. In this perverse way, imposing a non-Guidelines sentence after Booker is more difficult than before.

Rita and Claiborne

The cases of Rita and Claiborne, argued before the Supreme Court in February, illustrate the constraints imposed by the presumption of reasonableness. The defendants and offenses in these cases could hardly be more different. Mario Claiborne, 23, was convicted of drug distribution after selling a small quantity of narcotics to an undercover officer in St. Louis. Victor Rita, 59, was convicted of making two false statements to a grand jury during its investigation of a firearms retailer.

The link that binds these cases ' and the likely reason that the Court paired them for argument ' is the abundance of mitigating evidence in each. Mr. Claiborne is a devoted father with no criminal record; he became involved in drug distribution to raise money for his family. Mr. Rita is a decorated veteran of two foreign wars who suffers from multiple serious medical conditions; his two misstatements to the grand jury did not concern an offense with which he was charged and did not frustrate the government's efforts to prosecute that offense.

In both Rita and Claiborne, the lower courts recognized that the evidence militated in favor of a lesser sentence. Indeed, the district court in Claiborne said that imposing a higher, within-Guidelines sentence would be tantamount to 'throwing [him] away.' Nevertheless, in both cases the courts held that a within-Guidelines sentence ' over three years for Mr. Claiborne and nearly three years for Mr. Rita ' was necessary under the presumption of reasonableness.

Power of the Prosecutor

There is a simple explanation why DOJ pushes so hard for a return to the mandatory Guidelines. Power. Prosecutors enjoyed their immense discretion under the mandatory Guidelines to craft the boundaries of the final sentence. They could largely define the sentencing enhancements that would be sought and the evidence that would be produced. This offered significant leverage during plea negotiations.

Indeed, the decision to pursue or not to pursue a particular enhancement can have dramatic consequences. For Mr. Rita, for example, the prosecution's decision to pursue the 'accessory after the fact' enhancement ' alleging that because he had made false statements regarding the firearms retailer's conduct he was in effect guilty of the retailer's crimes ' doubled the range of imprisonment under the Guidelines.

The sentencing court is left largely on the sidelines in plea discussions. By the time the defendant is presented for sentencing, most of the important decisions concerning enhancements and evidence have already been made. Under a mandatory Guidelines system, power lies with the prosecutor. The prosecutor would like to keep it that way.

Conclusion

The presumption of reasonableness is a wolf in sheep's clothing. It enervates the spirit of Booker while superficially abiding by its letter. How the Supreme Court finally resolves this issue in Rita and Claiborne will likely affect not only sentencings for all crimes covered by the Guidelines, but also the balance of power in plea negotiations. The Court is expected to issue decisions in Rita and Claiborne by the end of June 2007.

Jeffrey T. Green ([email protected]), a member of this newsletter's Board of Editors, is a partner at Sidley Austin LLP in Washington, DC, and a member of the firm's White-Collar Practice Group. Quin M. Sorenson ([email protected]) is an associate and member of the firm's Appellate Practice Group. Both represent Victor Rita in his Supreme Court appeal.

You might be forgiven for concluding that the U.S. Sentencing Guidelines were largely a thing of the past following the Supreme Court's decision two years ago in United States v. Booker , 543 U.S. 220 (2005). The Court held that the Guidelines were purely advisory ' not mandatory ' and just one among many factors to be consulted in meting out a sentence under 18 U.S.C. ' 3553(a). Other factors specified in ' 3553(a) include such overarching considerations as deterrence, respect for the law, and potential for rehabilitation. Given the overt hostility previously expressed by sentencing courts to the Guidelines, you might have thought that the Guidelines had atrophied to the point of disuse. You'd be wrong. The Supreme Court is now considering two cases that may restore the Guidelines to their former position of dominance in sentencing proceedings across the United States: Rita v. United States, No. 06-5754, and Claiborne v. United States, No. 06-5618.

Discretion Is Given, Then Taken Away

Following the Booker decision, DOJ and the Sentencing Comm- ission, which authored the Guidelines, made a tremendous effort to resurrect the Guidelines' primacy in the sentencing world. In seminars and meetings with district judges, and at sentencings, they proposed that, even if the Guidelines could no longer be treated as 'mandatory,' they could be viewed as 'presumptively reasonable' or accorded 'special weight.' Through these euphemisms, courts could continue to apply the Guidelines basically as they had before Booker ' as mandatory ' with only some additional, superficial wordplay. This approach was warranted, DOJ argued, because adherence to the Guidelines promotes 'uniformity' and recognizes the 'expertise' of the Sentencing Commission.

These arguments are demonstrably inconsistent with the Fifth and Sixth Amendments, the language of the Sentencing Reform Act, and the record of the Commission's work. A system that is 'de facto' mandatory allows courts to find facts by a preponderance of evidence (such as the dollar amount of a fraud scheme) that drive the sentence to a particular level. But fact-finding is the province of the jury, not the judge, who must find such facts beyond a reasonable doubt. Put simply, the Fifth and Sixth Amendments are violated when the district court sentences for what amounts to an 'aggravated' version of the crime, but the jury was never asked to find all of the facts necessary for imposing that sentence.

