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WASHINGTON—A small-time crack dealer and a decorated military veteran who lied to a grand jury go before the U.S. Supreme Court this week to test the boundaries of federal judges’ sentencing discretion in a world where the Federal Sentencing Guidelines are no longer mandatory. With Claiborne v. U.S., No. 06-5618, and Rita v. U.S., No. 06-5754, the justices have their first opportunity to tell trial and appellate judges how much weight to give the now-advisory guidelines whose mandatory nature the high court in 2005 found constitutionally invalid in U.S. v. Booker, 543 U.S. 220. The post- Booker sentencing landscape, according to lawyers for Mario Claiborne and Victor A. Rita and their supporters, includes more than half of the federal appellate courts imposing a “presumption of reasonableness” on sentences that fall within the guidelines. This presumption is without legal tether, and by discouraging trial judges from considering all factors relevant to sentencing, it has made the guidelines de facto mandatory again. “I think the court really will be interested in whether this presumption of reasonableness has any basis, either in Booker or statute,” said Rita’s high court counsel, Assistant Federal Public Defender Thomas Cochran of Greensboro, N.C. “It’s our position it has neither. It’s a legal fiction.” But the Bush administration and the U.S. Sentencing Commission contend there is nothing unreasonable about a presumption of reasonableness given to within-guideline sentences. A sentence within the guidelines range does not mean the sentence is per se reasonable and must be affirmed, according to Solicitor General Paul D. Clement. “It means only that the sentence should be presumed to be reasonable on appeal,” he tells the high court in his brief. He added that the sentence can still be reversed if the defendant can show it is “substantively unreasonable.” The high court also will decide whether a sentence that varies substantially from the guidelines must be justified by extraordinary circumstances. “I think the decisions in these cases are really going to shape what happens going forward in sentencing and how much discretion district courts have,” said Alexandra A.E. Shapiro, who led a team of lawyers from the New York and Washington offices of Latham & Watkins in filing amicus briefs on behalf of the New York Council of Defense Lawyers supporting Claiborne and Rita. “They will determine whether district courts have discretion to consider all of the statutory sentencing factors and give sentences on an individualized basis,” she said. With two new justices on the high court — Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. — sentencing scholars and others predict the outcome is unpredictable. ‘Booker’ and beyond The Booker decision was a key step in the sentencing revolution launched by the Supreme Court in 2000 with its 5-4 ruling in Apprendi v. New Jersey, 540 U.S. 466. In Apprendi, the court held that a defendant’s Sixth Amendment right to a jury trial is violated when a judge uses facts not found by a jury beyond a reasonable doubt to enhance a sentence beyond the statutory maximum. The court continued on this path with several subsequent rulings, striking down a state sentencing system similar to the federal system in 2004 and just last month invalidating California’s sentencing system, which that state had argued operated in similar fashion to the advisory Federal Sentencing Guidelines. Cunningham v. California, No. 05-6551. In Booker, the high court remedied the Sixth Amendment problem with the federal guidelines by making them “effectively advisory.” It also held that 18 U.S.C. 3553(a) of the Sentencing Reform Act, which sets out seven factors to be considered when imposing sentences, governs a district court’s sentencing decisions and that appellate courts are to review sentences for unreasonableness. The high court did not elaborate on the reasonableness standard of review, said Michael Cahill of Brooklyn Law School, adding, “nor do I think they wanted to elaborate on it having already bit off quite a lot in that decision.” The federal courts have struggled with how to apply that standard since Booker and that struggle now culminates with Claiborne and Rita. Claiborne’s crime involved distribution of crack-offenses treated particularly harshly by the guidelines, especially in comparison to powder cocaine offenses. He pleaded guilty and admitted to all of the facts the judge considered at sentencing. He faced a statutory minimum sentence of five years. The advisory guideline range was 37 to 46 months. Because of Claiborne’s youth, lack of a criminal history and low likelihood of committing further crimes, the sentencing judge said 37 months would be “tantamount to throwing you away.” The district judge sentenced Claiborne to concurrent 15-month terms plus three years of supervised release with drug testing and counseling. The government appealed, and the 8th U.S. Circuit Court of Appeals reversed, finding the sentence unreasonable, an “extraordinary variance” from the guidelines unsupported by extraordinary circumstances. Rita, who had no significant criminal history but did have a long and honorable military career and serious health problems resulting from wartime service, was charged in a five-count indictment with giving false testimony to a grand jury and obstruction of justice. He went to trial, was convicted, and was sentenced to 33 months, which is within the recommended guideline range. The 4th Circuit affirmed the sentence as reasonable after stating that a sentence within the guideline range was presumptively reasonable. Factors In the high court, Cochran — Rita’s counsel — argues that