Amicus Curiae Brief — Claiborne v. United States

ATYA

C7

Nos. 0623618 & 06-5754

IN THE

Supreme Court of the United States

MARIO CLAIBORNE,

Petitioner,

UNITED STATES

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals For The Eighth Circuit

VICTOR A. RITA,

Petitioner.

UNITED STATES

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals For The Fourth Circuit

BRIEF AMICUS CURIAE OF NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS IN SUPPORT OF

PETITIONERS

JEFFREY L. FISHER MIGUFL A. ESTRADA

CO-CHAIR, NACDL Counsel of Record

AMICUS COMMITTEE DAVID DEBOLD

559 Nathan Abbott Way GIBSON, DUNN & CRUTCHER LLP

Stanford. CA 94305 1050 Connecticut Avenue, N.W.

(650) 724-7081 Washington. D.C. 20036

(202) 955-8500

(‘ounsel for Amicus Curiae

—

QUESTION PRESENTED

Is it consistent with United States v. Booker, 543 U.S.

220 (2005), either to require that a sentence which constitutes

a substantial variance from the Guidelines be justified by ex-

traordinary circumstances or to presume that a within-

Guidelines sentence is reasonable?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........sscccsssssssssssssssssececssssssseceees i

TABLE OF CONTENTS ..0...csssssscssccccsssecesscccsssssssccesssssveee i

TABLE OF AUTHORITIES. ...........ccssssvssscsssssssssseceseeseseee iv

INTEREST OF AMICUS CURIAE.......cscscsscsssssssssseeseseeeee

INTRODUCTION AND SUMMARY OF

ARGUMENT ..0...-scccccssssssssesesees SERVE etree vere

I a 5

I. A Requirement Of Extraordinary Circum-

stances For Substantial Variances From The

Guidelines Is Inconsistent With This Court’s

LET ESA TRON SS NENTS PAPO 5

Il. |The History Of The Guidelines Demonstrates

That Courts Should Neither Give Them A

Presumption Of Reasonableness Nor Require

Extraordinary Circumstances For Substantial

Nee icdsitnrscisscinensibickainjeisesuleliiipaiitaciibilahetineitantiabeindndedes 12

A. The Sentencing Guidelines And The

Ranges They Produce For Individual

Cases Do Not Incorporate All Of The

Sentencing Purposes Or Factors Set Forth

3 ke omen eee 12

1. The Sentencing Guidelines were not

written to ensure that a within-

Guidelines sentence complies with

the purposes of sentencing set forth

in 18 U.S.C. § 3553(a)(2). .....cseseeeeeeees 13

2. The Guidelines ranges do not

account for important Section

I MID cininiinsiitidanientiiedetestosciniaytenioes 15

B. The History Of The Guideline

Amendment Process Has Further

Undermined Any Argument For A

Presumption Of Reasonableness. ................-..- 21

1. | Changes to individual provisions

have not addressed the failure of the

Guidelines to account for and

balance the multiple statutory

purposes of sentencing. ............ceeeeeeees 22

2. The Sentencing Guidelines have not

been refined to reflect developments

in the sentencing “common law.”........... 25

III. Reasonableness Review Musi Operate Without

Giving The Guidelines Range Special Weight......... 28

aca REITEIITT <cvitncicbiieincciinsinnnmntenninieninenajemmsniibidatbininimes 30

iv

TABLE OF AUTHORITIES

Page(s

Cases

Blakely v. Washington,

| § EE EER SEAGRASS eee ee Rr ra Tee 4,6,8

Harris v. United States,

nai deadacidenigeciiiaipiisbdetibedidiidtctbedindedinatiiped )

Koon v. United States,

ES RSET Oe er ee SC REN 7,29

Mistretta v. United States,

I a 21

Rangel-Reyes v. United States,

ES acta jones tidicliaiceacinisestiainaetibpiadiondpandioeees Y

United States v. Bishop,

2006 WL 3237027 (10th Cir. Nov. 9, 2006)................0006 7

United States v. Bockes,

re eI, FINI cnncninsscchevmnsevictniisnnaiuiniinidneied 27

United States v. Booker,

FES UB, 220 (ZOOS) .ncccccsccccsevescess FOOD br AOA Ce Ee passim

United States v. Bryant,

ST a LTD I GEE cicssevricticorccancnvetmicienevtasicinidionss 27

United States v. Claiborne,

439 F.3d 479 (8th Cir. 2006)..............ccccccceseceeeeeeees 6, 12, 21

United States v. Dalton,

404 F.3d 1029 (Sth Cir. 2005)............0...ccccsocccccssseoeeess 3, 29

United States v. Delaney,

ee re ts BR citincacensecctninscstntansitentninesniante 27

Vv

United States v. Diaz-Villafane,

SPO Fe Se CIOS GA, TOD vccerecsicecsvscsncecscisusentnniontoonbonaien 29

United States v. Emmenegger,

329 F. Supp. 2d 416 (S.D.N-Y. 2004) oo... cee eeeceeeeeeeees 17

United States v. Green,

436 F.3d 449 (4th Cir. 2006)............ccccccosssssrsrssscessccereeses 29

United States v. Hampton,

441 F.3d 284 (4th Cir. 2006)...0....... cece cceceessseeeeesereeeeeees 3

United States v. Hascall,

FO FIO Fee CC, FID) oececcccccpesenscnsecsecevesntvesestemensnates 27

United States v. Jaber,

362 F. Supp. 2d 365 (D. Mass. 2005) .0..........cccecceeeeeeeees 22

United States v. Jiménez-Beltre,

448 F356 S14 (iat Cir. 20GB) ...ccccccvsccccsssssssscssscoscssceese 13, 30

United States v. Johnson,

GES Fe Fe CD Cle Be cevesecccvsvsecsicbsninnsinciquibanmanamiia 3

United States v. Johnson,

EF Fe ee CH Bi iccccnevcvinisnininsciivcantciniamagaiiaiinas 7

United States v. Leavitt,

ES Fe SOG Cia GAs. DIBA) ccvcicsccneconvedsiestiacinntecnatiiapisiininn 27

United States v. Lindquist,

iB a FG lf | nn 27

United States v. McCall,

GaP Fe Fe Ce ee Be ence ecsrcesecnttinvvssccinantipianinnand 27

United States v. McMannus,

Ee Ce lt me 3

United States v. Richardson,

yee 5 ] Le Ae | ener 27

United States v. Rogers,

GAB F.36 1033 (Gti Cit. 2006).....nccscscsccrccccsosscsonsscersssoneoseese 7

vi

United States v. Sun Bear,

BE Pe CE le AED ccesccnecccsnsncovectsessosesonsbetoseesen 27

United States v. Watts,

RTC re 10

Statutes

I eal passim

dialed cnea cesiarmseetnniitniitasiginds 10

ITT cl iididtindeitrienreatnndioeemsuninenemnneensiotneonmenidiengjets 18

STITT cictincaiatsinasnesedbehnipeidnasditheutdecscenteinvetetnedestel passim

ERC EA eee nec 9,17

cial daria hcnisatadanneninndetnasennbtneinings 10

eins ilailaiiessinhichianaiaeslithinesetieineeincnedimnninntl 10, 17

TES ERIS CE Se Ce 10, 17

hina aiitaii dda dilate hlitnrinignaneiiniinenesepemntbatinns ll

EES ENE SN nee Cae woeeeee AF

ic ica dainlacin cliched nanainaentnciapmmneneicie 27

EE a Dasnpentinpiiticin 16

EEE en ee ee ee 16

| EN ee ee 16

EES TT Ce 16

IE in iriicasielitnitnacsiincraneinnenenietoanentinin 22, 27

IS Ball, SAC UUII D vcccccostesenephinesonnssontsstenss 13, 14,21, 25

TTT ois tert aecriciieialintaialattnadtanemsesenennepeuabinnteindiont 15

Miscellaneous

Amy Baron-Evans, The Continuing Struggle for Just,

Effective, and Constitutional Sentencing After

United States v. Booker: Why and How the

Vil

Guidelines Do Not Comply with § 3553(A),

ie ee crrisccricsnenpccstetnnrinttnisnianeiecniteneens 22

Dissenting View of Commissioner Paul H. Robinson

on the Promulgation of Sentencing Guidelines by

the United States Sentencing Commission,

52 Fed. Reg. 18,121, 18,122 (May 1, 1987) .....0...... 14

Douglas A. Berman, Distinguishing Offense Conduct

and Offender Characteristics in Modern

Sentencing Reforms,

A tos EE ee I ciccernceenecanectntoteiiinatintvmmipinatini 25

Federal Bureau of Prisons, Quick Facts ...............:cccceeeseeeeees 15

Federal Judicial Center, The U.S. Sentencing

Guidelines: Results of the Federal Judicial

I eT Ce cccerssctinittinsntinenininnanuniinnion 19

Frank O. Bowman, The Failure of the Federal

Sentencing Guidelines: A Structural Analysis,

ee A: ti US Baa vccnesenicitsintpeddidntinnasantenen 23

Frank O. Bowman, The Year of Jubilee... Or Maybe

Not: Some Preliminary Observations About the

Operation of the Federal Sentencing System After

Booker,

> FE, Gu, CRU. BH Ca ccccescsteertentsnsnvsnctnsnevennttatens 2, 25

Ilene Nagel, Structuring Sentencing Discretion: The

New Federal Sentencing Guidelines,

80 J. Crim. L. & Criminology 883 (1990) ................. 18,19

Jeffrey S. Parker & Michael K. Block, The Limits of

Federal Sentencing Policy; Or, Confessions of Two

Reformed Reformers,

9 Geo. Mason L. Rev. 1001 (2001)... ec cceeeeeeees 23

Judge Marvin Frankel, Keynote Address: Sentencing

Guidelines: A Need for Creative Collaboration,

a ee ends A Ce cecccriensiectiisciiinainintiatiiadiiaiapaia iat 23

Vili

Judy Clarke, The Sentencing Guidelines: What a

Mess,

Sp i EE i CE Ric ciccecsccnsncmictscninileinesiatecnsesenia

Justice Anthony M. Kennedy, Speech at the ABA

Annual Meeting (Aug. 9, 2003) .0...........cccsesseeereeeneeeeees

Kate Stith & José A. Cabranes, Fear of Judging:

