Guidelines Appeals: the presumption of reasonableness and reasonable doubt
A number of circuits have now decided that, in reviewing a sentence for reasonableness, the defendant must overcome a rebuttable presumption that a sentence within the Guidelines range is reasonable (as blogged by Professor Berman here). The Third and maybe the Eleventh Circuit disagree. The Ninth Circuit retracted a footnote buying into the presumption in Velasquez-Guerrero. The presumption of reasonableness is problematic for several reasons. The text of the Booker remedial opinion appears to specifically contemplate a reasonableness review unfettered by any presumption that a guideline sentence is reasonable. Such a presumption would recapitulate the same type of authority the mandatory guidelines had over the ultimate sentence. And the presumption some circuits are reading into the guidelines is the type of presumption that the Supreme Court has only permitted in criminal cases where the relevant facts have been proved beyond a reasonable doubt. For those circuits in which the judicial gloss of a presumption has been adopted, we have even stronger reasons for asserting the reasonable doubt standard at sentencing, both under the Doctrine of Constitutional Avoidance and directly under Winship (as blogged here, here, here, here, and here).
The Presumption Has No Basis In Booker Or The Statutes
The cases creating a presumption of reasonableness find no support in statutes or in the Booker opinion. On the contrary, Justice Breyer’s remedial Booker opinion contemplates a reasonableness review unencumbered by special deference for the guidelines. After the excision of the mandatory portions of the guidelines, the Court noted that the remaining appellate rights did not accord special deference to the guidelines over other relevant sentencing factors: " [T]he Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))." 125 S.Ct. at 765.
Justice Breyer clearly stated that, with § 3742(e) excised, the standard of review would have to be implied from the remainder of the statute, which did not include special consideration for the Guidelines range. He pointed out that, under the old regime, appellate judges reviewed for reasonableness both the degree of departures and sentences for crimes without guidelines -- 16.7% of sentencing appeals. Justice Breyer then stated that this same standard would apply to all sentencing appeals "across the board": "And that is why we believe that appellate judges will prove capable of facing with greater equanimity than would Justice Scalia what he calls the ‘daunting prospect,’ [] of applying such a standard across the board." 125 S.Ct. at 766.
In fact, a presumption of reasonableness negates what Justice Breyer saw as the check on discordance in the system. The Sentencing Commission would "continue to collect and study appellate court decisionmaking." Based on the untrammeled reasonableness review, the Sentencing Commission could modify the guidelines, "encouraging what it finds to be better sentencing practices." A judicial presumption would skew the data, rather than inform the supervising body regarding areas in need of adjustment. And the sacrifice of some uniformity is the necessary consequence of refusal to accord Sixth Amendment protections to sentence-enhancing facts: "We cannot and do not claim that use of a ‘reasonableness’ standard will provide the uniformity that Congress originally sought to secure." 125 S.Ct. at 766-67.
The Originating Cases Failed To Establish A Doctrinal Source For A Presumption.
So where did this presumption of reasonableness come from? Tracing back the precedent, there is nothing but a general citation to Booker and uniformity to support this radical curtailment of appellate rights. You can link to a diagram charting the spread of what I think we should call the Presumption of Reasonableness Virus (PRV) here. When a questionable proposition begins to harden into law, it is useful to trace the cases back to see the force of reasoning or precedent in the originating cases. The diffusion of the PRV is a classic: the cases that have exploded into publication in the last several weeks all have their origins in three cases, none of which rely on any statute or Booker holding.
The PRV began in three separate cases decided within a month of each other in the summer of 2005: Mykytiuk (415 F.3d 606) in the Seventh Circuit; Lincoln in the Eighth Circuit; and Gonzalez (unpublished, 134 Fed. Appx. 595) in the Third Circuit. The Gonzalez case has now been rejected by the Third Circuit in Cooper, which explicitly disclaims any presumption of reasonableness. Mykytiuk just cited generally to Booker, then spelled out the PRV with no language or reasoning other than the importance of uniformity under the Guidelines system; Lincoln provided a "Cf." cite to a footnote in a previous case on the need to compute the guidelines correctly to make a reasonableness determination. From this dearth of authority, the PRV has been replicated without analysis, incubating in numerous unpublished opinions before the recent outbreak, which has suddenly resulted in a plurality rule.
The presumption of reasonableness emerged in the Ninth Circuit as dicta in a footnote before the court filed an amended opinion deleting the reference in Velasquez-Guerrero (as blogged here). The Ninth Circuit got it right several days earlier in Cantrell, in which the Court pointed out that, after Booker, review must be based on all the § 3553(a) factors circumstances with no special status for the guideline range. The PRV source cases do not support the extreme step of adding an anti-defendant presumption to sentencing appeals.
