Comments on: Another View of Rita http://www.scotusblog.com/wp/another-view-of-rita/ The Supreme Court of the United States blog Thu, 26 Jun 2008 21:56:34 -0700 http://wordpress.org/?v=2.8.5 hourly 1 By: Peter G http://www.scotusblog.com/wp/another-view-of-rita/comment-page-1/#comment-11409 Peter G Fri, 22 Jun 2007 03:50:20 +0000 http://www.scotusblog.com/wp/uncategorized/another-view-of-rita/#comment-11409 If the question were a constitutional one, I would agree with you, David. But it wasn't, at least not primarily. The first question was whether the the statute (18 USC 3742(e)), as judicially reconstructed in <i>Booker II</i>, implies (by which I would have thought the Court would have to mean "requires") a presumption of reasonableness on appellate review of a within-Guidelines sentence. And then, if so, "Is that presumption constitutional?," I suppose, is necessarily the next question. I infer that the avoidance of the latter question is why the Court offers that odd song and dance about it not being the sort of presumption that a trial court uses to affect a burden of proof. (Or maybe the majority is right on that point, though, since on appeal, the presumption of reasonableness, where it takes a finding of unreasonableness to reverse, is the same as the presumption of affirmance if the appellant fails to justify a reversal.) If it were a real presumption, and were being used (as it is) to substitute one fact (the sentence is within the guidelines) for another (the sentence can reasonably be viewed as both sufficient and as not greater than necessary, taking into account all the 7 subsections of 3553(a), as applied to the facts of this case), then it would have to meet the due process test of <i>Tot</i>, at the least, if not of <i>Sandstrom</i> and <i>Ulster County</i>. If it isn't a real presumption, then there's no constitutional question at all. But surely, in the end, it's the same: in applying a federal statute, as here, the first question for the Court is "What is the correct construction of the statute?" which almost certainly means, <i>inter alia</i>, a construction that will avoid rather than pose a constitutional question. Since when can the answer to the statutory construction question be, "Whatever"? If the question were a constitutional one, I would agree with you, David. But it wasn’t, at least not primarily. The first question was whether the the statute (18 USC 3742(e)), as judicially reconstructed in Booker II, implies (by which I would have thought the Court would have to mean “requires”) a presumption of reasonableness on appellate review of a within-Guidelines sentence. And then, if so, “Is that presumption constitutional?,” I suppose, is necessarily the next question. I infer that the avoidance of the latter question is why the Court offers that odd song and dance about it not being the sort of presumption that a trial court uses to affect a burden of proof. (Or maybe the majority is right on that point, though, since on appeal, the presumption of reasonableness, where it takes a finding of unreasonableness to reverse, is the same as the presumption of affirmance if the appellant fails to justify a reversal.) If it were a real presumption, and were being used (as it is) to substitute one fact (the sentence is within the guidelines) for another (the sentence can reasonably be viewed as both sufficient and as not greater than necessary, taking into account all the 7 subsections of 3553(a), as applied to the facts of this case), then it would have to meet the due process test of Tot, at the least, if not of Sandstrom and Ulster County. If it isn’t a real presumption, then there’s no constitutional question at all. But surely, in the end, it’s the same: in applying a federal statute, as here, the first question for the Court is “What is the correct construction of the statute?” which almost certainly means, inter alia, a construction that will avoid rather than pose a constitutional question. Since when can the answer to the statutory construction question be, “Whatever”?

