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The U.S. Supreme Court’s 2006-07 criminal decisions may not have generated as much fanfare as the court’s decisions on subjects like abortion, the environment, equal protection and the First Amendment. Yet criminal cases constituted almost a third of the cases decided this term, and “45% of the criminal cases were decided 5-4 � all but one along ideological lines,” (Ben Winograd, SCOTUSblog.com, July 9, 2007). The term’s criminal docket thus offers not only the usual important legal updates, but also valuable insight into the Roberts Court. Two cases, Cunningham v. California, 127 S. Ct. 856 (2007), and Rita v. U.S., 127 S. Ct. 2456 (2007), presented the Supreme Court with Sixth Amendment sentencing issues under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny. Consistent with the court’s recent sentencing decisions, Cunningham and Rita supplied the “chief outliers in the justices’ standard voting patterns.” Douglas A. Berman, Sentencing Law & Policy, http://sentencing.typepad.com, July 10, 2007. John Cunningham was convicted of sexually abusing a child. Under California law, Cunningham faced mandatory imprisonment of six, 12 or 16 years. The judge was required to impose the middle term unless the judge found independent aggravating or mitigating factors justifying the high- or low-end term. The judge found six aggravating factors, and sentenced him to the upper term of 16 years. The Supreme Court reversed in a 6-3 decision. Contrary to California courts, the Supreme Court identified a middle-term sentence as the “relevant statutory maximum” under California’s sentencing scheme, and thus Cunningham’s upper-term sentence depended on judicial fact-finding “beyond the elements of the charged offense.” This procedure violated Apprendi, which the court characterized as a “bright line rule.” In reaching this conclusion, the court rejected any distinction “between facts concerning the offense, where Apprendi would apply, and facts concerning the offender, where it would not.” 127 S. Ct at 869 n.14. The court also rebuffed the California Supreme Court’s effort to construe California’s sentencing scheme as discretionary in “operation and effect,” and thus comparable to the advisory Federal Sentencing Guidelines following Booker v. U.S., 543 U.S. 220 (2005). The court concluded that “California’s [sentencing law] does not resemble the advisory system the Booker court had in view,” because “judges are not free to exercise their ‘discretion to select a specific sentence within a defined range.’ ” Id. at 870. The court had not yet made clear “the advisory system the Booker court had in view,” but in Cunningham it suggested that this system might require a broad range of judicial discretion. Rita permitted the court to clarify. Victor A. Rita was convicted of making false statements to a grand jury. Rita sought a sentence below the guidelines range of 33 to 41 months, citing his physical condition, vulnerability in prison and military service. The district court sentenced Rita to 33 months. The 4th U.S. Circuit Court of Appeals affirmed, applying a “presumption” of reasonableness to Rita’s guidelines sentence. Justice Stephen G. Breyer, joined by Chief Justice John G. Roberts Jr. and justices Anthony M. Kennedy, Samuel A. Alito Jr., John Paul Stevens and Ruth Bader Ginsburg, and in part by justices Antonin Scalia and Clarence Thomas, confirmed that an appeals court may apply a presumption of reasonableness when reviewing a within-guidelines sentence. The court explained: “[T]he presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence . . . .That double determination significantly increases the likelihood that the sentence is a reasonable one.” 127 S. Ct. at 2463. The court perceived no Sixth Amendment problem inherent in this presumption, “even if it increases the likelihood that the judge, not the jury, will find ‘sentencing facts.’ ” Id. at 2465. The court explained that a sentencing judge may find facts and rely on factual findings reflected in the guidelines, so long as the law does not forbid the judge from imposing the ultimate sentence without finding those facts. The court also saw no Sixth Amendment problem if “ the presumption will encourage sentencing judges to impose Guidelines sentences.” Id. at 2467. The court, however, identified substantive limitations to this permissible presumption of reasonableness. First, “the presumption is not binding.” Id. at 2463. Second, the presumption applies only on appellate review. The sentencing judge “does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply,” and instead should consult the guidelines and other relevant sources to determine an authorized sentence “sufficient, but not greater than necessary,” to satisfy the congressional sentencing objectives expressed in 18 U.S.C. 3553(a). Id. at 2465, 2467. Third, the presumption of reasonableness for within-guidelines sentences “does not mean that courts may adopt a presumption of unreasonableness” for sentences that vary from the guidelines. Id. at 2467. The court noted that precisely how appellate courts should measure non-guidelines sentences for reasonableness will be decided next term in U.S. v. Gall. The court also emphasized the procedural requirement of stated judicial reasons for a sentence. Although the appropriate “conciseness or detail” will vary and depend on context, a judicial statement of reasons enhances not only appellate review, but also public understanding of sentencing decisions as well as Sentencing Commission efforts to revise guideline recommendations to meet congressional sentencing objectives. None of these considerations benefited Rita, however, perhaps a sign of their limited scope. The Supreme Court concluded that “Rita’s special circumstances are [not] special enough” to require a below-Guidelines sentence. Id. at 2470. And while “the judge might have said more” than to call the guidelines sentence ” ‘not inappropriate,’ ” “ [w]here a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments,” the judge need not explain more. Id. at 2469. Only time will tell whether Rita will produce the “gravitational pull” to guidelines sentences that Justice David H. Souter predicted in his dissent, or whether, as Stevens emphasized in his concurrence, “those judges who had treated the guidelines