The Presumption Of Reasonableness Invites Sixth Amendment Violations Through The Back Door.
As pointed out in Justice Stevens’ merits opinion in Booker, the mandatory guidelines system was not really mandatory – judges were allowed to depart based on a wide range of circumstances. Some departures were encouraged, others were discouraged, and some simply involved facts outside of the heartland for the particular offense. Justice Stevens noted that, superficially, the judge’s ability to depart made the statutory maximum the relevant maximum under an Apprendi analysis. But because departures are not available in every case, and because in most cases the Guidelines account for all relevant factors, the significance of the Guidelines on an individual’s freedom required full Sixth Amendment trial rights for facts that increased the offense level. A presumption that a sentence within the Guidelines range is reasonable implicates the same interest in liberty that was decisive in Booker. The deference for the Guidelines range created by a judicial presumption is difficult to distinguish from the mandatory Guidelines denounced in the first Booker opinion. In fact, the Sentencing Commission characterized the pre-Booker regime as "presumptive" sentencing in its recent 15-year report (here at page 7).
Even without the presumption, some judges’ deference for the Guidelines jeopardizes Sixth Amendment rights. Some district court judges have freed themselves from the guidelines while others hold tight with an icy grip. The range of authority accorded the Guidelines range makes Sixth Amendment review a moving target – and provides one of the strongest arguments for a reasonable doubt standard. The circuit courts have demonstrated notable reluctance to give effect to Apprendi and its progeny – especially in the context of retroactivity (as blogged here). By solidifying the Guidelines’ force into a presumption, the courts are again failing to give full effect to the Supreme Court’s Sixth Amendment jurisprudence.
A Presumption Of Reasonableness Requires Proof Of Enhancing Factors Beyond A Reasonable Doubt.
Let’s assume that a sentence within the Guidelines range is protected by a presumption of reasonableness on appellate review. Even aside from the Booker substantive opinion, doesn’t such an effect require that the necessary facts for the Guidelines range to apply be proved beyond a reasonable doubt? In the context of burden shifting presumptions in criminal cases, the Supreme Court has consistently articulated a standard that permits the government to shift the burden to the defendant only if the operative facts for harsher punishment have been proved beyond a reasonable doubt.
In Ulster County v. Allen, the Court distinguished between permissive inferences or presumptions – which place no burden on the defendant – and mandatory presumptions – which are "a far more troublesome evidentiary device" because they affect both the burden of proof and the allocation of proof. "For it may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." 442 U.S. at 159. The judicial presumption of Guidelines’ reasonableness has the same effect: without necessarily requiring proof of the operative facts beyond a reasonable doubt, the burden shifts to the defendant to show that the sentence based on constitutionally unreliable facts is unreasonable.
The analysis is similar to a comparison between Mullaney – one of the pillars upon which Apprendi was built – and its doppelganger Patterson. In Mullaney, under peculiarities of Maine state law, the defendant bore the burden of proving by a preponderance heat of passion or sudden provocation, which would negate malice aforethought necessary for a murder conviction. In a resounding elaboration on the importance of the reasonable doubt standard, the Court reversed because the allocation of the burden of proof unconstitutionally diluted the government’s obligation to prove malice aforethought to the jury beyond a reasonable doubt. As summarized in Patterson, "Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation."
In contrast, in Patterson, the Court upheld the shifting of the burden of proof to the defendant to establish manslaughter facts once the government proved intentional murder beyond a reasonable doubt. The key to the Court’s analysis was that the State had proved all the facts necessary for the greatest punishment beyond a reasonable doubt: "The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder"; "if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances." Just as "it is not in the province of a legislature to declare an individual guilty or presumptively guilty of a crime," the judiciary is not authorized to create a presumption based on facts – usually constituting separate crimes – not proved beyond a reasonable doubt.
The Supreme Court’s cases on presumptions and burden shifting have consistently provided maximum protection to the reasonable doubt standard. In Sandstrom and Francis, the Court held that a presumption that diluted the State’s burden of proof required reversal under Winship and Patterson. The rights at issue were so fundamental that the Court applied them retroactively in Yates. Yet the circuit courts appear to be stampeding toward a standard for appellate review that derogates those same rights, with no statutory or Supreme Court support for the judicial creation of the presumption.
