In U.S. v. McGee, No. 06-1554 (6th Cir. 7/11/07) Judge McKeague writes, "Finally, Appellant argues that the presumption of reasonableness applicable to a sentence within the Guidelines range 'is not necessarily the appropriate way to review sentences,' and he asks us 'to reconsider its standard of review and to better define what a criminal defendant must do to rebut the presumption of reasonableness.' ... As we are bound by the Supreme Court's decision in Rita, we must deny the first part of Appellant's request." (Emphasis added) This overstates the holding in Rita.
The Supreme Court defined in issue in Rita as “whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” Rita v. United States, No. 06-5754 (2007) (Slip Op. 7) (emphasis added) He later explained that “we permit courts of appeals to adopt a presumption of reasonableness.” Id., slip op. 15. In answering that a court of appeals could apply such a presumption, the Supreme Court did not mandate that every court of appeals must apply such a presumption, only that one could if it chose to do so.
Justice Breyer wrote for the Chief Justice and Justices Alito and Kennedy. In order to get a majority of the Court to sign off on this proposition, Justices Stevens and Ginsburg signed on, but wrote a separate concurring opinion. In that concurring opinion, Justice Stevens notes that he did not agree with the remedial part of the Booker decision, but is now bound to it by stare decisis. He notes that reasonableness review is simply the former abuse-of-discretion standard. As such, “[w]hile reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge’s individualized sentencing determination.” Id., at slip op. 5 of the concurring opinion. (emphasis added)
The Court’s decision in Rita affirms the expanded role that the district court must now play in sentencing, including its duty to reject the Guidelines if it finds them to be in conflict with the 3553(a) factors in a given case or that they would result in a sentence greater than necessary to effect the sentencing goals. In doing so, it attempts to give meaning to Booker’s command that the Guidelines are now “advisory.” As Justice Stevens notes, “I trust that 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 slip op. 7 of the concurring opinion.
To be “bound” by the Supreme Court’s decision in Rita, therefore, is to recognize in the first place that the appellate presumption is not mandatory and, in the second, that “the rebuttability of the presumption is real.” (Id.) This McGee does not do.