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VOLUME 237—NO. 20
Web address: http://www.nylj.com
TUESDAY, JANUARY 30, 2007
SENTENCING GUIDELINES
BY ALAN VINEGRAD AND DOUGLAS BLOOM
‘Claiborne,’ ‘Rita’: High Court on Reasonableness Review
I
n its 2005 Booker decision, the U.S.
Supreme Court, having made the U.S.
Sentencing Commission guidelines
advisory, imposed what it viewed as a
“practical standard of review already familiar
to appellate courts”—reasonableness.1
Despite the remedial majority’s belief that
reasonableness was a well-known standard
for sentencing review, Justice Antonin Scalia
predicted that it would “wreak havoc on federal
district and appellate courts” and, in the end,
lead appellate courts to “seek refuge in the
familiar and continue” reviewing sentences
on the basis of their compliance with the
federal guidelines.2
It has been two years since Booker was
handed down. In that time, the federal Courts
of Appeals have each settled on their own
view of the appropriate scope of sentencing
review. While a few circuits, including the U.S
Court of Appeals for the Second Circuit, have
taken the advisory nature of the guidelines to
heart and view reasonableness as something
independent of the applicable guideline
range, a majority has adopted a presumption
of reasonableness for guideline sentences
and a sliding scale of review for nonguideline
sentences in which the scope of review
varies proportionally to the sentence’s distance
from the applicable guideline range.
This term, in the companion cases of
Claiborne v. United States and Rita v. United
Alan Vinegrad, former U.S. Attorney for the
Eastern District of New York, is a partner at Covington & Burling. Douglas Bloom is an associate
at the firm.
Alan Vinegrad
Douglas Bloom
States, the Supreme Court will review both
of these standards of review. Examination of
the presumptive reasonableness and slidingscale review standards reveals that the Second
Circuit’s approach, which avoids both, is the
appropriate one.
Presumptive Reasonableness
Seven circuits have adopted a rebuttable
presumption of reasonableness for sentences
within the advisory guideline range. 3 For
example, the U.S. Court of Appeals for
the Fourth Circuit has held that “certain
principles would appear to be universally
applicable…. Foremost among these is that a
sentence within the proper advisory guideline
range is presumptively reasonable.”4 These
courts appear to be motivated by a recognition
that, because the guidelines take into
account many (but not all) of the other 3553(a)
factors and uniquely serve the Sentencing
Reform Act’s goal of sentencing uniformity,
they occupy a special place relative to the
other 3553(a) factors.5
Four circuits, however, have rejected a
rebuttable presumption of reasonableness,
instead viewing the guidelines as “‘a benchmark
or a point of reference or departure’ for the
review of sentences.”6 For example, in the
Second Circuit, while the guidelines are
“more than… a body of casual advice, to be
consulted or overlooked at the whim of a
sentencing judge,”7 the court will “examine
the record as a whole to determine whether a
sentence is reasonable,” whether or not the
sentence lies within or beyond the applicable
guideline range.8
The Sliding Scale
Despite the disagreement over whether a
within-range sentence should be presumed
reasonable, a clear majority of circuits have
adopted a sliding scale review of nonguideline
sentences. Nine circuits have expressed
the opinion that “the farther the judge’s
sentence departs from the guidelines
sentence (in either direction—that of greater
severity, or that of greater lenity), the
more compelling the justification based
on factors in §3553(a) that the judge
must offer.”9
The Second Circuit has expressly declined
to adopt this approach.10 Instead, all nonguideline sentences within the Second
Circuit, regardless of their proximity to the
applicable guideline range, are assessed under
the same reasonableness standard.11 The court
reviews each sentence for evidence that the
judge considered the applicable guideline
range, the sentencing commission’s policy
statements and the other 3553(a) factors.12
Nonetheless, the court has indicated that it
NEW YORK LAW JOURNAL
is “more likely to affirm a sentence that diverges
dramatically from the guidelines if the district
court ‘include[es] a compelling statement of
reasons that reflect consideration of §3553(a)
and set forth why it was desirable to deviate
from the guidelines.’… [For] sentences
that deviate from the guidelines to a
less significant degree… a more cursory
explanation is sufficient.”13
TUESDAY, JANAURY 30, 2007
sentence imposed.” The court found the 60
percent deviation unsupported by “comparably
extraordinary circumstances.” Notably, the
court rejected Judge Jackson’s consideration
of the small amount of drugs involved and
her determination that Mr. Claiborne
presented a low risk of recidivism because
he had reoffended just six months after he
was first arrested.18
In a summary opinion, the U.S. Court of
Appeals for the Fourth Circuit affirmed. The
court held that “a sentence imposed within
the properly calculated guideline range is
presumptively reasonable.”21 The court noted
that Judge Osteen had considered the 3553(a)
factors and sentenced Mr. Rita within the
applicable guideline range.22
A Proper Balance
‘Claiborne v. United States’
‘Rita v. United States’
In May 2003, Mario Claiborne was arrested
while attempting to sell 0.23 grams of crack
to an undercover officer. Despite this arrest,
Mr. Claiborne was observed six months later
engaged in another apparent drug deal. Mr.
