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Washington-In the post- Booker/Fanfan world of federal sentencing-however long that world survives-the key to whether the federal sentencing guidelines retain any real effect for defendants and prosecutors may rest now with the federal appellate courts, say scholars and litigators. The Supreme Court’s remarkable sentencing ruling last week essentially did three things: A 5-4 majority led by Justice John Paul Stevens held that the federal sentencing guidelines violate the Sixth Amendment right to a jury trial when judges, not juries, find facts that could lead to the enhancement of sentences beyond the maximum authorized by a jury verdict or a guilty plea. A different 5-4 majority, with the exception of Justice Ruth Bader Ginsburg who was in both majorities, held that the remedy for the constitutional violation was to make the mandatory guidelines advisory in nature and to replace de novo appellate review of sentences with a “reasonableness” standard of review. U.S. v. Booker, No. 04-104; U.S. v. Fanfan, No. 04-105. The high court’s remedy, crafted by Justice Stephen G. Breyer, basically returns sentencing to the discretionary-based system that existed prior to the enactment of the federal guidelines 21 years ago. “What strikes me as most remarkable about this is that in the name of the right to a jury trial, we’ve got complete judicial discretion, and in the face of the one thing we know absolutely about this Congress-it thinks courts have had too much discretion-courts have taken discretion completely for themselves,” said Paul Rosenzweig of the Heritage Foundation’s Center for Legal and Judicial Studies. Key in circuits Both in terms of what real role the guidelines will play in sentencing going forward and how anxious Congress will be to control judges once again, the key is held by circuit courts and how they define a “reasonable” sentence, said sentencing scholar Susan Herman of Brooklyn Law School. Rosenzweig agreed, saying, “If the appellate review standard has teeth, then this [remedy] could be kind of the Holy Grail in the sentencing debate. The guidelines would be pretty good guidance but not be as rigid as before, with room for reasonable exceptions. If it has no teeth, it becomes a formula for every judge to do what he wants.” The “$64,000″ question, of course, is “whether Congress and the Department of Justice will wait to see how it all plays out,” said another sentencing scholar, Douglas Berman of Ohio State University Michael E. Moritz College of Law. Squishy standard Breyer said the reasonableness standard flowed from related statutory language, the structure of the Sentencing Reform Act and two decades of appellate practice reviewing sentencing departures for “unreasonableness.” But Justice Antonin Scalia, in dissent, countered that, before the guidelines, federal appellate courts had little experience reviewing sentences for anything but legal error. After the guidelines, he said, the power to review a sentence for reasonableness arose only when the sentencing court had departed from the applicable guideline range: 16.7% of all sentencing appeals in 2002. “There is no one-size-fits-all ‘unreasonableness’ review,” he wrote, adding, “What I anticipate will happen is that ‘unreasonableness’ review will produce a discordant symphony of different standards, varying from court to court and judge to judge.” Scalia has the better view of appellate court experience with a reasonableness standard, said Craig Green of Temple University James E. Beasley School of Law. “In the era before the guidelines, when we had what was called discretionary sentencing, you had broad statutory ranges of punishment and there was no effective appellate review,” said Green. “As a matter of federal criminal law, reasonableness is by and large really quite new, and there aren’t a lot of evident guideposts,” he added. The short-term problem for the lower courts, said Ohio State’s Berman, is that “they don’t know what weight to give the guidelines, either in the initial sentencing calculus of the sentencing judge, or in the subsequent appellate review of the sentence.” Appellate courts interpreting the reasonableness standard have several options, according to scholars and practitioners. “Now that the guidelines are not mandatory, the sentencing ranges are only advisory, informational,” noted Brooklyn’s Herman. “It seems to me that an appellate court could well find a district judge’s sentence is reasonable even if it is not within the guideline range as long as the district judge had something to say. The appellate court may interpret the standard like an abuse-of-discretion standard.” The standards of reasonableness and abuse of discretion are very deferential in other areas of the law, said Craig Margolis of the Washington office of Houston-based Vinson & Elkins. “So I expect you might see a court of appeals intervening, for example, in a $100 million fraud case where the judge gives someone probation,” he said. “Where a judge may decide to go under the guideline range not in a drastic way, I would guess on balance you won’t see courts of appeals getting involved to invalidate that.” Another option, Herman suggested, was for appellate courts to say that even though the guidelines are advisory, they implement the Sentencing Reform Act, and that act is still binding on judges. “Therefore if a district judge gives a sentence not within the guidelines’ range on the basis of a factor that the act precludes-for example, a lighter sentence because the defendant has small children at home-then I think the appellate court could well say that is