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Three years after the U.S. Supreme Court’s decision in United States v. Booker made the sentencing guidelines advisory rather than mandatory, the fallout continues. Key questions remain, including how much weight should a district court give the now-advisory guidelines? If a court imposes a sentence outside the guidelines, must the reason for the variance be proportional to its degree? What factors may a court consider in carrying out Congress’ mandate to impose a sentence “sufficient but not greater than necessary” to carry out the purposes of sentencing? The Supreme Court’s decision in United States v. Rita, issued on June 21, holding that a court of appeals may apply a presumption of reasonableness to sentences that are within the sentencing range set forth in the guidelines, provides a partial answer to the first question. The other two questions await decisions in companion cases scheduled for argument this term. What weight should sentencing courts give to the guidelines? Since the Booker decision, circuit courts have taken different approaches. Prior to Rita, seven circuit courts of appeal held that a sentence is presumed reasonable if it falls within the guidelines sentencing range. Those courts held that when a sentence varies from the guidelines range, the district court must articulate a justification related to the degree of the variance. Four circuits, including the 3rd U.S. Circuit Court of Appeals, declined to adopt a presumption of reasonableness to Guidelines sentences. In United States v. Cooper, the 3rd Circuit developed a two-part test, requiring appellate courts to determine whether the district court gave “meaningful consideration” to the sentencing factors listed in 18 U.S.C. Section 3553(a) and, if so, whether the sentence is reasonable. In a later decision, United States v. Lloyd, the 3rd Circuit moved closer to a presumptive rule, stating that a sentence within the guidelines range is “more likely to be reasonable” than one outside the range. In Rita, the defendant was charged with lying to a grand jury about the purchase of a machine-gun kit. He was convicted by a jury of perjury, obstruction of justice, and making false statements. Because the underlying crime was a violation of the machine-gun registration laws, the guidelines treated Rita as an accessory after-the-fact to that crime, resulting in a guidelines range of 33 to 41 months of imprisonment. The district court sentenced him to 33 months. On appeal, the 4th Circuit affirmed in an unpublished per curiam opinion. The court held that a sentence imposed within the properly calculated guidelines range is presumptively reasonable. The Supreme Court granted certiorari and posed three questions to counsel: Was the district court’s choice of a within-guidelines sentence reasonable? In making that determination, is it consistent with Booker to accord a presumption of reasonableness to within-guidelines sentences? If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the Section 3553(a) factors and any other factors that might justify a lesser sentence? The Supreme Court affirmed in an 8-1 decision. In its opinion, authored by Justice Stephen Breyer, the court held that a court of appeals, in reviewing district court sentences, may apply a presumption of reasonableness to a sentence that reflects a proper application of the guidelines. The court’s rationale was that such a presumption is not binding, and does not offend the Sixth Amendment’s right to a jury trial. With respect to its nonbinding nature, the court reasoned that the presumption, “rather than having independent legal effect, simply recognizes the real-world circumstance that when the judge’s discretionary decision accords with the commission’s view of the appropriate application of Section 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Citing its remedial holding in Booker, the court held that the presumption presents no Sixth Amendment concerns because it is not mandatory. With respect to the “explicit analysis” of the Section 3553(a) factors, the court stated that “when a judge decides simply to apply the guidelines to a particular case, doing so will not necessarily require lengthy explanation,” although the judge “should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision making authority.” Must sentencing variances be proportional to the reason for the variance? Rita was originally supposed to be decided along with Claiborne v. United States, which presented the question of the justification required for sentences outside the advisory guidelines range. After Claiborne died, the court dismissed the Claiborne appeal and replaced it with United States v. Gall, which presents the same issue. Gall received 36 months of probation for conspiring to distribute the drug MDMA, also known as ecstasy. The advisory guidelines range was 30 to 37 months of imprisonment. The 8th Circuit reversed the sentence and remanded, holding that the extraordinary extent of the variance from the guidelines range was not justified by a comparably strong justification. The question before the Supreme Court is whether in reviewing such a sentence, the appellate court must require that the strength of the justification for a variance from the guidelines bear a proportional relationship to the degree of the variance. What makes a sentence “sufficient but not greater than necessary?” In Kimbrough v. United States, the court will consider how sentencing courts may apply the provision in the Sentencing Reform Act that requires that a sentence be “sufficient but not greater than necessary” to carry out the purposes of sentencing. Specifically, the court will decide whether, in carrying out that mandate, courts may consider the impact of the disparity in the treatment of crack cocaine versus powder cocaine in the federal system, whereby a quantity of crack cocaine yields the same guidelines range as 100 times that quantity of powder cocaine. The court will also decide how sentencing courts, in carrying out the mandate, should consider and balance the various factors spelled out in the statute, and particularly subsection (a)(6), which addresses “the need to avoid unwarranted disparity among defendants with similar records who have been found guilty of similar conduct.” In United States v. Gunter, decided in September 2006, the 3rd Circuit addressed the 100-to-1 crack to powder ratio, and held that “district courts may consider the crack/powder cocaine differential in the guidelines as a factor, but not a mandate, in the post- Booker sentencing process.” In United States v. Ricks, issued in July 2007, the 3rd Circuit further addressed the 100-to-1 differential, holding that district courts may not substitute their own differential for that established by Congress, and that “when a district court imposes a below-guidelines sentence for a crime involving crack, the record must demonstrate that the court focused on individual, case-specific factors.” The Ricks panel noted in a footnote that the issue will be addressed by the Supreme Court in Kimbrough. Conclusion In Rita, the court reaffirmed the centrality of the guidelines to the federal sentencing system by approving a presumption of reasonableness to within-guidelines sentences. The court’s decisions in Gall and Kimbrough, both scheduled for argument on Oct. 2, will further clarify the proper role of the guidelines in the post- Booker era. CHRISTOPHER H. CASEY , a partner at Dilworth Paxson, is a former assistant U.S.attorney and FTC trial attorney. A member of thefirm’s corporate investigations and white collargroup, he concentrates his practice in white collar defense, internal corporate investigations, criminal and civil antitrust, and complex commercial litigation. He can be reached at 215-575-7131 or [email protected] . DAVID M. LAIGAIE , a partner at Dilworth Paxson, heads the corporate investigations and white collar group. His areas of practice include health care fraud, securities fraud, tax fraud, export violations, pharmaceutical marketing fraud, municipal corruption, defense procurement fraud and public finance fraud. He regularly conducts internal corporate investigations. He can be reached at 215-575-7168 or [email protected] .

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