Rita v. United States

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

RITA v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

No. 06–5754. Argued February 20, 2007—Decided June 21, 2007

Petitioner Rita sought a sentence lower than the recommended Federal

Guidelines range of 33 to 41 months based on his physical condition,

likely vulnerability in prison, and military experience. The judge

concluded that the appropriate sentence was 33 months, the bottom

of the Guidelines range. In affirming, the Fourth Circuit observed

that a sentence imposed within a properly calculated Guidelines

range is presumptively reasonable.

Held:

1. A court of appeals may apply a presumption of reasonableness to

a district court sentence within the Guidelines. Pp. 7–16.

(a) Such a presumption is not binding. It does not reflect strong

judicial deference of the kind that leads appeals court to grant

greater factfinding leeway to an expert agency than to a district

judge. It reflects the nature of the Guidelines-writing task that Con-

gress set for the Sentencing Commission and how the Commission

carries out that task. In 18 U. S. C. §3553(a), Congress instructed

the sentencing judge to consider (1) offense and offender characteris-

tics; (2) the need for a sentence to reflect the basic aims of sentencing,

(3) the sentences legally available; (4) the Sentencing Guidelines; (5)

Sentencing Commission policy statements; (6) the need to avoid un-

warranted disparities; and (7) the need for restitution. Statutes then

tell the Commission to write Guidelines that will carry out the same

basic §3553(a) objectives. The Guidelines as written reflect the fact

that the Sentencing Commission examined tens of thousands of sen-

tences and had the help of the law enforcement community over a

long period in an effort to fulfill this statutory mandate. They also

reflect the fact that judges (and others) can differ as to how best to

reconcile the disparate ends of punishment. The resulting Guidelines

2 RITA v. UNITED STATES

Syllabus

seek to embody the §3553(a) considerations, both in principle and in

practice, and it is fair to assume that they, insofar as practicable, re-

flect a rough approximation of sentences that might achieve

§3553(a)’s objectives. An individual sentence reflects the sentencing

judge’s determination that the Commission’s application of §3553(a)

is appropriate in the mine run of cases, that the individual case does

not differ significantly, and consequently that a Guidelines sentence

reflects a proper application of §3553(a) in the case at hand. The

“reasonableness” presumption simply recognizes these real-world cir-

cumstances. It applies only on appellate review. The sentencing

court does not enjoy the presumption’s benefit when determining the

merits of the arguments by prosecution or defense that a Guidelines

sentence should not apply. Pp. 7–12.

(b) Even if the presumption increases the likelihood that the

judge, not the jury, will find “sentencing facts,” it does not violate the

Sixth Amendment. This Court’s Sixth Amendment cases do not for-

bid a sentencing court to take account of factual matters not deter-

mined by a jury and increase the sentence accordingly to take ac-

count of the Sentencing Commission’s factual findings or

recommended sentences. The relevant Sixth Amendment inquiry is

whether a law forbids a judge to increase a sentence unless the judge

finds facts that the jury did not find. A nonbinding appellate reason-

ableness presumption for Guidelines sentences does not require the

sentencing judge to impose a Guidelines sentence. Still less does it

forbid the judge to impose a sentence higher than the Guidelines pro-

vide for the jury-determined facts standing alone. In addition, any

general conflict between §3353(a) and the Guidelines for appellate

review purposes is alleviated where judge and Commission both de-

termine that the Guidelines sentence is appropriate in the case at

hand, for that sentence likely reflects §3353(a)’s factors. Pp. 12–16.

2. The District Court properly analyzed the relevant sentencing

factors, and given the record, its ultimate sentence was reasonable.

Section 3353(c) calls for the judge to “state” his “reasons,” but does

not insist on a full opinion in every case. The appropriateness of

brevity or length, conciseness or detail, when to write, what to say,

depends upon circumstances. The law leaves much, in this respect,

to the judge’s own professional judgment. In the present context, the

sentencing judge should articulate enough to satisfy the appellate

court that he has considered the parties’ arguments and has a rea-

soned basis for exercising his own legal decisionmaking authority.

He may say less when his decision rests upon the Commission’s own

reasoning that the Guidelines sentence is proper in the typical case,

and the judge has found that the case before him is typical. But

where a party presents nonfrivolous reasons for imposing a different

Cite as: 551 U. S. ____ (2007) 3

Syllabus

sentence, the judge will normally go further and explain why he has

rejected those arguments. Here, the sentencing judge’s statement of

reasons was brief but legally sufficient. The record makes clear that

the judge listened to each of Rita’s arguments for a downward depar-

ture and considered the supporting evidence before finding those cir-

cumstances insufficient to warrant a sentence lower than the Guide-

lines range. Where, as here, the matter is conceptually simple and

the record makes clear that the sentencing judge considered the evi-

dence and arguments, the law does not require a judge to write more

extensively. Pp. 16–20.

3. The Fourth Circuit, after applying the presumption, was legally

correct in holding that Rita’s sentence was not “unreasonable.” Like

the District Court and the Fourth Circuit, this Court simply cannot

say that Rita’s special circumstances—his health, fear of retaliation,

and military record—are special enough, in light of §3553(a), to re-

quire a sentence lower than the one the Guidelines provide. Rita’s

argument that the Guidelines sentence is not reasonable under

§3553(a) because it expressly declines to consider various personal

characteristics, such as his physical condition, employment record,

and military service, was not raised below and will not be considered

here. Pp. 20–21.

177 Fed. Appx. 357, affirmed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and STEVENS, KENNEDY, GINSBURG, and ALITO, JJ., joined, and in

which SCALIA and THOMAS, JJ., joined as to Part III. STEVENS, J., filed a

concurring opinion, in which GINSBURG, J., joined as to all but Part II.

SCALIA, J., filed an opinion concurring in part and concurring in the

judgment, in which THOMAS, J., joined. SOUTER, J., filed a dissenting

opinion.

Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–5754

_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 21, 2007]

JUSTICE BREYER delivered the opinion of the Court.

The federal courts of appeals review federal sentences

and set aside those they find “unreasonable.” See, e.g.,

United States v. Booker, 543 U. S. 220, 261–263 (2005).

Several Circuits have held that, when doing so, they will

presume that a sentence imposed within a properly calcu-

lated United States Sentencing Guidelines range is a

reasonable sentence. See, e.g., 177 Fed. Appx. 357, 358

(CA4 2006) (per curiam) (case below); see also United

States Sentencing Commission, Guidelines Manual (Nov.

2006) (USSG or Guidelines). The most important question

before us is whether the law permits the courts of appeals

to use this presumption. We hold that it does.

I

A

The basic crime in this case concerns two false state-

ments which Victor Rita, the petitioner, made under oath

to a federal grand jury. The jury was investigating a gun

company called InterOrdnance. Prosecutors believed that

buyers of an InterOrdnance kit, called a “PPSH 41 ma-

chinegun ‘parts kit,’ ” could assemble a machinegun from

the kit, that those kits consequently amounted to ma-

2 RITA v. UNITED STATES

Opinion of the Court

chineguns, and that InterOrdnance had not secured

proper registrations for the importation of the guns. App.

7, 16–19, 21–22.

Rita had bought a PPSH 41 machinegun parts kit. Rita,

when contacted by the Bureau of Alcohol, Tobacco, and

Firearms and Explosives (ATF), agreed to let a federal

agent inspect the kit. Id., at 119–120; Supp. App. 5–8.

But before meeting with the agent, Rita called InterOrd-

nance and then sent back the kit. He subsequently turned

over to ATF a different kit that apparently did not amount

to a machinegun. App. 23–24, 120; Supp. App. 2–5, 8–10,

13–14.

The investigating prosecutor brought Rita before the

grand jury, placed him under oath, and asked him about

these matters. Rita denied that the Government agent

had asked him for the PPSH kit, and also denied that he

had spoken soon thereafter about the PPSH kit to some-

one at InterOrdnance. App. 19, 120–121; Supp. App. 11–

12. The Government claimed these statements were false,

charged Rita with perjury, making false statements, and

obstructing justice, and, after a jury trial, obtained convic-

tions on all counts. App. 7–13, 94, 103.

B

The parties subsequently proceeded to sentencing.

Initially, a probation officer, with the help of the parties,

and after investigating the background both of the of-

fenses and of the offender, prepared a presentence report.

See Fed. Rules Crim. Proc. 32(c)–(d); 18 U. S. C. §3552(a).

The completed report describes “offense characteristics,”

“offender characteristics,” and other matters that might be

relevant to the sentence, and then calculates a Guidelines

sentence. The report also sets forth factors potentially

relevant to a departure from the Guidelines or relevant to

the imposition of an other-than-Guidelines sentence. It

ultimately makes a sentencing recommendation based on

Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

the Guidelines. App. 115–136.

In respect to “offense characteristics,” for example, the

report points out that the five counts of conviction all stem

from a single incident. Id., at 122. Hence, pursuant to the

Guidelines, the report, in calculating a recommended

sentence, groups the five counts of conviction together,

treating them as if they amounted to the single most

serious count among them (and ignoring all others). See

USSG §3D1.1. The single most serious offense in Rita’s

case is “perjury.” The relevant Guideline, §2J1.3(c)(1),

instructs the sentencing court (and the probation officer)

to calculate the Guidelines sentence for “perjury . . . in

respect to a criminal offense” by applying the Guideline for

an “accessory after the fact,” as to that criminal offense.

§2X3.1. And that latter Guideline says that the judge, for

calculation purposes, should take as a base offense level, a

level that is “6 levels lower than the offense level for the

underlying offense,” (emphasis added) (the offense that the

perjury may have helped someone commit). Here the

“underlying offense” consisted of InterOrdnance’s possible

violation of the machinegun registration law. App. 124;

USSG §2M5.2 (providing sentence for violation of 22

U. S. C. §2778(b)(2), importation of defense articles with-

out authorization). The base offense level for the gun

registration crime is 26. See USSG §2M5.2. Six levels

less is 20. And 20, says the presentence report, is the base

offense level applicable to Rita for purposes of Guidelines

sentence calculation. App. 45.

The presentence report next considers Rita’s “Criminal

History.” Id., at 125. Rita was convicted in May 1986,

and sentenced to five years’ probation for making false

statements in connection with the purchase of firearms.

Because this conviction took place more than 10 years

before the present offense, it did not count against Rita.

And because Rita had no other relevant convictions, the

Guidelines considered him as having no “criminal history

4 RITA v. UNITED STATES

Opinion of the Court

points.” Ibid. The report consequently places Rita in

criminal history category I, the lowest category for pur-

poses of calculating a Guidelines’ sentence.

The report goes on to describe other “Offender Charac-

teristics.” Id., at 126. The description includes Rita’s

personal and family data, Rita’s physical condition (includ-

ing a detailed description of ailments), Rita’s mental and

emotional health, the lack of any history of substance

abuse, Rita’s vocational and nonvocational education, and

Rita’s employment record. It states that he served in the

Armed Forces for over 25 years, on active duty and in the

Reserve. During that time he received 35 commendations,

awards, or medals of different kinds. The report analyzes

Rita’s financial condition. Id., at 126–132.

Ultimately, the report calculates the Guidelines sen-

tencing range. Id., at 132. The Guidelines specify for base

level 20, criminal history category I, a sentence of 33-to-41

months’ imprisonment. Ibid. The report adds that there

“appears to be no circumstance or combination of circum-

stances that warrant a departure from the prescribed

sentencing guidelines.” Id., at 133.

C

At the sentencing hearing, both Rita and the Govern-

ment presented their sentencing arguments. Each side

addressed the report. Rita argued for a sentence outside

(and lower than) the recommended Guidelines 33-to-41

month range.

The judge made clear that Rita’s argument for a lower

sentence could take either of two forms. First, Rita might

argue within the Guidelines’ framework, for a departure

from the applicable Guidelines range on the ground that

his circumstances present an “atypical case” that falls

outside the “heartland” to which the United States Sen-

tencing Commission intends each individual Guideline to

apply. USSG §5K2.0(a)(2). Second, Rita might argue that,

Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

independent of the Guidelines, application of the sentenc-

ing factors set forth in 18 U. S. C. §3553(a) (2000 ed. and

Supp. IV) warrants a lower sentence. See Booker, 543

U. S., at 259–260.

Thus, the judge asked Rita’s counsel, “Are you going to

put on evidence to show that [Rita] should be getting a

downward departure, or under 3553, your client would be

entitled to a different sentence than he should get under

sentencing guidelines?” App. 52. And the judge later

summarized:

“[Y]ou’re asking for a departure from the guidelines

or a sentence under 3553 that is lower than the guide-

lines, and here are the reasons:

“One, he is a vulnerable defendant because he’s

been involved in [government criminal justice] work

which has caused people to become convicted crimi-

nals who are in prison and there may be retribution

against him.

