(Not so Lovely) Rita: Non-binding presumption of reasonableness for non-binding guidelines doesn't violate non-binding constitution . . .

One shoe has dropped: Justice Breyer this morning explained that a non-binding appellate presumption that a guideline sentence is "reasonable" does not violate the Sixth Amendment. See Rita v. United States, 551 U.S. __ (June 21, 2007), decision available here. A good decision for Yankees fans suffering disparate sentences compared to Red Sox advocates -- pretty lousy for everyone else.

Zavala-Carty will be coming down by 3:52 this afternoon . . . .

Players: Justice Breyer authors main decision, joined by Roberts, Stevens, Kennedy, Ginsburg, and Alito.

Stevens concurs, sort of, joined by Ginsburg, sort of.

Scalia and Thomas concur, but really dissent.

Souter dissents (and speaks truth to power on what the decision really means for sentencing practice).

Facts: Victor Rita was charged with a variety of crimes arising from false statements he made before the grand jury, in relation to the purchase of a kit to make a machinegun. Rita v. United States, 551 U.S. __, Slip. Op. 1-2. (June 21, 2007). He was convicted after trial of perjury, making false statements, and obstructing justice. Id. at 2. The PSR provided a guideline calculation that put Rita at 33-41 months. Id. at 4. At sentencing, the defense argued for a lower sentence, based on -- among other things -- Rita's prior "government criminal justice" work, his military experience, and poor health. Id. at 5.

The district court framed the sentence as proceeding down one of two tracks. Either the defense was asking for a departure from the guideline range, or he was asking for a below-guideline sentence based on the 18 USC 3553(a) factors (a "Booker" sentence). Id. at 5-6. The district court found that neither course was "appropriate," and sentenced to thirty-three months. Id. at 6. Rita appealed.

The Fourth Circuit affirmed the sentence, stating, "a sentence imposed within the properly calculated Guidelines range . . . is presumptively reasonable." Id. at 6.

Issues:

1. Is a sentence within the properly calculated Guidelines range presumptively reasonable?

2. Does an appellate presumption of reasonableness violate Sixth Amendment rights, as stated in Apprendi and Booker?

3. To what extent must a district court explain his or her reasoning at sentencing, and was enough done here?

4. What this sentence, "reasonable?"

Held:

1."The first question is 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. We conclude that it can." Id. at 7.

2. "A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range. Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption." Id. at 14.

3. "In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority. See, e.g., United States v. Taylor, 487 U. S. 326, 336–337 (1988). Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation." Id. at 17.

4. "We turn to the final question: Was the Court of Appeals, after applying its presumption, legally correct in holding that Rita’s sentence (a sentence that applied, and did not depart from, the relevant sentencing Guideline) was not“unreasonable”? In our view, the Court of Appeals’ conclusion was lawful." Id. at 20.

Worthy of Note: The most important aspect of the decision is that Justice Breyer repeatedly emphasizes that this is only an appellate presumption of reasonableness. A district court may not presume that the guidelines are the correct sentence: he or she must start from scratch and consider all of the Section 3553(a) factors. "We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate “reasonableness” review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review." Id. at 11. "In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply." Id. at 12.

Justices Scalia and Souter offer some refreshing doses of reality as they opine whether district court judges will appreciate this distinction. See, e.g., Rita, (Souter, J., dissenting) at 7 ("Without a powerful reason to risk reversal on the sentence, a district judge faced with evidence supporting a high subrange Guidelines sentence will do the appropriate fact finding in disparagement of the jury right and will sentence within the high subrange. This prediction is weakened not a whit by the Court’s description of within-Guidelines reasonableness as an “appellate” presumption, ante, at 11 (emphasis deleted). What works on appeal determines what works at trial, and if the Sentencing Commission’s views are as weighty as the Court says they are, see ante, at 8–12, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range, see 18 U. S. C. §3553(c)(2) (2000 ed., Supp. IV).")

Also, note Justice Breyer's odd "retail" and "wholesale" description of how sentencing guidelines are made and implemented. This presumably makes the Guideline Commission the Costco of sentencing -- enjoy your Kirkland guideline range, "tailor made" for a just sentence.

How to Use: First, ignore the dissenters' (and our) cynical predictions, take Justice Breyer at his word, and rail against a district court's presumption that the guideline sentence is the reasonable course. That is the technical holding of the decision, even if we all know that the reality of practice is actually going to veer toward the "gravitational pull" of the guidelines post-haste.

Second, note that there are a fair share of outstanding issues left open in the opinion. Justice Scalia nicely flags the possibility of an "as applied" Sixth Amendment challenge -- let's start raising it. Rita, (Scalia, J., dissenting) at 8-9.

Finally, Justice Breyer describes what should happen at sentencing: the court should impose a guideline sentence, or a Section 3553(a) sentence, or a "different sentence regardless." Rita, Slip Op. at 12. This intriguing little reference to Rule 32(f) may be worth some exploration (odd reference, as noted in the comments below).

For Further Reading: What is a "mine-run?" It's used three or four times by several different justices. Is it just me, or is that a weird term? Guess it means, "run of the mill." See web dictionary here.

Also, there is much odd debate in the decision about higher sentences imposed for Yankees fans, and leniency for Red Sox advocates. See, eg., id. at 6. ("After all, a district judge who gives harsh sentences to Yankees fans and lenient sentences to Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable.") Justice Scalia is apparently a Yankees fan, so Justice Breyer takes a zing or two. See Professor Berman's blog, here. Nothing like a few East Coast inside jokes to make a bitter Booker pill more palatable -- our clients who are pounded with "reasonable" guideline sentences just can't stop laughing . . . .

Finally, for a quaint, old-fashioned protest that there was actually a human-being involved in this case, and one who deserved a lower sentence, see Justice Stevens' concurrence at 8 (from which Justice Ginsburg carefully distances herself). Poor Justice Stevens -- he's stuck on that old chestnut that the person before the district court actually matters at sentencing. Of course, the real issue is how hard the Sentencing Commission is working to cook up reasonable sentences. See Rita, (Breyer, J.) (describing heroic struggles of the Sentencing Commission to divine guideline ranges).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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