The veil of vagueness: reasonableness review in Rita v. United States.

• Author: Playforth, John

Three years ago, in United States v. Booker, (1) a 5-4 majority of the Supreme Court held that the Sentencing Reform Act of 1984 (SRA), (2) which required federal judges to impose sentences within the Federal Sentencing Guidelines (the Guidelines) (3) based upon judicially-found facts, violated the Sixth Amendment. (4) A different 5-4 majority of the Court held, in what is known as the Booker "remedial" opinion, that the appropriate remedy was to excise from the SRA the two provisions that made the Guidelines mandatory, thus rendering them effectively advisory. (5) For the federal courts of appeals, the effect of Booker was to replace a clear set of standards of review for federal criminal sentences (6) with a vague "review for unreasonableness" standard. (7) This holding left many unanswered questions--a point well noted by the dissenters--not least among them the question of the role that the Guidelines would play under the new standard of review. (8)

Last term, in Rita v. United States, (9) the Supreme Court held that courts of appeals could afford a presumption of reasonableness to sentences that fall within the relevant Guidelines range. (10) This decision fails to resolve a core problem inherent in the Booker remedial opinion: If judicially-found facts can be decisive under "reasonableness review," the constitutional defect identified by the Booker majority--that all facts necessary to increase the maximum possible sentence must be proved to a jury--remains. Conversely, if the Court drastically limits the role of the Guidelines under reasonableness review to avoid this constitutional problem, it undermines its assertion that the remedial provisions of Booker were the best possible way to further the congressional goal of sentencing uniformity. In Rita, the Court relied upon the uncertainty of the reasonableness review standard it created in Booker to dodge this problem. This holding masks, but cannot resolve, the tension inherent in Booker. (11)

Victor Rita was accused of perjury before a federal grand jury. (12) Federal agents from the Bureau of Alcohol Tobacco, Firearms and Explosives had been investigating a company named InterOrdinance for importing and selling kits that could be assembled into machineguns without required registrations. (13) Rita purchased such a kit, but after federal agents approached him, he contacted InterOrdinance and exchanged the kit for a non-machinegun kit before allowing the agents to inspect it. (14) When Rita was brought before a grand jury, he denied that the agents had asked him for the machinegun kit and denied that he had contacted InterOrdinance. (15) After a jury trial, Rita was convicted of perjury, making false statements, and obstruction of justice. (16)

After the verdict, a probation officer prepared a presentence report in accordance with federal law. (17) This report calculated that the appropriate sentence under the Guidelines, based upon the gravity of the set of offenses, the gravity of the underlying crime, and Rita's lack of relevant criminal history, was 33 to 41 months' imprisonment. (18) The report also concluded that there appeared "to be no circumstance or combination of circumstances that warrant[ed] a departure from the [Guidelines]." (19) During the sentencing hearing, Rita contended that his previous work in federal criminal justice, his lengthy and distinguished career in the armed forces, and his poor health justified a lower sentence than the minimum required by the Guidelines. (20) The judge rejected this argument and sentenced the defendant to 33 months' imprisonment, the low end of the recommended Guidelines range. (21)

On appeal to the Fourth Circuit, Rita argued that "his 33-month sentence was 'unreasonable' because (1) it did not adequately take account of 'the defendant's history and characteristics,' and (2) it '[was] greater than necessary to comply with the purposes of sentencing set forth in [federal law]." (22) The Fourth Circuit noted that after Booker, "a sentencing court is no longer bound by the range prescribed by the [Guidelines]," but explained that "in determining a sentence post-Booker, sentencing courts are still required to calculate and consider the guideline range prescribed thereby as well as the factors set forth in 18 U.S.C. [section] 3553(a) (2000)." (23) The court also restated its holding, announced in United States v. Green, (24) that "a sentence imposed within the properly calculated Guidelines range is presumptively reasonable." (25) The Fourth Circuit found that "the district court properly calculated the guideline range ... and, because the court sentenced Rita within the applicable guideline range and the statutory maximum, ... Rita's sentence of thirty-three months' imprisonment [was] reasonable." (26) The Supreme Court granted certiorari, noting a circuit split "as to the use of a presumption of reasonableness for within-Guidelines sentences." (27)

Justice Breyer's majority opinion (28) affirmed the judgment of the Fourth Circuit and held that the courts of appeals could apply a presumption of reasonableness to sentences within the Guidelines. (29) After reciting the facts, the Court began its discussion by noting that

the presumption is not binding. It does not ... insist that one side, or the other, shoulder a particular burden of persuasion or proof.... Nor does the presumption reflect strong judicial deference of the kind that leads appeals courts to grant greater fact-finding leeway to an expert agency than to a district judge. (30) Instead, the 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 [section] 3553(a) in the mine run of cases, it is probable that the sentence is reasonable." (31) In the majority's view, this presumption correctly reflects a--perhaps indefinable--form of deference to the "serious, sometimes controversial" work of the Commission to "embody in the Guidelines the factors and considerations set forth in [section] 3553(a)." (32)

Justice Breyer next addressed the central objection to the Court's holding: namely, that the presumption raises the same Sixth Amendment concerns addressed in Booker. This objection posits that, in certain cases, the sentence will only be within the Guidelines because the sentencing court has engaged in judicial fact-finding. As the majority describes the argument, a "pro-Guidelines 'presumption of reasonableness' will increase the likelihood that courts of appeals will affirm such sentences, thereby increasing the likelihood that sentencing judges will impose such sentences. For that reason ... the presumption raises Sixth Amendment 'concerns." (33) Justice Breyer, relying on Booker and the related case of Blakely v. Washington, (34) stated that the relevant Sixth Amendment question was "whether the law forbids a judge to increase a defendant's sentence unless the judge finds facts that the jury did not find (and the offender did not concede)." (35)

The majority's response to this question was that the Booker standard of reasonableness review, with or without a presumption, never created this problematic situation. In Justice Breyer's words, "[a] nonbinding appellate presumption...