The court ruled that sentences falling within the guidelines may be presumed “reasonable” by courts reviewing the sentences on appeal. The court’s ruling took a step toward removing the uncertainty that has hung over the federal criminal justice system since 2005, when it ruled that the guidelines could be constitutional only if they were regarded as “advisory.”
But the latest decision was hardly free of ambiguity. Although the 8-to-1 vote suggested broad agreement among the justices, there were actually serious differences, expressed in concurring opinions, over how this decision fits with the court’s recent insistence that juries and not judges make the crucial findings that determine a defendant’s sentence.
In operation, the guidelines call for judges to take account of facts about the defendant and the offense that were not necessarily presented to or found by the jury.
The majority opinion was written by Justice Stephen G. Breyer, a former member of the sentencing commission and, as a Senate aide before he became a judge, an original author of the guidelines system. Justice Breyer remains a guidelines enthusiast, and two years ago, in United States v. Booker, he managed the unlikely feat of keeping the guidelines alive despite the conclusion by a majority of his colleagues that they were unconstitutional.
Writing an unusual “remedy” portion of the Booker opinion, he persuaded a bare majority of the court that the guidelines could be saved if they were deemed no longer mandatory, but merely “advisory.” The lower courts have been wrestling since then with exactly what that means, and this latest decision, Rita v. United States, No. 06-5754, began the process of explaining.
Barry Boss, a criminal defense lawyer who is co-chairman of an American Bar Association committee on sentencing, said on Thursday that the most pressing question for the defense bar was “what vitality the guidelines still have.” The court’s answer, Mr. Boss said in an interview, is that “clearly, the guidelines are here to stay.”
Although defense lawyers had hoped the court would not endorse a presumption of reasonableness on the appeal of a sentence within the guidelines, the news from the court was not all bad from the defense perspective.
For one thing, Justice Breyer said the presumption was “not binding,” and could be overcome, a point emphasized in a concurring opinion by Justices John Paul Stevens and Ruth Bader Ginsburg.
Further, while the court said appellate courts could apply a presumption of reasonableness if they chose, it did not require them to do so. Several of the most important federal appeals courts, including the Ninth Circuit in California and the Second Circuit in New York, have chosen to apply a more searching level of appellate review when defendants appeal their sentences.
Another important part of the decision was its reminder to federal district judges that they remain free, under the Booker ruling, to impose sentences that depart from the guidelines as long as they explain the sentences and base their reasoning on the purposes of the federal sentencing law. “The presumption applies only on appellate review,” Justice Breyer said.
Douglas A. Berman, a professor at the Moritz College of Law at Ohio State University and an authority on sentencing, said Thursday that this bolstered the chances that sentences below the guidelines range, when properly explained by the district judge, would be upheld on appeal. Professor Berman said district judges’ use of sentencing discretion would determine the decision’s significance.
For its next term, the court has accepted a case, Gall v. United States, No. 06-7949, on appellate review of sentences that are outside the guidelines range.
Justice David H. Souter was the lone dissenter from the decision on Thursday. He said the presumption of reasonableness undermined the Sixth Amendment right to trial by jury that the court has said it was trying to protect.
Justices Antonin Scalia and Clarence Thomas concurred, with evident reluctance, in the outcome of the case but refused to sign Justice Breyer’s opinion, which they said “reintroduced the constitutional defect that Booker purported to eliminate.” They said the court had “broken its promise” to eliminate judicial fact-finding from sentencing.
The defendant in the case, Victor A. Rita, challenged the 33-month sentence he received for a perjury conviction in a federal investigation of the sale of machine guns. The sentence was the lowest in the range provided by the guidelines, and the United States Court of Appeals for the Fourth Circuit upheld it as reasonable.