Sentencing Guidelines in the Federal Courts

Eevee aiacinchtiarhibiebinsaiiinsadieeaeiiendaitieiniaielinammntinman

Katherine M. Jamieson and Timothy Flanagan, eds.,

Sourcebook of Criminal Justice Statistics - 1988,

Department of Justice, Bureau of Justice Statistics,

Washington, D.C.: USGPO (1989) .00... ee eeceeceeeeeeeees

Memorandum from James B. Comey, Deputy

Attorney General, U.S. Department of Justice, to

All Federal Prosecutors, re: Department Policies

and Procedures Concerning Sentencing (Jan. 28,

Stephen Breyer, Federal Sentencing Guidelines

Revisited,

Sb. 8&8 0 eee 16,

Stephen Breyer, The Federal Sentencing Guidelines

and the Key Compromises Upon Which They Rest,

of | Ieee 14,

Stephen Schulholfer and Ilene Nagel, Plea

Negotiations Under the Federal Sentencing

Guidelines: Guideline Circumvention and its

Dynamics in the Post-Mistretta Period,

fk Ff 8 | ____, eeeene

Testimony of Hon. Ricardo H. Hinojosa, before the

House Subcommittee on Crime, Terrorism, and

Homeland Security (Mar. 16, 2005)................cccceceeeeeeeees

U.S. Department of Justice, Bureau of Justice

Statistics Bulletin, Prisoners in 2004 ...0...........0.ccccccc000000

ix

U.S. Sentencing Commission, 2005 Sourcebook of

Federal Sentencing Statistics .........c..ccccccsceeseeeereeseees 10, 17

U.S. Sentencing Commission, Downward Departures

from the Federal Sentencing Guidelines (2003) .............. 20

U.S. Sentencing Commission, Fifteen Years of

Guidelines Sentencing: An Assessment of How

Well the Federal Criminal Justice System is

Achieving the Goals of Sentencing Reform (2004) .......... 10

U.S. Sentencing Commission, Final Report on the

Impact of United States v. Booker on Federal

IIIS CII sercinicthicttnnnntinectnilanntnsdeanrtidnmmsael 26, 27

U.S. Sentencing Commission, Measuring Recidivism:

The Criminal History Computation of the Federal

Sentencing Guidelines (2004) ..........ccccccccceeesseeseceeereeeesees 24

U.S. Sentencing Commission, Preliminary Quarterly

Data Report, Preliminary Fiscal Year 2006 Data

cS Ee Ee 2

U.S. Sentencing Commission, Recidivism and the

EY. TIE creestinrensdinnnbniniohinnananietiaiecnneiiees 25

U.S. Sentencing Commission, Special Post-Booker

Caines Freinct Giy 6, BOG) .eccccccesesccsscesevsscesesensssessncscces 2

U.S. Sentencing Commission, Supplementary Report

on the Initial Sentencing Guidelines and Policy

UNIT ihitichsinthinsinslincnbctitnsicaiiniinialitiasiab ica atitiasdaadtashisaitta 24

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INTEREST OF AMICUS CURIAF'

The National Association of Criminal Defense Lawyers

(“NACDL”) is a non-profit corporation with more than

11,200 members nationwide and 28,000 affiliate members in

fifty states, including private criminal defense attorneys, pub-

lic defenders, and law professors. The NACDL seeks to pro-

mote the proper administration of justice and to ensure that

criminal sentences are imposed and reviewed in a manner

that comports with our Constitution. NACDL’s intense con-

cern for the fullest protection of fundamental Fifth and Sixth

Amendment rights has led it to appear as amicus curiae in

this Court on numerous occasions, including in United States

v. Booker, 543 U.S. 220 (2005), Blakely v. Washington, 542

U.S. 296, 312 (2004) (noting NACDL’s position), and Ap-

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

INTRODUCTION AND SUMMARY OF ARGUMENT

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

Court excised the provision of the Sentencing Reform Act

requiring judges to sentence within the Guidelines range “{i]n

most cases,” id. at 234, because the Sixth Amendment pro-

hibits a sentence “outside the range authorized by the jury

verdict,” id. at 240. After Booker, the district court chooses a

sentence pursuant to 18 U.S.C. § 3553(a)—-including its re-

quirement, found in subsection (a)(4), that the court “con-

sider” the applicable Guidelines range—and the court of

appeals reviews that sentencing decision for reasonableness.

In the nearly two years since this Court remedied the

Sixth Amendment violation in Booker by leaving the Guide-

' This brief was not authored, in whole or in part, by counsel for either

party, and no person or entity other than amici, their members, and their

counsel contributed monetarily to the preparation or submission of the

brief. The parties have consented to the filing of the brief and copies of

their letters of consent have been lodged with the Clerk of the Court.

2

lines merely advisory, the Guidelines continue in practice to

exert much the same force as before. The Department of Jus-

tice’s litigation position is that the Guidelines should be ap-

plied as if Booker had never been decided. By directive from

the Attorney General, “prosecutors must actively seek sen-

tences within the range established by the Sentencing Guide-

lines in all but extraordinary cases.’ Memorandum from

James B. Comey, Deputy Attorney General, U.S. Department

of Justice, to All Federal Prosecutors, re: Department Policies

and Procedures Concerning Sentencing (Jan. 28, 2005) at 2,

available at http://sentencing.typepad.com/sentencing_law-

_and_policy/files/dag jan_28 comey_memo_on_booker.pdf

(emphasis added); id. at 1 (prosecutors must “take all steps

necessary to ensure adherence to the Sentencing Guide-

lines”). District judges are imposing Guidelines sentences at

‘ nearly the same rate they did when the unconstitutional sys-

tem was in place.’

2 During FY 2003, when departures were reviewed for abuse of discre-

tion, 7.5 percent of defendants received non-government-sponsored be-

low-Guidelines sentences. Frank O. Bowman, The Year of Jubilee .. . Or

Maybe Not: Some Preliminary Observations About the Operation of the

Federal Sentencing System Afier Booker, 43 Hous. L. Rev. 279, 306

(2006) (Table 3A). Statistics just released by the Commission show that

this number increased to only 11.9 percent in FY 2006. U.S. Sentencing

Commission, Preliminary Quarterly Data Report, Preliminary Fiscal

Year 2006 Data Through September 30, 2006, at Table |, available at

http://www.ussc.gov/Blakely/Quarter Report_4Qrt 06.pdf (combining

departures and Booker variances; also showing that substantial assistance

motions and so-called “fast track” dispositions account for almost 90% of

government-sponsored downward departures). Significantly, this rate for

all of FY 2006 is 0.5 percent /ower than the rate for the first eight months

of the year. U.S. Sentencing Commission, Special Post-Booker Coding

Project, at 1 (July 6, 2006), available at hitp://www.ussc.gov/Blakely/-

PostBooker_060106.pdf (showing 12.4 percent rate of non-government-

sponsored below-Guidelines sentences for FY 2006 as of June 1, 2006).

This trend is consistent with the “feedback” district judges are receiving

from courts of appeals on the limited availability of non-Guidelines sen-

tences even after Booker. See infra.

3

Of particular significance in the two cases now before

the Court, courts of appeals have continued to give the

Guidelines considerable weight by declaring that when a dis-

trict court imposes sentence within the Guidelines range—a

range calculated based on judicial factfinding under a lesser

standard of proof—the sentence is presumptively reasonable.