“Two, his military experience . . . . ” Id., at 64–65.

Counsel agreed, while adding that Rita’s poor physical

condition constituted a third reason. And counsel said

that he rested his claim for a lower sentence on “[j]ust

[those] three” special circumstances, “[p]hysical condition,

vulnerability in prison and the military service.” Id., at

65. Rita presented evidence and argument related to

these three factors. The Government, while not asking for

a sentence higher than the report’s recommended Guide-

lines range, said that Rita’s perjury had interfered with

the Government’s potential “obstruction of justice” claim

against InterOrdnance and that Rita, as a former Gov-

ernment criminal justice employee, should have known

better than to commit perjury. Id., at 74–77. The sentenc-

ing judge asked questions about each factor.

After hearing the arguments, the judge concluded that

he was “unable to find that the [report’s recommended]

6 RITA v. UNITED STATES

Opinion of the Court

sentencing guideline range . . . is an inappropriate guide-

line range for that, and under 3553 . . . the public needs to

be protected if it is true, and I must accept as true the jury

verdict.” Id., at 87. The court concluded: “So the Court

finds that it is appropriate to enter” a sentence at the

bottom of the Guidelines range, namely a sentence of

imprisonment “for a period of 33 months.” Ibid.

D

On appeal, 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 “is greater than necessary to comply with the

purposes of sentencing set forth in 18 U. S. C. §3553(a)(2).”

Brief for Appellant in No. 05–4674 (CA4), pp. i, 8. The

Fourth Circuit observed that it must set aside a sentence

that is not “reasonable.” The Circuit stated that “a sen-

tence imposed within the properly calculated Guidelines

range . . . is presumptively reasonable.” It added that

“while we believe that the appropriate circumstances for

imposing a sentence outside the guideline range will

depend on the facts of individual cases, we have no reason

to doubt that most sentences will continue to fall within

the applicable guideline range.” The Fourth Circuit then

rejected Rita’s arguments and upheld the sentence. Ibid.

(internal quotation marks omitted).

E

Rita petitioned for a writ of certiorari. He pointed out

that the Circuits are split as to the use of a presumption of

reasonableness for within-Guidelines sentences. Compare

United States v. Dorcely, 454 F. 3d 366, 376 (CADC 2006)

(uses presumption); United States v. Green, 436 F. 3d 449,

457 (CA4 2006) (same); United States v. Alonzo, 435 F. 3d

551, 554 (CA5 2006) (same); United States v. Williams,

436 F. 3d 706, 708 (CA6 2006) (same); United States v.

Cite as: 551 U. S. ____ (2007) 7

Opinion of the Court

Mykytiuk, 415 F. 3d 606, 608 (CA7 2005) (same); United

States v. Lincoln, 413 F. 3d 716, 717 (CA8 2005) (same);

and United States v. Kristl, 437 F. 3d 1050, 1053–1054

(CA10 2006) (per curiam) (same), with United States v.

Jimenez-Beltre, 440 F. 3d 514, 518 (CA1 2006) (en banc)

(does not use presumption), United States v. Fernandez,

443 F. 3d 19, 27 (CA2 2006) (same); United States v. Coo-

per, 437 F. 3d 324, 331 (CA3 2006) (same); and United

States v. Talley, 431 F. 3d 784, 788 (CA11 2005) (per cu-

riam) (same).

We consequently granted Rita’s petition. We agreed to

decide whether a circuit court may afford a “presumption

of reasonableness” to a “within-Guidelines” sentence. We

also agreed to decide whether the District Court properly

analyzed the relevant sentencing factors and whether,

given the record, the District Court’s ultimate choice of a

33-month sentence was “unreasonable.”

II

The first question is whether a court of appeals may

apply a presumption of reasonableness to a district court

sentence that reflects a proper application of the Sentenc-

ing Guidelines. We conclude that it can.

A

For one thing, the presumption is not binding. It does

not, like a trial-related evidentiary presumption, insist

that one side, or the other, shoulder a particular burden of

persuasion or proof lest they lose their case. C.f., e.g.,

Raytheon Co. v. Hernandez, 540 U. S. 44, 49–50, n. 3

(2003) (citing Reeves v. Sanderson Plumbing Products,

Inc., 530 U. S. 133, 143 (2000), and McDonnell Douglas

Corp. v. Green, 411 U. S. 792, 802 (1973)). Nor does the

presumption reflect strong judicial deference of the kind

that leads appeals courts to grant greater factfinding

leeway to an expert agency than to a district judge.

8 RITA v. UNITED STATES

Opinion of the Court

Rather, the presumption reflects the fact that, by the time

an appeals court is considering a within-Guidelines sen-

tence on review, both the sentencing judge and the Sen-

tencing Commission will have reached the same conclu-

sion as to the proper sentence in the particular case. That

double determination significantly increases the likelihood

that the sentence is a reasonable one.

Further, the presumption reflects the nature of the

Guidelines-writing task that Congress set for the Commis-

sion and the manner in which the Commission carried out

that task. In instructing both the sentencing judge and

the Commission what to do, Congress referred to the basic

sentencing objectives that the statute sets forth in 18

U. S. C. §3553(a) (2000 ed. and Supp. IV). That provision

tells the sentencing judge to consider (1) offense and of-

fender characteristics; (2) the need for a sentence to reflect

the basic aims of sentencing, namely (a) “just punishment”

(retribution), (b) deterrence, (c) incapacitation, (d) reha-

bilitation; (3) the sentences legally available; (4) the Sen-

tencing Guidelines; (5) Sentencing Commission policy

statements; (6) the need to avoid unwarranted disparities;

and (7) the need for restitution. The provision also tells

the sentencing judge to “impose a sentence sufficient, but

not greater than necessary, to comply with” the basic aims

of sentencing as set out above.

Congressional statutes then tell the Commission to

write Guidelines that will carry out these same §3553(a)

objectives. Thus, 28 U. S. C. §991(b) indicates that one of

the Commission’s basic objectives is to “assure the meeting

of the purposes of sentencing as set forth in [§3553(a)(2)].”

The provision adds that the Commission must seek to

“provide certainty and fairness” in sentencing, to “avoi[d]

unwarranted sentencing disparities,” to “maintai[n] suffi-

cient flexibility to permit individualized sentences when

warranted by mitigating or aggravating factors not taken

into account in the establishment of general sentencing

Cite as: 551 U. S. ____ (2007) 9

Opinion of the Court

practices,” and to “reflect, to the extent practicable [sen-

tencing-relevant] advancement in [the] knowledge of

human behavior.” Later provisions specifically instruct

the Commission to write the Guidelines with reference to

this statement of purposes, the statement that itself refers

to §3553(a). See 28 U. S. C. §§994(f), and 994(m).

The upshot is that the sentencing statutes envision both

the sentencing judge and the Commission as carrying out

the same basic §3553(a) objectives, the one, at retail, the

other at wholesale.

The Commission has made a serious, sometimes contro-

versial, effort to carry out this mandate. The Commission,

in describing its Guidelines-writing efforts, refers to these

same statutory provisions. It says that it has tried to

embody in the Guidelines the factors and considerations

set forth in §3553(a). The Commission’s introductory

statement recognizes that Congress “foresees guidelines

that will further the basic purposes of criminal punish-

ment, i.e., deterring crime, incapacitating the offender,

providing just punishment, and rehabilitating the of-

fender.” USSG §1A.1, intro to comment., pt. A, ¶2 (The

Statutory Mission). It adds that Congress “sought uni-

formity in sentencing by narrowing the wide disparity in

sentences imposed by different federal courts for similar

criminal conduct,” as well as “proportionality in sentenc-

ing through a system that imposes appropriately different

sentences for criminal conduct of different severity.” Ibid.

The Basic Approach).

The Guidelines commentary explains how, despite

considerable disagreement within the criminal justice

community, the Commission has gone about writing

Guidelines that it intends to embody these ends. It says,

for example, that the goals of uniformity and proportional-

ity often conflict. The commentary describes the difficul-

ties involved in developing a practical sentencing system

that sensibly reconciles the two ends. It adds that a “phi-

10 RITA v. UNITED STATES

Opinion of the Court

losophical problem arose when the Commission attempted

to reconcile the differing perceptions of the purposes of

criminal punishment.” Some would emphasize moral

culpability and “just punishment”; others would empha-

size the need for “crime control.” Rather than choose

among differing practical and philosophical objectives, the

Commission took an “empirical approach,” beginning with

an empirical examination of 10,000 presentence reports

setting forth what judges had done in the past and then

modifying and adjusting past practice in the interests of

greater rationality, avoiding inconsistency, complying with

congressional instructions, and the like. Id., ¶3, at 3.

The Guidelines as written reflect the fact that the Sen-

tencing Commission examined tens of thousands of sen-

tences and worked with the help of many others in the law

enforcement community over a long period of time in an

effort to fulfill this statutory mandate. They also reflect

the fact that different judges (and others) can differ as to

how best to reconcile the disparate ends of punishment.

The Commission’s work is ongoing. The statutes and

the Guidelines themselves foresee continuous evolution

helped by the sentencing courts and courts of appeals in

that process. The sentencing courts, applying the Guide-

lines in individual cases may depart (either pursuant to

the Guidelines or, since Booker, by imposing a non-

Guidelines sentence). The judges will set forth their rea-

sons. The Courts of Appeals will determine the reason-

ableness of the resulting sentence. The Commission will

collect and examine the results. In doing so, it may obtain

advice from prosecutors, defenders, law enforcement

groups, civil liberties associations, experts in penology,

and others. And it can revise the Guidelines accordingly.

See generally 28 U. S. C. §994(p) and note following §994

(Commission should review and amend Guidelines as

necessary, and Congress has power to revoke or amend

Guidelines); Mistretta v. United States, 488 U. S. 361,

Cite as: 551 U. S. ____ (2007) 11

Opinion of the Court

393–394 (1989); USSG §1B1.10(c) (listing 24 amendments

promulgated in response to evolving sentencing concerns);

USSG §1A1.1, comment.

The result is a set of Guidelines that seek to embody the

§3553(a) considerations, both in principle and in practice.

Given the difficulties of doing so, the abstract and poten-

tially conflicting nature of §3553(a)’s general sentencing

objectives, and the differences of philosophical view among

those who work within the criminal justice community as

to how best to apply general sentencing objectives, it is

fair to assume that the Guidelines, insofar as practicable,

reflect a rough approximation of sentences that might

achieve §3553(a)’s objectives.

An individual judge who imposes a sentence within the

range recommended by the Guidelines thus makes a

decision that is fully consistent with the Commission’s

judgment in general. Despite JUSTICE SOUTER’s fears to

the contrary, post, at 7–9 (dissenting opinion), the courts

of appeals’ “reasonableness” presumption, rather than

having independent legal effect, simply recognizes the

real-world circumstance that when the judge’s discretion-

ary 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. In-

deed, even the Circuits that have declined to adopt a

formal presumption also recognize that a Guidelines

sentence will usually be reasonable, because it reflects

both the Commission’s and the sentencing court’s judg-

ment as to what is an appropriate sentence for a given

offender. See Fernandez, 443 F. 2d, at 27; Cooper, 437

F. 3d, at 331; Talley, 431 F. 3d, at 788.

We repeat that the presumption before us is an appel-

late court presumption. Given our explanation in Booker

that appellate “reasonableness” review merely asks

whether the trial court abused its discretion, the presump-

tion applies only on appellate review. The sentencing

12 RITA v. UNITED STATES

Opinion of the Court

judge, as a matter of process, will normally begin by con-

sidering the presentence report and its interpretation of

the Guidelines. 18 U. S. C. §3552(a); Fed. Rule Crim.

Proc. 32. He may hear arguments by prosecution or de-

fense that the Guidelines sentence should not apply, per-

haps because (as the Guidelines themselves foresee) the

case at hand falls outside the “heartland” to which the

Commission intends individual Guidelines to apply, USSG

§5K2.O, perhaps because the Guidelines sentence itself

fails properly to reflect §3553(a) considerations, or perhaps

because the case warrants a different sentence regardless.