the federal guidelines are just one of the factors listed in Section 3553(a), factors that the high court held in Booker govern judges’ sentencing decisions. “It’s one of seven factors and deserves no greater or lesser weight than any other,” said Cochran. “It appears as factor No. 4. As Justice [Antonin] Scalia pointed out in his dissent from the Booker remedy, had the majority in the remedial portion of Booker wished to accord the guidelines any weight, it would have done so, and it didn’t.” Cochran said the presumption of reasonableness accorded a guideline sentence is not based on the language of the Sentencing Reform Act, but “on a subjective preference for a determinate sentencing regime and mandatory sentencing guidelines.” Claiborne’s counsel, Assistant Federal Public Defender Michael Dwyer of St. Louis, adds that requiring “extraordinary justification” for nonguideline sentences negates the expanded discretion given district judges in Booker-discretion required to make the guideline system “effectively advisory” and thus constitutional. Sentencing database To assist the court in understanding the practical impact of the presumption of reasonableness, the New York Council of Defense Lawyers compiled and analyzed a database of 1,515 post- Booker reasonableness review cases and submitted the analysis in its amicus brief. The study showed that the courts of appeals have affirmed nearly all within- and above-guidelines sentences, while reversing nearly all of the below-guidelines sentences appealed by the government. For example, the study reports: • Of the 154 cases which involved sentences above the guidelines that were appealed by the defendants, nearly all of these above-guidelines sentences were affirmed and only 7 were vacated. &bull Sixty of 71 below-guidelines sentences appealed by the government were vacated as unreasonable. &bull In the courts of appeals that have formally adopted a presumption of reasonableness, 47 of 51 below-guidelines sentences appealed by the government were reversed. &bull There were also 138 below-guidelines sentences appealed by defendants, and zero were found to be unreasonable. &bull Of the remaining 1,152 within-guidelines sentences appealed by defendants, 16 sentences were vacated; 15 of the reversals were for procedural reasons (almost uniformly because the district court failed to articulate its reasons for the sentence); and only one within-guidelines sentence was found to be substantively unreasonable. “We had an anecdotal sense that the appellate review pattern was one in which upward deviations were being routinely affirmed and downward deviations, more often than not, were reversed, and within-guideline sentences were found to be reasonable,” said Latham’s Shapiro. But no one had done a systematic study, she said, adding that if the data supported the anecdotal pattern, it would be “very significant” in showing that the presumption of reasonableness was inconsistent with Booker‘s constitutional holding because the courts essentially were returning to a mandatory guideline regime. “The pattern turned out to be quite stark,” she said. But the Bush administration and the U.S. Sentencing Commission, which filed an amicus brief supporting the government, argue that a presumption of reasonableness for sentences within the guidelines is consistent with Booker. Applying the presumption “recognizes the commission’s extensive efforts to produce a rational sentencing system that incorporates the collective knowledge and experience of all of the participants in the criminal justice system, just as Congress intended,” wrote David Frederick of Washington’s Kellogg, Huber, Hansen, Todd, Evans & Figel, in the commission’s amicus brief. (A U.S. Sentencing Commission spokesman said that the commission would not comment on the case.) And, the solicitor general adds, “Courts of appeals cannot create national measures of generally fair and just sentences. And review of sentences ad hoc would defeat Congress’s basic purpose of tending to increase sentencing uniformity. “The Sentencing Guidelines provide the only nationally uniform, congressionally endorsed integration of the purposes of sentencing under the SRA.” If application of the presumption really did create a mandatory effect on district judges for guideline sentences, the commission argued, “one would expect to see over time a significant and widening gap between the rate of below-Guidelines sentences in circuits with a presumption of reasonableness and the rate of such sentences in circuits without a presumption.” But that has not happened, according to the commission, adding that the difference in rates is insignificant. Reasonableness A presumption of reasonableness doesn’t seem that harmful, particularly if it facilitates a convergence on a norm-encouraging uniformity in sentencing, which is one of Congress’ goals, said Brooklyn Law’s Cahill. “The question is: How strong a presumption do we have?” he added. “What kind of showing is a defendant expected to make that would lead an appellate court to reverse? I think it would be very difficult for a defendant to make that showing,” Cahill said. “And, is there some de facto presumption of unreasonableness every time a judge sentences outside of the guideline range? That reflects a shadow-binding effect of the guidelines.” The Supreme Court, said Cahill, must have known in Booker that it was not providing a final answer. “It probably was hoping there would be some coalescing around a shared understanding about what reasonableness meant or a teeing up of the issue for them-which is exactly what has happened here,” he said. “Now we just have to wait to see how they resolve it.”

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