Rita v. U.S.

Both cases were argued before the Court on Feb. 20, 2007. Before the Court could issue its decision in Claiborne, however, the petitioner was killed during a shooting. (Claiborne had already finished serving the below-Guidelines 15-month sentence imposed by the district judge in his case, but the Eighth Circuit had reversed that decision and he faced a re-sentencing that might have netted him between 37 and 46 months.) The Court dismissed his appeal as moot, but then promptly granted certiorari to consider the Claiborne question next Term in United States v. Gall, 446 F.3d 884 (8th Cir. 2006).

Rita

A jury convicted Victor Rita of perjury, false statements, and obstruction of justice relating to his grand jury testimony about his purchase of a kit that could be used to assemble a machine gun. Rita's Guidelines offense level was 33-41 months, but his attorneys argued that he should receive a lower, non-Guidelines sentence because: 1) Rita had worked as a criminal investigator for the INS and was therefore at risk of victimization in prison; 2) he had served in the Army, Marines, and Army Reserve for 25 years, including service in Vietnam and the Gulf War, earning almost three dozen medals and commendations; and 3) he suffered from diabetes and other physical ailments.

The district court judge nevertheless found that Rita's Guidelines offense level was not inappropriate, although he sentenced him at the lower end of the range. On Rita's appeal, the Fourth Circuit affirmed the district court's sentence in a short, unpublished decision under its precedents holding that a sentence imposed within a properly calculated Guidelines range 'is presumptively reasonable.' 2006 WL 1144508 (4th Cir. May 1, 2006). Six other federal courts of appeal ' those for the Fifth, Sixth, Seventh, Eighth, Tenth and District of Columbia Circuits ' had adopted a similar presumption since Booker. Four others ' the First, Second, Third, and Eleventh Circuits ' had declined to do so, and the Ninth Circuit had not squarely addressed the issue.

Writing for a majority of six Justices, Justice Stephen Breyer stated that the Fourth Circuit's presumption was permissible under Booker. 127 S. Ct. 2456 (2007). However, Justice Breyer went on to stress that this presumption 'is not binding' and does not 'reflect strong judicial deference of the kind that leads appeals courts to grant greater fact-finding leeway to an expert agency than to a district court judge.' Instead, the presumption simply reflects that where the Sentencing Commission and the district court have reached the same conclusion as to what sentence is appropriate in the case, this 'double determination significantly increases the likelihood that the sentence is a reasonable one.'

Justice Breyer further emphasized that not only is this a relatively weak presumption, but it is both discretionary and of limited applicability. While the federal appellate courts may adopt such a presumption, they are not required to do so. Moreover, the presumption applies only on appellate review, not in district court. A district judge may not use the presumption to avoid considering arguments that the sentencing factors set forth in 18 U.S.C. ' 3553(a) should lead to a non-Guidelines sentence. See United States v. Wilms, 'F.3d', 2007 WL 2077367 (6th Cir. 2007). Nor may a court of appeals treat every variance from the advisory Guidelines as presumptively unreasonable.

Other Post-Booker Issues

Rita also resolved a few other outstanding post-Booker issues. The Court made clear that 18 U.S.C. ' 3553(c) does not require a full written opinion in every sentencing, holding instead that the judge must simply say enough to satisfy the appellate court that he or she fully considered the parties' arguments and had a 'reasoned basis' for resolving factual disputes and selecting the sentence imposed. And while the circuit courts have disagreed as to whether downward departure analysis retains its vitality under the post-Booker sentencing regime, Rita appears to accept that downward departure analysis survives and remains distinct from the broader arguments for non-Guidelines sentences available under ' 3553(a).

After certiorari was granted in Rita, many prosecutors had feared ' and defense lawyers had fervently hoped ' that the Court might rule that the Sentencing Guidelines were entitled to no greater weight in the sentencing process than any of the other considerations cited in 18 U.S.C. ' 3553(a). Such a decision would likely have accelerated the gradual erosion of the Guidelines and would certainly have encouraged those district court judges who dislike the Guidelines to largely ignore them.

Instead, the Supreme Court gave the prosecution and defense each half a loaf, realizing neither's fondest hopes nor worst fears. Rita's long-term significance may simply be that it has bought some additional time for the advisory Guidelines system established by the Booker remedial opinion to try to prove itself.

Survey of Reasonableness Appeals

In concurring and dissenting opinions in Rita, Justices Stevens, Scalia, and Souter expressed concern that many district judges were still not fully availing themselves of the expanded authority conferred upon them by the Booker remedial decision. This concern was stoked by an amicus brief filed by the New York Council of Defense Lawyers (NYCDL), which reported the results of a survey of reasonableness appeals decided by the appellate courts during the first 10.5 months of 2006. (The survey can be found on line at http://www.lawjournalnewsletters.com/Admin/cgi-bin/udt/www.nycdl.org/%20itemcontent/booker/NYCDL_reasonableness_review.PDF

The NYCDL survey reported that almost all (95.5%) above-guidelines sentences appealed by defendants were affirmed, while 84.5% of below-Guidelines sentences challenged by the government on appeal were vacated. (Keep in mind, in evaluating these numbers, that defendants appeal virtually all of the small number of above-Guidelines sentences, whereas the government appeals a lesser percentage of the larger pool of below-Guidelines sentences.) Only 16 out of 1152 within-Guidelines sentences appealed by defendants were vacated, and most of those reversals involved a failure by the district court to provide an adequate statement of reasons for its sentence. As Justice Scalia pointed out, however, the NYCDL survey somewhat surprisingly indicates that there was virtually no difference in appellate outcomes between those circuits that had adopted a presumption of reasonableness and those that had not.