See Rule 32(f). Thus, the sentencing court subjects the

defendant’s sentence to the thorough adversarial testing

contemplated by federal sentencing procedure. See Rules

32(f), (h), (i)(C) and (i)(D); see also Burns v. United States,

501 U. S. 129, 136 (1991) (recognizing importance of notice

and meaningful opportunity to be heard at sentencing). In

determining the merits of these arguments, the sentencing

court does not enjoy the benefit of a legal presumption

that the Guidelines sentence should apply. Booker, 543

U. S., at 259–260.

B

Rita and his supporting amici make two further argu-

ments against use of the presumption. First, Rita points

out that many individual Guidelines apply higher sen-

tences in the presence of special facts, for example, bran-

dishing a weapon. In many cases, the sentencing judge,

not the jury, will determine the existence of those facts. A

pro-Guidelines “presumption of reasonableness” will in-

crease the likelihood that courts of appeals will affirm

such sentences, thereby increasing the likelihood that

sentencing judges will impose such sentences. For that

reason, Rita says, the presumption raises Sixth Amend-

ment “concerns.” Brief for Petitioner 28.

In our view, however, the presumption, even if it in-

Cite as: 551 U. S. ____ (2007) 13

Opinion of the Court

creases the likelihood that the judge, not the jury, will find

“sentencing facts,” does not violate the Sixth Amendment.

This Court’s Sixth Amendment cases do not automatically

forbid a sentencing court to take account of factual mat-

ters not determined by a jury and to increase the sentence

in consequence. Nor do they prohibit the sentencing judge

from taking account of the Sentencing Commission’s fac-

tual findings or recommended sentences. See Cunning-

ham v. California, 549 U. S. ___, ___–___ (2007) (slip op.,

at 8–9), (citing Booker, supra, at 243–244; Blakely v.

Washington, 542 U. S. 296, 304–305 (2004); Ring v. Ari-

zona, 536 U. S. 584, 602 (2002); and Apprendi v. New

Jersey, 530 U. S. 466, 471 (2000)).

The Sixth Amendment question, the Court has said, is

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). Blakely, supra, at

303–304 (“When a judge inflicts punishment that the

jury’s verdict alone does not allow, the jury has not found

all the facts which the law makes essential to the punish-

ment and the judge exceeds his proper authority” (internal

quotation marks and citation omitted)); see Cunningham,

supra, at ____, (slip op., 10, 11) (discussing Blakely) (“The

judge could not have sentenced Blakely above the stan-

dard range without finding the additional fact of deliber-

ate cruelty,” “[b]ecause the judge in Blakely’s case could

not have imposed a sentence outside the standard range

without finding an additional fact, the top of that range

. . . was the relevant” maximum sentence for Sixth

Amendment purposes); Booker, 543 U. S., at 244 (“Any

fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury

beyond a reasonable doubt”); id., at 232 (discussing

Blakely) (“We rejected the State’s argument that the jury

14 RITA v. UNITED STATES

Opinion of the Court

verdict was sufficient to authorize a sentence within the

general 10-year sentence for class B felonies, noting that

under Washington law, the judge was required to find

additional facts in order to impose the greater 90-month

sentence”) (emphasis in original)).

A nonbinding appellate presumption that a Guidelines

sentence is reasonable does not require the sentencing

judge to impose that sentence. Still less does it forbid the

sentencing judge from imposing a sentence higher than

the Guidelines provide for the jury-determined facts

standing alone. As far as the law is concerned, the judge

could disregard the Guidelines and apply the same sen-

tence (higher than the statutory minimum or the bottom

of the unenhanced Guidelines range) in the absence of the

special facts (say, gun brandishing) which, in the view of

the Sentencing Commission, would warrant a higher

sentence within the statutorily permissible range. Thus,

our Sixth Amendment cases do not forbid appellate court

use of the presumption.

JUSTICE SCALIA concedes that the Sixth Amendment

concerns he foresees are not presented by this case. Post,

at 7 (concurring in part and concurring in judgment). And

his need to rely on hypotheticals to make his point is con-

sistent with our view that the approach adopted here will

not “raise a multitude of constitutional problems.” Clark

v. Martinez, 543 U. S. 371, 380–381 (2005). Similarly,

JUSTICE SCALIA agrees that we have never held that “the

Sixth Amendment prohibits judges from ever finding any

facts” relevant to sentencing. Post, at 6. In sentencing, as

in other areas, district judges at times make mistakes that

are substantive. At times, they will impose sentences that

are unreasonable. Circuit courts exist to correct such

mistakes when they occur. Our decision in Booker recog-

nized as much, 543 U. S., at 260–264. Booker held uncon-

stitutional that portion of the Guidelines that made them

mandatory. Id., at 233–234, 243–244. It also recognized

Cite as: 551 U. S. ____ (2007) 15

Opinion of the Court

that when district courts impose discretionary sentences,

which are reviewed under normal appellate principles by

courts of appeals, such a sentencing scheme will ordinarily

raise no Sixth Amendment concern. Ibid; see id., at 233

(opinion for the Court by STEVENS, J.) (“Indeed, everyone

agrees that the constitutional issues presented by these

cases would have been avoided entirely if Congress had

omitted from the [federal sentencing statute] the provi-

sions that make the Guidelines binding on district

judges”). That being so, our opinion in Booker made clear

that today’s holding does not violate the Sixth Amend-

ment.

Rita may be correct that the presumption will encourage

sentencing judges to impose Guidelines sentences. But we

do not see how that fact could change the constitutional

calculus. Congress sought to diminish unwarranted sen-

tencing disparity. It sought a Guidelines system that

would bring about greater fairness in sentencing through

increased uniformity. The fact that the presumption

might help achieve these congressional goals does not

provide cause for holding the presumption unlawful as

long as the presumption remains constitutional. And,

given our case law, we cannot conclude that the presump-

tion itself violates the Sixth Amendment.

The fact that we permit courts of appeals to adopt a

presumption of reasonableness does not mean that courts

may adopt a presumption of unreasonableness. Even the

Government concedes that appellate courts may not pre-

sume that every variance from the advisory Guidelines is

unreasonable. See Brief for United States 34–35. Several

courts of appeals have also rejected a presumption of

unreasonableness. See, e.g., United States v. Howard, 454

F. 3d 700, 703 (CA7 2006); United States v. Matheny, 450

F. 3d 633, 642 (CA6 2006); United States v. Myers, 439

F. 3d 415, 417 (CA8 2006); United States v. Moreland, 437

F. 3d 424, 433 (CA4 2006). However, a number of circuits

16 RITA v. UNITED STATES

Opinion of the Court

adhere to the proposition that the strength of the justifica-

tion needed to sustain an outside-Guidelines sentence

varies in proportion to the degree of the variance. See,

e.g., United States v. Smith, 445 F. 3d 1, 4 (CA1 2006);

United States v. Moreland, 437 F. 3d 424, 434 (CA4 2006);

United States v. Armendariz, 451 F. 3d 352, 358 (CA5

2006); United States v. Davis, 458 F. 3d 491, 496 (CA6

2006); United States v. Dean, 414 F. 3d 725, 729 (CA7

2005); United States v. Dalton, 404 F. 3d 1029, 1033 (CA8

2005); United States v. Bishop, 469 F. 3d 896, 907 (CA10

2006); United States v. Crisp, 454 F. 3d 1285, 1291–1292

(CA11 2006). We will consider that approach next Term in

United States v. Gall, No. 06–7949.

Second, Rita and his amici claim that use of a pro-

Guidelines presumption on appeal conflicts with Congress’

insistence that sentencing judges apply the factors set

forth in 18 U. S. C. §3553(a) (2000 ed., Supp. IV) (and that

the resulting sentence be “sufficient, but not greater than

necessary, to comply with the purposes” of sentencing set

forth in that statute). We have explained above, however,

why we believe that, where judge and Commission both

determine that the Guidelines sentences is an appropriate

sentence for the case at hand, that sentence likely reflects

the §3553(a) factors (including its “not greater than neces-

sary” requirement). See supra, at 8. This circumstance

alleviates any serious general conflict between §3553(a)

and the Guidelines, for the purposes of appellate review.

And, for that reason, we find that nothing in §3553(a)

renders use of the presumption unlawful.

III

We next turn to the question whether the District Court

properly analyzed the relevant sentencing factors. In

particular, Rita argues that the court took inadequate

account of §3553(c) (2000 ed., Supp. IV), a provision that

Cite as: 551 U. S. ____ (2007) 17

Opinion of the Court

requires a sentencing judge, “at the time of sentencing,” to

“state in open court the reasons for its imposition of the

particular sentence.” In our view, given the straightfor-

ward, conceptually simple arguments before the judge, the

judge’s statement of reasons here, though brief, was le-

gally sufficient.

The statute does call for the judge to “state” his “rea-

sons.” And that requirement reflects sound judicial prac-

tice. Judicial decisions are reasoned decisions. Confi-

dence in a judge’s use of reason underlies the public’s trust

in the judicial institution. A public statement of those

reasons helps provide the public with the assurance that

creates that trust.

That said, we cannot read the statute (or our precedent)

as insisting upon a full opinion in every case. The appro-

priateness of brevity or length, conciseness or detail, when

to write, what to say, depends upon circumstances. Some-

times a judicial opinion responds to every argument;

sometimes it does not; sometimes a judge simply writes

the word “granted,” or “denied” on the face of a motion

while relying upon context and the parties’ prior argu-

ments to make the reasons clear. The law leaves much, in

this respect, to the judge’s own professional judgment.

In the present context, a statement of reasons is impor-

tant. The sentencing judge should set forth enough to

satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising

his own legal decisionmaking authority. See, e.g., United

States v. Taylor, 487 U. S. 326, 336–337 (1988). Nonethe-

less, when a judge decides simply to apply the Guidelines

to a particular case, doing so will not necessarily require

lengthy explanation. Circumstances may well make clear

that the judge rests his decision upon the Commission’s

own reasoning that the Guidelines sentence is a proper

sentence (in terms of §3353(a) and other congressional

mandates) in the typical case, and that the judge has

18 RITA v. UNITED STATES

Opinion of the Court

found that the case before him is typical. Unless a party

contests the Guidelines sentence generally under

§3553(a)—that is argues that the Guidelines reflect an

unsound judgment, or, for example, that they do not gen-

erally treat certain defendant characteristics in the proper

way—or argues for departure, the judge normally need say

no more. Cf. §3553(c)(2) (2000 ed., Supp. IV). (Although,

often at sentencing a judge will speak at length to a de-

fendant, and this practice may indeed serve a salutary

purpose.)

Where the defendant or prosecutor presents nonfrivo-

lous reasons for imposing a different sentence, however,

the judge will normally go further and explain why he has

rejected those arguments. Sometimes the circumstances

will call for a brief explanation; sometimes they will call

for a lengthier explanation. Where the judge imposes a

sentence outside the Guidelines, the judge will explain

why he has done so. To our knowledge, an ordinary ex-

planation of judicial reasons as to why the judge has, or

has not, applied the Guidelines triggers no Sixth Amend-

ment “jury trial” requirement. Cf. Booker, 543 U. S., at

233 (“For when a trial judge exercises his discretion to

select a specific sentence within a defined range, the de-

fendant has no right to a jury determination of the facts

that the judge deems relevant”) and id., at 242 (require-

ment of finding, not articulation of it, creates Sixth

Amendment problem).

By articulating reasons, even if brief, the sentencing

judge not only assures reviewing courts (and the public)

that the sentencing process is a reasoned process but also

helps that process evolve. The sentencing judge has ac-

cess to, and greater familiarity with, the individual case

and the individual defendant before him than the Com-

mission or the appeals court. That being so, his reasoned

sentencing judgment, resting upon an effort to filter the

Guidelines’ general advice through §3553(a)’s list of fac-

Cite as: 551 U. S. ____ (2007) 19

Opinion of the Court

tors, can provide relevant information to both the court of

appeals and ultimately the Sentencing Commission. The

reasoned responses of these latter institutions to the

sentencing judge’s explanation should help the Guidelines

constructively evolve over time, as both Congress and the

Commission foresaw. See generally supra, at 11.

In the present case the sentencing judge’s statement of

reasons was brief but legally sufficient. Rita argued for a

downward departure from the 33-to-41 month Guidelines

sentence on the basis of three sets of special circum-

stances: health, fear of retaliation in prison, and military

record. See App. 40–47. He added that, in any event,

these same circumstances warrant leniency beyond that

contemplated by the Guidelines.

The record makes clear that the sentencing judge lis-

tened to each argument. The judge considered the sup-

porting evidence. The judge was fully aware of defen-

dant’s various physical ailments and imposed a sentence

that takes them into account. The judge understood that

Rita had previously worked in the immigration service

where he had been involved in detecting criminal offenses.