The fashion for a presumption of reasonableness may pass or it may catch on. Either way, we need to preserve the issue, both as an unauthorized judicial gloss on Booker and as another argument in favor of the reasonable doubt standard.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
The Presumption Has No Basis In Booker Or The Statutes
The cases creating a presumption of reasonableness find no support in statutes or in the Booker opinion. On the contrary, Justice Breyer’s remedial Booker opinion contemplates a reasonableness review unencumbered by special deference for the guidelines. After the excision of the mandatory portions of the guidelines, the Court noted that the remaining appellate rights did not accord special deference to the guidelines over other relevant sentencing factors: " [T]he Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))." 125 S.Ct. at 765.
Justice Breyer clearly stated that, with § 3742(e) excised, the standard of review would have to be implied from the remainder of the statute, which did not include special consideration for the Guidelines range. He pointed out that, under the old regime, appellate judges reviewed for reasonableness both the degree of departures and sentences for crimes without guidelines -- 16.7% of sentencing appeals. Justice Breyer then stated that this same standard would apply to all sentencing appeals "across the board": "And that is why we believe that appellate judges will prove capable of facing with greater equanimity than would Justice Scalia what he calls the ‘daunting prospect,’ [] of applying such a standard across the board." 125 S.Ct. at 766.
In fact, a presumption of reasonableness negates what Justice Breyer saw as the check on discordance in the system. The Sentencing Commission would "continue to collect and study appellate court decisionmaking." Based on the untrammeled reasonableness review, the Sentencing Commission could modify the guidelines, "encouraging what it finds to be better sentencing practices." A judicial presumption would skew the data, rather than inform the supervising body regarding areas in need of adjustment. And the sacrifice of some uniformity is the necessary consequence of refusal to accord Sixth Amendment protections to sentence-enhancing facts: "We cannot and do not claim that use of a ‘reasonableness’ standard will provide the uniformity that Congress originally sought to secure." 125 S.Ct. at 766-67.
The Originating Cases Failed To Establish A Doctrinal Source For A Presumption.
So where did this presumption of reasonableness come from? Tracing back the precedent, there is nothing but a general citation to Booker and uniformity to support this radical curtailment of appellate rights. You can link to a diagram charting the spread of what I think we should call the Presumption of Reasonableness Virus (PRV) here. When a questionable proposition begins to harden into law, it is useful to trace the cases back to see the force of reasoning or precedent in the originating cases. The diffusion of the PRV is a classic: the cases that have exploded into publication in the last several weeks all have their origins in three cases, none of which rely on any statute or Booker holding.
The PRV began in three separate cases decided within a month of each other in the summer of 2005: Mykytiuk (415 F.3d 606) in the Seventh Circuit; Lincoln in the Eighth Circuit; and Gonzalez (unpublished, 134 Fed. Appx. 595) in the Third Circuit. The Gonzalez case has now been rejected by the Third Circuit in Cooper, which explicitly disclaims any presumption of reasonableness. Mykytiuk just cited generally to Booker, then spelled out the PRV with no language or reasoning other than the importance of uniformity under the Guidelines system; Lincoln provided a "Cf." cite to a footnote in a previous case on the need to compute the guidelines correctly to make a reasonableness determination. From this dearth of authority, the PRV has been replicated without analysis, incubating in numerous unpublished opinions before the recent outbreak, which has suddenly resulted in a plurality rule.
The presumption of reasonableness emerged in the Ninth Circuit as dicta in a footnote before the court filed an amended opinion deleting the reference in Velasquez-Guerrero (as blogged here). The Ninth Circuit got it right several days earlier in Cantrell, in which the Court pointed out that, after Booker, review must be based on all the § 3553(a) factors circumstances with no special status for the guideline range. The PRV source cases do not support the extreme step of adding an anti-defendant presumption to sentencing appeals.
The Presumption Of Reasonableness Invites Sixth Amendment Violations Through The Back Door.
As pointed out in Justice Stevens’ merits opinion in Booker, the mandatory guidelines system was not really mandatory – judges were allowed to depart based on a wide range of circumstances. Some departures were encouraged, others were discouraged, and some simply involved facts outside of the heartland for the particular offense. Justice Stevens noted that, superficially, the judge’s ability to depart made the statutory maximum the relevant maximum under an Apprendi analysis. But because departures are not available in every case, and because in most cases the Guidelines account for all relevant factors, the significance of the Guidelines on an individual’s freedom required full Sixth Amendment trial rights for facts that increased the offense level. A presumption that a sentence within the Guidelines range is reasonable implicates the same interest in liberty that was decisive in Booker. The deference for the Guidelines range created by a judicial presumption is difficult to distinguish from the mandatory Guidelines denounced in the first Booker opinion. In fact, the Sentencing Commission characterized the pre-Booker regime as "presumptive" sentencing in its recent 15-year report (here at page 7).
