Salvaging the Guidelines? The 2/20/07 Arguments

By Lyle Denniston
on Feb 19, 2007 at 8:05 am

The federal Sentencing Guidelines regime that seemed to survive just barely two years ago now appears to have the comfortable support of six of the nine Justices. But, until two cases being argued on Tuesday are decided, that may be an illusion; until then, just what part of those Guidelines will survive will not be clear. No one is calling for the end of the Guidelines, but they face some risk of losing a lot of their force in the cases of Rita v. U.S. (06-5754) and Claiborne v. U.S. (06-5618).

Indeed, not since the Court decided U.S. v. Booker 25 months ago with two 5-4 divisions have the Guidelines seemed to be open to such serious question. That is because a majority of the Court lately seems more devoted to the Sixth Amendment part of the Booker decision than to its rescue there of the Guidelines by making them advisory instead of binding. In both the Rita and Claiborne cases, the core dispute boils down to this: just what does “advisory” mean?

That is not one of the specified questions the Court has agreed to answer in Rita and Claiborne, but that is what is ultimately at stake. If the Guidelines are taken by sentencing judges to go beyond useful recommendations, when do they run afoul of Booker’s Sixth Amendment principles?

The two new cases, in fact, are fundamental tests of how advisory-only Guidelines are to work in actual practice and, perhaps, whether they will work at all to achieve the objectives that Congress had in mind when it created the original Guideline system in the Sentencing Reform Act of 1984.

The Rita case, apparently the broader of the two, will be argued first, soon after 10 a.m., with Thomas N. Cochran, an assistant federal public defender in Greensboro, N.C., arguing for Victor A. Rita, Jr., and with Deputy Solicitor General Michael R. Dreeben for the federal government. In the second case, Michael Dwyer, an assistant federal public defender in St. Louis, will argue for Mario Claiborne, and Dreeben will again represent the government. The Court will hear the two cases in back-to-back, one-hour sessions

Victor A. Rita, Jr., a North Carolina man, was convicted of giving false testimony to a grand jury and obstructing justice in an investigation of illegal trafficking in machine gun kits. He was sentenced to 33 months on the five counts – within the range set by the Guidelines. The Fourth Circuit Court upheld the sentence, since it was within the range.

Mario Claiborne of St. Louis was convicted of distributing crack cocaine and possession of more than five grams of the illegal substance. He was sentenced to 15 months in prison – below the Guideline range of 37 to 46 months. The Eighth Circuit Court ordered new sentencing because the actual sentence was not within the range and was not justified by “extraordinary circumstances.”

As the two cases reach the Court, they appear on the surface to be only about appellate review of sentences imposed under the Guidelines regime. That is because most of the questions the Court composed for counsel to answer have to do with what is “reasonable” about a specific federal criminal sentence when it comes up for review on appeal.

In the Booker decision, the Court did not focus heavily on appellate review of federal sentences. Instead, because the Guidelines compelled judges to follow the Guidelines, and required judges to push a sentence beyond what a jury verdict would support if the judge found additional facts, the Court ruled that that violated the jury trial right under the Sixth Amendment. That principle goes back to the Court’s landmark ruling in 2000 in Apprendi v. New Jersey. Booker is an Apprendi sequel.

The Court, however, also said in Booker that the Guidelines would not run afoul of the Sixth Amendment if they were “merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts….We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.” The Court then went on to rescue the Guidelines’ constitutionality by saying that they would thereafter be advisory – that is, judges would be obliged to “take account” of the Guideline ranges, along with other factors Congress had listed in the Sentencing Reform Act.

Then, the Court said, the same factors would guide appeals courts’ review of sentences actually imposed, to determine “whether a sentence is reasonable.”

The Court for the first time elaborated on that “reasonableness” standard last month, in the case of Cunningham v. California (05-6551). With six Justices saying they were explicitly reaffirming what the Court had decided before on Sixth Amendment requirements in sentencing, the majority declared: “The reasonableness requirement Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints…Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless.” It is difficult to read that admonition as anything other than an implied diminution of the primacy of the surviving Guidelines.

Against that background, the Court will be deciding in the cases being argued Tuesday whether a sentence within a Guideline range is presumed to be reasonable, whether a sentence below a range is unreasonable unless justified by “extraordinary circumstances,” whether presuming reasonableness is too close to reinstatement of a mandatory regime in violation of Booker, and whether such a presumption allows a judge to put aside factors that might justify a lesser sentence than the range suggests. An implied question is how far sentencing judges are to go to rely upon the expertise of the Sentencing Commission in selecting ranges. The questions in the Rita case can be found here; click on the highlighted link to them. The questions in Clairborne can be found here.

The Justice Department, joined separately by the U.S. Sentencing Commission, fervently supports the presumption of reasonableness of within-range sentences and supports a requirement of “extraordinary circumstances” before a sentence may fall below a Guideline range. Their allies in the briefing are three U.S. senators, Democrats Edward Kennedy of Massachusetts and Dianne Feinstein of California and Republican Orrin Hatch of Utah, arguing in the Claiborne case for deferring to the Commission and the Guideline regime.

The Justice Department has held to its position since shortly after Booker was decided, and is on a significant winning streak in the Circuit Courts on the presumption issue; seven of the 11 now embrace it. Thus, it has reason to be optimistic that the Court, too, will go along.

All of the non-government amici, plus public defenders, take stands close to those advocated by lawyers for Victor Rita and Mario Claiborne, opposing the presumption of reasonableness and the added burden on a judge to justify a below-range sentence.

Two conservative advocacy groups, the Washington Legal Foundation and the Allied Educational Foundation, seek to pull the Court back to the advisory-mandatory dichotomy. They challenge the Circuit Courts that have embraced the presumption standard, suggesting that amounts to an attempt “to resurrect the Guidelines” in a way “that would effectively make them mandatory.” The Guidelines, this brief says, are “fundamentally flawed because they regularly dictate prison terms that are several times longer than terms actually served in the pre-Guidelines era for the same offense.”

The National Association of Criminal Defense Lawyers argues that, in the nearly two years since Booker was decided, “the Guidelines continue in practice to exert much the same force as before…District judges are imposing Guideline sentences at nearly the same rate they did when the unconstitutional system was in place.”

The New York Council of Defense Lawyers advises the Court of a survey it has taken of the experience since Booker, suggesting that the Circuit Courts have shown “a general reluctance to and intolerance of any District Court judgment to impose a sentence below the Guidelines,” while largely deferring to District Court decisions to increase sentences above Guideline ranges.

There is much discussion among the amici briefs of whether a presumption-based Guidelines system will honor the basic “principle of parsimony” that the Sentencing Reform Act embraces — the principle that punishment should never exceed the minimum necessary to effect its purposes.

The case also has attracted briefs from a wide array of law professors and criminal law practitioners. Much of their argument is a broad plea for restoration of more discretion for sentencing judges to impose sentences more attuned to the individual cases before them.

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