And he considered Rita’s lengthy military service, includ-

ing over 25 years of service, both on active duty and in the

Reserve, and Rita’s receipt of 35 medals, awards, and

nominations.

The judge then simply found these circumstances insuf-

ficient to warrant a sentence lower than the Guidelines

range of 33 to 45 months. Id., at 87. He said that this

range was not “inappropriate.” (This, of course, is not the

legal standard for imposition of sentence, but taken in

context it is plain that the judge so understood.) He im-

mediately added that he found that the 33-month sentence

at the bottom of the Guidelines range was “appropriate.”

Ibid. He must have believed that there was not much

more to say.

We acknowledge that the judge might have said more.

20 RITA v. UNITED STATES

Opinion of the Court

He might have added explicitly that he had heard and

considered the evidence and argument; that (as no one

before him denied) he thought the Commission in the

Guidelines had determined a sentence that was proper in

the minerun of roughly similar perjury cases; and that he

found that Rita’s personal circumstances here were simply

not different enough to warrant a different sentence. But

context and the record make clear that this, or similar,

reasoning, underlies the judge’s conclusion. Where a

matter is as conceptually simple as in the case at hand

and the record makes clear that the sentencing judge

considered the evidence and arguments, we do not believe

the law requires the judge to write more extensively.

IV

We turn to the final question: Was the Court of Appeals,

after applying its presumption, legally correct in holding

that Rita’s sentence (a sentence that applied, and did not

depart from, the relevant sentencing Guideline) was not

“unreasonable”? In our view, the Court of Appeals’ conclu-

sion was lawful.

As we previously said, see Part I, supra, the crimes at

issue are perjury and obstruction of justice. In essence

those offenses involved the making of knowingly false,

material statements under oath before a grand jury,

thereby impeding its criminal investigation. The Guide-

lines provide for a typical such offense a base offense level

of 20, 6 levels below the level provided for a simple viola-

tion of the crime being investigated (here the unlawful

importation of machineguns). The offender, Rita, has no

countable prior offenses and consequently falls within

criminal history category I. The intersection of base of-

fense level 20 and criminal history category I sets forth a

sentencing range of imprisonment of 33 to 45 months.

Rita argued at sentencing that his circumstances are

special. He based this argument upon his health, his fear

Cite as: 551 U. S. ____ (2007) 21

Opinion of the Court

of retaliation, and his prior military record. His sentence

explicitly takes health into account by seeking assurance

that the Bureau of Prisons will provide appropriate treat-

ment. The record makes out no special fear of retaliation,

asserting only that the threat is one that any former law

enforcement official might suffer. Similarly, though Rita

has a lengthy and distinguished military record, he did not

claim at sentencing that military service should ordinarily

lead to a sentence more lenient than the sentence the

Guidelines impose. Like the District Court and the Court

of Appeals, we simply cannot say that Rita’s special cir-

cumstances are special enough that, in light of §3553(a),

they require a sentence lower than the sentence the

Guidelines provide.

Finally, Rita and supporting amici here claim that the

Guidelines sentence is not reasonable under §3553(a)

because it expressly declines to consider various personal

characteristics of the defendant, such as physical condi-

tion, employment record, and military service, under the

view that these factors are “not ordinarily relevant.”

USSG §§5H1.4, 5H1.5, 5H1.11. Rita did not make this

argument below, and we shall not consider it.

* * *

For the foregoing reasons, the judgment of the Court of

Appeals is

Affirmed.

Cite as: 551 U. S. ____ (2007) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–5754

_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 21, 2007]

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins

as to all but Part II, concurring.

It is no secret that the Court’s remedial opinion in

United States v. Booker, 543 U. S. 220 (2005), was not

unanimous. See id., at 272 (STEVENS, J., dissenting). But

Booker is now settled law and must be accepted as such.

See B. Cardozo, The Nature of the Judicial Process 149

(1921) (“[T]he labor of judges would be increased almost to

the breaking point if every past decision could be reopened

in every case, and one could not lay one’s own course of

bricks on the secure foundation of the courses laid by

others who had gone before him”). Therefore, our task

today is to apply Booker’s “reasonableness” standard to a

District Judge’s decision to impose a sentence within the

range recommended by United States Sentencing Guide-

lines that are now advisory, rather than binding.

I

Simply stated, Booker replaced the de novo standard of

review required by 18 U. S. C. §3742(e) with an abuse-of-

discretion standard that we called “ ‘reasonableness’ ”

review. 543 U. S., at 262. We noted in Booker that the de

novo standard was a recent addition to the law. Prior to

2003, appellate courts reviewed sentencing departures for

abuse of discretion under our decision in Koon v. United

States, 518 U. S. 81 (1996). In 2003, however, Congress

2 RITA v. UNITED STATES

STEVENS, J., concurring

overruled Koon and added the de novo standard to

§3742(e). See Prosecutorial Remedies and Other Tools to

end the Exploitation of Children Today Act of 2003,

§401(d)(1), 117 Stat. 670. Recognizing that “the reasons

for th[is] revisio[n]—to make Guidelines sentencing even

more mandatory than it had been— . . . ceased to be rele-

vant” in light of the Court’s constitutional holding,1 Booker

excised the portion of §3742(e) that directed courts of

appeals to apply the de novo standard. 543 U. S., at 261.

Critically, we did not touch the portions of §3742(e) requir-

ing appellate courts to “give due regard to the opportunity

of the district court to judge the credibility of the wit-

nesses,” to “accept the findings of fact of the district court

unless they are clearly erroneous,” and to “give due defer-

ence to the district court’s application of the guidelines to

the facts.” By leaving those portions of the statute intact

while severing the portion mandating a de novo standard

of review, Booker restored the abuse-of-discretion stan-

dard identified in three earlier cases: Pierce v. Underwood,

487 U. S. 552, 558–560 (1988), Cooter & Gell v. Hartmarx

Corp., 496 U. S. 384, 403–405 (1990), and Koon. See

Booker, 543 U. S., at 260.2

——————

1 See 543 U. S., at 233 (opinion for the Court by STEVENS, J.) (“We

have never doubted the authority of a judge to exercise broad discretion

in imposing a sentence within a statutory range. Indeed, everyone

agrees that the constitutional issues presented by these cases would

have been avoided entirely if Congress had omitted from the [Sentenc-

ing Reform Act of 1984] the provisions that make the Guidelines

binding on district judges” (citations omitted)).

2 In fact, Booker expressly equated the new “reasonableness” stan-

dard with the old abuse-of-discretion standard used to review sentenc-

ing departures. See id., at 262 (“ ‘Reasonableness’ standards are not

foreign to sentencing law. The Act has long required their use in

important sentencing circumstances—both on review of departures, see

18 U. S. C. §3742(e)(3) (1994 ed.), and on review of sentences imposed

where there was no applicable Guideline, see §§3742(a)(4), (b)(4), (e)(4)”

(emphasis added)).

Cite as: 551 U. S. ____ (2007) 3

STEVENS, J., concurring

In Pierce, we considered whether the District Court had

properly awarded attorney’s fees based on a determination

that the Government’s litigation position was not “sub-

stantially justified” within the meaning of the Equal Ac-

cess to Justice Act, 28 U. S. C. §2412(d). Because the Act

did not specify a standard of review, we found it necessary

to rely on several “significant relevant factors” that per-

suaded us to apply an “ ‘abuse of discretion’ ” standard.

487 U. S., at 559. One factor was that a district judge was

“ ‘better positioned’ ” than an appellate judge to decide the

issue. Id., at 560 (quoting Miller v. Fenton, 474 U. S. 104,

114 (1985)). We noted that a district court, through its

participation in “settlement conferences and other pretrial

activities,” “may have insights not conveyed by the record,

into such matters as whether particular evidence was

worthy of being relied upon.” 487 U. S., at 560. We like-

wise noted that “even where the district judge’s full

knowledge of the factual setting can be acquired by the

appellate court, that acquisition will often come at un-

usual expense.” Ibid. A second factor that we found sig-

nificant was the impracticability of formulating a rule of

decision for an issue that may involve “ ‘multifarious,

fleeting, special, narrow facts that utterly resist generali-

zation.’ ” Id., at 561–562. In Cooter & Gell, we held that

both of these factors supported an “abuse-of-discretion”

standard for review of a district judge’s imposition of

sanctions for violations of Rule 11 of the Federal Rules of

Civil Procedure. See 496 U. S., at 403–405. A third factor,

the District Court’s special knowledge about “the local

bar’s litigation practices,” also supported the abuse-of-

discretion standard. Id., at 404. We further noted that

“[d]eference to the determination of courts on the front

lines of litigation will enhance these courts’ ability to

control the litigants before them.” Ibid.

Recognizing that these factors bear equally upon a trial

judge’s sentencing decision, Koon expressly applied the

4 RITA v. UNITED STATES

STEVENS, J., concurring

principles of Pierce and Cooter & Gell to the sentencing

context. See Koon, 518 U. S., at 99. We adopted the same

abuse-of-discretion standard, unanimously holding that a

district court’s decision to depart from the Guidelines “will

in most cases be due substantial deference, for it embodies

the traditional exercise of discretion by a sentencing

court.” Id, at 98. Echoing our earlier opinions, we added

that “[d]istrict courts have an institutional advantage over

appellate courts” because they “must make a refined

assessment of the many facts bearing on the outcome,

informed by its vantage point and day-to-day experience in

criminal sentencing.” Ibid. We also relied on the follow-

ing statement in our opinion in Williams v. United States,

503 U. S. 193 (1992):

“The development of the guideline sentencing regime

has not changed our view that, except to the extent

specifically directed by statute, ‘it is not the role of an

appellate court to substitute its judgment for that of

the sentencing court as to the appropriateness of a

particular sentence.’ ” Id., at 205 (quoting Solem v.

Helm, 463 U. S. 277, 290, n. 16 (1983)).

These basic considerations about the nature of sentenc-

ing have not changed in a post-Booker world. While the

specific holding in Koon concerned only the scope of the

trial judge’s discretion on whether to depart from the

Guidelines, now that the Guidelines are no longer manda-

tory, our reasoning applies with equal force to the sentenc-

ing judge’s decision “ ‘as to the appropriateness of a par-

ticular sentence.’ ” Williams, 503 U. S., at 205. After

Booker, appellate courts are now to assess a district court’s

exercise of discretion “with regard to §3553(a).” 543 U. S.,

at 261. As we explained, “Section 3553(a) remains in

effect, and sets forth numerous factors that guide sentenc-

ing. Those factors in turn will guide appellate courts, as

they have in the past, in determining whether a sentence

Cite as: 551 U. S. ____ (2007) 5

STEVENS, J., concurring

is unreasonable.” Ibid.

Guided by these §3553(a) factors, Booker’s abuse-of-

discretion standard directs appellate courts to evaluate

what motivated the District Judge’s individualized sen-

tencing decision. While reviewing courts may presume

that a sentence within the advisory Guidelines is reason-

able, appellate judges must still always defer to the sen-

tencing judge’s individualized sentencing determination.

As we stated in Koon, “[i]t has been uniform and constant

in the federal judicial tradition for the sentencing judge to

consider every convicted person as an individual and every

case as a unique study in the human failings that some-

times mitigate, sometimes magnify, the crime and the

punishment to ensue.” 518 U. S., at 113. The Commission

has not developed any standards or recommendations that

affect sentencing ranges for many individual characteris-

tics. Matters such as age, education, mental or emotional

condition, medical condition (including drug or alcohol

addiction), employment history, lack of guidance as a

youth, family ties, or military, civic, charitable, or public

service are not ordinarily considered under the Guidelines.

See United States Sentencing Commission, Guidelines

Manual §§5H1.1–6, 11, and 12 (Nov. 2006).3 These are,

however, matters that §3553(a) authorizes the sentencing

judge to consider. See, e.g., 18 U. S. C. §3553(a)(1). As

such, they are factors that an appellate court must con-

——————

3 See also Breyer, The Federal Sentencing Guidelines and the Key

Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 19–20

(1988) (“The Commission extensively debated which offender character-

istics should make a difference in sentencing; that is, which character-

istics were important enough to warrant formal reflection within the

Guidelines and which should constitute possible grounds for depar-

ture. . . . Eventually, in light of the arguments based in part on consid-

erations of fairness and in part on the uncertainty as to how a sentenc-

ing judge would actually account for the aggravating and/or mitigating

factors . . . the current offender characteristics rules look primarily to

past records of convictions” (footnotes omitted)).

