A public defender in North Carolina, relying on President Bush’s clemency ruling in the CIA leak case, urged the Supreme Court on Monday to reconsider its June 21 ruling upholding the 33-month prison sentence of Victor A. Rita, Jr. (Rita v. U.S., docket 06-5754). Going even further, Assistant Federal Public Defender Thomas N. Cochran of Greensboro urged the Court to reconsider its 2005 decisiion in U.S. v. Booker that salvaged the federal Sentencing Guidelines.by making them advisory, not mandatory. The Booker ruling, the petition argued, has fostered “disparate treatment” under the Guidelines. (The text of the petition, with attachments, can be found here.)

The President’s explanation for nullifying the 30-month prison sentence of former vice presidential aide I. Lewis Libby in the leak case, the new filing argued, “directly conflicts with the federal sentencing policy espoused by the Administration and argued vehemently, indeed successfully, by the Executive’s own Solicitor General in this case.”

Like Libby, Rita was convicted of lying under oath and obstructing justice in a federal criminal investigation. Rita received a 33-month sentence, at the low end of the Guidelines range; Libby got a 30-month sentence at the low end. President Bush, however, found the Libby sentence to be “excessive.” In the Rita case, the government lawyer argued in the Supreme Court that the 33-month sentence at issue there was reasonable, and a majority of the Court agreed.

“As the Chief Executive,” the petition asserted, “the President is at the country’s helm, tasked with faithfully executing the laws passed by Congress. He and his subordinates are the ones who argue their application before the Judiciary, as this case exemplifies….The President and his subordinates must act with uniformity when executing the laws.”

It added: “Ironically, the President set forth in this [clemency] staement his conclusion that the district court in the Libby case rejected ‘the consideration of factors that could have led to a sentence of home confinement or probation.’ This was the precise, nearly verbatim, argument made by [Rita] in this case, and opposed by the President’s subordinate, the Solicitor General.”

Among other comments the President made in barring any prison time for Libby, he said that critics had called the Libby sentence “harsh” and that it was “based in part on allegations never presented to the jury.” The President also said that Libby was a first-time offender with years of public service. While Rita had a prior conviction, it did not count for Guideline purposes, so he “had no criminal history points,” the petition recalled. The petition went on to argue that Rita’s lawyers had advanced similar arguments to those offered by the President against Rita’s 33-month sentence. But, Rita’s lawyers added, these arguments were “opposed by the Executive Branch every step of the way.”

In going beyond the plea to rehear Rita’s case to ask for a new look at Booker, the petition filed Monday said that the Booker decision is the only one by the Court in the Aprpendi v. New Jersey line of sentencing cases to allow harsher sentences based upon facts found by a judge, not by the jury. As a result, it argued, the Court is now tolerating Apprendi violations in federal sentencing.

“With the President’s appellation of ‘excessive’ to describe Mr. Libby’s low-end Guideline sentence, together with his observation that judge-found facts were employed to reach an unusually harsh 30 month result, the Court should accept the President’s conclusions as an invitation to revisit its remedial decision in Booker,” Rita’s counsel argued.

The jury trial right recognized in the Apprendi case and its sequels, according to the petition, is in jeopardy of being “further obfuscated” as the Court decides future Guidelines cases, while Booker remains intact, the petition suggested.

The Justice Department does not have a right to file a response to the rehearing petition, unless the Court asks for one. If no response is sought, however, such petitions are routinely denied. Under the Court’s Rules, a rehearing petition can be granted only at the behest of a member of the majority in the prior action. It requires a majority of the Court — five votes — to grant rehearing; one of them must come from a former majority member.