Friday, February 06, 2009

Rita 101

Rita 101—a district court may not presume that a sentence within the Guideline range is reasonable, said the Supreme Court once again in Nelson v. United States, No. 08-5657 (January 26, 2009)

In Nelson, the petitioner was convicted of various drug offenses. The district judge sentenced him at the bottom of the Guideline range, stating that a sentence within the Guidelines is presumptively reasonable, so unless there is a good reason to depart, the Guideline sentence is the reasonable sentence. The Fourth Circuit affirmed. The Supreme Court granted the writ, reversed, and remanded for consideration in light of Rita, which held that the appellate court, but not the district court, may presume that the Guideline sentence is reasonable. On remand, and without further briefing, the Fourth Circuit again affirmed the sentence. Interestingly, the Fourth Circuit acknowledged Rita’s holding, but then affirmed the district court, stating that the district court did not treat the Guidelines as mandatory. True, but beside the point, said the Supreme Court in a very short per curiam opinion. "The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable."

This ruling, together with Rita, enhances the district court’s authority to sentence outside of the Guidelines. But I wonder how much of that authority is likely to be exercised, given Rita’s ruling that a sentence within the Guidelines is presumed reasonable on appeal. The real life message is that if the district court judge does not want to be reversed (and who wants to be reversed), the judge should sentence within the Guidelines. Indeed, a cursory review of Sixth Circuit cases reveals that it is the sentences outside of the guideline range that are reversed on appeal. No wonder.

If the district court is to have real authority to sentence outside of the Guidelines, a sentence within the Guidelines should not be presumed reasonable at all. Not in the appellate court, and not in the district court. Otherwise, the district court’s purported authority to sentence outside of the Guidelines is illusory, nothing more than the emperor’s new clothes. We might admire it in the district court, but on appeal, the emperor—the district judge who had the courage to sentence outside of the guidelines—is standing naked in front of the scrutiny of the appellate court.

Contributed by Jasna Tosic, Western District of Michigan

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