Kamin, Sam

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University of Denver

Denver Law Review Volume 85 Issue 1 Article 2 December 2020 Rerouted on the Way to Apprendi-Land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction Sam Kamin Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Sam Kamin, Rerouted on the Way to Apprendi-Land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction, 85 Denv. U. L. Rev. 1 (2007). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. REROUTED ON THE WAY TO APPRENDI-LAND:BOOKER, RITA, AND THE FUTURE OF SENTENCING IN THEFEDERAL COURTS: AN INTRODUCTIONSAM KAMINtJust five years ago, Justice Antonin Scalia could barely contain hisgiddiness at the ascendance of the Apprendi revolution that he hadhelped lead. That revolution had begun in 2000 in Apprendi v. New Jer-sey' with the Court's landmark Sixth Amendment holding that "[o]therthan the fact of a prior conviction, any fact that increases the penalty fora crime beyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt."Q Two years later, theCourt decided in Ring v. Arizona3 that the Sixth Amendment, as inter-preted by Apprendi, required the overturning of capital sentences thatrelied upon judicial fact-finding.4 The argument at which Justice Scaliahad first hinted in his 1998 Almendarez-Torres v. United States5 dissenthad become the law of the land, and there seemed to be no logical stop-ping point to the revolution's scope.Writing separately in concurrence with the result in Ring, Scaliachastised those who had not yet appreciated the extent of this reshapingof how criminals are sentenced in the United States. He singled out forhis scorn Justice Breyer, who had concurred in the Ring result on sepa-rate grounds,6 informing his Brother that there was only one legitimateway to arrive at the appropriate result in the case:There is really no way in which Justice Breyer can travel with thehappy band that reaches today's result unless he says yes to Ap-prendi. Concisely put, Justice Breyer is on the wrong flight; het Associate Professor, Sturm College of Law, University of Denver; B.A., Amherst Col-lege, 1992; J.D., University of California-Berkeley, 1996; Ph.D., University of California-Berkeley,2000. 1 would like to thank the organizers of this survey for the opportunity to participate and theauthors who agreed to contribute articles.1. 530 U.S. 466 (2000).2. Id.3. 536 U.S. 584 (2002).4. Id.5. 523 U.S. 224, 258 (1998) (Scalia, J., dissenting) ("In the end, the Court cannot crediblyargue that the question whether a fact which increases maximum permissible punishment must befound by a jury beyond a reasonable doubt is an easy one.").6. Ring, 536 U.S. at 610 (Breyer, J., concurring) ("Given my views in Apprendi v. NewJersey... I cannot join the Court's opinion. I concur in the judgment, however, because I believethat jury sentencing in capital cases is mandated by the Eighth Amendment.").DENVER UNIVERSITY LAW REVIEWshould either get off before the doors close, or buy a ticket to Ap-prendi-land.7Scalia's tone was that of the dissident finally come to power; his views,once eccentric, had become ascendant.When the Supreme Court overturned Washington state's sentencingguidelines in 2004 in Blakely v. Washington,8 the flight to Apprendi-landwas nearing its destination. It now seemed only a matter of time beforethe Supreme Court completed its undoing of modem sentencing regimesby invalidating the granddaddy of those regimes: the Federal SentencingGuidelines. In her Blakely dissent, Justice O'Connor anticipated thisresult, her tone nearly as despondent as Scalia's was celebratory in Ring:"What I have feared most has now come to pass: Over 20 years of sen-tencing reform are all but lost, and tens of thousands of criminal judg-ments are in jeopardy." 9However, it now seems quite possible that those without tickets toApprendi-land will have the last laugh. As expected, the Supreme Courtdecided in United States v. Booker 0 in 2005 that the view of the SixthAmendment adopted in Apprendi and Blakely required the invalidationof the federal Guidelines as written."1 However a separate majority offive Justices crafted a remedy for the constitutional infirmity of theGuidelines that threatened to undo much of what Justice Scalia and hisfellow-travelers had so carefully crafted.12Writing for this remedial majority, Justice Breyer defined the ques-tion for the Court as one of congressional intent: What would Congresswant done if it knew that its sentencing scheme based on judges findingfacts and then sentencing within fixed ranges based upon those factswere found unconstitutional? He concluded that Congress's preferencewould be to keep the Guidelines in place as written and make them advi-sory rather than mandatory.' 