Sentencing Case Analysis

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Wisconsin’s sentencing scheme is not comparable to California’s, so the decision has no direct effect here.

In addition, the majority opinion studiously avoids saying anything that suggests how it may rule in the two other right-to-jury cases pending before it, Rita v. U.S., No. 06-5754 (cert. granted, Nov. 3, 2006), and Claiburne v. U.S., No. 06-5618 (cert granted, Nov. 3, 2006).

Justice Alito, in dissent, considers the impact of the decision on the federal guidelines, but the majority rebuffs the attempt to engage it, stating in foonote 13, “It is neither necessary nor proper now to join issue with Justice Alito on this matter.” So, there is no immediate effect in federal court, either.

Nevertheless, attorneys in federal court will certainly study the opinion, seeking to gain advantage from it, and arguing that this or that reasoning supports this or that interpretation of the federal guidelines.

Whether lower courts dismiss such arguments by cursory citation to footnote 13, or engage the arguments, we shall see.

Courts could take the former approach, concluding that California’s “either-or” approach to sentences, with nothing in between two choices, does not resemble federal sentencing anymore than it does Wisconsin’s.

The Seventh Circuit wrote in U.S. v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005), “[R]easonableness is a range, not a point.” The Seventh Circuit could invoke this statement, and conclude that the decision in the case at bar has no effect on the federal guidelines or its prior interpretations of the law.

However, should courts take the latter approach, and engage the arguments that attorneys will make as a result of this case, the results could be interesting in the Seventh Circuit.

The first noteworthy aspect of the decision is the vote, 6-3. This is the first Sixth Amendment case dealing with sentencing in which the court has not divided 5-4. The Apprendi line of cases is thus more firmly ensconced than ever, and only Justices Kennedy and Breyer continue to reject the line entirely.

Another interesting aspect is a suggestion by the majority that an individual trial judge’s imposition of a sentence based not on any factual finding, but on the basis of a policy judgment, might be acceptable. In rejecting California’s argument, the court wrote, “It is not surprising, then, that State’s counsel, at oral argument, acknowledged that he knew of no case in which a California trial judge had gone beyond the middle term based not on any fact the judge found, but solely on the basis of a policy judgment or subjective belief.”

The dissent by Alito expresses similar sentiment, stating that policy considerations, such as a judge’s “subjective belief” as to the appropriateness of the sentence “have always been outside the province of the jury and do not implicate the Sixth Amendment concerns expressed in Apprendi.”

The Seventh Circuit has on several occasions held that district courts may not impose sentences outside the guidelines based on policy disagreements. United States v. Miller, 450 F.3d 270 (7th Cir.2006) (ratio of crack to powder cocaine); United States v. Duncan, 413 F.3d 680, 683 (7th Cir.2005) (recidivist sentences); United States v. Rivera, 411 F.3d 864, 866-67 (7th Cir.2005) (mandatory minimum sentences).

The Supreme Court’s statement, and the dissent’s as well, suggests that it may be acceptable for a district court to impose an above-guideline sentence based solely on the court’s subjective assessment that the guideline sentence is too low.

And if a court may do that, the logical corollary is that it may also impose a below-guideline sentence for a subjective reason, such as the guidelines punish crack cocaine defendants too severely relative to powder cocaine.

Ultimately, however, the real conflict presented between the holding in the case at bar, and the advisory federal guidelines is as follows:

The court has held that, if a fact-specific reason is a prerequisite for imposition of a sentence above the “relevant statutory maximum,” then the sentence violates the right to jury, because the court is making the finding, rather than a jury, and is using a standard less than beyond a reasonable doubt. If a fact-specific finding is not a prerequisite for an above-guideline sentence, then the right to jury is not implicated. In the latter case, however, where an above-guideline sentence need not be based on any objective fact, there is no way for the court of appeals to review the sentence for reasonableness in any meaningful way.

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This paradox is at the heart of Alito’s disagreement with the majority.

Alito wrote, “Under the post-Booker system, if a defendant believes that his or her sentence was based on an erroneous factual determination, … the defendant may challenge that finding on appeal. … [T]he post-Booker system permits a defendant to obtain appellate review of the reasonableness of a sentence, and a sentence that the sentencing court justifies solely on the basis of an erroneous finding of fact can hardly be regarded as reasonable. Thus, under the post-Booker system, there will be cases — and, in all likelihood, a good many cases — in which the question whether a defendant will be required to serve a greater or lesser sentence depends on whether a court of appeals sustains a finding of fact made by the sentencing judge.”

The standard of review in the Seventh Circuit is as follows: “[T]he farther the judge’s sentence departs from the guidelines sentence (in either direction — that of greater severity, or that of greater lenity), the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005).

In effect, Dean holds that any sentence significantly above the guideline range (the “relevant statutory maximum” in the court’s parlance) must be supported by judicial fact-finding, exactly what the Supreme Court has held violates the Sixth Amendment.

Thus, an argument can be made, invoking Alito’s criticisms, that Dean is no longer valid law in light of Cunningham. Attorneys and judges will need to be prepared to respond to Alito’s charge that the California system and the federal system are not different in any “constitutionally significant respect.”

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David Ziemer can be reached by email.