6 RITA v. UNITED STATES

STEVENS, J., concurring

sider under Booker’s abuse-of-discretion standard.

My disagreement with JUSTICE SCALIA and JUSTICE

SOUTER rests on the above understanding of Booker’s

standard of appellate review. I do not join JUSTICE

SCALIA’s opinion because I believe that the purely proce-

dural review he advocates is inconsistent with our reme-

dial opinion in Booker, which plainly contemplated that

reasonableness review would contain a substantive com-

ponent. See 543 U. S., at 260–264. After all, a district

judge who gives harsh sentences to Yankees fans and

lenient sentences to Red Sox fans would not be acting

reasonably even if her procedural rulings were impeccable.

Moreover, even if some future unusually harsh sentence

might violate the Sixth Amendment because it exceeds

some yet-to-be-defined judicial standard of reasonable-

ness, JUSTICE SCALIA correctly acknowledges this case

does not present such a problem. See post, at 7 (opinion

concurring in part and concurring in judgment) (“Nor is

my claim that the Sixth Amendment was violated in this

case, for petitioner cannot demonstrate that his relatively

low sentence would have been unreasonable if the District

Court had relied on nothing but jury-found or admitted

facts”); see also ante, at 14 (“JUSTICE SCALIA concedes that

the Sixth Amendment concerns he foresees are not pre-

sented by this case. Post, at 7 (concurring in part and

concurring in judgment). And his need to rely on hy-

potheticals to make his point is consistent with our view

that the approach adopted here will not ‘raise a multitude

of constitutional problems.’ Clark v. Martinez, 543 U. S.

371, 380–381 (2005)”). Such a hypothetical case should be

decided if and when it arises. See, e.g., Valley Forge

Christian College v. Americans United for Separation of

Church and State, Inc., 454 U. S. 464, 472 (1982).

As to JUSTICE SOUTER’s opinion, I think he overesti-

mates the “gravitational pull” towards the advisory Guide-

lines that will result from a presumption of reasonable-

Cite as: 551 U. S. ____ (2007) 7

STEVENS, J., concurring

ness. Post, at 7 (dissenting opinion). Booker’s standard of

review allows—indeed, requires—district judges to con-

sider all of the factors listed in §3553(a) and to apply them

to the individual defendants before them. Appellate

courts must then give deference to the sentencing deci-

sions made by those judges, whether the resulting sen-

tence is inside or outside the advisory Guidelines range,

under traditional abuse-of-discretion principles. As the

Court acknowledges, moreover, presumptively reasonable

does not mean always reasonable; the presumption, of

course, must be genuinely rebuttable. See ante, at 7. I am

not blind to the fact that, as a practical matter, many

federal judges continued to treat the Guidelines as virtu-

ally mandatory after our decision in Booker. See post, at

7, n. 3 (SCALIA, J., concurring in part and concurring in

judgment). One well-respected federal judge has even

written that, “after watching this Court—and the other

Courts of Appeals, whether they have formally adopted

such a presumption or not—affirm hundreds upon hun-

dreds of within-Guidelines sentences, it seems to me that

the rebuttability of the presumption is more theoretical

than real.” United States v. Pruitt, No. 06–3152, 2007

U. S. App. LEXIS 12872, *35–*36 (CA10, June 4, 2007)

(McConnell, J., concurring). Our decision today makes

clear, however, that the rebuttability of the presumption is

real. It should also be clear that appellate courts must

review sentences individually and deferentially whether

they are inside the Guidelines range (and thus potentially

subject to a formal “presumption” of reasonableness) or

outside that range. Given the clarity of our holding, I trust

that those judges who had treated the Guidelines as virtu-

ally mandatory during the post-Booker interregnum will

now recognize that the Guidelines are truly advisory.

Applying this standard, I would affirm the sentence

imposed by the District Court. Although I would have

imposed a lower sentence had I been the District Judge, I

8 RITA v. UNITED STATES

STEVENS, J., concurring

agree that he did not abuse his discretion in making the

particular decision that he did. I also agree with the

Court that his decision is entitled to added respect because

it was consistent with the advice in the Guidelines.

II

That said, I do believe that there was a significant flaw

in the sentencing procedure in this case. The petitioner is

a veteran who received significant recognition for his

service to his country. That aspect of his background is

not taken into consideration in the sentencing guidelines

and was not mentioned by the District Judge in his expla-

nation of his choice of the sentence that defendant re-

ceived. I regard this as a serious omission because I think

the judge’s statement to the defendant, made at the time

of sentencing, is an especially important part of the crimi-

nal process. If the defendant is convinced that justice has

been done in his case—that society has dealt with him

fairly—the likelihood of his successful rehabilitation will

surely be enhanced. Nevertheless, given the importance of

paying appropriate respect to the exercise of a sentencing

judge’s discretion, I join the Court’s opinion and judgment.

Cite as: 551 U. S. ____ (2007) 1

Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–5754

_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 21, 2007]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins,

concurring in part and concurring in the judgment.

In United States v. Booker, 543 U. S. 220 (2005), five

Justices of this Court, I among them, held that our previ-

ous decision in Blakely v. Washington, 542 U. S. 296

(2004), applied to sentences imposed under the Federal

Sentencing Guidelines because those Guidelines were

mandatory and binding on judges. See 543 U. S., at 233–

234, 243–244. We thus reaffirmed that “[a]ny fact (other

than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Id., at 244. In response to this consti-

tutional holding, a different majority of five Justices held

that the appropriate remedy was to make the Guidelines

nonmandatory in all cases and to review sentences on

appeal only for reasonableness. See id., at 258–265. I

disagreed with the Court’s remedial choice, believing

instead that the proper remedy was to maintain the man-

datory character of the Guidelines and simply to require,

for that small category of cases in which a fact was legally

essential to the sentence imposed, that the fact be proved

to a jury beyond a reasonable doubt or admitted by the

defendant. See id., at 272–291 (STEVENS, J., joined by

SCALIA and SOUTER, JJ., dissenting in part).

2 RITA v. UNITED STATES

Opinion of SCALIA, J.

I do not mean to reopen that debate. As a matter of

statutory stare decisis, I accept Booker’s remedial holding

that district courts are no longer bound by the Guidelines

and that appellate courts should review the sentences

imposed for reasonableness. As should be clear from our

need to decide the case today, however, precisely what

“reasonableness” review entails is not dictated by Booker.

As I lamented then, “[t]he worst feature of the scheme is

that no one knows—and perhaps no one is meant to

know—how advisory Guidelines and ‘unreasonableness’

review will function in practice.” Id., at 311 (SCALIA, J.,

dissenting in part).

Earlier this Term, the Court intensified its silence when

it declined to flesh out what it had in mind in the face of

an argument that the form of reasonableness review had

constitutional implications. In Cunningham v. California,

549 U. S. ___ (2007), JUSTICE ALITO defended the constitu-

tionality of California’s sentencing system in part by

arguing that, even post-Booker, some federal sentences

will be upheld as reasonable only if the judge makes addi-

tional findings of fact beyond those encompassed by the

jury verdict or guilty plea. 549 U. S., at ___, and n. 11

(slip op., at 13, and n. 11) (dissenting opinion). The Cun-

ningham majority’s response, much like the Booker reme-

dial opinion, was cryptic. While the Court did not explain

why JUSTICE ALITO was incorrect, it strongly intimated

that his premise was wrong: that he had erroneously

“anticipate[d]” how “reasonableness review operates in

practice.” Cunningham, 549 U. S., at ___, n. 15 (slip op.,

at 20, n. 15). Because that question is squarely presented

in this case that was then pending, the Court found it

“neither necessary nor proper . . . to join issue with

JUSTICE ALITO on this matter,” suggesting that all would

be revealed in the opinion we issue today. See id., at ___,

n. 13 (slip op., at 15, n. 13).

Today has arrived, and the Court has broken its prom-

Cite as: 551 U. S. ____ (2007) 3

Opinion of SCALIA, J.

ise. Nothing in the Court’s opinion explains why, under

the advisory Guidelines scheme, judge-found facts are

never legally necessary to justify the sentence. By this I

mean the Court has failed to establish that every sentence

which will be imposed under the advisory Guidelines

scheme could equally have been imposed had the judge

relied upon no facts other than those found by the jury or

admitted by the defendant. In fact, the Court implicitly,

but quite plainly, acknowledges that this will not be the

case, by treating as a permissible post-Booker claim peti-

tioner’s challenge of his within-Guidelines sentence as

substantively excessive. See ante, at Part IV. Under the

scheme promulgated today, some sentences reversed as

excessive will be legally authorized in later cases only

because additional judge-found facts are present; and, as

JUSTICE ALITO argued in Cunningham, some lengthy

sentences will be affirmed (i.e., held lawful) only because

of the presence of aggravating facts, not found by the jury,

that distinguish the case from the mine-run. The Court

does not even attempt to explain how this is consistent

with the Sixth Amendment.

No explanation is given because no explanation is possi-

ble. The Court has reintroduced the constitutional defect

that Booker purported to eliminate. I cannot acquiesce in

this course. If a sentencing system is permissible in which

some sentences cannot lawfully be imposed by a judge

unless the judge finds certain facts by a preponderance of

the evidence, then we should have left in place the com-

pulsory Guidelines that Congress enacted, instead of

imposing this jerry-rigged scheme of our own. In order to

avoid the possibility of a Sixth Amendment violation,

which was the object of the Booker remedy, district courts

must be able, without finding any facts not embraced in

the jury verdict or guilty plea, to sentence to the maximum

of the statutory range. Because, therefore, appellate

courts cannot reverse within-range sentences for being too

4 RITA v. UNITED STATES

Opinion of SCALIA, J.

high; and because no one would contend that Congress

intended that sentences be reviewed only for being too low;

I would hold that reasonableness review cannot contain a

substantive component at all. I believe, however, that

appellate courts can nevertheless secure some amount of

sentencing uniformity through the procedural reasonable-

ness review made possible by the Booker remedial opinion.

I

A

The Sixth Amendment requires that “[a]ny fact (other

than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, 543 U. S., at 244. Two hy-

potheticals will suffice to reveal why the notion of excessive

sentences within the statutory range, and the ability of

appellate courts to reverse such sentences, inexorably

produces, in violation of the Sixth Amendment, sentences

whose legality is premised on a judge’s finding some fact (or

combination of facts) by a preponderance of the evidence.

First, consider two brothers with similar backgrounds

and criminal histories who are convicted by a jury of re-

spectively robbing two banks of an equal amount of

money. Next assume that the district judge finds that one

brother, fueled by racial animus, had targeted the first

bank because it was owned and operated by minorities,

whereas the other brother had selected the second bank

simply because its location enabled a quick getaway.

Further assume that the district judge imposes the statu-

tory maximum upon both brothers, basing those sentences

primarily upon his perception that bank robbery should be

punished much more severely than the Guidelines base

level advises, but explicitly noting that the racially biased

decisionmaking of the first brother further justified his

Cite as: 551 U. S. ____ (2007) 5

Opinion of SCALIA, J.

sentence. Now imagine that the appellate court reverses

as excessive only the sentence of the nonracist brother.

Given the dual holdings of the appellate court, the racist

has a valid Sixth Amendment claim that his sentence was

reasonable (and hence lawful) only because of the judicial

finding of his motive in selecting his victim.1

Second, consider the common case in which the district

court imposes a sentence within an advisory Guidelines

range that has been substantially enhanced by certain

judge-found facts. For example, the base offense level for

robbery under the Guidelines is 20, United States Sen-

tencing Commission, Guidelines Manual §2B3.1(a) (Nov.

2006), which, if the defendant has a criminal history of I,

corresponds to an advisory range of 33–41 months, id.,

ch. 5, pt. A, Sentencing Table. If, however, a judge finds

that a firearm was discharged, that a victim incurred

serious bodily injury, and that more than $5 million was

stolen, then the base level jumps by 18, §§2B3.1(b)(2), (3),

(7), producing an advisory range of 235–293 months, id.,

ch. 5, pt. A, Sentencing Table. When a judge finds all of

those facts to be true and then imposes a within-

Guidelines sentence of 293 months, those judge-found

facts, or some combination of them, are not merely facts

that the judge finds relevant in exercising his discretion;

they are the legally essential predicate for his imposition

of the 293-month sentence. His failure to find them would

render the 293-month sentence unlawful. That is evident

because, were the district judge explicitly to find none of

those facts true and nevertheless to impose a 293-month

sentence (simply because he thinks robbery merits seven

times the sentence that the Guidelines provide) the sen-

——————

1 Of course, it may be that some fact other than racial animus would

also have sufficed to sustain the increased sentence. But it is undeni-

able that in the case at hand the judicial finding of racial animus filled

that role. See Blakely v. Washington, 542 U. S. 296, 305 (2004).

