What About Non-FSG Sentences?

The following note is by Susan R. Klein, the Baker & Botts Professor in Law at the University of Texas.

Justice Breyer may have won the war, but we won’t know until the Court takes a non-Guidelines case. He has already won the battle fought with Justice Scalia in the Booker majority remedial opinion (“Booker II”). Justice Scalia argued that reasonableness review on appeal would mean either that any sentence within the statutory minimum and maximum is acceptable, or that a stricter appellate review process would transforms the new advisory guidelines back into mandatory ones. Justice Scalia renews this argument in his Rita concurrence, and surely he is correct as a matter of strict logic. In vintage Scalia-style, he claims to accept the Booker remedial majority opinion as precedent, and then proceeds to prove that Booker II is nonsensical in its application. However, Justice Breyer, in HIS usual fashion (particularly where his beloved guidelines are concerned), crafts a compromise that appears to allow both the 6A right articulated in Booker I and meaningful federal sentencing guidelines to coexist (though in fact the 6A right shrinks as appellate review grows). He takes us right back to the pre-Feeley amendment days, making FSG extremely important as a matter of practice, but permitting sentencing judges to grant departures for usual cases with only abuse of discretion review.

So long as appellate reasonableness review remains essentially review for conformity with the FSG, DOJ continues to hold most of the cards. We won’t know the true scope of appellate review until the Court accepts certiorari on a case where the sentencing judge imposes a non-guidelines sentence (especially one lower than the FSG range). And yes, the DOJ does appeal some of these (Ranum, for example). In the unlikely event that the Court accepts Justice Stevens concurrence in Rita and applies the same very lenient reasonableness or abuse of discretion standard to non-guideline sentences, district judges may suddenly feel free to sentence outside of the guidelines, particularly based upon the many factors in 3553(a) that the Commissioners excised from the Manual. Such a move would make the guidelines more advisory and grant a few more cards to criminal defendants. In the much more likely event that a presumption of reasonability will be held in some future case to apply ONLY to sentences with the guideline range, Booker I becomes overruled in practice and DOJ wins. While presently state legislators seems more likely to send guideline facts to the jury in the wake of Apprendi, they may take a lesson from Rita and make their guidelines “advisory” as well.