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WASHINGTON � If federal appeals courts may now presume that a criminal sentence falling within the advisory Federal Sentencing Guidelines is reasonable, will district judges abandon newfound sentencing discretion for the safe harbor of the guidelines? The U.S. Supreme Court on June 21 held that federal appellate courts may apply a rebuttable presumption of reasonableness to a district court sentence within the guidelines. Rita v. U.S., No. 06-5754. The important question now, according to sentencing scholars and practitioners, is how district judges will view the decision when imposing sentences. The presumption is an appellate court presumption, not a sentencing court presumption, emphasized Justice Stephen G. Breyer, who was writing for the 8-1 majority. Sentencing judges don’t lose discretion and should continue subjecting a defendant’s sentence to the “thorough adversarial testing” demanded by federal sentencing laws, he added. But a dissenting Justice David H. Souter countered, “What works on appeal determines what works at trial.” If the U.S. Sentencing Commission’s views are as weighty as the majority says they are, he added, “A trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range.” The Rita case, in which Victor Rita challenged his 33-month guideline sentence for perjury and obstruction of justice, presented a question that had divided the circuits since the justices’ major sentencing ruling in U.S. v. Booker, 543 U.S. 220 (2005). In Booker, the high court held that the mandatory federal guidelines violated the Sixth Amendment right to jury trial and ruled the guidelines to be only advisory. It also held that appellate courts should review sentences under a standard of reasonableness. After Booker, a number of circuits began to apply a rigid presumption of reasonableness to any sentence that fell within the guideline range for that crime. The Bush administration had argued that seven circuits applied a presumption of reasonableness, but none had ever held that the presumption was a per se one requiring adherence to the guidelines in every case. The administration argued, and the high court agreed, that there may be cases where reliance on the guidelines is not reasonable. Besides emphasizing that the presumption is for appellate courts alone and is not a binding presumption, Breyer also stressed that there is no presumption of unreasonableness for sentences falling outside of the guideline range. “The decision confirms, by my light, that the guidelines provide a relatively safe harbor for [district judges],” said Douglas Berman of Ohio State University Michael E. Moritz College of Law. But although the decision offers a safe harbor, it also suggests “the waters outside of port are relatively calm for judges as well,” said Jeffrey Fisher of Stanford Law School. “The lesson today is that after Booker it’s OK if district courts want to give people heavy sentences, and there’s going to be some deference to that whether the sentence is suggested by the guidelines or other reasons,” said Fisher. If a court wants to give a lower sentence, he added, five justices suggest appellate courts “better not mess with that unless they have extremely good reason to do so.” The decision was “not the best we would have hoped for,” said Carmen Hernandez, president-elect of the National Association of Criminal Defense Lawyers, “but it does allow for the judge who wants to be a judge and exercise judicial discretion to do the right thing.” The court has already slotted for next term two more pieces in the post-Booker sentencing puzzle. Kimbrough v. U.S., No. 06-6330, asks whether sentencing judges can consider the 100-to-1 sentencing disparity in crack-cocaine cases to ensure that a sentence for a cocaine conviction is “sufficient but not greater than necessary.” And Gall v. U.S., No. 06-7949, asks: What kind of justification does a sentencing judge have to give for a below-guidelines sentence to be “reasonable”?

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