See, e.g., United States v. Johnson, 445 F.3d 339, 343 (4th

Cir. 2006). Several of these courts, echoing the Govern-

ment’s litigation position, have also held that a judge may not

vary substantially from such a range absent “extraordinary

circumstances.” See, e.g., United States v. Dalton, 404 F.3d

1029, 1033 (8th Cir. 2005); United States v. McMannus, 436

F.3d 871, 874 (8th Cir. 2006) (“the farther the district court

varies from the presumptively reasonable guidelines range,

the more compelling the justification based on the § 3553(a)

factors must be”). As a result of these developments in the

reasonableness review standard, many pertinent factors are

deemed off-limits because the Sentencing Commission sup-

posedly already has taken them into account. See, e.g.,

United States v. Hampton, 44\ F.3d 284, 289 (4th Cir. 2006)

(below-Guidelines sentence where defendant was the sole

custodial parent of two small children was unreasonable, be-

cause “family ties and responsibilities” are an expressly “dis-

couraged factor” under the Guidelines).

There are two fundamental defects with these standards

of review. First, a requirement of extraordinary circum-

stances before a judge may substantially vary from the

Guidelines range does more violence to the Sixth Amend-

ment than the statute struck down in Blakely. The govern-

ment has defended a Guidelines-centric approach to

reasonableness review on the ground that the Guidelines al-

ready account for each of the Section 3553(a) factors and

purposes a federal judge must consider before imposing sen-

tence. But this Court considered and rejected a remedy that

would have allowed that approach—factfinding by the jury.

Because judges continue to find facts that determine a

Guidelines range, a requirement of extraordinary circum-

4

stances before a judge may substantially vary from the range

suffers the same constitutional infirmity that led this Court to

invalidate the mandatory Guidelines in Booker. This is be-

cause the difference between a Guidelines range based on

judicial factfinding and the range authorized by the jury’s

findings can be considerable. See, e.g., Booker, 543 U.S. at

228 (judicial factfinding increased the authorized sentence

for Fanfan from a maximum of 78 months to a range of 188 —

235 months). Under the Washington lav’ struck down in

Blakely v. Washington, 542 U.S. 296 (2004), the judge was

merely allowed to impose a sentence exceeding the maxi-

mum authorized by “facts reflected in the jury verdict or ad-

mitted by the defendant.” /d. at 303. But to forbid substantial

deviation from the Federal Guidelines range absent extraor-

dinary circumstances is more detrimental to the defendant’s

Sixth Amendment rights than the Washington provision. The

federal judge’s findings of fact under the preponderance stan-

dard would require imposition of a sentence greater than that

authorized by the jury’s findings unless the defendant carries

the burden of proving extraordinary mitigating circum-

stances. In the typical case—i.e., one where extraordinary

mitigating circumstances are not present—the result must be

a sentence that “the jury’s verdict alone does not authorize.”

Id. at 305. Such a “remedy” is foreclosed by the Sixth

Amendment. Booker, 543 U.S. at 234 (holding mandatory

Guidelines unconstitutional because “the judge is bound to

impose a sentence within the Guidelines range” in “most

cases’’).

Second, even if Blakely and Booker could permit a sys-

tem that heavily relies on class-wide parameters devised by

an administrative agency, the empirical bases for both the

“extraordinary circumstances” requirement and a presump-

tion of reasonableness for Guidelines sentences (i.e., the no-

tion that the Commission has already accounted for all of the

required factors and purposes in its Guidelines ranges) are

demonstrably false. The Sentencing Commission decided it

was not feasible to construct a system producing sentences

designed to achieve the purposes of sentencing listed in Sec-

5

tion 3553(a)(2). Moreover, the Commission did not, because

it could not, implement a system that differentiates between

particular defendants based on the Section 3553(a) factors,

most notably differences in the “history and characteristics”

of otherwise similarly-situated defendants. See 18 U.S.C.

§ 3553(a){1). Thus, there is no basis in fact for a court of ap-

peals to presume that a sentence within the Guidelines range

is reasonable or to require extraordinary circumstances be-

fore a judge may substantially vary from it.

The proper formulation of reasonableness review—a

formulation that complies with the Sixth Amendment, is true

to the language of the Sentencing Reform Act, and recog-

nizes the limitations inherent in the Guidelines—is one that

focuses on whether the district judge considered ail of the

statutory factors as they apply to that particular case. The

court of appeals should also examine whether the judge, after

considering those factors, complied with the duty to impose a

sentence sufficient, but “not greater than necessary” to

achieve the statute’s purposes. 18 U.S.C. § 3553(a). This

inherently individualized process is not aided by artificial

generalizations about the appropriateness of a sentence range

that was created for classes of cases and that was the product

of an incomplete assessment of the very factors and purposes

judges must consider on a case-by-case basis. To be faithful

to the remedy in Booker, and in recognition of the inherent

limitations of the Guidelines, neither the district courts nor

the courts of appeals should give special weight to sentences

that fall within the applicable Guidelines range.

ARGUMENT

I. A Requirement Of Extraordinary Circum-

stances For Substantial Variances From The

Guidelines Is Inconsistent With This Court’s

Booker Decision.

The Eighth Circuit’s principal basis for giving the

Guidelines greater weight than the other Section 3553(a) fac-

6

tors—that they supposedly “were fashioned taking the other

§ 3553(a) factors into account and are the products of years

of careful study,” United States v. Claiborne, 439 F.3d 479,

481 (8th Cir. 2006)—misses the point of Booker. This Court

made clear that “the mandatory system” Congress enacted “is

no longer an open choice.” 543 U.S. at 263. The Court re-

jected the proposed remedy of jury factfinding, which would

have allowed the Guidelines to retain their primary role in the

sentencing process. Because judges continue to make the

factual findings that determine a Guidelines range (or that

permit deviation from it), the range must be no more than one

factor among many that the judge should consider. Forbid-

ding substantially higher or lower sentences absent a finding

of extraordinary circumstances would reinstate a regime in

which the Guidelines nearly always receive dispositive

weight—a result irreconcilable with the Sixth Amendment

right to jury findings.

The state law in Blakely limited a defendant’s sentence

to a “standard range,” dictated by the offense of conviction,

unless the judge found “substantial and compelling reasons

justifying an exceptional sentence.” 542 U.S. at 299. This

Court held that a sentence above the standard range, based on

the judge’s finding that Blakely had acted with deliberate

cruelty, violated the Sixth Amendment because it exceeded

the penalty the judge could impose “solely on the basis of the

facts reflected in the jury verdict or admitted by the defen-

dant.” Jd. at 303 (emphasis omitted).

A requirement that a judge find the existence of extraor-

dinary circumstances before imposing a sentence substan-

tially above or below the presumptively reasonable Guide-

lines range suffers the same flaw that led this Court to vacate

Blakely’s sentence. Under the Eighth Circuit’s test, a district

court may not substantially deviate from the Guidelines range

unless the judge finds facts that establish extraordinarily ag-

gravating or mitigating circumstances. The less aggravating

the circumstances found by the judge, for example, the lower

the permissible increase in sentence. See Claiborne, 439

7

F.3d at 481 (“How compelling [the] justification must be is

proportional to the extent of the difference between the advi-

sory range and the sentence imposed.”). It does not matter,

for Sixth Amendment purposes, that judges have the flexibil-

ity to vary substantially from the range in some cases without

making further factual findings. This Court held as much in

invalidating the provision that made the Guidelines manda-

tory. Booker, 543 U.S. at 234 (“The availability of a depar-

ture in specified circumstances does not avoid the

constitutional issue, just as it did not in Blakely itself.”) By

definition, the circumstances in the majority of cases gov-

erned by a particular Guideline are not extraordinary, just as

departures under the mandatory Guidelines were unavailable

in “most cases.” Id.’

The facts in Booker and Fanfan also illustrate the Sixth

Amendment violation. Judicial factfinding increased Fan-

fan’s penalty from a Guidelines range of 63 — 78 months to a

range of 188 — 235 months. 543 U.S. at 228. Under a stan-

dard of review that is tied to the range determined under the

Guidelines, a defendant such as Fanfan could receive a sen-

tence at the higher range—a sentence substantially above the

> It may well be that in theory a “presumption of reasonableness” for

Guidelines sentences, by itself, does not raise these Sixth Amendment

concerns if it it does not necessarily equate with a “presumption of unrea-

sonableness” for non-Guidelines sentences. In practice, however, the two

have gone hand in hand. See, e.g., United States v. Bishop, 2006 WL

3237027 at *10 (10th Cir. Nov. 9, 2006); United States v. Rogers, 448

F.3d 1033, 1034 (8th Cir. 2006) (per curiam); United States v. Johnson,

427 F.3d 423, 426-27 (7th Cir. 2005). To be unobjectionable, any pre-

sumption on appeal must be limited to cases where the judge has fol-

lowed the correct process—considering all factors and exercising his

discretion to impose a sentence sufficient, but not greater than necessary

to meet the purposes of Section 3553(a)(2). But if the district judge has

improperly considered the Section 3553(a) factors by, for example, giv-

ing special weight to the Guidelines, the resulting sentence is not entitled

to a presumption of reasonableness whether it is within the Guidelines or

not. Cf Koon v. United States, 518 U.S. 81, 100 (1996) (“A district court

by definition abuses its discretion when it makes an error of law.”).