3 Furthermore, Justice Breyer acknowledgedthat making the Guidelines merely advisory would necessitate the crea-tion of a new standard of appellate review of criminal sentences. 14 He7. Id. at 613 (Scalia, J., concurring).8. 542 U.S. 296 (2004).9. Id. at 326 (O'Connor, J., dissenting).10. 543 U.S. 220 (2005).11. Id. at 226-27.12. Id. at 245, 259. Justice Ginsburg changed sides, forming the fifth vote for both the consti-tutional majority and the remedial majority. See Michael W. McConnell, The Booker Mess, 83DENV. U.L. REV. 665, 678 (2006).13. In doing so, Justice Breyer rejected the possibility of invalidating the Guidelines in theirentirety (and allowing judges to sentence within the minima and maxima set by federal statute) andmaintaining the mandatory nature of the Guidelines but engrafting Apprendi's jury fact findingrequirement to them (the approach preferred by Justice Stevens's opinion).14. Prior to Booker, sentences within the Guidelines were evaluated for correctness; thoseoutside the guideline range were reviewed to determine whether the sentence "is unreasonable."United States v. Booker, 543 U.S. 220, 261 (2005).[Vol. 85:12007] DETOURS ON THE ROAD TO APPRENDI-LAND 3concluded for the remedial majority that the sentences that trial judgesimpose under the newly advisory Guidelines ought to be reviewed forreasonableness. 15Thus, Booker was clearly a change in the Court's direction; Ap-prendi, Ring, and Blakely all trumpeted the role of the jury in sentencing,while the juror is strangely missing from the remedial opinion in Booker.What was far less clear after Booker was where sentencing in the UnitedStates was headed. Would Booker mark the return of the judge as sen-tencer, freeing trial judges from the yoke of the Guidelines so many ofthem found so oppressive? Or would Justice Breyer's solution merelybecome the Guidelines by another name: Would the new "advisory"Guidelines become mandatory in practice? Would Congress step in tocorrect the remedial majority's assumption regarding its intent? To vali-date that assumption? Furthermore, how would reasonableness reviewwork in practice? What weight would be placed on the "advisory"guideline range in determining whether a particular sentence was reason-able? Would the same weight be placed on the guideline range if thesentence was within the "advisory" range as if it was outside of thatrange? Would reasonableness depend on proximity to the "advisory"range?This confusion was essentially the state of the law at the time Rita v.United States was decided on June 21st of this year.' 6 The SupremeCourt granted certiorari in Rita in order to determine whether an appel-late presumption of reasonableness (which had been adopted by severalof the circuits and rejected by others) was consistent with the remedialopinion in Booker.17  The Court, with only Justice Souter dissenting,concluded that such an appellate presumption was permissible. Writingfor the majority once again, Justice Breyer reasoned that Congress hadinstructed both the Sentencing Commission and the federal district courtsto weigh a number of factors in determining the appropriate sentence forparticular conduct. Where both the Commission and the trial judge agreeon a sentence-that is, where the judge sentences within the suggestedsentencing range-it is permissible for an appellate court to presume thatthe sentence is a reasonable one.15. Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Justice Breyer's remedial decision inBooker has not proven popular in the two years since it was issued. In this survey, Professor Doug-las Berman states: "Justice Breyer created this remedy in Booker out of whole cloth with only a nodto applicable constitutional, statutory and administrative laws." Douglas A. Berman, Rita, ReasonedSentencing, and Resistance to Change, 85 DENV. U. L. REv. 7, 10 (2007). Others have been lesscharitable: See, e.g., Graham C. Mullen & J.P. Davis, Mandatory Guidelines: The Oxymoronic Stateof Sentencing After United States v. Booker, 41 U. RICH. L. REV. 625 (2007); McConnell, supra note12, at 666.16. Rita, 127 S. Ct. at 2456. Rita's companion case, Claiborne v. United States, was dis-missed as moot after the defendant died following oral argument. 