as virtually mandatory during the post- Booker interregnum will now recognize that the Guidelines are truly advisory.” Id. at 2474. Fourth Amendment cases The Fourth Amendment often provides the Supreme Court with an opportunity to reveal its jurisprudential divisions. This term, however, the court largely agreed on the Fourth Amendment issues it resolved. In Scott v. Harris, 127 S. Ct. 1769 (2007), a deputy rammed his vehicle into Victor Harris’ vehicle during a high-speed police chase that Harris initiated to avoid a traffic stop. The deputy’s actions caused Harris to crash, rendering Harris a quadriplegic. Harris sued under 42 U.S.C. 1983, alleging a violation of his Fourth Amendment right to remain free of unreasonable deadly force. The lower federal courts denied the deputy’s motion for summary judgment. The Supreme Court reversed, holding that “[a] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Id. at 1779. Finding no triable issues of fact on this question, the court noted that “[w]e are happy to allow the videotape to speak for itself,” and it linked to a videotape of the incident. Id. at 1775 n.5. Stevens, the sole dissenter, chastised the majority � or, “[m]y colleagues on the jury,” as he teasingly called them � for usurping the jury’s role through summary judgment when four presumably reasonable lower court judges had seen the evidence, including the video, differently. Ultimately, he concluded, “[t]he Court today sets forth a per se rule that presumes its own version of the facts.” Id. at 1785. Showing even greater judicial harmony, a unanimous court in Brendlin v. California, 127 S. Ct. 2400 (2007), confirmed that “during a traffic stop the officer seizes everyone in the vehicle, not just the driver.” Id. at 2406. In the court’s view, this result comports with commonly understood passenger expectations, reflected in the vast majority of lower state and federal court decisions. Nevertheless, the court noted that “the relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly.” Id. at 2410 n.6. Moreover, nothing in Brendlin extends an expectation of privacy in the vehicle itself to passengers simply by their presence in the vehicle when it is stopped. Death penalty cases The court’s death penalty cases were dominated by habeas corpus claims from the 5th and 9th circuits, with the 5th Circuit having affirmed death sentences and the 9th Circuit having sided with the defendant. The Supreme Court’s approach was clear: Reverse both circuits in divided 5-4 decisions, with Kennedy serving as the tie-breaker in each direction. For instance, in Uttecht v. Brown, 127 S. Ct. 2218 (2007), the prosecution challenged a prospective juror for cause in Cal Coburn Brown’s Washington state capital murder trial after the juror indicated that he opposed the death penalty but would apply it if the defendant could kill again. Brown faced only death or life without parole if convicted. The trial judge dismissed the juror, and Washington state courts and a federal district court affirmed. The 9th Circuit reversed, holding that the jurors’ excusal violated clearly established federal law because the juror indicated that he would consider the death penalty in an appropriate case. Kennedy, writing for a five-justice majority, disagreed. He explained that “where, as here, there is lengthy questioning of a prospective juror and the trial court has supervised a diligent and thoughtful voir dire, the trial court has broad discretion” to which federal courts should defer, especially on habeas review. Id. at 2230. Stevens, joined by Breyer, Ginsburg and Souter, challenged the “disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.” Id. at 2244. Kennedy controlled the outcome again in Panetti v. Quarterman, 127 S. Ct. 2842 (2007), this time in reversing a 5th Circuit decision. Scott Louis Panetti’s attorneys sought to halt his execution because Panetti believed the state wanted to execute him to stop him from preaching. Texas courts found Panetti competent to be executed, and the district court and 5th Circuit agreed because Panetti knew “of his impending execution and the factual predicate for the execution.” Id. at 2852. The Supreme Court found this test too restrictive, because “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it.” Id. at 2862. The court thus remanded the case to the district court to resolve Panetti’s competency claim, but declined to establish a precise standard to govern all competency determinations. In Bowles v. Russell, 127 S. Ct. 2360 (2007), the court revealed the limited extent to which it views itself as serving an equitable function in criminal cases. Keith Bowles was convicted in state court and sentenced to 15 years to life. After unsuccessful state appeals, Bowles filed a federal habeas claim, which was denied. After Bowles failed to file his notice of appeal within 30 days as required, the district court granted an extension, which is permitted by statute and the Federal Rules of Appellate Procedure (FRAP). The district court’s order granted a 17-day extension, and Bowles filed his notice on day 16. FRAP 4(a)(6), however, authorizes only a 14-day extension. The 6th Circuit dismissed the appeal for lack of jurisdiction. In a 5-4 decision, the Supreme Court affirmed. Writing for the majority, Thomas concluded that because FRAP 4(a)(6) is authorized by statute and is not a court-made rule, the 14-day limit on extensions constitutes a nonwaivable jurisdictional requirement. The court also rejected Bowles’ effort to invoke the “unique circumstances” doctrine, even though he filed his notice of appeal in reliance on a court order. Thomas stated that the “Court has no authority to create equitable exceptions to jurisdictional requirements,” overruling two previous high court decisions that had applied the doctrine. Id. at 2361. Souter dissented, joined by Breyer, Ginsburg and Stevens. He wrote: “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.” Id. at 2367. The court’s criminal cases, although perhaps a bit more quietly and inconsistently than some of the court’s other cases, likely reinforced the perception of a divided Roberts Court. Brooks Holland is assistant professor of law at Gonzaga University School of Law. Danial Gividen, a law student at the school, supplied research assistance.

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