8

range authorized by the jury verdict—only if the judge makes

additional findings. Thus, for the “ordinary” or typical de-

fendant—one whose circumstances fall short of “extraordi-

nary”—the district court not only is permitted to impose a

sentence greater than that available based on jury findings

alone; it is required to do so. The Sixth Amendment forbids

either result. See Blakely, 542 U.S. at 305 n.8 (“Whether the

judicially determined facts require a sentence enhancement

or merely allow it, the verdict alone does not authorize the

sentence.” (emphasis in original)).

Claiborne involves a downward variance, but there is no

reason to think that reasonableness review should mean one

thing for upward variances and another for downward vari-

ances. Booker held to the contrary. 543 U.S. at 266 (reject-

ing the government’s remedy because it “would impose

mandatory Guidelines-type limits upon a judge’s ability to

reduce sentences, but it would not impose those limits upon a

judge’s ability to increase sentences” and “[w]e do not be-

lieve that such ‘one-way lever[s]’ are compatible with Con-

gress’ intent” (emphases and second alteration in original;

citation omitted)).

The constitutional defect is further illustrated by consid-

ering how reasonableness review would apply to a sentence

that is at or above the top of the range determined solely on

the basis of facts found by the jury or admitted by the defen-

dant, even though it may be below the range determined after

additional findings by the judge. After Booker and Blakely, a

district judge operating in a guidelines regime that uses judi-

cial factfinding must have the discretion to impose such a

sentence without the additional requirement that he go be-

yond the jury’s findings. Thus, in such a case the sentence

must be affirmed if the judge follows the statute’s procedural

requirements, complies with the Due Process Clause, and

does not consider factors forbidden by the Constitution (such

as the defendant’s race). The sentence may not be reversed

on the ground that there were insufficient mitigating factors.

Reasonableness review must therefore give judges broad lati-

9

tude in choosing a sentence—a latitude that is inconsistent

with the substantive requirement of extraordinary circum-

stances.‘

Reasonableness review cannot mean one thing in cases

where the judge’s findings produce little or no increase in the

Guidelines range and another thing when the range greatly

exceeds that based on jury findings alone.’ A unitary stan-

dard of reasonableness review must provide sufficient lati-

tude to account for cases like Booker’s and Fanfan’s, where

judicial factfinding and jury factfinding producing signifi-

cantly different ranges. And although the need for such lati-

tude would be the same even if such cases were rare, they are

not. In drug cases, the “base” offense level is determined

largely by the quantity of drugs deemed “relevant” under

rules set forth in the Guidelines. U.S. SENTENCING

GUIDELINES MANUAL (“USSG”) § 1B1.3. This “relevant”

* This Court has held that judges may find facts that trigger a manda-

tory minimum sentence. See Harris v. United States, 536 U.S. 545

(2002). Even assuming that holding survives Blakely and Booker, see

Harris, 536 U.S. at 569 (Breyer, J., concurring) (acknowledging that Ap-

prendi “cannot easily” be distinguished), Rangel-Reyes v. United States,

547 U.S. __ (2006) (Stevens, J., statement respecting denial of petitions

for writ of certiorari), it does not apply here, because judicial factfinding

changes in tandem both the minimum and the maximum allowable sen-

tence under the Guidelines. Cf. Harris, 536 U.S. at 557 (distinguishing

Apprendi, because under 18 U.S.C. § 924(c), “the jury’s verdict has au-

thorized the judge to impose the minimum with or without the finding”;

Apprendi does not apply to “a fact increasing the mandatory minimum

(but not extending the sentence beyond the statutory maximum)”), id. at

561 (“The minimum may be imposed with or without the factual finding;

the finding is by definition not ‘essential’ to the defendant’s punish-

ment.”)

> Nothing in the statute or Booker contemplates that the meaning of

“reasonable” will depend on the extent of the difference between the

range based on jury findings and the range based on judicial findings.

Moreover, a standard that varies in such a way would impose undue bur-

dens on the lower courts and be exceedingly difficult to administer con-

sistently in a system with 256 Guidelines range cells.

10

quantity includes drugs involved in counts that were dis-

missed, and even counts of which the defendant was acquit-

ted or for which there was no charge at all. See, e.g., United

States v. Watts, 519 U.S. 148 (1997) (per curiam). More-

over, the Guidelines Manual contains many more levels of

gradation for drug quantity than does the statute defining the

offense. Compare 21 U.S.C. § 841(b)(1) (containing three

levels of penalty gradation due to drug quantity for most con-

trolled substances, including cocaine, cocaine base (crack),

heroin and marijuana) with USSG § 2D1.1(c) (containing at

least 14 different offense levels for such drugs).° Approxi-

mately 35 percent of all federal sentences in 2005 were for

drug offenses. U.S. Sentencing Commission, 2005 Source-

book of Federal Sentencing Statistics (“2005 Sourcebook”) at

13; id. at 313 (showing an increase in the percentage of drug

cases after Booker). Many other Guidelines also dictate

higher sentence ranges based on findings made by the judge

rather than the jury, not the least of which are those for theft

and fraud cases. See USSG § 2B1.1 (numerous aggravating

factors incorporating the amount of loss); 2005 Sourcebook

at 13 (12 percent of cases).

Petitioner Rita’s case illustrates how another type of ju-

dicial factfinding under the Guidelines—in which the judge

uses a “cross reference” to sentence the defendant as if con-

victed of a different offense—can significantly increase the

Guidelines range. Rita was convicted of perjury, false state-

ments, and obstruction of justice. His offense level based on

jury findings was 14. See USSG §§ 2J1.2 (obstruction of jus-

* The Guidelines, rather than mandatory minimums, dictate the sen-

tence in a large number of drug cases. See U.S. Sentencing Commission,

Fifteen Years of Guidelines Sentencing: An Assessment of How Well the

Federal Criminal Justice System is Achieving the Goals of Sentencing

Reform (“Fifteen Year Report’), at 54 (2004), available at

http://www.ussc.gov/15 year/lSyear.htm (determining that, as of 2001,

more than 25 percent of the average expected prison time for drug of-

fenders can be attributed to Guideline increases above the statutory man-

datory minimum penalty levels).

11

tice) & 2J1.3 (perjury). But after the government’s post-

conviction proffer, accepted by the Probation Officer and

subject to proof by only a preponderance of the evidence,

Rita’s Guidelines range was calculated as if he had been con-

victed of accessory after the fact to an offense that the grand

jury was investigating——the purportedly illegal importation

of goods by the company from which Rita made purchases—

but with which Rita was never charged.

As Rita’s brief explains, this cross reference to an of-

fense supposedly committed by a non-party——an offense that

was not at issue, much less proved, in Rita’s trial——increased

his offense level from 14 to 20, doubling both the minimum

and maximum of his Guidelines range. With the type of rea-

sonableness review adopted by several circuits, the jury find-

ings alone—supporting a sentence of between 15 and 21

months—would not have authorized a sentence in the en-

hanced range used by the district judge. To get to that higher

range a judge would need to make additional findings—

either facts that change the Guidelines range or facts that

support a finding of “extraordinary circumstances.” Thus,

“(t]he sentencing judge would have been reversed” had he

imposed a sentence in that higher range without additional

non-jury findings. See Booker, 543 U.S. at 234-35; cf. id. at

234 (noting that the statute in Blakely did not provide suffi-

cient flexibility because the judge needed to find “substantial

and compelling reasons” to vary from the range). This is pre-

cisely the type of sentencing regime that this Court invali-

dated as unconstitutional in Booker and Blakely.

On constitutional grounds alone, the standard of review

used in the Fourth and Eighth Circuits must be rejected.

12

Il. The History Of The Guidelines Demonstrates

That Courts Should Neither Give Them A

Presumption Of Reasonableness Nor Require

Extraordinary Circumstances For Substantial

Variances.

As noted earlier, the Eighth Circuit’s presumption of

reasonableness for all within-Guidelines sentences is

grounded in the belief that the Guidelines take the other Sec-

tion 3553(a) factors into account and are “the product of

years of careful study.” 439 F.3d at 481. Even if it were

possible after Booker to give the Guidelines special weight,

the premises on which the court have done so are demonstra-

bly false. The Guidelines were not written to produce sen-

tence ranges that meet all of the purposes of sentencing found

in Section 3553(a)(2), much less do they differentiate indi-

vidual defendants from one another based on all of the other

factors a judge must consider under Section 3553(a). And

while it is true that the Commission’s amendment process

was designed to carry out a continued refinement of the

Guidelines to better approach the ideal regime envisioned by

the drafters of the Sentencing Reform Act, in practice it has

not performed in that manner. Rather than move the Guide-

lines in the direction of balancing and incorporating Section

3553(a)’s purposes and factors, the amendment process has

had the opposite effect. Thus, as an empirical matter, sen-

tence ranges that are the product of such a process are not

entitled to a presumption of reasonableness.

A. The Sentencing Guidelines And The

Ranges They Produce For Individual Cases

Do Not Incorporate All Of The Sentencing

Purposes Or Factors Set Forth In 18 U.S.C.