]]> By: David Stras http://www.scotusblog.com/wp/another-view-of-rita/comment-page-1/#comment-11408 David Stras Fri, 22 Jun 2007 02:09:27 +0000 http://www.scotusblog.com/wp/uncategorized/another-view-of-rita/#comment-11408 Peter: That is an excellent point, and one on which I did not focus in my original post. If you will excuse speculation, perhaps that was a compromise that Justice Breyer had to make in order to garner the votes of Justices Ginsburg and Stevens. On the broader issue, it does seem strange to leave the determination of whether a presumption exists to the lower courts, but the language of the majority opinion seems to allow precisely that type of flexibility. What the Court seems to be saying is that a presumption is not constitutionally barred nor is it constitutionally necessary. Thus, in that regard, the majority seems to permit substantial flexibility for the circuit courts. Looked at it that way, I do not see the argument for a violation of Article III: the Court said what the law is (that the presumption does not violate the 6A), but left the specific contours of the right to further development in the circuit courts. In reality, my guess (along with Professor Berman's) is that most circuits will in fact adopt a presumption precisely for the reason you state: the Court never expressly says (but surely implies) that not applying the presumption is consistent with the Constitution. Thus, many circuits will probably go the "safe" route and apply a presumption of reasonableness to within-Guidelines sentences. That is why, ultimately, it looks as if Justice Breyer has won the war with respect to the Sentencing Guidelines. But for a Court that took this case to clear up the confusion, I think that they did a pretty poor job of it. Peter: That is an excellent point, and one on which I did not focus in my original post. If you will excuse speculation, perhaps that was a compromise that Justice Breyer had to make in order to garner the votes of Justices Ginsburg and Stevens.

On the broader issue, it does seem strange to leave the determination of whether a presumption exists to the lower courts, but the language of the majority opinion seems to allow precisely that type of flexibility. What the Court seems to be saying is that a presumption is not constitutionally barred nor is it constitutionally necessary. Thus, in that regard, the majority seems to permit substantial flexibility for the circuit courts. Looked at it that way, I do not see the argument for a violation of Article III: the Court said what the law is (that the presumption does not violate the 6A), but left the specific contours of the right to further development in the circuit courts.

In reality, my guess (along with Professor Berman’s) is that most circuits will in fact adopt a presumption precisely for the reason you state: the Court never expressly says (but surely implies) that not applying the presumption is consistent with the Constitution. Thus, many circuits will probably go the “safe” route and apply a presumption of reasonableness to within-Guidelines sentences. That is why, ultimately, it looks as if Justice Breyer has won the war with respect to the Sentencing Guidelines.

But for a Court that took this case to clear up the confusion, I think that they did a pretty poor job of it.

]]> By: Peter G http://www.scotusblog.com/wp/another-view-of-rita/comment-page-1/#comment-11407 Peter G Fri, 22 Jun 2007 00:48:07 +0000 http://www.scotusblog.com/wp/uncategorized/another-view-of-rita/#comment-11407 Although I am also a "sentencing maven," I will refrain from commenting on that aspect of <i>Rita</i>, which has already been addressed very thoroughly by many commenters. I have a different question to pose, from the point of view of an appellate practitioner. Cert was granted in <i>Rita</i> to settle a split in the Circuits concerning the standard of appellate review for federal sentencing decisions. Some Circuits had declared and were applying a "presumption of reasonableness" to review of within-Guidelines sentences, and some were not. The majority today states that it is holding that a court of appeals "may" or "can" apply a presumption (although not a strong one). I beg your pardon? "May"? "Can"? Does that mean that another Circuit may lawfully declare, as a matter of "circuit law" (as is in fact the case in the Third and some others) that it will apply no such presumption, and then <b>also</b> be affirmed by the Supreme Court for doing so? Can anyone cite another decision in the history of the Court where the ruling on a split in the Circuits concerning the standard of law to be applied on appeal has been, "You may judge the case this way, but you may equally validly judge it the opposite way"? How is this possible if, under Article III, there is "one Supreme court"? Although I am also a “sentencing maven,” I will refrain from commenting on that aspect of Rita, which has already been addressed very thoroughly by many commenters. I have a different question to pose, from the point of view of an appellate practitioner. Cert was granted in Rita to settle a split in the Circuits concerning the standard of appellate review for federal sentencing decisions. Some Circuits had declared and were applying a “presumption of reasonableness” to review of within-Guidelines sentences, and some were not. The majority today states that it is holding that a court of appeals “may” or “can” apply a presumption (although not a strong one). I beg your pardon? “May”? “Can”? Does that mean that another Circuit may lawfully declare, as a matter of “circuit law” (as is in fact the case in the Third and some others) that it will apply no such presumption, and then also be affirmed by the Supreme Court for doing so? Can anyone cite another decision in the history of the Court where the ruling on a split in the Circuits concerning the standard of law to be applied on appeal has been, “You may judge the case this way, but you may equally validly judge it the opposite way”? How is this possible if, under Article III, there is “one Supreme court”?

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