127 S. Ct. 2245 (2007).17. 177 Fed. App'x 357 (4th Cir. 2006), cert. granted, 127 S. Ct. 551 (U.S. Nov. 3 2006).DENVER UNIVERSITY LAW REVIEWIn this symposium we have five different perspectives on the stateof federal sentencing after Rita. Professor Douglas Berman leads offwith a taxonomy of the legal issues raised by the opinions in Booker andhow those issues stand post-Rita. Berman writes that in Rita, "the Su-preme Court was genuinely eager to provide [] guidance to lower courtsabout how they should administer an advisory federal guideline sentenc-ing system. Unfortunately [] various passages throughout the Rita opin-ions raise new questions about the major federal sentencing issues thatthe Booker remedy stirred up."' 8 Berman concludes that, however theSupreme Court resolves the various and sundry questions remaining afterBooker and Rita, "the history of modem sentencing reforms demon-strates that changes in legal doctrines have become revolutionary onlywhen they ultimately transformed the legal cultures in which these doc-trines operate."'' 9Following this recognition that it is actual outcomes that ultimatelymatter, Paul J. Hofer, the former Senior Research Associate at the UnitedStates Sentencing Commission, provides us with a wealth of data on animportant empirical question raised by Rita: "Does an appellate pre-sumption of reasonableness for sentences within the guideline range havean effect on the outcomes of appeals or on sentences imposed by thedistrict courts? '20 Although Hofer concedes that the Supreme Court ex-pressly rejected the legal import of this empirical question,2' it remainscrucial both in understanding the impact (or lack of impact) that Bookerand Rita will have on actual federal sentencing outcomes and in craftingdoctrine to govern that sentencing. While the Supreme Court largelyignored the "daunting" statistical briefing in Rita, Hofer remains optimis-tic about the role that empirical research can play in this process.Could it be that the Rita Court is inviting the lower courts to hearevidence that particular Guidelines are not working to achieve thestatutory purposes? Only time, and perhaps the upcoming opinion inKimbrough, will tell. If it turns out the Court is now open to categori-cal challenges of the type many commentators have long encouraged,Rita may be just the beginning of empirical evidence on sentencingquestions presented to the Court.22We turn then from these academic analyses of the state of sentenc-ing to the views of those actually engaged in the practice. First, a federaldistrict judge and his clerk "urge district courts to exercise the discretion18. Berman, supra note 15, at 15.19. Id. at 19.20. Paul J. Hofer, Empirical Questions and Evidence in Rita v. United States, 85 DENV. U. L.REv. 27, 28 (2007).21. Id. at 30 ("[T]he [appellate presumption of reasonableness], even if it increases the likeli-hood that the judge, not the jury, will find 'sentencing facts,' does not violate the Sixth Amend-ment.") (citing Rita, 127 S. Ct. at 2465).22. Id. at 50 (citing Kimbrough v. United States, 127 S. Ct. 2933 (2007), cert. granted, 60U.S.L.W. 3661 (U.S. June 11, 2007) (No. 06-6330)).[Vol. 85:12007] DETOURS ON THE ROAD TO APPRENDI-LAND 5[Rita] reaffirms. 23 While some might read Booker and Rita as at leastimplicitly re-imposing the Guidelines on trial judges, the Hon. LynnAdelman and Jon Deitrich argue in their essay that Rita in fact encour-ages trial judges to use their discretion to determine the appropriate sen-tence. They argue that the Court went out of its way in Rita to limit itsholding and to avoid re-instituting the Guidelines on trial judges: TheCourt held that circuits may, but are not required to, adopt the presump-tion of reasonableness for sentences within the guideline range; that cir-cuits may not adopt a presumption of unreasonableness for out-of-rangesentences; and that the reasonableness presumption that it approved is anappellate presumption, not a trial one.24 Adelman and Deitrich remind usthat most federal judges on the bench today "have little or no sentencingexperience except under mandatory Guidelines," 25 and that the presentcircumstances create the first real opportunity in a generation for trialjudges to create a "common law of sentencing": "[Federal