§ 3553(a).

The Commission’s current Chairman has recently de-

clared that the Guidelines embody each of the sentencing fac-

tors set forth in 18 U.S.C. § 3553(a) for every offense and

every offender. See Testimony of Hon. Ricardo H. Hinojosa,

13

before the House Subcommittee on Crime, Terrorism, and

Homeland Security (Mar. 16, 2005), at 18, available at

http://judiciary.house.gov/media/pdfs/hinojosa03 1606.pdf

(“The guidelines embody all of the applicable sentencing fac-

tors for a given offense or offender.”) That simply is not so.

The Commission itself acknowledged, when first promulgat-

ing the Guidelines, that it was impossible to devise a guide-

lines system that captures and accounts for “the vast range of

human conduct potentially relevant to a sentencing decision.”

USSG ch. 1, pt. A(4)(b) (1987). “[T]he guidelines are ines-

capably generalizations” that “say little about the ‘history and

characteristics of the defendant.’”” United States v. Jiménez-

Beltre, 440 F.3d 514, 527 (1st Cir. 2006) (Lipez, J., dissent-

ing). The Guidelines are entitled to no special weight be-

cause they do not—and indeed cannot—produce sentence

ranges that account for each of the various factors and pur-

poses a court must consider when imposing sentence.

1. The Sentencing Guidelines were not

written to ensure that a _ within-

Guidelines sentence complies with the

purposes of sentencing set forth in 18

U.S.C. § 3553(a)(2).

Section 3553(a)(2) of Title 18 requires judges to impose

sentences that, among other things, “comply with” the fol-

lowing “purposes” of sentencing :n each particular case: “re-

flect the seriousness of the offense”; “promote respect for the

law”; “provide just punishment for the offense”; “afford ade-

quate deterrence to criminal conduct”; “protect the public

from further crimes of the defendant”; and “provide the de-

fendant with needed educational or vocational training,

medical care, or other correctional treatment in the most ef-

fective manner.” The Act directed the Commission to devise

Guidelines appropriate for “categories of offenses,” 28

U.S.C. § 994(c), and “categories of defendants,” id. § 994(d),

recognizing that guidelines could not address the circum-

stances of every individual. The Guidelines were to be ad-

dressed to the purposes of sentencing and the reduction of

14

unwarranted disparities.” Jd. § 994(f). The sentencing judge,

by contrast, was to consider those same matters, 18 U.S.C.

§ 3553(a)(2), (4), (5), (6), and also “the nature and circum-

stances of the offense” and the “history and circumstances of

the offender.” 18 U.S.C. § 3553(a)(1).

In the introduction to the first Guidelines Manual in

1987, the Commission acknowledged it was unable to take

each of these purposes of sentencing into account in crafting

Guidelines ranges. See USSG ch. 1, pt. A(3) (1987). The

Commission only considered trying to account for two pur-

poses, which it described as “just deserts” [sic] and “crime

control.” Jd. It candidly acknowledged, however, that be-

cause it was unable to tackle the “profoundly difficult” “phi-

losophical problem” of reconciling the interplay of even

those two sentencing purposes, id., it simply abandoned their

use in favor of a system based “by and large, [on] typical past

practice, determined by an analysis of 10,000 actual cases.”

Stephen Breyer, The Federal Sentencing Guidelines and the

Key Compromises Upon Which They Rest, 17 Hofstra L.

Rev. |, 7 (1988) (footnote omitted). As another original

commissioner explained, “[rjather than being guided by the

statutory purposes of sentencing, the guideline drafting re-

flected simply a haphazard ‘fiddling with the numbers’ that

established the guidelines sentences.” Dissenting View of

Commissioner Paul H. Robinson on the Promulgation of

Sentencing Guidelines by the United States Sentencing

Commission, 52 Fed. Reg. 18,121, 18,122 (May 1, 1987).

In the end, the Commission chose to increase sentences

for some offenses, but not others, through a series of ““trade-

offs’ among Commissioners with different viewpoints.”

Breyer, 17 Hofstra L. Rev. at 19; id. at 23 (“[O]nce the

Commission decided to abandon the touchstone of prior past

practice, the range of punishment choices was broad”).’ Al-

” Over time, these “trade-offs” have worked to substantially lengthen

sentences. Defendants sentenced in 2002 will spend, on average, twice as

long in prison as those sentenced prior to the Sentencing Reform Act.

(footnote continued on next page)

15

though the Commission may very well have done the best it

could under the circumstances, it is abundantly clear that the

ranges in that Manual are not the product of a balancing of

the sentencing purposes every judge is required to consider

under Section 3553(a)(2).

2. The Guidelines ranges do net account

for important Section 3553(a) factors.

In addition to their failure to take account of —much less

carefully balance—each purpose of sentencing listed in Sec-

tion 3553(a)(2), the Guidelines also fail to differentiate be-

tween defendants with respect to the other Section 3553(a)

factors that judges must consider. Of particular note, they do

not do so with respect to a vital component of subsection

(a)(1}—the “history and characteristics of the defendant.”

From the beginning, the Guidelines have produced sen-

tencing ranges that take into account one narrow slice of a

defendant’s “history and characteristics”: the aggravating

factor of prior criminal history. See generally USSG ch. 4.

The Guidelines ranges do not incorporate any other offender

characteristics or any other aspects of their history. Instead,

to the extent the Commission has addressed these factors, it

expressly discourages or outright prohibits judges from con-

sidering them when computing a Guidelines range or when

(footnote continued from previous page)

Fifteen Year Report at 46, 47, and 49. As a result, the federal prison

population has increased four-fold during that same period. Compare

Katherine M. Jamieson and Timothy Flanagan, eds., Sourcebook of

Criminal Justice Statistics - 1988, Table 6.34, Department of Justice,

Bureau of Justice Statistics, Washington, D.C.: USGPO (1989) with Fed-

eral Bureau of Prisons, Quick Facts, available at http://www.bop.-

gov/news/quick.jsp#1. In fact, despite Congress’s directive that the

Guidelines “shall be formulated to minimize the likelihood that the Fed-

eral prison population will exceed the capacity of the Federal prisons,” 28

U.S.C. § 994(g), as of 2004 the federal prisons were 40% over capacity.

U.S. Department of Justice, Bureau of Justice Statistics Bulletin, Prison-

ers in 2004 at 7, available at http://ojp.usdoj.gov/-bjs/pub/pdf/p04 pdf.

16

deciding whether to impose a Guidelines sentence. These

characteristics include, among others, family ties and obliga-

tions, USSG § 5H1.6, military service, id. at § 5H1.11, com-

munity good works, id., addictions and other dependencies,

id. at § 5H1.4, and duress relating to “personal financial dif-

ficulties and economic pressures upon a trade or business,”

id. at § 5K2.12. The original commissioners “extensively

debated” whether the Guidelines ranges should be affected

by offender characteristics beyond the defendant’s criminal

record, Breyer, 17 Hofstra L. Rev. at 19, but they were un-

able to reach a consensus and therefore decided “to leave

other characteristics out.” Stephen Breyer, Federal Sentenc-

ing Guidelines Revisited, 1\ Fed. Sent. R. 180, 185 (1999).

The Commission’s inability to incorporate these of-

fender characteristics into the computation of a Guidelines

range is not surprising, because guidelines can only go so far

in producing ranges that take these considerations into ac-

count. The one factor the Commission did incorporate—

prior criminal history—is, in a number of ways, susceptible

to an objective formula based on the number of prior convic-

tions, the recency of past offenses, and their severity (as

measured by length of sentence imposed or served). It is not

possible to quantify in a meaningful way—i.e., one that dif-

ferentiates defendants in the current grid of sentence

ranges—-such factors as a defendant’s family obligations; the

influence of addiction, duress, or financial difficulties on the

commission of the offense; or the degree to which the defen-

dant engaged in good works before or after committing the

offense. Moreover, an offender characteristic that warrants a

significant sentence reduction in one case (e.g., a history of

strong family ties and responsibilities) might be less compel-

ling than otherwise would be the case if coupled with other

factors (e.g., the defendant made a calculated decision to en-

tice close family members into joining his criminal activity

despite having a strong support system that gave him ample

opportunity to lead a law-abiding life). Because the weight

to be given any particular offender characteristic requires

careful case-by-case consideration of the interplay of multi-

17

ple factors, such characteristics are inherently unsuited to the

generalizations required in any guidelines system.

As a result of the difficulty in accounting for offender

characteristics in a system that must quantify and generalize

factors, with the exception of the aggravating factor of crimi-

nal history the Guidelines are focused entirely on the offense

as opposed to the person who committed it. But even there

they frequently fail to differentiate based on such things as

criminal intent.* To the extent intent is considered, it works

in only one direction. Intended harms increase the sentence

even if they do not occur. See, e.g., USSG § 1B1.3(a)(3)

(relevant conducts includes “all harm that was the object” of

acts and omissions) & 2D1.1. cmt. n.12 (drug quantity in-

cludes amounts attempted or agreed upon). Yet no reduction

is made to account for harms that were unintended or con-

trolled by law enforcement. See, e.g., id. (addressing con-

trolied drug deliveries); United States v. Emmenegger, 329 F.