6 RITA v. UNITED STATES

Opinion of SCALIA, J.

tence would surely be reversed as unreasonably excessive.

These hypotheticals are stylized ways of illustrating the

basic problem with a system in which district courts lack

full discretion to sentence within the statutory range.

Under such a system, for every given crime there is some

maximum sentence that will be upheld as reasonable

based only on the facts found by the jury or admitted by

the defendant. Every sentence higher than that is legally

authorized only by some judge-found fact, in violation of

the Sixth Amendment. Appellate courts’ excessiveness

review will explicitly or implicitly accept those judge-found

facts as justifying sentences that would otherwise be

unlawful. The only difference between this system and

the pre-Booker mandatory Guidelines is that the maxi-

mum sentence based on the jury verdict or guilty plea was

specified under the latter but must be established by

appellate courts, in case-by-case fashion, under the for-

mer. This is, if anything, an additional constitutional

disease, not a constitutional cure.

To be clear, I am not suggesting that the Sixth Amend-

ment prohibits judges from ever finding any facts. We

have repeatedly affirmed the proposition that judges can

find facts that help guide their discretion within the sen-

tencing range that is authorized by the facts found by the

jury or admitted by the defendant. See, e.g., Booker, su-

pra, at 233; Apprendi v. New Jersey, 530 U. S. 466, 481

(2000). But there is a fundamental difference, one under-

pinning our entire Apprendi jurisprudence, between facts

that must be found in order for a sentence to be lawful,

and facts that individual judges choose to make relevant to

the exercise of their discretion. The former, but not the

latter, must be found by the jury beyond a reasonable

doubt in order “to give intelligible content to the right of

jury trial.” Blakely, 542 U. S., at 305.2

——————

2 For similar reasons, I recognize that the Sixth Amendment problem

Cite as: 551 U. S. ____ (2007) 7

Opinion of SCALIA, J.

I am also not contending that there is a Sixth Amend-

ment problem with the Court’s affirmation of a presump-

tion of reasonableness for within-Guidelines sentences. I

agree with the Court that such a presumption never itself

makes judge-found facts legally essential to the sentence

imposed, since it has no direct relevance to whether the

sentence would have been unreasonable in the absence of

any judge-found facts. See ante, at 12–15.3 Nor is my

claim that the Sixth Amendment was violated in this case,

for petitioner cannot demonstrate that his relatively low

sentence would have been unreasonable if the District

Court had relied on nothing but jury-found or admitted

facts.

Rather, my position is that there will inevitably be some

——————

with reasonableness review is created only by the lack of district court

discretion to impose high sentences, since eliminating discretion to

impose low sentences is the equivalent of judicially creating mandatory

minimums, which are not a concern of the Sixth Amendment. See

Harris v. United States, 536 U. S. 545, 568–569 (2002). But since

reasonableness review should not function as a one-way ratchet, United

States v. Booker, 543 U. S. 220, 257–258, 266 (2005), we must forswear

the notion that sentences can be too low in light of the need to abandon

the concept that sentences can be too high.

3 For this reason, I do not join JUSTICE SOUTER’s dissent. He wishes to

give “district courts [assurance] that the entire sentencing range set by

statute is available to them.” Post, at 8. That is a proper goal—indeed,

an essential one to prevent the Booker remedy from effectively over-

turning Apprendi and Blakely. But eliminating the presumption of

reasonableness will not achieve it. In those Circuits that already

decline to employ the presumption, a within-Guidelines sentence has

never been reversed as substantively excessive, Brief for New York

Council of Defense Lawyers as Amicus Curiae 5, refuting the belief that

mere elimination of the presumption will destroy the “gravitational

pull,” post, at 7 (SOUTER, J., dissenting), to stay safely within the

Guidelines. The only way to assure district courts that they can devi-

ate from the advisory Guidelines, and to ensure that judge-found facts

are never legally essential to the sentence, is to prohibit appellate

courts from reviewing the substantive sentencing choices made by

district courts.

8 RITA v. UNITED STATES

Opinion of SCALIA, J.

constitutional violations under a system of substantive

reasonableness review, because there will be some sen-

tences that will be upheld as reasonable only because of

the existence of judge-found facts. Booker itself reveals

why that reality dooms the construct of reasonableness

review established and applied by today’s opinion. Booker

made two things quite plain. First, reasonableness is the

standard of review implicitly contained within the Sen-

tencing Reform Act of 1984 (SRA). 543 U. S., at 260–261.

Second, Congress wanted a uniform system of sentencing

review, rather than different schemes depending on

whether there were Sixth Amendment problems in par-

ticular cases. Id., at 265–267. Thus, if the contours of

reasonableness review must be narrowed in some cases

because of constitutional concerns, then they must be

narrowed in all cases in light of Congress’s desire for a

uniform standard of review. The Justices composing

today’s Court were in total agreement with this principle

of statutory interpretation the day Booker was decided:

“[W]hen deciding which of two plausible statutory con-

structions to adopt, a court must consider the neces-

sary consequences of its choice. If one of them would

raise a multitude of constitutional problems, the other

should prevail—whether or not those constitutional

problems pertain to the particular litigant before the

Court.” Clark v. Martinez, 543 U. S. 371, 380–381

(2005) (opinion for the Court by SCALIA, J., joined by,

inter alios, STEVENS, KENNEDY, GINSBURG, and

BREYER, JJ.).

Yet they now adopt substantive reasonableness review

without offering any rebuttal to my charge of patent con-

stitutional flaw inherent in such review. The one comfort

to be found in the Court’s opinion—though it does not

excuse the failure to apply Martinez’s interpretive princi-

ple—is that it does not rule out as-applied Sixth Amend-

Cite as: 551 U. S. ____ (2007) 9

Opinion of SCALIA, J.

ment challenges to sentences that would not have been

upheld as reasonable on the facts encompassed by the jury

verdict or guilty plea. Ante, at 14–15; ante, at 6 (STEVENS,

J., joined by GINSBURG, J., concurring).4

B

Had the Court bothered to frame objections to the con-

stitutional analysis undertaken above, there are four

conceivable candidates.

1

The most simplistic objection is that the Sixth Amend-

ment is not violated because the judge-found facts are

made legally necessary by the decision of appellate courts

rather than the decision of Congress. This rebuttal errs

both in premise and in conclusion.

The premise is wrong because, according to the remedial

majority in Booker, the facts that excessiveness review

renders legally essential are made such by Congress.

Reasonableness is the standard of review implicitly con-

tained within 18 U. S. C. §3742 (2000 ed. and Supp. IV).

See Booker, supra, at 260–261. But the Sixth Amendment

would be violated even if appellate courts really were

exercising some type of common-law power to prescribe

the facts legally necessary to support specific sentences.

——————

4 The Court suggests that my reliance on hypotheticals indicates that

its interpretation of reasonableness will not create a multitude of

constitutional problems. Ante, at 14; see also ante, at 6 (STEVENS, J.,

concurring). Setting aside the question whether the volume of constitu-

tional violations has any relevance to the application of Martinez’s

interpretive principle, the Court is wrong to think that the constitu-

tional problem today’s opinion ignores is hypothetical, merely because I

have used hypotheticals to describe it. It is all too real that advisory

Guidelines sentences routinely change months and years of imprison-

ment to decades and centuries on the basis of judge-found facts—as

Booker itself recognized, see 543 U. S., at 236–237 (citing, inter alia, a

case in which a defendant’s sentence increased from 57 months to 155

years).

10 RITA v. UNITED STATES

Opinion of SCALIA, J.

Neither Apprendi nor any of its progeny suggests that

violation of the Sixth Amendment depends upon what

branch of government has made the prescription. To the

contrary, Booker flatly rejected the argument that the

mandatory Guidelines were constitutional because it was

the Sentencing Commission rather than Congress that

specified the facts essential to punishment. See 543 U. S.,

at 237–239. And for good reason. The Sixth Amendment

is “a reservation of jury power.” Blakely, 542 U. S., at 308.

It makes no difference whether it is a legislature, a Sen-

tencing Commission, or an appellate court that usurps the

jury’s prerogative. Were it otherwise, this Court could

prescribe that the only reasonable sentences are those

consistent with the same mandatory Guidelines that

Booker invalidated. And the California Supreme Court

could effectively reverse our decision in Cunningham

simply by setting aside as unreasonable any trial-court

sentence that does not conform to pre-Cunningham Cali-

fornia law.

2

The next objection minimizes the extent to which exces-

siveness review makes judge-found facts legally essential

to punishment. If appellate courts will uphold, based only

on the facts found by the jury, a district court’s decision to

impose all but the lengthiest sentences, then the number

of sentences that are legally dependent on judge-found

facts will be quite small. Thus, the argument goes, there

is no reason to prohibit substantive reasonableness review

altogether: Absent a claim that such review creates a

constitutional problem in a given case, why prohibit it? I

have already explained why this line of defense is incon-

sistent with established principles of statutory interpreta-

tion. See supra, at 7–9. But even on its own terms, the

defense is inconsistent with Booker because reasonable-

ness review is an improper and inadequate remedial

Cite as: 551 U. S. ____ (2007) 11

Opinion of SCALIA, J.

scheme unless it ensures that judge-found facts are never

legally necessary to justify the sentence imposed under the

advisory Guidelines.

The mandatory Guidelines system that was invalidated

in Booker had the same attribute of producing unconstitu-

tional results in only a small proportion of cases. Because

of guilty pleas and Guidelines ranges that did not depend

on judge-found facts, the overwhelming majority of sen-

tences imposed under the pre-Booker federal system were

perfectly in accord with the Sixth Amendment. See

Booker, 543 U. S., at 248; id., at 275–277 (STEVENS, J.,

dissenting in part). Booker nevertheless excised key

statutory provisions governing federal sentencing, in order

to eliminate constitutional violations entirely. If our con-

jured-up system does not accomplish that goal, then by

what right have we supplanted the congressionally en-

acted mandatory Guidelines?

If it is true that some sentences under today’s Court-

prescribed system will still violate the Sixth Amendment,

nonetheless allowing the system to go forward will pro-

duce chaos. Most cases do not resemble my stylized hy-

potheticals, and ordinarily defendants and judges will be

unable to figure out, based on a comparison of the facts in

their case with the facts of all of the previously decided

appellate cases, whether the sentence imposed would have

been upheld as reasonable based only on the facts support-

ing the jury verdict or guilty plea. That will not stop

defendants from making the argument, however, and the

Court certainly has not foreclosed them from trying. See

supra, at 8–9, and n. 4. Judges will have in theory two

options: create complicated charts and databases, based on

appellate precedents, to ascertain what facts are legally

essential to justify what sentences; or turn a deaf ear to

these claims, though knowing full well that some of them

12 RITA v. UNITED STATES

Opinion of SCALIA, J.

are justified. I bet on the latter.5 Things were better

under the mandatory Guidelines system, where every

judge could readily identify when the Sixth Amendment

was being violated, and could rule accordingly.

3

Proponents of substantive reasonableness review could

next argue that actual sentencing involves the considera-

tion of dozens of different facts in order to make an indi-

vidualized determination about each defendant. In the

real world, they would contend, it is difficult, if not impos-

sible, to determine whether any given fact was legally

essential to the punishment imposed. But identifying the

particular fatal fact is not necessary to identifying a con-

stitutional violation. In the second hypothetical given

above, for example, it is not possible to say which single

fact, or which combination of facts, sufficed to bring the

sentence within the bounds of the “reasonable.” But it is

possible to say (indeed, it must be said) that some judge-

found fact or combination of facts had that effect—and

that suffices to establish a Sixth Amendment violation.

“Whether the judge’s authority to impose an enhanced

sentence depends on finding a specified fact . . ., one of

several specified facts . . ., or any aggravating fact . . .,

it remains the case that the jury’s verdict alone does

not authorize the sentence. The judge acquires that

authority only upon finding some additional fact.”

Blakely, supra, at 305.

——————

5 Perhaps I am too cynical. At least one conscientious District Judge

has decided to shoulder the burden of ascertaining what the maximum

reasonable sentence is in each case based only on the verdict and

appellate precedent, correctly concluding that this is the only way to

eliminate Sixth Amendment problems after Cunningham if Booker

mandates substantive reasonableness review. See United States v.

