Wednesday, June 27, 2007

Rita's impact in the 3rd Circuit

In Rita v. U.S., 2007 WL 1772146, the Supreme Court ruled that the circuits "may," for purposes of appellate review only, apply a "presumption of reasonableness" to sentences within the Guidelines range. But the Court placed so many limits on this presumption, and went on at such length to stress the discretion district courts have at sentencing, that ultimately Rita is a very good decision that emphasizes that the guidelines are truly "advisory."

The key points from Rita:

1) The sentencing court has broad discretion in sentencing, and sentences will be reviewed deferentially for "abuse of discretion" as they were under Koon.
Rita, 2007 WL 1772146, *9 ("appellate ‘reasonableness’ review merely asks whether the trial court abused its discretion").
2) The district courts may not apply any presumption of reasonableness to the Sentencing Guidelines range.
Rita, at *9 ("We repeat that the presumption before us is an appellate presumption. . . . In determining the merits of these [sentencing] arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines should apply.")
3) Judges may "disregard" the Guidelines.
Rita, at *10 ("As far as the law is concerned, the judge could disregard the Guidelines . . .").
4) The sentencing court does not as having a subordinate role to the Sentencing Commission, but a co-equal role. Both are charged under the sentencing statute with applying the same § 3553(a) analysis. Given this framework, the sentencing court does not have to defer to the Commission’s judgments, but instead can reach its own judgments.
Rita, at *7 ("The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.").
5) The sentencing court may disagree with and reject policy judgments of the Sentencing Commission and the Guidelines. Nothing the Commission says is sacrosanct.
Rita at *12 (the judge must address arguments that the Guidelines "reflect an unsound judgment, or, for example that they do not generally treat certain defendant characteristics in the proper way").
6) The district courts may consider the factual findings of the Sentencing Commission, which would include their findings regarding unfairness of the crack/powder ratio, and the career offender guidelines.
Rita at *9 (sentencing courts are not "prohibited from taking account of the Sentencing Commission’s factual findings or recommended sentences").
7) There can be no "presumption of unreasonableness" for sentences outside the Guidelines, even at the circuit level.
Rita, at *11 ("The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness.")
8) We do not have any presumption of reasonableness in the 3rd Circuit. Rita leaves undisturbed the 3rd Circuit’s rejection of a presumption of reasonableness. Rita only holds that Courts of Appeals "may" apply such a presumption, not that they must.
Rita, at *8 (citing Cooper (3d Cir) with approval).
9) Even in circuits that, unlike the 3rd Circuit, have adopted the presumption, it is a "nonbinding" presumption" that has no "independent legal effect" and only applies on appeal.
Rita, at *6 ("the presumption is nonbinding" and does not "reflect strong judicial deference that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge"); Rita at *8 (presumption does not have "independent legal effect").
10) Rita reaffirms the overarching role played by the "parsimony provision," making clear that in considering all the § 3553(a) factors, the judge must "impose a sentence sufficient, but no greater than necessary, to comply with" the aims of sentencing.
Rita, at *6.
11) Rita calls into question the 3rd Circuit's ruling in Vampire Nation, 451 F.3d 189 (2006). Vampire Nation held that the requirement in Fed R. Crim P. Rule 32(h) of advance notice before a judge departs from the Guidelines range on a basis not identified by the parties applies only to "departures" (pursuant to the Guidelines) and not "variances" (pursuant to 18 USC sect 3553(a)). Rita states that "the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure." Rita at *9 (citing inter alia Rules 32(h) and Burns, 501 U.S. 129, 136 (recognizing importance of notice)). This concern for adversarial testing applies equally to departures and variances, and thus Rita undercuts the reasoning in Vampire Nation.

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