trial judges]can only do this by exercising their discretion to impose non-guidelinesentences and by explaining their reasons for doing so."'26 Such discre-tion, the authors argue, has the power to overcome many of the injusticesso often associated with the Guidelines.The other sentencing judge in our symposium views the future farless optimistically than does Judge Adelman. For Judge Nancy Gertner,the fear is that "'presumptive' will, once again, slide to 'mandatory,' orsomething short of that, namely, 'Guidelines-Lite. ' ' 27  Judge Gertnerworries that the gravitational pull of the reasonableness presumptionapproved by the Rita Court will discourage trial courts from thinkingbeyond the parameters of the Guidelines. Using the facts of Rita itself,she critiques the Supreme Court's assertion that the reasonableness pre-sumption is appropriate for a sentence within the guideline range becausein such a case the Sentencing Commission and the trial court have agreedon the appropriate sentence. More likely, Judge Gertner argues, when ajudge sentences within the guideline range, she has merely acquiesced tothe guideline sentence without independently examining it.[T]he fact that a district court's sentence is aligned with that of theCommission does not necessarily indicate that there was careful re-flection about what the appropriate sentence should have been, butmay simply reflect a judge's good faith effort to comply with theGuidelines (knowing their traction even post-Booker) or the failure ofeffective advocacy at sentencing .... The "gravitational pull" of theGuidelines, particularly in a circuit that is amenable to the "Guide-23. Lynn Adelman & Jon Deitrich, Rita, District Court Discretion, and Fairness in FederalSentencing, 85 DENV. U. L. REV. 51, 51 (2007).24. Id. at 52-53.25. Id. at 54.26. Id. at 55.27. Nancy Gertner, Rita Needs Gall-How to Make the Guidelines Advisory, 85 DENV. U. L.REv. 63, 71 (2007).DENVER UNIVERSITY LA W REVIEWlines as presumptive" approach, limits sentencing arguments, stopsmeaningful critique of the Guidelines, and encourages cursory treat-ment of the sentence on all levels, at trial and on appeal.28Finally, we get the perspective of a federal appellate judge on a Su-preme Court opinion that the Court emphasized was entirely about appel-late presumptions rather than trial ones. Judge Jeffrey Sutton ends thissurvey on an optimistic note. He argues that "if an utterly indeterminatesentencing regime slights consistency and if an overly determinate sen-tencing regime slights individualized sentencing, it may be that Bookerand Rita present an opportunity to thread the sentencing needle., 29 Thisneedle-threading, he argues, will require collaboration between trial andappellate judges within the federal system; trial judges have been en-trusted by Congress with the task of determining appropriate sentences inindividual cases, and appellate judges, by virtue of their smaller numberand supervisory position, are well-situated to prevent extreme disparitiesin like cases.What the contributions to this volume emphasize is the triumph oflegal realism. The authors focus not so much on doctrine as on how thatdoctrine will be applied by the actors who actually make the decisionsabout the futures of criminal defendants. For all of Justice Scalia's en-thusiasm for the Apprendi revolution, that revolution will not fail be-cause Justice Ginsburg changed her vote in Booker to join JusticeBreyer's remedial majority. Rather, the flight to Apprendi-land was re-routed because the Supreme Court, for all of its power to say what thelaw is, has very little power to change what happens in individual court-rooms every day. It is the collective efforts of all of the various playersin the sentencing puzzle-trial judges, appellate judges, Congress, theSentencing Commission-rather than any edict from the Supreme Courtthat will ultimately determine the future direction of sentencing in thefederal courts.28. Id. at 73.29. Jeffrey S. Sutton, An Appellate Perspective on Federal Sentencing After Booker and Rita,85 DENV. U. L. REV. 79, 81 (2007).[Vol. 85:1

Rerouted on the Way to Apprendi-Land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction

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Rerouted on the Way to Apprendi-Land: Booker, Rita, and the Future of Sentencing in the Federal Courts: An Introduction

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