Griffin, No. 05–10175–WGY, 2007 WL 1620526, *13–*14 (D. Mass.,

June 6, 2007) (Young, D. J.) (Sentencing Memorandum).

Cite as: 551 U. S. ____ (2007) 13

Opinion of SCALIA, J.

4

The last conceivable defense of the Guidelines-light

would be to wrap them in the mantle of history and

tradition.

“[W]hen a practice not expressly prohibited by the text

of the Bill of Rights bears the endorsement of a long

tradition of open, widespread, and unchallenged use

that dates back to the beginning of the Republic, we

have no proper basis for striking it down. Such a ven-

erable and accepted tradition is not to be laid on the

examining table and scrutinized for its conformity to

some abstract principle of [constitutional] adjudica-

tion devised by this Court. To the contrary, such tra-

ditions are themselves the stuff out of which the

Court’s principles are to be formed.” Rutan v. Repub-

lican Party of Ill., 497 U. S. 62, 95–96 (1990) (SCALIA,

J., dissenting) (footnote omitted).

This consideration has no application here. In the federal

system, prior to the SRA, substantive appellate review of a

district court’s sentencing discretion essentially did not

exist. See, e.g., Dorszynski v. United States, 418 U. S. 424,

431 (1974) (noting “the general proposition that once it is

determined that a sentence is within the limitations set

forth in the statute under which it is imposed, appellate

review is at an end”); id., at 443 (“[W]ell-established doc-

trine bars review of the exercise of sentencing discretion”).

As for state appellate review of sentences, as late as 1962,

at least 39 States did not permit appellate courts to mod-

ify sentences imposed within the statutory limits. See

Appellate Review of Sentences, A Symposium at the Judi-

cial Conference of the United States Court of Appeals for

the Second Circuit, 32 F. R. D. 249, 260 (1962). It would

be an exaggeration to say that history reflects an estab-

lished understanding that appellate review of excessive

sentences conflicts with the Sixth Amendment. But it

14 RITA v. UNITED STATES

Opinion of SCALIA, J.

would also be an exaggeration to say that the historical

pedigree of substantive appellate review of sentencing is

so strong and clear as to overcome the basic principle

underlying the jury-trial right applied by this Court in

Apprendi, Blakely, Booker, and Cunningham.

C

A final defense of substantive reasonableness review

would be to invoke the intent of Congress or of the Booker

remedial opinion. As for congressional intent: Of course

Congress intended that judge-found facts be legally essen-

tial to the punishment imposed; that was the whole reason

the mandatory Guidelines violated the Sixth Amendment.

If we are now to indulge a newfound respect for unconsti-

tutional congressional intent, we should reimpose the

mandatory Guidelines system. The quasi-Guidelines

system the Court creates today manages to contravene

both congressional intent and the Sixth Amendment.

As for the “intent” of the Booker remedial opinion: That

opinion purported to be divining congressional intent in

light of what the Sixth Amendment compelled. See 543

U. S., at 263–265. Absent some explanation of why sub-

stantive reasonableness review does not cause judge-found

facts to justify greater punishment than the jury’s verdict

or the defendant’s guilty plea would sustain, I fail to un-

derstand how such review could possibly have been in-

tended by all five Justices who composed the Booker re-

medial majority. After all, at least one of them did not

intend “to override Blakely, and to render academic the

entire first part of Booker itself,” and has confirmed that

“[t]here would have been no majority in Booker for the

revision of Blakely essayed in [JUSTICE ALITO’s Cunning-

ham] dissent.” Cunningham, 549 U. S., at ___, n. 15 (slip

op., at 20, n. 15) (opinion for the Court by GINSBURG, J.).

Cite as: 551 U. S. ____ (2007) 15

Opinion of SCALIA, J.

II

Abandoning substantive reasonableness review does not

require a return to the pre-SRA regime that the Booker

remedial opinion sought to avoid. See 543 U. S., at 263–

265. As I said at the outset, I believe it is possible to give

some effect to the Booker remedial opinion and the pur-

poses that it sought to serve while still avoiding the con-

stitutional defect identified in the Booker merits opinion.

Specifically, I would limit reasonableness review to the

sentencing procedures mandated by statute.

A

A central feature of the Booker remedial opinion was its

conclusion that the SRA was not completely inseverable.

See id., at 258–265. As a result, the Sentencing Commis-

sion “remains in place, writing Guidelines, collecting

information about actual district court sentencing deci-

sions, undertaking research, and revising the Guidelines

accordingly.” Id., at 264. Likewise, sentencing courts

remain obligated to consider the various factors delineated

in 18 U. S. C. §3553(a) (2000 ed., Supp. IV), including the

now-advisory Guidelines range. 543 U. S., at 259–260.

And they are still instructed by that subsection to “impose

a sentence sufficient, but not greater than necessary, to

comply with the purposes set forth in paragraph (2) of

[that] subsection.” Significantly, §3553(c) (2000 ed. and

Supp. IV) continues to require that district courts give

reasons for their sentencing decisions, a requirement the

requisite detail of which depends on whether the sentence

is: (1) within the advisory Guidelines range; (2) within an

advisory Guidelines range that spans more than 24

months; or (3) outside the advisory Guidelines range.

These explanations, in turn, help the Commission revise

the advisory Guidelines to reflect actual sentencing prac-

tices consistent with the statutory goals. See Booker,

supra, at 264 (citing 28 U. S. C. §994 (2000 ed. and Supp.

16 RITA v. UNITED STATES

Opinion of SCALIA, J.

IV)).

Booker’s retention of these statutory procedural provi-

sions furthered the congressional purpose of “iron[ing] out

sentencing differences,” 543 U. S., at 263, and “avoid[ing]

excessive sentencing disparities,” id., at 264. It is impor-

tant that appellate courts police their observance. Booker

excised the provision of the SRA containing the standards

for appellate review, see id., at 260 (invalidating 18

U. S. C. §3742(e) (2000 ed. and Supp. IV)), but the reme-

dial majority’s creation of reasonableness review gave

appellate courts the necessary means to reverse a district

court that: appears not to have considered §3553(a); con-

siders impermissible factors; selects a sentence based on

clearly erroneous facts; or does not comply with §3553(c)’s

requirement for a statement of reasons.6 In addition to its

direct effect on sentencing uniformity, this procedural

review will indirectly produce, over time, reduction of

sentencing disparities. By ensuring that district courts

give reasons for their sentences, and more specific reasons

when they decline to follow the advisory Guidelines range,

see §3553(c)(2) (2000 ed., Supp. IV), appellate courts will

enable the Sentencing Commission to perform its function

of revising the Guidelines to reflect the desirable sentenc-

ing practices of the district courts. See Booker, supra, at

264 (citing 28 U. S. C. §994 (2000 ed. and Supp. IV)). And

as that occurs, district courts will have less reason to

depart from the Commission’s recommendations, leading

——————

6 “Substance” and “procedure” are admittedly chameleon-like terms.

See Sun Oil Co. v. Wortman, 486 U. S. 717, 726–727 (1988). As the text

indicates, my use of the term “procedure” here includes the limiting of

sentencing factors to permissible ones—as opposed to using permissible

factors but reaching a result that is “substantively” wrong. I therefore

disagree with JUSTICE STEVENS that a district court which discriminates

against Yankees fans is acting in a procedurally “impeccable” way.

Ante, at 6 (concurring opinion).

Cite as: 551 U. S. ____ (2007) 17

Opinion of SCALIA, J.

to more sentencing uniformity.7

One possible objection to procedural review that the

Booker remedial opinion appears not to have considered is

18 U. S. C. §3742(f) (2000 ed., Supp. IV), which limits

appellate courts to reversing sentences that are imposed

“in violation of law” or “as a result of an incorrect applica-

tion of the sentencing guidelines,” §3742(f)(1), or that fall

in certain categories and are either “too high” or “too low,”

§3742(f)(2).8 But, as I noted in Booker, §3742(e) and

§3742(f) are inextricably intertwined: Having excised

§3742(e)’s provisions setting forth the standards for appel-

late review, it is nonsensical to continue to apply §3742(f)’s

provisions governing the “Decision and Disposition” of

appeals, which clearly track those now-excised standards.

See 543 U. S., at 306–307 (SCALIA, J., dissenting in part).

I would hold that §3742(f) is “incapable of functioning

independently” of the provisions excised in Booker, and is

thus inseverable from them. See Alaska Airlines, Inc. v.

——————

7 Courts must resist, however, the temptation to make procedural

review more stringent because substantive review is off the table. The

judicial role when conducting severability analysis is limited to deter-

mining whether the balance of a statute that contains an unconstitu-

tional provision is capable “of functioning independently.” Alaska

Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). Courts have no power

to add provisions that might be desirable now that certain provisions

have been excised. Thus, when engaging in reasonableness review to

determine whether the district court has complied with the various

procedures in §3553, an appellate court cannot subject the district court

to any greater requirements than existed pre-Booker.

8 I say “possible” because one could claim that the failure to comply

with 18 U. S. C. §3553’s procedural requirements results in a sentence

imposed in violation of law, and thereby covered by §3742(f)(1). But

§3742(f)(1)’s applicability to such procedural errors is called into

question by §3742(f)(2), which specifically addresses sentences where

“the district court failed to provide the required statement of reasons

[mandated by §3553(c)(2)].” For the reasons specified in the text,

however, I see no need to grapple, post-Booker, with the proper inter-

pretation of §3742(f).

18 RITA v. UNITED STATES

Opinion of SCALIA, J.

Brock, 480 U. S. 678, 684 (1987); 2 N. Singer, Sutherland

Statutes and Statutory Construction §44:4, p. 576 (6th ed.

2001) (“Even where part of an act is independent and

valid, other parts which are not themselves substantively

invalid but have no separate function to perform inde-

pendent of the invalid portions of the act are also held

invalid”).

B

Applying procedural review in this case does not require

much further discussion on my part. I join Part III of the

Court’s opinion. See ante, at 16–20.

* * *

The Court’s decision today leaves unexplained why the

mandatory Guidelines were unconstitutional, but the

Court-created substantive-review system that contains the

same potential for Sixth Amendment violation is not. It is

irresponsible to leave this patent inconsistency hanging in

the air, threatening in the future yet another major revi-

sion of Guidelines practices to which the district courts

and courts of appeals will have to adjust. Procedural

review would lay the matter to rest, comporting with both

parts of the Booker opinion and achieving the maximum

degree of sentencing uniformity on the basis of judge-

found facts that the Constitution permits.

Cite as: 551 U. S. ____ (2007) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–5754

_________________

VICTOR A. RITA, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

[June 21, 2007]

JUSTICE SOUTER, dissenting.

Applying the Sixth Amendment to current sentencing

law has gotten complicated, and someone coming cold to

this case might wonder how we reached this point. A very

general overview of the course of decisions over the past

eight years may help to put today’s holding in perspective.

Members of a criminal jury are guaranteed to be impar-

tial residents of the State and district of the crime, but the

Sixth Amendment right to trial by jury otherwise relies on

history for details, and the practical instincts of judges

and legislators for implementation in the courts. Litiga-

tion has, for example, worked through issues of size, see

Ballew v. Georgia, 435 U. S. 223 (1978) (prohibiting five-

person state juries but allowing juries of six), and unanim-

ity, see Apodaca v. Oregon, 406 U. S. 404 (1972) (allowing

nonunanimous juries in state criminal trials); Burch v.

Louisiana, 441 U. S. 130 (1979) (prohibiting nonunani-

mous six-person juries). Such decisions go to what Wil-

liam James would have called the “cash-value” of the

Constitution’s guarantee. See W. James, Pragmatism: A

New Name for Some Old Ways of Thinking 200 (1st ed.

1907).

One additional issue of both detail and implementation

is the line between judge and jury in determining facts,

and in particular the legitimate extent of factfinding by a

judge when sentencing a defendant after a guilty plea or a

2 RITA v. UNITED STATES

SOUTER, J., dissenting

jury’s verdict of guilty. Since the very inception of judicial

discretion in determining a sentence, judges have acted on

what they learn in the course of a trial (and later what

they gather from a presentence report or other evidence at

time of sentencing), including details a trial jury may not

have found to be true when it returned the guilty verdict

or answered a special question. But historically, also, the

customary judicial use of these extraverdict facts has been

in deciding on a sentence within a range set in advance by

the statute defining the crime in question. See Williams v.

New York, 337 U. S. 241, 246–247 (1949). Thus, tradi-

tionally when a judge imposed a sentence at some point in

the range, say, of 0-to-5 years specified by statute for some

offense, every fact necessary to go as high as five years

had been found by the jury (or admitted), even though the

jury had not made particular or implicit findings of the

facts the judge might consider in exercising discretion to

set the sentence higher or lower within the 5-year range.