While the NYCDL survey indicates that appellate judges have been loath to disturb within-Guidelines sentences, it does not necessarily follow that district judges have been equally reluctant to sentence outside the Guidelines. Instead, the table below demonstrates, in many districts the rate of non-Government-sponsored below-Guidelines sentences have increased substantially between the immediate period prior to Booker and Blakely v. Washington, 542 U.S. 296 (2004), and the most recent post-Booker fiscal year.

These figures admittedly do not reflect the subsequent appellate reversals of some of these below-Guidelines sentences. But while it is clearly true that the intensity of the Booker effect varies from district to district (and doubtless from judge to judge), the Sentencing Commission's statistics indicate that Booker has had a real impact (though less revolutionary than some observers initially expected).

Conclusion

Looking ahead, next Term's decision in Gall will provide the Justices with a further opportunity to continue working through the implications of Booker. Whatever the precise holding in Gall, however, it seems likely that there will continue to be an uneven but nonetheless unmistakable increase in the numbers of non-Guidelines sentences.

[IMGCAP(1)]

Jefferson M. Gray, a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney in the District of Maryland. This article reflects only his individual analysis and conclusions and does not purport to speak for the Department of Justice or any of its divisions.

Two-and-a-half years ago, the Supreme Court ruled in the remedial portion of its bifurcated decision in U.S. v. Booker , 543 U.S. 220 (2005), that the system of federal Sentencing Guidelines established by the Sentencing Reform Act of 1984 could pass constitutional muster only if the Guidelines were treated as having advisory, rather than mandatory, effect. But Booker left open the question of how much weight the now advisory Guidelines should henceforth be given in a district court's sentencing calculus. Was the Guidelines offense level entitled to predominant weight, first in shaping, and then in reviewing, a district court's sentencing decision? Or should the Guidelines instead be treated as only one factor, entitled to no greater weight than the other half-dozen considerations set forth in 18 U.S.C. ' 3553(a)?

Last November, the Supreme Court granted writs of certiorari in two cases ' Rita v. United States, No. 06-5754 and Claiborne v. United States, No. 06-5618 ' that seemed likely to resolve this question. The main issue in Rita was whether it was consistent with Booker to accord a presumption of reasonableness to sentences within the range calculated under the Guidelines. Claiborne presented the related issue of whether appellate courts could require that a sentence constituting a substantial variance from the Guidelines be justified by extraordinary circumstances.

Claiborne

Both cases were argued before the Court on Feb. 20, 2007. Before the Court could issue its decision in Claiborne, however, the petitioner was killed during a shooting. (Claiborne had already finished serving the below-Guidelines 15-month sentence imposed by the district judge in his case, but the Eighth Circuit had reversed that decision and he faced a re-sentencing that might have netted him between 37 and 46 months.) The Court dismissed his appeal as moot, but then promptly granted certiorari to consider the Claiborne question next Term in United States v. Gall , 446 F.3d 884 (8th Cir. 2006).

Rita

A jury convicted Victor Rita of perjury, false statements, and obstruction of justice relating to his grand jury testimony about his purchase of a kit that could be used to assemble a machine gun. Rita's Guidelines offense level was 33-41 months, but his attorneys argued that he should receive a lower, non-Guidelines sentence because: 1) Rita had worked as a criminal investigator for the INS and was therefore at risk of victimization in prison; 2) he had served in the Army, Marines, and Army Reserve for 25 years, including service in Vietnam and the Gulf War, earning almost three dozen medals and commendations; and 3) he suffered from diabetes and other physical ailments.

The district court judge nevertheless found that Rita's Guidelines offense level was not inappropriate, although he sentenced him at the lower end of the range. On Rita's appeal, the Fourth Circuit affirmed the district court's sentence in a short, unpublished decision under its precedents holding that a sentence imposed within a properly calculated Guidelines range 'is presumptively reasonable.' 2006 WL 1144508 (4th Cir. May 1, 2006). Six other federal courts of appeal ' those for the Fifth, Sixth, Seventh, Eighth, Tenth and District of Columbia Circuits ' had adopted a similar presumption since Booker. Four others ' the First, Second, Third, and Eleventh Circuits ' had declined to do so, and the Ninth Circuit had not squarely addressed the issue.

