Sentencing
Case Analysis
Jan.
29, 2007
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.
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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Main Story.
David
Ziemer can be reached by email.