It was against this background, in Jones v. United

States, 526 U. S. 227 (1999), that we called attention to a

serious threat to the practical value of a criminal defen-

dant’s jury right. Jones had been prosecuted under a

statute that exemplified a growing practice of providing a

definition and penalty for some basic crime subject to the

right of jury trial, but then identifying variants carrying

higher ranges of penalties depending on facts that argua-

bly might be found by a judge sitting alone. Thus, Jones

was convicted solely of carjacking, but if the further fact of

causing “ ‘serious bodily injury’ ” was shown, the maximum

penalty jumped from 15 years to 25. Id., at 230 (quoting

18 U. S. C. §2119 (1988 ed., Supp. V)). The Government’s

position was that the extra fact of serious bodily injury

raising the penalty range required no jury finding because

it was only a condition for imposing an enhanced sentence,

up to a judge, not an element of a more serious crime,

subject to the right to a jury’s determination. See Jones,

Cite as: 551 U. S. ____ (2007) 3

SOUTER, J., dissenting

526 U. S., at 233.

It was an unsettling argument, because in prosecutions

under these statutory schemes the most serious issue in

the case might well be not guilt or innocence of the basic

offense, but liability to the substantially enhanced pen-

alty. If, for example, the judge found that Jones had

caused not just serious bodily injury, but death, such

extraverdict factfinding could have made the difference

between 15 years and life imprisonment. Id., at 230 (quot-

ing §2119 (1988 ed., Supp. V)). In a case like that, giving

judges the exclusive power to find the facts necessary to

sentence in the higher range would make the jury a mere

gatekeeper to the more important trial before a judge

alone. Id., at 243–244. The Sixth Amendment does not, of

course, speak expressly to such a scheme, but that is not a

sufficient reason to give it constitutional approval. For if

judicial factfinding necessary for an enhanced sentencing

range were held to be adequate in the face of a defendant’s

objection, a defendant’s right to have a jury standing

between himself and the power of the government to

curtail his liberty would take on a previously unsuspected

modesty.

Jones accordingly treated this practice as suspect

enough to call for applying the doctrine of constitutional

avoidance when the Court interpreted the statute in ques-

tion. What the Government called a mere condition for

imposing a sentencing enhancement was treated as an

element of a more serious offense and made subject to a

jury’s factfinding. This interpretation obviated the consti-

tutional decision whether subjecting an unwilling defen-

dant to a more onerous range of sentence on facts found

solely by a judge would violate the Sixth Amendment.

The issue did not go away with Jones, and the constitu-

tional challenge was soon presented inescapably, in Ap-

prendi v. New Jersey, 530 U. S. 466 (2000). We held that

exposing a defendant to an increased penalty beyond the

4 RITA v. UNITED STATES

SOUTER, J., dissenting

range for a basic crime, based on facts determined exclu-

sively by a judge, violated the Sixth Amendment, in the

absence of a jury waiver; a defendant could not be sub-

jected to a penalty more serious than one authorized by

the facts found by the jury or admitted by the defendant.

Id., at 490.1 A judge could constitutionally determine facts

for exercising discretion in sentencing up to that point, but

a fact that raised the range of possible penalties func-

tioned like an element of a more serious offense, even if a

statute ostensibly tied that fact to the sentence alone.

Hence, in the absence of waiver, a sentence in that weight-

ier range could be imposed by a judge only if the enhanc-

ing fact was found beyond a reasonable doubt by the trial

jury. Ibid. In placing disputed factfinding off judicial

limits when, but only when, its effect would be to raise the

range of possible sentences, we made a practical judgment

that maintained the historical judicial role in finding facts

relevant to sentencing within the range set by a jury’s

verdict, but we recognized that the jury right would be

trivialized beyond recognition if that traditional practice

could be extended to the point that a judge alone (over

objection) could find a fact necessary to raise the upper

limit of a sentencing range.

From the moment Apprendi drew that line, however, its

holding carried apparent implications for the regime of

Guidelines sentencing adopted in 1984, see Sentencing

Reform Act of 1984, 98 Stat. 1987, 18 U. S. C. §3551 et seq.

(2000 ed. and Supp. IV), 28 U. S. C. §991 et seq. (2000 ed.

and Supp. IV). The general object of Guidelines sentenc-

ing was the eminently laudable one of promoting substan-

tial consistency in exercising judicial discretion to sen-

——————

1 We recognized a single exception to this rule, permitting reliance on

the fact of a prior conviction without a jury determination that the

defendant had previously been convicted. See Apprendi, 530 U. S., at

489–490; see also Almendarez-Torres v. United States, 523 U. S. 224

(1998).

Cite as: 551 U. S. ____ (2007) 5

SOUTER, J., dissenting

tence within the range set by statute for a given crime.

Thus, at the elementary level, the Guidelines law limits

the sentence that a judge may impose even within the

sentencing range provided by the statute creating a par-

ticular offense. In effect, it divides a basic sentencing

range into subranges and assigns an offender to a

subrange based on the particular facts of the case and the

offender’s criminal history. A judge may depart from the

assigned subrange only if the case presents a circumstance

“not adequately taken into consideration by the Sentenc-

ing Commission in formulating the guidelines.” 18

U. S. C. §3553(b)(1) (2000 ed., Supp. IV). It follows that a

judge must find facts beyond those necessary for the jury’s

guilty verdict to sentence above (or below, for that matter)

the subrange designated for an offender with a compara-

ble criminal history whose case presents no relevant facts

beyond the formal elements of the crime itself. The result

is a hybrid sentencing practice. One could describe it by

emphasizing that the judge’s factfinding could never in-

crease the sentence beyond the range set by the law defin-

ing the crime, or one could stress that a principal motiva-

tion for Guidelines sentencing is eliminating some

traditional judicial discretion by forbidding a judge to

impose a high sentence except on the basis of some fact

beyond those necessary for a guilty verdict (and thus

subject to the right to a jury’s determination).

In Blakely v. Washington, 542 U. S. 296 (2004), consid-

ering a state sentencing system similar to the federal

scheme, we decided that the latter way of looking at it

made more sense, if Apprendi was going to mean some-

thing in preserving the historical significance of the jury.

See 542 U. S., at 305–306. We held that the additional

factfinding necessary for a judge to sentence within a high

subrange was comparable to the finding of additional fact

required for a judge to impose an enhanced sentence

under the law considered in Apprendi. If Blakely had

6 RITA v. UNITED STATES

SOUTER, J., dissenting

come out the other way, the significance of Apprendi itself

would be in jeopardy: a legislature would be free to bypass

Apprendi by providing an abnormally spacious sentencing

range for any basic crime (theoretically exposing a defen-

dant to the highest sentence just by the jury’s guilty ver-

dict), then leaving it to a judge to make supplementary

findings not only appropriate but necessary for a sentence

in a subrange at the high end. That would spell the end of

Apprendi and diminish the real significance of jury protec-

tion that Apprendi had shored up.

In United States v. Booker, 543 U. S. 220 (2005), a ma-

jority of the Court applied Blakely’s reasoning and held

that the Federal Guidelines, too, subjected defendants to

unconstitutional sentences in upper subranges, absent a

jury finding or waiver. So far, so good for the Sixth

Amendment, but there was the further issue of remedy,

and at that step consistency began to falter. If statutory

Guidelines were to survive, there were two serious alter-

natives. One was already in place in courts with the

foresight to apply Apprendi to the Guidelines: require any

additional facts necessary for a possible high subrange

sentence to be charged and submitted to the jury. True,

the Government would have to think ahead (and could not

charge relevant facts that emerged unexpectedly at trial).

But the mandatory character of the Guidelines would be

preserved, the goal of consistency would continue to be

served, and the practical value of the jury right would not

face erosion.

The second remedial alternative was a declaration by

the Court that the Guidelines were not mandatory but

discretionary, so that finding extraverdict facts was not

strictly necessary for sentencing in a high subrange under

the Guidelines. On this alternative, a judge who found a

subsidiary fact specified as a condition for a high subrange

sentence might decide to impose a low sentence (inde-

pendently of the Guidelines’ own provisions for downward

Cite as: 551 U. S. ____ (2007) 7

SOUTER, J., dissenting

departure), and a judge who found no such fact might

sentence within the high subrange for other reasons that

seemed sufficient. If the Guidelines were not mandatory,

the subsidiary fact merely provided one reasoned basis for

a traditional exercise of discretion to sentence at the high

end of the sentencing range provided by the statute defin-

ing the crime.

But that second alternative could not be so simple: it

raised yet further issues, and the reconfigured majority of

the Court that in fact adopted it, see 543 U. S., at 244,

guaranteed that we would have the case now before us. If

district judges treated the now-discretionary Guidelines

simply as worthy of consideration but open to rejection in

any given case, the Booker remedy would threaten a re-

turn to the old sentencing regime and would presumably

produce the apparent disuniformity that convinced Con-

gress to adopt Guidelines sentencing in the first place.

But if sentencing judges attributed substantial gravita-

tional pull to the now-discretionary Guidelines, if they

treated the Guidelines result as persuasive or presump-

tively appropriate, the Booker remedy would in practical

terms preserve the very feature of the Guidelines that

threatened to trivialize the jury right. For a presumption

of Guidelines reasonableness would tend to produce

Guidelines sentences almost as regularly as mandatory

Guidelines had done, with judges finding the facts needed

for a sentence in an upper subrange. This would open the

door to undermining Apprendi itself, and this is what has

happened today.

Without a powerful reason to risk reversal on the sen-

tence, a district judge faced with evidence supporting a

high subrange Guidelines sentence will do the appropriate

factfinding in disparagement of the jury right and will

sentence within the high subrange. This prediction is

weakened not a whit by the Court’s description of within-

Guidelines reasonableness as an “appellate” presumption,

8 RITA v. UNITED STATES

SOUTER, J., dissenting

ante, at 11 (emphasis deleted). What works on appeal

determines what works at trial, and if the Sentencing

Commission’s views are as weighty as the Court says they

are, see ante, at 8–12, a trial judge will find it far easier to

make the appropriate findings and sentence within the

appropriate Guideline, than to go through the unorthodox

factfinding necessary to justify a sentence outside the

Guidelines range, see 18 U. S. C. §3553(c)(2) (2000 ed.,

Supp. IV). The upshot is that today’s decision moves the

threat to the practical value of the Sixth Amendment jury

right closer to what it was when this Court flagged it in

Jones, and it seems fair to ask just what has been accom-

plished in real terms by all the judicial labor imposed by

Apprendi and its associated cases.

Taking the Booker remedy (of discretionary Guidelines)

as a given, however, the way to avoid further risk to Ap-

prendi and the jury right is to hold that a discretionary

within-Guidelines sentence carries no presumption of

reasonableness. Only if sentencing decisions are reviewed

according to the same standard of reasonableness whether

or not they fall within the Guidelines range will district

courts be assured that the entire sentencing range set by

statute is available to them. See Booker, supra, at 263

(calling for a reasonableness standard “across the board”).

And only then will they stop replicating the unconstitu-

tional system by imposing appeal-proof sentences within

the Guidelines ranges determined by facts found by them

alone.

I would therefore reject the presumption of reasonable-

ness adopted in this case, not because it is pernicious in

and of itself, but because I do not think we can recognize

such a presumption and still retain the full effect of Ap-

prendi in aid of the Sixth Amendment guarantee. But I

would not stop at rejecting the presumption. Neither my

preferred course nor the choice of today’s majority can

avoid being at odds to some degree with the intent of

Cite as: 551 U. S. ____ (2007) 9

SOUTER, J., dissenting

Congress; there is no question that Congress meant to

impose mandatory Guidelines as the means of bringing

greater uniformity to sentencing. So I point out that the

congressional objective can still be attained, but that

Booker’s remedial holding means that only Congress can

restore the scheme to what it had in mind, and in a way

that gives full measure to the right to a jury trial. If

Congress has not had a change of heart about the value of

a Guidelines system, it can reenact the Guidelines law to

give it the same binding force it originally had, but with

provision for jury, not judicial, determination of any fact

necessary for a sentence within an upper Guidelines

subrange. At this point, only Congress can make good on

both its enacted policy of mandatory Guidelines sentenc-

ing and the guarantee of a robust right of jury trial.

I respectfully dissent.2

——————

2 Because I would ask the Court of Appeals to review the sentence for

reasonableness without resort to any presumption, I would not reach

the other issues in this case.