Reasonableness presumption is constitutional

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The U.S. Supreme Court’s long-awaited decision on whether a presumption of reasonableness attaches to a sentence within a properly calculated guideline range was released June 21. The court said it does at the appellate level.

However, the court added that district courts should not employ such a presumption when imposing sentence, settling an issue that has divided the Seventh Circuit.

Victor Rita was convicted of perjury, making false statements, and obstructing justice, and was sentenced to the bottom of the Federal Sentencing Guidelines range — 33 months.

Rita appealed, claiming the sentence was unreasonable. The Fourth Circuit affirmed the sentence, employing a presumption that a sentence within a properly calculated guidelines range is reasonable.

The U.S. Supreme Court granted certiorari, but affirmed, in a decision by Justice Stephen Breyer, holding that it was proper for the court of appeals to employ the presumption of reasonableness.

Justices John Paul Stevens and Antonin Scalia wrote concurrences, and Justice David H. Souter wrote a lone dissent.

Writing for the majority, Breyer emphasized that the presumption is not binding, but that it represents a “double determination” that the sentence is reasonable — first, by the Sentencing Commission, and second, by the trial judge.

Breyer wrote, “The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic sec. 3553(a) objectives, the one, at retail, the other at wholesale.”

Breyer then proceeded to a lengthy history of how the Commission reaches its sentencing ranges, seeking to embody the sentencing factors set forth in 18 U.S.C. 3553(a).

Defending a presumption of reasonableness, Breyer explained, “the courts of appeals’ ‘reasonableness’ 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 §3553(a) in the mine run of cases, it is probable that the sentence is reasonable.”

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Turning to the merits of the case, the court concluded that the sentencing court’s statement of reasons for imposing a guideline sentence was “brief but leally sufficient.” Accordingly, the court affirmed.

Justice Scalia wrote a dissent joined by Justice Clarence Thomas, objecting, “The Court has reintroduced the constitutional defect that Booker purported to eliminate.”

Scalia complained that, under the standard adopted by the court, appellate courts effectively are barred from reversing guideline sentences as too high. As a result, Scalia advocated that appellate review contain no substantive review of reasonableness at all, but review only for procedural reasonableness.

Justice Stevens wrote a concurrence joined by Justice Ruth Bader Ginsburg, objecting to the “procedural unreasonableness only” standard advocated by Scalia, noting that such a standard would allow a district judge to give “harsh sentences to Yankees fans and lenient sentences to Red Sox fans,” provided only that the procedural rulings were impeccable.

Justice Souter wrote a lone dissent, arguing that the effect of the presumption will be that sentencing judges will impose guideline sentences as if they were mandatory, rather than advisory: “Without a powerful reason to risk reversal on the sentence, a district judge … will do the appropriate fact finding in disparagement of the jury right and will sentence within the high subrange.”

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David Ziemer can be reached by email.