Supp. 2d 416, 427-28 (S.D.N.Y. 2004) (noting that loss

amount in many fraud cases “is a kind of accident” and thus a

“relatively weak indicator of the moral seriousness of the of-

fense or the need for deterrence”). In failing to differentiate

between defendants based on these and other aspects of their

offenses, the Guidelines cannot be said to already account for

the factors in Section 3553(a){1).

* Several guideline provisions require rigid arithmetic increases for

acts that were committed (including the resulting “harm”) without regard

to mens rea. For example, the Guideline for unlawful possession of a

firearm, used in 10.6 percent of all federal criminal cases, 2005 Source-

book at 60, mandates a two-level increase if the firearm illegally pos-

sessed by the defendant “was stolen,” and a four-level increase if it “had

an altered or obliterated serial number,” USSG § 2K2.1(b)(4), “whether

or not the defendant knew or had reason to believe that the firearm was

stolen or had an altered or obliterated serial number,” id. at cmt. n.8(B).

See also id. at § 2J1.2(b)1)(B) (compelling the same twelve-level in-

crease for defendants who know their false statements were made in con-

nection with a terrorism investigation and those who were unaware of the

nature of the investigation).

18

Another statutory factor that judges must consider is “the

need to avoid unwarranted sentence disparities among defen-

dants with similar records who have been found guilty of

similar conduct.” 18 U.S.C. § 3553({a)(6). Minimizing such

disparities was one of the primary objectives of the Sentenc-

ing Guidelines. Guidelines, at least in theory, enable judges

to give the same weight to factors common to “categories” of

defendants who commit the same crime in the same manner.

See 28 U.S.C. §§ 991(b)(1)(B) & 994(d), (f). For example,

all bank robbers start at a single base offense level. And, all

other things being equal, the defendant who commits his of-

fense in a more aggravated manner than others (such as injur-

ing a teller during the robbery) is placed in a higher range.

But in a number of ways the Guidelines have perpetuated and

even aggravated the problem of unwarranted disparities.

As the Sentencing Commission has recognized, “unwar-

ranted disparity” means the “different treatment of individual

offenders who are similar in relevant ways, or similar treat-

ment of individual offenders who differ in characteristics that

are relevant to the purposes of sentencing.” Fifteen Year Re-

port at 113 (emphasis in original). The Guidelines, by limit-

ing consideration of numerous factors and circumstances

(including the offense and offender factors mentioned

above), have increased the second type of unwarranted dis-

parity—the like treatment of cases that are not truly alike.

Ilene Nagel, one of the original commissioners, acknowl-

edged this problem—she dubbed it the “overreaching uni-

formity” of the Guidelines—noting that “the emphasis [in

creating the first set of guidelines] was more on making sen-

tences alike, and less on insuring the likeness of those

grouped together for similar treatment.” Nagel, Structuring

Sentencing Discretion: The New Federal Sentencing Guide-

lines, 80 J. Crim. L. & Criminology 883, 934 (1990).

The Guidelines also suffer severe shortcomings in ad-

dressing the other type of disparity—different treatment of

individual offenders who are similar in relevant ways. One

of the biggest causes of this type of disparity is the practice

19

of charge and fact bargaining in connection with guilty pleas.

Numerous studies have confirmed that because such bargain-

ing occurs in a sizable number of cases, Guidelines ranges

for defendants who should be identical in the eyes of the

Guidelines will often be different. For example Professor

Stephen Schulholfer and former-Commissioner Nagel found

that the Guidelines were circumvented in approximately

twenty to thirty-five percent of all plea-bargains, Ilene Nagel,

Plea Negotiations Under the Federal Sentencing Guidelines:

Guideline Circumvention and its Dynamics in the Post-

Mistretta Period, 91 Nw. U. L. Rev. 1284, 1290 & n.25

(1997), with the extent of the deviations from appropriate

guideline calculations ranging between “modest” (ten to

twenty-five percent) and “enormous” (seventy to ninety per-

cent), id. at 1292. Similarly, the federal probation offices in

forty-three percent of all districts report that when “guideline

calculations are set forth in a plea agreement, they are sup-

ported by offense facts that accurately and completely reflect

all aspects of the case” no more than half the time. Fifteen

Year Report at 86 (internal quotations and citations omitted).

And in yet another survey, this one conducted by the Federal

Judicial Center, three-quarters of district judges reported that

plea bargaining is a “source of hidden unwarranted disparity

in the guidelines system.” Federal Judicial Center, The U.S.

Sentencing Guidelines: Results of the Federal Judicial Cen-

ter’s 1996 Survey at 7, 9 (1997), available at

http://www. fjc.gov/public/pdf.nsf/lookup/gssurvey.pdf/$F ile/

gssurvey.pdf.

Ironically, it is the so-called “real offense” provisions

(e.g., the weapon and quantity enhancements in drug cases

and the loss amount for economic crimes)—the centerpiece

of guidelines sentencing, see, e.g., Fifteen Year Report at 24-

25—that provide the most fertile ground for abusive plea ne-

gotiating tactics. See Nagel, 80 J. Crim. L. & Criminology at

20

937.° The Justice Department’s continued insistence after

Booker that prosecutors avoid sentences outside the ranges

that have been computed, and standards of review that treat

non-Guidelines sentences as suspect, can only serve to per-

petuate this form of disparity.

Perhaps the most troubling manifestation of unwarranted

sentencing disparity prevalent in the current guidelines sys-

tem is the gap between average sentences of white and mi-

nority offenders. “[RJelatively small in the preguidelines

era,” this gap has grown substantially since the advent of the

Guidelines. Fifteen Year Report at 115, 116, 120-27. The

Commission itself has concluded that these disparities are not

“a product of racial stereotypes, prejudice, or other forms of

discrimination on the part of judges”; rather they are attribut-

able to an “‘institutional unfairness’ built into the sentencing

rules themselves.” Id. at 135 (emphasis added) (internal cita-

tion omitted). Although the Commission specifically identi-

fied the 100:1 quantity ratio for powder and crack cocaine—a

ratio that substantially increased petitioner Claiborne’s

Guidelines range—and the career offender Guideline as rules

that have “unwarranted adverse impacts on minority groups

without clearly advancing a purpose of sentencing,” it ac-

knowledged there may be “many others.” Jd. at 131-34. A

Guidelines system that increases racial disparities in sentenc-

ing cannot be given a presumption of reasonableness.

* Further aggravating the disparities inherent in plea bargaining is the

existence of regional “‘adaptations’ to the guidelines system,” including

“fast-track” disposition programs. Fifteen Year Report at 86; see also

U.S. Sentencing Commission, Downward Departures from the Federal

Sentencing Guidelines, at 66-67 (2003), available at http://www.ussc.-

gov/departrpt03/departrpt03.pdf (“Defendants sentenced in districts with-

out authorized early disposition programs . . . can be expected to receive

longer sentences than similarly-situated defendants in districts with such

programs. This type of geographical disparity appears to be at odds with

the overall Sentencing Reform Act goal of reducing unwarranted dispar-

ity among similarly-situated offenders.”)

21

Congress recognized that judges would need to consider

more than the kinds of unwarranted disparity against which

Guidelines can protect. It thus required them to “consider”

the problem of disparity, 18 U.S.C. § 3553(a)(6), in addition

to consideration of the Guidelines range, in each individual

case. The assumption that the Guidelines account for this

and other Section 3553(a) factors thus cannot be squared

with the structure of the statute, any more than it can be

squared with the way the Guidelines have been created.

B. The History Of The Guideline Amendment

Process Has Further Undermined Any

Argument For A_ Presumption Of

Reasonableness.

The second reason advanced by the Eighth Circuit in

Claiborne for according within-Guidelines sentences a pre-

sumption of reasonableness was that the Guidelines have

been refined over time based on several years of sentencing

experience and studies. 439 F.3d at 481. While Congress,

the Commission, and even this Court envisioned such a data-

driven evolution of the Guidelines, see Mistretta v. United

States, 488 U.S. 361, 379 (1989); 28 U.S.C. § 994(0), in

practice the amendment process has proven incapable of in-

corporating Section 3553(a)’s purposes and other sentencing

factors into the Guidelines.

When the original Commission determined it could not

base its Guidelines ranges on a principled application of the

statutory purposes of sentencing listed in Section 3553(a)(2),

it intended to make up for that shortcoming in later revisions

to the Manual. The Commission saw its original product as

“but the first step in an evolutionary process.” USSG ch. 1,

pt. A(3) (1987). The Guidelines were to be refined along two

fronts by: (1) incorporating the findings of the Commis-

sion’s “continuing research, experience, and analysis,” id. at

pt. A(2); and (2) developing a sentencing “common law,”

whereby judges would “remain free to depart from the

Guidelines’ categorical sentences,” transmitting their reasons

for doing so to the Commission, which would then revise the

22

Guidelines to incorporate the common practices of the judici-

ary. Breyer, 11 Fed. Sent. R. at 183, 185 (the original

choices were to be “subject to revision in light of Guideline

implementation experience”); see also Booker, 543 U.S. at

263. Experience, however, has not measured up to expecta-

tions.