Further, the Act itself requires a district court to impose the sentence that, in its own judgment, is 'sufficient but not greater than necessary' to satisfy the goals of sentencing. 'Uniformity' is but one consideration and cannot serve as the sole driving force behind sentencing. Even if it could, many commentators have recognized that the Guidelines suffer from a host of methodological flaws, including an overemphasis on retribution, making them a poor means by which to balance penological purposes specified in the statute or to ensure uniformity. The Commission itself has acknowledged that the Guidelines ' in their mandatory form ' did not achieve uniformity and, in fact, gave rise to significant disparities among sentences for similar conduct.

Nevertheless, DOJ has been remarkably successful in advocating the 'presumption of reasonableness.' A majority of the circuit courts of appeals have agreed that the desire for uniformity and deference to the Sentencing Commission warrant granting the Guidelines 'presumptive' or 'special' weight. These holdings have the effect of withdrawing the discretion that had been granted by Booker. A sentencing judge must, under these decisions, impose a sentence within the Guidelines range absent 'extraordinary' circumstances. See, e.g. , United States v. Moreland , 437 F.3d 424, 434 (4th Cir.), cert. denied , 126 S. Ct. 2054 (2006). The further outside of the Guidelines range the judge wishes to sentence, the more 'extraordinary' those circumstances must be. In the Rita and Claiborne cases, DOJ and the Commission seek to make their victories in some of these circuits the law of the land.

Not surprisingly, then, the statistics on recent sentences show little separation between the 'presumptive' and the 'mandatory' Guidelines. Of the 1152 post-Booker cases reviewed for the briefing in Rita and Claiborne, in only about 1% was a non-Guidelines sentence imposed. And, of those cases in which the government challenged the sentence on appeal, more than 85% were vacated. It is clear that courts still view themselves as bound by the Guidelines under the presumption of reasonableness.

More Mandatory Than Mandatory

In fact, district courts operating under the presumption of reasonableness may be said to have less discretion than they did in the pre-Booker 'mandatory' system. Prior to Booker, judges enjoyed limited discretion to sentence outside of the Guidelines based on circumstances 'not adequately taken into consideration' by the Guidelines. In other words, if the judge found that the facts of the case were not contemplated by the Sentencing Commission in drafting the Guidelines, the judge could impose a sentence outside of the original range.

Under the presumption of reasonableness, courts must still impose a sentence within the Guidelines range absent additional facts 'not adequately taken into consideration' by the Guidelines. However, even if the defendant is able to satisfy this threshold, he or she must now go on to prove that the facts are somehow 'extraordinary' in order to justify a variance. Indeed, this showing becomes more difficult as the proposed variance becomes larger. In this perverse way, imposing a non-Guidelines sentence after Booker is more difficult than before.

Rita and Claiborne

The cases of Rita and Claiborne, argued before the Supreme Court in February, illustrate the constraints imposed by the presumption of reasonableness. The defendants and offenses in these cases could hardly be more different. Mario Claiborne, 23, was convicted of drug distribution after selling a small quantity of narcotics to an undercover officer in St. Louis. Victor Rita, 59, was convicted of making two false statements to a grand jury during its investigation of a firearms retailer.

The link that binds these cases ' and the likely reason that the Court paired them for argument ' is the abundance of mitigating evidence in each. Mr. Claiborne is a devoted father with no criminal record; he became involved in drug distribution to raise money for his family. Mr. Rita is a decorated veteran of two foreign wars who suffers from multiple serious medical conditions; his two misstatements to the grand jury did not concern an offense with which he was charged and did not frustrate the government's efforts to prosecute that offense.

In both Rita and Claiborne, the lower courts recognized that the evidence militated in favor of a lesser sentence. Indeed, the district court in Claiborne said that imposing a higher, within-Guidelines sentence would be tantamount to 'throwing [him] away.' Nevertheless, in both cases the courts held that a within-Guidelines sentence ' over three years for Mr. Claiborne and nearly three years for Mr. Rita ' was necessary under the presumption of reasonableness.

Power of the Prosecutor

There is a simple explanation why DOJ pushes so hard for a return to the mandatory Guidelines. Power. Prosecutors enjoyed their immense discretion under the mandatory Guidelines to craft the boundaries of the final sentence. They could largely define the sentencing enhancements that would be sought and the evidence that would be produced. This offered significant leverage during plea negotiations.

Indeed, the decision to pursue or not to pursue a particular enhancement can have dramatic consequences. For Mr. Rita, for example, the prosecution's decision to pursue the 'accessory after the fact' enhancement ' alleging that because he had made false statements regarding the firearms retailer's conduct he was in effect guilty of the retailer's crimes ' doubled the range of imprisonment under the Guidelines.

The sentencing court is left largely on the sidelines in plea discussions. By the time the defendant is presented for sentencing, most of the important decisions concerning enhancements and evidence have already been made. Under a mandatory Guidelines system, power lies with the prosecutor. The prosecutor would like to keep it that way.

Conclusion

The presumption of reasonableness is a wolf in sheep's clothing. It enervates the spirit of Booker while superficially abiding by its letter. How the Supreme Court finally resolves this issue in Rita and Claiborne will likely affect not only sentencings for all crimes covered by the Guidelines, but also the balance of power in plea negotiations. The Court is expected to issue decisions in Rita and Claiborne by the end of June 2007.

Jeffrey T. Green ([email protected]), a member of this newsletter's Board of Editors, is a partner at Sidley Austin LLP in Washington, DC, and a member of the firm's White-Collar Practice Group. Quin M. Sorenson ([email protected]) is an associate and member of the firm's Appellate Practice Group. Both represent Victor Rita in his Supreme Court appeal.