still an unreasonable sentence, not because of the guidelines but because the act says you can’t consider family situations,” Herman explained. A third option, noted many scholars, is that appellate courts will simply overturn nonconforming sentences and the guidelines will operate de facto. The latter option seems to “fly in the face” of the high court’s Sixth Amendment ruling, said Ohio State’s Berman, because “appellate review that gives presumptive effect to the guidelines makes them, in practical fact, legally enforceable. “This obviously infuriates justices Scalia and Stevens, but this result is precisely what Justice Breyer would like to see as a policy matter: The guidelines survive, but judges have more discretion,” he added. Finally, the appellate courts might take a very hands-off approach to reasonableness, said Temple’s Green. “There are no standards and no guidance for what to do here, but there is an American tradition of having discretionary sentencing in the absence of guidelines,” he said, adding that with such an approach, “no substantial principles could emerge to sort of control [sentencing] judges.” Political edge After the Stevens majority held that the Sixth Amendment applied to the sentencing guidelines, the high court had two options: Keep the guidelines but graft onto them the requirement that juries, not judges, must find factors leading to enhanced sentences, or scrap the guidelines. Breyer never signed onto the majority’s Sixth Amendment sentencing theory, which dates to the 2000 ruling in Apprendi v. New Jersey, 530 U.S. 466. And, as a former congressional staffer who helped to draft the guidelines legislation and who was a former U.S. Sentencing Commission member, he continues to believe in the guidelines as the mechanism for achieving fairness and uniformity in sentencing. The court’s two options, say many scholars, just were not acceptable to Breyer. “I think Justice Breyer had in mind that a better solution here was to try an experiment with appellate judges, to create norms, to see what’s reasonable,” said Green. “Somebody needs to be making those decisions to have some sort of mechanism for reining in disparity, and he shifts those decisions to the appellate courts.” A lot of judges, noted Green and others, think this new “flexible” and “mushy” relationship between trial judges and appellate judges over reasonableness is just fine. Indeed, several district and appellate court judges publicly said they were elated with the decision and called the remedy an ideal sentencing system. In a way, Breyer’s solution takes the edge off the political response, added Green. “If they had just struck down the guidelines and reverted to the old system, it would have been an easy political call. In this legal context, someone could say: Not so fast; there only will be disparity where it is reasonable disparity. Where it is unreasonable, the appellate courts will fix it.” Noble experiment or not, Breyer’s solution may not get a chance to prove itself, said Stephen Saltzburg of Georgetown University Law Center. “I think the leadership of the House of Representatives is probably as skeptical about giving trial judges discretion and appellate judges wide-ranging review as any part of Congress has been in our recent memory,” he said. Congress could change the appellate standard of review, he said. It could also enact new mandatory minimum sentences to control judges, he added, and it could make certain sentencing factors elements of the crimes that have to be charged in the indictment and proven beyond a reasonable doubt. Congress is likely to get a nudge from the Justice Department, which, in the process of losing Booker/Fanfan, also lost a major tool for securing defendants’ cooperation, said Vinson & Elkins’ Margolis. The guidelines prohibited a judge from departing downward in a sentence for a defendant’s substantial assistance unless the government filed a motion seeking the departure. The judge no longer has to follow that rule. “You may see defendants having less of an incentive to cooperate because there’s at least a greater hope of getting a sentence outside the scope of the guidelines without getting the motion,” he said. There is also the probability of more trials, particularly in the white-collar area where defendants once faced very tough sentences depending on the amount of loss, said Gregory Wallance of New York’s Kaye Scholer. “Under the guideline system, you get one bite,” he said. “You get convicted and your goose is cooked. Now you get two bites: a trial and a second opportunity to argue for lower sentences that otherwise were not available.” The defense bar’s ideal was to have the guidelines eliminated, Wallance and others said. “On its face, the decision does transfer a lot of power to judges, but if we view what happened in states with advisory guidelines, those advisory guidelines tended to be the sentences imposed in 80-85% of the cases,” cautioned Carmen Hernandez, vice president of the National Association of Criminal Defense Lawyers. “We don’t know how this is all going to play out.” Ultimately, the Supreme Court decision, for almost all parties, including the justices, is the “world of second best,” said Temple’s Green. “There’s no question Stevens is disappointed,” Green added. “He had a vision of making the guidelines into a lenient engine of fairness. He wanted base offense levels to be the maximum and have huge statutory maximums irrelevant. Scalia really wanted a simple rule. Of course, Breyer really wanted the guidelines to stay.” Coyle’s e-mail address is [email protected].

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