June 25, 2007
On June 21, 2007, the Supreme Court issued an 8-1 decision in Rita v. United States, No. 06-5754, affirming the ability of appellate courts to use a presumption of reasonableness where the sentences they are reviewing were imposed within the applicable range under the Federal Sentencing Guidelines. The decision in Rita comes more than two years after the Court ruled in United States v. Booker that the United States Sentencing Commission’s mandatory Guidelines violated the Sixth Amendment right to have a jury find any fact that increases the maximum sentence a court may impose. The remedy in Booker was: (1) to make the Guidelines advisory — one factor among several that the sentencing judge must consider when determining the appropriate sentence; and (2) to direct appellate courts to determine whether sentences appealed under this new regime are “unreasonable.” Several courts of appeals, in turn, adopted a “presumption of reasonableness” for sentences that are imposed within the range called for by the Guidelines. Rejecting arguments that such a presumption gives too much weight to the now-advisory Guidelines, the Rita decision upheld use of the presumption.
By encouraging federal courts of appeals to defer to within-Guideline sentences, the Supreme Court’s decision reaffirms that the Guidelines are still a significant part of the sentencing process. But the impact of the opinion, authored by Justice Breyer and joined in full by five other Justices, is limited in certain important respects.
These points are important, in part, because they signal that the deference inherent in the presumption of reasonableness is not grounded in the premise that the Guidelines themselves are presumptively reasonable. Whatever weight the presumption carries, it derives from the fact that a sentencing judge has independently reached a result — after applying the relevant sentencing factors to the individual defendant — that accords with the Commission’s view of the appropriate application of sentencing considerations “in the mine run of cases[.]” It is also significant that two of the Justices whose votes were needed to form a majority opinion — Justices Stevens, joined in his concurring opinion by Justice Ginsburg — stated separately that it should be clear from the Rita decision that “appellate courts must review sentences individually and deferentially whether they are inside the Guidelines range (and thus potentially subject to a formal ‘presumption’ of reasonableness) or outside that range.” To emphasize the point, Justice Stevens added: “Given the clarity of our holding, I trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.” Counsel for defendants sentenced after Rita will want to emphasize to the sentencing judge the ways in which the decision signals greater ability to tailor the result to the individual case.
In two cases scheduled for argument in the October 2007 term, the Court will grapple with the level of deference appropriate for a non-Guidelines sentence. In Kimbrough v. United States the Court will review the Fourth Circuit’s reversal of a below-Guidelines sentence in a drug case where the district judge was motivated in part by a concern that the 100:1 penalty ratio for crack and powder cocaine resulted in a sentence greater than necessary to achieve the purposes of sentencing. And in Gall v. United States the Court will determine whether a district judge must find “extraordinary circumstances” before imposing a sentence that varies significantly from the range determined under the Guidelines. As is evident from Justice Scalia’s opinion (joined by Justice Thomas) concurring in the result in Rita, the Justices have not come to agreement on the extent to which the Sixth Amendment permits appellate courts to impose limitations on sentencing outside the Guidelines. In the view of Justices Scalia and Thomas, “reasonableness” review must be rather deferential to avoid a situation where the presence or absence of judicial factfinding (that is, facts neither found by the jury nor admitted by the defendant) will make the difference between whether a sentence is lawful or not. Because Rita involved a sentence that was affirmed on appeal, while Gall and Kimbrough involve appellate reversals of sentences (in each case, sentences that were significantly below the Guidelines), it is safe to assume that further clarification will come within the next several months on the extent to which the “reasonableness” standard of review limits the latitude of sentencing judges after Booker.
In the meantime, it remains to be seen whether Rita will affect the number of sentences imposed outside of the Guidelines. The majority opinion recognized that the Commission’s work is ongoing and that this process includes revising the Guidelines based, in part, on feedback from the courts in the form of non-Guidelines sentences. The level and nature of this feedback will depend on whether district and appellate judges recognize the ability to vary from the Guidelines based on the application of the statutory sentencing factors in individual cases.
The Supreme Court’s decision is available at:
http://www.supremecourtus.gov/opinions/06pdf/06-5754.pdf
Gibson Dunn attorneys Miguel A. Estrada and David Debold, assisted by John W.F. Chesley, filed an amicus brief in support of Victor Rita, on behalf of the National Association of Criminal Defense Lawyers (NACDL). Mr. Estrada, Mr. Debold and Minodora Vancea will also be filing an amicus brief for NACDL in support of Petitioner Michael Gall in Gall v. United States, which will be argued later this year. Gibson Dunn is representing NACDL in these matters as part of the firm’s and its lawyers’ strong commitment to performing significant work on a pro bono basis.
This Update was prepared by Mr. Debold, who is also co-chair of the Practitioners Advisory Group to the United States Sentencing Commission and previously served as Special Counsel to the Commission.
Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn attorney with whom you work, Miguel A. Estrada (202-955-8257, [email protected]) or David Debold (202-955-8551, [email protected]) in the firm’s Washington, D.C. office.
Gibson Dunn’s Business Crimes and Investigations Practice Group has vast experience defending against a wide range of federal and state prosecutions in a variety of areas. For more information on the firm’s business crimes practice, please contact any member of the group, or practice group Co-Chairs
Thomas E. Holliday (213-229-7370, [email protected]) – Los Angeles
Marcellus A. McRae (213-229-7675, [email protected]) – Los Angeles
James A. Walden (212-351-2300, [email protected]) – New York
F. Joseph Warin (202-887-3609, [email protected]) – Washington, D.C.
Debra Wong Yang (213-229-7472, [email protected]) – Los Angeles
© 2007 Gibson, Dunn & Crutcher LLP
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