Writing for a majority of six Justices, Justice Stephen Breyer stated that the Fourth Circuit's presumption was permissible under Booker. 127 S. Ct. 2456 (2007). However, Justice Breyer went on to stress that this presumption 'is not binding' and does not 'reflect strong judicial deference of the kind that leads appeals courts to grant greater fact-finding leeway to an expert agency than to a district court judge.' Instead, the presumption simply reflects that where the Sentencing Commission and the district court have reached the same conclusion as to what sentence is appropriate in the case, this 'double determination significantly increases the likelihood that the sentence is a reasonable one.'

Justice Breyer further emphasized that not only is this a relatively weak presumption, but it is both discretionary and of limited applicability. While the federal appellate courts may adopt such a presumption, they are not required to do so. Moreover, the presumption applies only on appellate review, not in district court. A district judge may not use the presumption to avoid considering arguments that the sentencing factors set forth in 18 U.S.C. ' 3553(a) should lead to a non-Guidelines sentence. See United States v. Wilms, 'F.3d', 2007 WL 2077367 (6th Cir. 2007). Nor may a court of appeals treat every variance from the advisory Guidelines as presumptively unreasonable.

Other Post-Booker Issues

Rita also resolved a few other outstanding post-Booker issues. The Court made clear that 18 U.S.C. ' 3553(c) does not require a full written opinion in every sentencing, holding instead that the judge must simply say enough to satisfy the appellate court that he or she fully considered the parties' arguments and had a 'reasoned basis' for resolving factual disputes and selecting the sentence imposed. And while the circuit courts have disagreed as to whether downward departure analysis retains its vitality under the post-Booker sentencing regime, Rita appears to accept that downward departure analysis survives and remains distinct from the broader arguments for non-Guidelines sentences available under ' 3553(a).

After certiorari was granted in Rita, many prosecutors had feared ' and defense lawyers had fervently hoped ' that the Court might rule that the Sentencing Guidelines were entitled to no greater weight in the sentencing process than any of the other considerations cited in 18 U.S.C. ' 3553(a). Such a decision would likely have accelerated the gradual erosion of the Guidelines and would certainly have encouraged those district court judges who dislike the Guidelines to largely ignore them.

Instead, the Supreme Court gave the prosecution and defense each half a loaf, realizing neither's fondest hopes nor worst fears. Rita's long-term significance may simply be that it has bought some additional time for the advisory Guidelines system established by the Booker remedial opinion to try to prove itself.

Survey of Reasonableness Appeals

In concurring and dissenting opinions in Rita, Justices Stevens, Scalia, and Souter expressed concern that many district judges were still not fully availing themselves of the expanded authority conferred upon them by the Booker remedial decision. This concern was stoked by an amicus brief filed by the New York Council of Defense Lawyers (NYCDL), which reported the results of a survey of reasonableness appeals decided by the appellate courts during the first 10.5 months of 2006. (The survey can be found on line at http://www.lawjournalnewsletters.com/Admin/cgi-bin/udt/www.nycdl.org/%20itemcontent/booker/NYCDL_reasonableness_review.PDF

The NYCDL survey reported that almost all (95.5%) above-guidelines sentences appealed by defendants were affirmed, while 84.5% of below-Guidelines sentences challenged by the government on appeal were vacated. (Keep in mind, in evaluating these numbers, that defendants appeal virtually all of the small number of above-Guidelines sentences, whereas the government appeals a lesser percentage of the larger pool of below-Guidelines sentences.) Only 16 out of 1152 within-Guidelines sentences appealed by defendants were vacated, and most of those reversals involved a failure by the district court to provide an adequate statement of reasons for its sentence. As Justice Scalia pointed out, however, the NYCDL survey somewhat surprisingly indicates that there was virtually no difference in appellate outcomes between those circuits that had adopted a presumption of reasonableness and those that had not.

While the NYCDL survey indicates that appellate judges have been loath to disturb within-Guidelines sentences, it does not necessarily follow that district judges have been equally reluctant to sentence outside the Guidelines. Instead, the table below demonstrates, in many districts the rate of non-Government-sponsored below-Guidelines sentences have increased substantially between the immediate period prior to Booker and Blakely v. Washington , 542 U.S. 296 (2004), and the most recent post- Booker fiscal year.

These figures admittedly do not reflect the subsequent appellate reversals of some of these below-Guidelines sentences. But while it is clearly true that the intensity of the Booker effect varies from district to district (and doubtless from judge to judge), the Sentencing Commission's statistics indicate that Booker has had a real impact (though less revolutionary than some observers initially expected).

Conclusion

Looking ahead, next Term's decision in Gall will provide the Justices with a further opportunity to continue working through the implications of Booker. Whatever the precise holding in Gall, however, it seems likely that there will continue to be an uneven but nonetheless unmistakable increase in the numbers of non-Guidelines sentences.

[IMGCAP(1)]

Jefferson M. Gray, a member of this newsletter's Board of Editors, is an Assistant U.S. Attorney in the District of Maryland. This article reflects only his individual analysis and conclusions and does not purport to speak for the Department of Justice or any of its divisions.