The following entry is by Jeff Fisher of Stanford Law School, who also appeared on the NACDL amicus brief supporting Rita and Claiborne.
I don’t have much to add to the predictive debate over whether district courts will opt for guideline sentences more or less often after Rita than they did before. On the one hand, some courts may see Rita as providing something of a safe harbor. On the other hand, some may notice that the Court takes pains to emphasize that waters should be calm outside the harbor as well, and thus may be emboldened to issue more non-guidelines sentences. Time will tell.
But I do want to take issue, respectfully, with those who suggest that Justice Breyer is winning the war over the Sixth Amendment right to jury trial. For starters, that certainly is not true in the states, where the majority of criminal defendants in this country are sentenced. Almost all of the states forced to react to the Apprendi line of cases have decided to engraft the jury trial right onto their existing structured sentencing systems.
Five Justices in Booker, however, decided to mark a different course. But even in the federal realm, it seems to me an overstatement to suggest that Rita portends a de facto guidelines system not too different from the pre-Booker system. That is because the Apprendi majority has continued — both in this Term’s decision in Cunningham v. California as well as today — to make clear that a sentencing system may not allow defendants to be given longer sentences than their guilty verdicts (coupled with any valid — that is, knowing and voluntary — admissions) permit.
That now-settled Sixth Amendment rule means that the post-Booker “advisory” guidelines system need not (and at least to some significant extent will not) look anything like the mandatory guidelines system that existed before Booker: Specifically, this Sixth Amendment rule means that district courts that choose to impose below-guidelines sentences may not be reversed on appeal based on a failure to impose a guideline sentence that derives from facts beyond the guilty verdict and any valid admissions. If an appellate court were to reverse such a sentence, it would effectively hold that the federal sentencing system requires a sentence longer than that authorized by the guilty verdict and any valid admissions. That is exactly what the Apprendi majority insists is impermissible.
We may not see the Supreme Court crystallize this prohibition on appellate courts issuing such reversals for some time. The Court did not have to do so in Rita because Mr. Rita received a within-guidelines sentence. And it’s my understanding from the lower court opinions that the defendants in Gall and Kimbrough admitted many if not all of the facts necessary to calculate their guideline ranges. (This is not to suggest that Gall and Kimbrogh won’t win, just that their cases may not raise this particular issue.) But I believe that when defendants do not admit such facts, district courts in the post-Booker world are free to give them below-guideline sentences, and (assuming the guideline range in the case at issue is higher than allowed based on the guilty verdict and valid admissions alone) the Sixth Amendment does not allow appellate courts to reverse those sentences for failure to heed the guidelines. That is a very significant change from the pre-Booker world. And it’s one that I sense many courts and litigants have overlooked so far.
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