Rita: More for District Courts?

The following post is by Carissa Byrne Hessick, Associate Professor of Law at Arizona State University Sandra Day O’Connor College of Law and F. Andrew Hessick, Visiting Associate Professor of Law at Arizona State University Sandra Day O’Connor College of Law.

Although the Court granted certiorari in Rita ostensibly to provide guidance for appellate review, the opinion in some respects appears to give more guidance to district courts than it does to the courts of appeals.

As Doug Berman noted, Rita does not say that the circuits have to adopt the presumption of reasonableness. Indeed, the Court appears to have been careful in its phrasing, stating that the question was 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 and that the presumption is “nonbinding” — which seems to mean that a circuit that has adopted the presumption need not follow it.

This seems a little odd. Certiorari is usually granted to resolve differences in the circuits; but Rita appears to endorse differing treatment in different circuits. The differing treatment also seems at odds with the goal of uniformity under §3553(a). Basically everyone agrees that the presumption will result in more guidelines sentences in the district courts located in circuits that have adopted the presumption (Souter’s dissent says this is bad; Breyer’s majority says that it is good). By contrast, guideline sentences will be less common in those circuits without the presumption. It seems entirely possible that sentences for similarly situated individuals may vary depending on whether the sentencing court is in a presumption circuit.

Added to this foreordained split and potential for disparate sentences is Rita’s failure, as David Stras observes, to explain what the presumption of reasonableness means. Given the Court’s statements that the presumption is not binding, something akin to Skidmore deference seems to be the best candidate. But we can’t be sure. All that can be gleaned from Rita is that the presumption means that circuits have the option of concluding — without conducting much analysis — that within guideline sentences are lawful. The lack of guidance plus the potential for disparity seems a good recipe for future Supreme Court intervention.

While Rita may not have provided much guidance regarding appellate standards of review, the Court did provide some information about the scope of district court judges’ discretion in the wake of Booker. The Booker remedy said only that a sentencing court was required to “consider Guideline ranges,” but was permitted “to tailor the sentence in light of other statutory concerns as well.” In considering exactly how much discretion Booker gave to district courts, some circuits concluded that district courts could not sentence outside the Guidelines based on a disagreement with the policy decisions underlying the Guidelines or based on facts that might affect sentences of more than a small number of defendants. Rita confirms district courts’ authority to sentence outside the Guidelines in “atypical cases.” And, as Kate Stith notes, the majority opinion also appears to allow district courts the authority to impose a sentence outside the Guidelines on the basis of a policy disagreement with the Commission.

But while Rita seems to recognize a more expansive version of district court authority than previously acknowledged by many circuit courts, Rita does not seem to impose many obligations on sentencing courts. Although §3553(c) requires district courts to state their reasons for imposing a particular sentence, the majority said that the statute does not require district courts to write “extensively.” Just how little is actually needed is clear from the Court’s treatment of Victor Rita’s argument about his military service. At sentencing, Rita gave three reasons in favor of a below-Guideline sentence, including his previous military service. Although, as Justice Steven noted in his concurrence, Rita’s military service “was not mentioned by the District Court in his explanation of his choice of the sentence that defendant received,” the majority had no problem affirming the sentence.

The majority’s treatment of Victor Rita’s military service also suggests that a sentencing court’s authority (now recognized in Rita) to conduct an independent analysis whether “the Guideline sentence itself fails to properly reflect §3553(a) considerations” may be optional. The district court decided to sentence Victor Rita to a Guideline sentence because he found that Mr. Rita’s Guideline range was not “inappropriate.” The Guidelines deem a defendant’s military service “not ordinarily relevant,” and the Rita majority refused to address whether this Guideline provision is reasonable because Victor Rita claimed only that his military service warranted a sentence reduction; “he did not claim at sentencing that military service should ordinarily lead to a sentence more lenient than the sentence imposed.” Justice Breyer tells us that district courts and the Commission are both “carrying out the same basic §3553(a) objectives,” and so one might think that the district court judge would have to consider whether military service is an appropriate sentencing factor in order to reject Victor Rita’s argument for a shorter sentence. At the very least, the Court’s treatment of the issue is in tension with the basis for the presumption of reasonableness; the agreement of the Commission and the district court is meaningful only if the district court conducts its own analysis.