1. Changes to individual provisions have

not addressed the failure of the

Guidelines to account for and balance

the multiple statutory purposes of

sentencing.

The Commission’s plan to incorporate the purposes of

sentencing into later versions of the Guidelines Manual was

doomed from the start. The tradeoffs stemming from the

original commissioners’ failure to reach consensus resulted

in a system bereft of a coherent sentencing philosophy, much

less one tha: bore some relationship to the purposes of sen-

tencing set forth in the Sentencing Reform Act. “Without an

agreement on the purposes of sentencing, there was no way

for the Commission to measure sentences against particular

objectives.” United States v. Jaber, 362 F. Supp. 2d 365, 374

(D. Mass. 2005). The Commission has made a number of

separate amendments to individual Guidelines, but it has yet

to make the kind of structural changes needed to implement

the statutory purposes of sentencing. In fact, the amendment

process has been notable for its relentless addition of factors

that serve to increase offense levels and further restrict the

ability of judges to consider, among other things, the history

and characteristics of defendants.

The Guidelines have been amended 696 times. USSG

App. C (2006). Only a handful of these changes have oper-

ated to decrease the length of certain sentences. See Amy

Baron-Evans, The Continuing Struggle for Just, Effective,

and Constitutional Sentencing After United States v. Booker:

Why and How the Guidelines Do Not Comply with

$ 3553(A), 30 Champion 32 at n.39 (2006) (identifying only

seven such amendments: USSG App. C, amends. 396, 488,

23

515, 590, 624, 632, and 634). The cumulative effect of the

remaining changes has been a “one-way upward ratchet” in

sentencing, Frank O. Bowman, The Failure of the Federal

Sentencing Guidelines: A Structural Analysis, 105 Colum. L.

Rev. 1315, 1319-20 (2005), a result roundly criticized."

This consistent increase in the length of prison sentences

has not been accompanied by empirical data that tie the in-

creases to the purposes of sentencing. See Kate Stith & José

A. Cabranes, Fear of Judging: Sentencing Guidelines in the

Federal Courts at 56 (1998) (“Nowhere in the forest of direc-

tives that the Commission has promulgated over the last dec-

ade can one find a discussion of the rationale for the

particular approaches or definitions adopted by the Commis-

sion; nor can one find any efforts to justify the particular

weights it has elected to assign to various sentencing fac-

tors.”). Even the criminal history provision—the single of-

fender characteristic accounted for in the Guidelines—does

not produce results that can be presumed “reasonable.” Due

to “pressing congressional deadlines,” the Commission was

unable to validate its criminal history measure with its own

' See, e.g., Fifteen Year Report (Sentencing Commission) at 137-38

(discussing the negative impact of “factor creep” on the Commission’s

efforts to tie offense levels to offense seriousness); Jeffrey S. Parker

(Former Deputy Chief Counsel to the Commission) & Michael K. Block

(Former Commissioner), Zhe Limits of Federal Sentencing Policy; Or,

Confessions of Two Reformed Reformers, 9 Geo. Mason L. Rev. 1001,

1019 (2001) (noting that the Commission has lapsed into enacting “gra-

tuitous increases in punishment levels that ha[ve] no basis in either prin-

ciple or practice, and instead [are] essentially political decisions reflecting

responses to interest group pressures”); id. at 1033-34; Judge Marvin

Frankel, Keynote Address: Sentencing Guidelines: A Need for Creative

Collaboration, \0\ Yale L. J. 2043, 2046 (1992) (“I think everyone here

knows that the judges find the guidelines excessively harsh and rigid . . . .

The guidelines are indeed severe . . . .”); Justice Anthony M. Kennedy,

Speech at the ABA Annual Meeting at 4 (Aug. 9, 2003) (“The Federal

Sentencing Guidelines should be revised downwards.”), available at

http://www.supremecourtus.gov/publicinfo/speeches/sp_08-09-03.html.

24

empirical studies. U.S. Sentencing Commission, Measuring

Recidivism: The Criminal History Computation of the Fed-

eral Sentencing Guidelines (“Measuring Recidivism Report’)

at 1 (2004), available at http://www.ussc.gov/publicat/-

recidivism_general.pdf. Instead, it relied on a hodge-podge

of preexisting tools, reasoning that their combined predictive

power would transfer, “at least in part, to the nascent guide-

lines’ criminal history measure.” /d. The Commission in-

tended to follow up with its own research to test the

correlative value between its criminal history scoring system

and recidivism. U.S. Sentencing Commission, Supp/emen-

tary Report on the Initial Sentencing Guidelines and Policy

Statements at 44 (1987).

The Commission conducted and publicized this prom-

ised analysis seventeen years later. See Measuring Recidi-

vism Report. It demonstrates in quite compelling fashion that

many of the offender characteristics the Commission has

ruled off-limits—age, educational level, employment status,

and so on—are indeed strong predictors of recidivism rates.

See id. at 16 (“Investigations using the recidivism data sug-

gest that there are several legally permissible offender char-

acteristics which, if incorporated into the criminal history

computation, are likely to improve predictive power.”).'' Yet

the ranges computed under the Guidelines do not account for

any of these offender characteristics."

'' For example, the Commission found that recidivism rates are

strongly correlated to age (35.5% for offenders under 21 versus 9.5% for

offenders over 50), educational level (31.4% for offenders with less than

a high school education versus 8.8% for offenders with a college degree),

employment status (32.4% for offenders who were not steadily employed

in the year before their arrest versus 19.6% for offenders who were stead-

ily employed during this period), and marital status (31.4% for offenders

who were never married versus 13.8% for married offenders and 19.5%

for offenders who were formerly married). /d. at 12-14.

'? The problem is magnified by the Commission's initial decision to

deviate upward from the “historical averages” for a particular category of

defendants those who had previously received probationary sentences

(footnote continued on next page)

25

2. The Sentencing Guidelines have not

been refined to reflect developments in

the sentencing “common law.”

The development of the sentencing “common law” has

also fallen short of expectations, largely because the Com-

mission has favored like treatment of dissimilar cases over a

system that gives district judges the flexibility to take all fac-

tors into account. In the early years of Guidelines sentenc-

ing, judges began the dialogue envisioned by the orginal

Commission by departing from the Guidelines where the

ranges did not adequately account for the individualized cir-

cumstances of the cases before them. But, as one commenta-

tor recently noted, “the idea that feedback from front-line

sentencing actors is an important component of the federal

sentencing model has somehow been lost. Instead, . . . sen-

tences outside the otherwise applicable guidelines range have

come to be viewed as illegitimate, even deviant.” Bowman,

43 Hous. L. Rev. at 321.

Contributing in no small part to this development was

the Commission’s reaction to the initial feedback it received

from sentencing judges. At least three times during the early

years of the Guidelines, the Commission adopted amend-

ments that discouraged, or outright prohibited, departures in

reaction to sentences imposed in one or two isolated cases.

See Douglas A. Berman, Distinguishing Offense Conduct and

(footnote continued from previous page)

for “certain economic crimes,” USSG ch. 1, pt. A(4\(d) (1987)}—

notwithstanding Congress's directive that the Guidelines “reflect the gen-

eral appropriateness of imposing a sentence other than imprisonment in

cases in which the defendant is a first offender who has not been con-

victed of a crime of violence or an otherwise serious offense.” See 28

U.S.C. § 994(j). Although the Commission’s own findings from the re-

cidivism data support the creation of a “first offender” criminal history

category that would carry out the directive in Section 994(j), see U.S.

Sentencing Commission, Recidivism and the “First Offender” (2004),

available at bttp://www.ussc.gov/publicatRecidivism FirstOffender.pdf.,

the Guidelines have not been amended to do so.

26

Offender Characteristics in Modern Sentencing Reforms, 58

Stan. L. Rev. 277, 284 & n.33 (2005) (tracing the 1991

amendment to § 5H1.4, which discourages departures based

on “[p]hysical condition or appearance,” to United States v.

Lara, 905 F.2d 599 (2d Cir. 1990), and the 1992 addition of

§ SH1.12, which prohibits departures based on “[I]ack of

guidance as a youth and similar circumstances indicating a

disadvantaged upbringing,” to United States v. Floyd, 956

F.2d 203 (9th Cir. 1991)); Judy Clarke, The Sentencing

Guidelines: What a Mess, 55 Fed. Probation 45 (1991) (trac-

ing the 1991 addition of § 5H1.11, which discourages the

consideration of a defendant’s military service, civic contri-

butions, charitable activities, and “other similar prior good

works,” to United States v. Big Crow, 898 F.2d 1326 (8th

Cir. 1990), and United States v. Pipich, 688 F. Supp. 991 (D.