Even without the presumption, some judges’ deference for the Guidelines jeopardizes Sixth Amendment rights. Some district court judges have freed themselves from the guidelines while others hold tight with an icy grip. The range of authority accorded the Guidelines range makes Sixth Amendment review a moving target – and provides one of the strongest arguments for a reasonable doubt standard. The circuit courts have demonstrated notable reluctance to give effect to Apprendi and its progeny – especially in the context of retroactivity (as blogged here). By solidifying the Guidelines’ force into a presumption, the courts are again failing to give full effect to the Supreme Court’s Sixth Amendment jurisprudence.
A Presumption Of Reasonableness Requires Proof Of Enhancing Factors Beyond A Reasonable Doubt.
Let’s assume that a sentence within the Guidelines range is protected by a presumption of reasonableness on appellate review. Even aside from the Booker substantive opinion, doesn’t such an effect require that the necessary facts for the Guidelines range to apply be proved beyond a reasonable doubt? In the context of burden shifting presumptions in criminal cases, the Supreme Court has consistently articulated a standard that permits the government to shift the burden to the defendant only if the operative facts for harsher punishment have been proved beyond a reasonable doubt.
In Ulster County v. Allen, the Court distinguished between permissive inferences or presumptions – which place no burden on the defendant – and mandatory presumptions – which are "a far more troublesome evidentiary device" because they affect both the burden of proof and the allocation of proof. "For it may affect not only the strength of the ‘no reasonable doubt’ burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." 442 U.S. at 159. The judicial presumption of Guidelines’ reasonableness has the same effect: without necessarily requiring proof of the operative facts beyond a reasonable doubt, the burden shifts to the defendant to show that the sentence based on constitutionally unreliable facts is unreasonable.
The analysis is similar to a comparison between Mullaney – one of the pillars upon which Apprendi was built – and its doppelganger Patterson. In Mullaney, under peculiarities of Maine state law, the defendant bore the burden of proving by a preponderance heat of passion or sudden provocation, which would negate malice aforethought necessary for a murder conviction. In a resounding elaboration on the importance of the reasonable doubt standard, the Court reversed because the allocation of the burden of proof unconstitutionally diluted the government’s obligation to prove malice aforethought to the jury beyond a reasonable doubt. As summarized in Patterson, "Wilbur’s due process rights had been invaded by the presumption casting upon him the burden of proving by a preponderance of the evidence that he had acted in the heat of passion upon sudden provocation."
In contrast, in Patterson, the Court upheld the shifting of the burden of proof to the defendant to establish manslaughter facts once the government proved intentional murder beyond a reasonable doubt. The key to the Court’s analysis was that the State had proved all the facts necessary for the greatest punishment beyond a reasonable doubt: "The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder"; "if the intentional killing is shown, the State intends to deal with the defendant as a murderer unless he demonstrates the mitigating circumstances." Just as "it is not in the province of a legislature to declare an individual guilty or presumptively guilty of a crime," the judiciary is not authorized to create a presumption based on facts – usually constituting separate crimes – not proved beyond a reasonable doubt.
The Supreme Court’s cases on presumptions and burden shifting have consistently provided maximum protection to the reasonable doubt standard. In Sandstrom and Francis, the Court held that a presumption that diluted the State’s burden of proof required reversal under Winship and Patterson. The rights at issue were so fundamental that the Court applied them retroactively in Yates. Yet the circuit courts appear to be stampeding toward a standard for appellate review that derogates those same rights, with no statutory or Supreme Court support for the judicial creation of the presumption.
The fashion for a presumption of reasonableness may pass or it may catch on. Either way, we need to preserve the issue, both as an unauthorized judicial gloss on Booker and as another argument in favor of the reasonable doubt standard.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
posted by Steve Sady at 2/22/2006 04:22:00 PM
4 Comments:
Steve: Your greatest work ever! A treasure. Coincidentally, I had been developing many (but not all) of the same thoughts for an amicus brief to be filed today in the 1st Cir en banc cases, Jimenez-Beltre and Scherrer.
As the defense attorney involved in the Marcussen and Lincoln cases in which the Eighth Circuit fashioned, out of thin air, the presumption of reasonableness, I too applaud your analysis. Interestingly, comments from the bench at a recent oral argument before the Eighth Circuit indicate to me that one of the judges responsible for propogating this presumption is having second thoughts about it, but the virus may have spread too far too fast to contain in the Eighth Circuit. I hope that the First Circuit can avoid becoming infected.
The Tenth Circuit, unfortunately, is now among the diseased, having recently adopted the rebuttable presumption.
What's the difference between a "presumption of reasonableness" and deferential review? Seems to me that a determination of reasonableness *can't* be anything but fact based. Do you think an appellate court should be conducting a de novo review of sentences?
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