Md. 1988)).

The Commission has also tried to impose uniformity in

situations where the rate of downward departures reflects the

view that a particular Guidelines range often calls for a sen-

tence greater than necessary to serve the purposes of sentenc-

ing. Instead of giving judges greater flexibility to take into

account the factors motivating downward departures, the

Commission has reacted by severely curtailing—or eliminat-

ing altogether—sentence reductions based on the cited factor.

For instance, the high rate of downward departures in career

offender cases has long been a symptom of the shortcomings

in that Guideline. U.S. Sentencing Commission, Final Re-

port on the Impact of United States v. Booker on Federal

Sentencing (Mar. 2006) (“March 2006 Booker Report”) at

137 (showing non-government-sponsored downward depar-

tures in 10% of cases between October 2002 and April 2003).

Part of the explanation is that the Commission’s expansive

definition of predicate “crimes of violence” equates defen-

dants with truly violent histories and those who have com-

27

mitted much less serious offenses.'* The Commission re-

sponded to these frequent downward departures from the ca-

reer offender guideline by severely and categorically limiting

their magnitude. USSG App. C, amend 651 (2003) (adding

USSG § 4A1.3(b)(3)(A), which limits downward departures

based on overstatement of the criminal history of career of-

fenders to a single criminal history category). As a result,

district judges continue to find it necessary to sentence below

the Guidelines range in a significant number of career of-

fender cases. See March 2006 Booker Report at 137 (show-

ing sentences imposed below the career offender Guidelines

range, without government sponsorship for such a variance,

in 21.5 percent of cases).

The problem lies not in the Commission’s failure to pro-

duce Guidelines ranges that presumably account for all of

Section 3553({a)’s factors and purposes in any given case; the

problem lies in the unrealistic expectation that a system of

detailed guidelines such as those the Commission promul-

gated is capable of doing so. In any given sentencing pro-

ceeding, the factors a judge must consider are numerous, and

the interplay of those factors with each other and with the

purposes of sentencing is complex. Further complicating

matters, many of those factors and purposes cannot be quan-

tified or otherwise converted to a form in which they possess

'? The list of “crimes of violence” treated on the same level as murder,

rape and armed robbery includes tampering with a motor vehicle, United

States v. Bockes, 447 F.3d 1090 (8th Cir. 2006); driving while intoxi-

cated, United States v. McCall, 439 F.3d 967 (8th Cir. 2006) (en banc);

fleeing and eluding, United States v. Richardson, 437 F.3d 550 (6th Cir.

2006); mere possession of a short-barreled shotgun, United States v. De-

laney, 427 F.3d 1224 (9th Cir. 2005); operating a motor vehicle without

the owner’s consent, United States v. Lindquist, 421 F.3d 751 (8th Cir.

2005); failing to return to a halfway house, United States v. Bryant, 310

F.3d $50, 553 (7th Cir. 2002); car theft, United States v. Sun Bear, 307

F.3d 747, 752-53 (8th Cir. 2002); burglary of a non-dwelling, United

States v. Hascall, 76 F.3d 902, 904-06 (8th Cir. 1996); and oral threaten-

ing, United States v. Leavitt, 925 ©.2d 516 (1st Cir. 1991).

28

a common denominator. Thus, even if the factual input is

accurate, a Guideline computation gives a judge nothing

more than the ability to compare a limited number of factors

in one case to the same categories of factors in other cases.

That computation is inherently incapable of producing a pre-

sumptively accurate “answer,” however, because such a com-

putation cannot take into account much of the input

necessary to the process.

As a result of the inherent limitations of any guidelines

system, and the demonstrated limitations of the one in place,

a reviewing court should not presume that a Guidelines sen-

tence is reasonable, much less should it require extraordinary

circumstances to impose a sentence that varies substantially

from the Guidelines.

Ill. Reasonableness Review Must Operate Without

Giving The Guidelines Range Special Weight.

In clarifying “review for reasonableness,” this Court and

the courts of appeals must avoid characterizations that give

the Guidelines any greater weight or prominence than other

sentencing factors. In light of the Booker remedy for the

Sixth Amendment defect in the Guidelines, the sentence that

a judge is permitted to impose must not be dependent upon

whether it is in close proximity to the Guidelines range.

With Section 3553(b)(1) excised, the statute places no special

weight or the Guidelines, a result also consistent with the

fact that the Guidelines do not—and cannot—produce sen-

tence ranges that take account of each factor and purpose a

judge is required by law to consider.

District judges, free of the duty to give the Guidelines

special prominence, will regain the ability to follow Section

3553(a)’s directive to take into account a// of the statutory

factors on a case-by-case basis, in order to arrive at a sen-

tence “sufficient,” yet “not greater than necessary,” to

achieve each statutory purpose of sentencing. In circuits that

continue to give the Guidelines special status, district judges

are unable to carry out this duty. Instead, as was the case

29

when Section 3553(b)(1) remained in effect, the courts of

appeals frequently reverse below-Guidelines sentences be-

cause the district judge relied on a factor that failed to meet

the test for downward departures. See United States v. Dal-

ton, 404 F.3d 1029, 1033 (8th Cir. 2005) (below-Guidelines

sentence based on the defendant’s cooperation was unreason-

able, because that “departure” exceeded the Guidelines’ lim-

its on “substantial assistance” downward departures); United

States v. Green, 436 F.3d 449, 459 (4th Cir. 2006) (reversing

below-Guideline sentence based on the defendant’s efforts to

obtain employment, his level of education, the non-use of a

firearm, and his likelihood of contributing to society, because

those factors are excluded from the Guidelines).

Ironically, if the government’s version of reasonableness

review prevails, judges will have less flexibility than when

the guidelines were first promulgated as binding directives.

This Court then recognized the district courts’ “institutional

advantage over appellate courts” in determining how cases

compare to one another. Koon, 518 U.S. at 98 (1996) (ex-

plaining that district courts “see so many more Guidelines

cases than appellate courts do”). “[T]he district court must

make a refined assessment of the many facts bearing on the

outcome, informed by its vantage point and day-to-day ex-

perience in criminal sentencing.” /d.; see also United States

v. Diaz-Villafane, 874 F.2d 43, 49-50 (1st Cir. 1989) (“Dis-

trict courts are in the front lines, sentencing flesh-and-blood

defendants. The dynamics of the situation may be difficult to

gauge from the antiseptic nature of a sterile paper record.

Therefore, appellate review must occur with full awareness

of, and respect for, the trier’s superior ‘feel’ for the case.”’)

By giving the Guidelines special, nearly conclusive,

weight, the courts of appeals have deprived district judges of

the opportunity to decide the appropriate weight of that factor

on a case-by-case basis, informed by their institutional advan-

tage in evaluating the full mix of sentencing factors presented

in each particular case. In some instances, the judge will find

it appropriate to give the Guidelines significant weight be-

30

cause the other factors point to the same result. In other

cases, the judge will determine that the Guidelines should be

given little weight because other important factors point to a

different result, a sentence that may be either higher or lower

than the Guidelines range. To say that courts should “pre-

sume” the other factors will align with the Guidelines is—to

put a twist on Justice Scalia’s analogy—as useful as presum-

ing that the use of a large amount of one ingredient in every

recipe will result in an appetizing dish.'* The mix of other

factors present in each case will dictate the degree to which

the court should rely on the Guidelines; a presumption is not

useful when the mix of those factors can and will vary from

one case to the next. “Importantly, there is no assumption

here that a guidelines sentence complies with the purposes of

the sentencing statute. Instead, that compliance must be

tested by consideration of the multiple factors set forth in the

sentencing statute, with particular attention to the factors

identified by the parties in their arguments.” Jiménez-Beltre,

440 F.3d at 526 (Lipez, J. dissenting).

For district judges to exercise their traditional sentencing

discretion, consistent with both the Sentencing Reform Act

and the Sixth Amendment, they must be able to consider each

sentencing factor, along with the various purposes of sentenc-

ing, unhampered by artificial presumptions about the reason-

ableness of a within-Guidelines sentence.

CONCLUSION

The judgments of the courts of appeals should be re-

versed and the cases remanded for proceedings consistent

with the limited role the Sentencing Guidelines may play af-

ter United States v. Booker.

'* Justice Scalia criticized the majority’s selective excision of provi-

sions from the Act, concluding it “is rather like deleting the ingredients

portion of a recipe and telling the cook to proceed with the preparation

portion.” Booker, 543 U.S. at 307 (Scalia, J., dissenting).

Respectfully submitted.

JEFFREY L. FISHER MIGUEL A. ESTRADA

Co-CHAIR, NACDL Counsel of Record

AMICUS COMMITTEE DAVID DEBOLD

559 Nathan Abbott Way GIBSON, DUNN & CRUTCHER LLP

Stanford, CA 94305 1050 Connecticut Avenuc, N.W.

(650) 724-7081 Washington, D.C. 20036

(202) 955-8500

Counsel for Amicus Curiae

December 18, 2006