Claiborne fled as the police approached,
dropping a bag containing 5.03 grams of crack.
In an attempt to evade the police, Mr. Claiborne
ran past one of his neighbors, through her front
door, by her daughter, and out the back door.14
He was arrested and charged with distribution
of crack for the first incident and possession
of crack for the second.15
Judge Carol E. Jackson found that Mr.
Claiborne qualified for safety valve relief from
the five-year mandatory minimum. Although
the government had argued for a two-level
enhancement for reckless endangerment
due to his flight, the court found that Mr.
Claiborne did not pose a threat to anyone in
the house and it was not clear that anyone
was at risk from the police chasing him.16
Taking into account the two-level safety valve
reduction, the court calculated a guideline
range of 37-46 months. The court sentenced
him to 15 months, however, based on Mr.
Claiborne’s youth, lack of criminal history,
the amount of drugs involved and his low
risk of recidivism.17
The U.S. Court of Appeals for the Eighth
Circuit reversed. The court began by holding
that, because the guidelines “were fashioned
taking the other §3553(a) factors into account
and are the product of years of careful study,”
the guideline range is presumed reasonable. The
court held that “[h]ow compelling” the judge’s
justification must be for her deviation from the
guidelines “is proportional to the extent of the
difference between the advisory range and the
On Nov. 9, 2004, Victor A. Rita, a Vietnam
and Gulf War veteran, was convicted of two
counts each of making false declarations and
making false statements and one count of
obstruction of justice.19 Mr. Rita had purchased
xxxxxxxxxxxxxx
The Second Circuit has
taken the most prudent path.
Rather than requiring levels
of justification, courts should
equally review all sentences for
reasonableness…
xxxxxxxxxxxxxx
a kit that could be used to create a replica of a
World War II era rifle from InterOrdinance
of America. The Bureau of Alcohol, Tobacco
and Firearms determined that the kit was a
prohibited machine gun and called Mr. Rita
to testify about his purchase before a grand
jury investigating InterOrdinance.
During his testimony, he falsely denied
being contacted by InterOrdinance prior to his
testimony or being requested by the ATF to
surrender the kit. The pre-sentence report called
for a base offense level of 14, corresponding to
a guideline range of 15-21 months. The report,
however recommended a six-level increase
because Mr. Rita’s testimony rendered him
an accessory-after-the-fact to InterOrdinance’s
import of illegal firearms, resulting in a doubling
of the guideline range to 33-41 months. Judge
William A. Osteen adopted the report’s
recommendations. The judge then noted that he
was “unable to find that the sentencing guideline
range… [was] inappropriate” and imposed
a 33-month sentence.20
Both presumptive reasonableness and
sliding-scale review share a common element:
they each employ the guideline range as a
proxy for reasonableness. The guidelines
as the touchstone of reasonableness has
some appeal. As several courts—including
the Second Circuit—have recognized, the
commission’s expertise, the guidelines’
consideration of many, though not all, of the
3553(a) factors, and their attempt to account
for the range of sentences imposed in similar
circumstances give the guidelines a special
status among the 3553(a) factors.23 For this
reason, the Second Circuit has held that
the guidelines serve as a “benchmark” for
reasonableness review.24
This, however, does not suggest that it is
logically sound or judicially prudent to presume
that a sentence within the guideline range is
reasonable or, conversely, that one outside the
guideline range requires greater justification.
As Justice Scalia noted in dissent, Booker
dissolved the distinction between guideline and
nonguideline sentences.25 Both presumptive
reasonableness and sliding scale review
effectively undo that decision by requiring a
greater level of justification to sentences outside
the guideline range. In doing so, they all but
return the guidelines to their pre-Booker status,
signaling to sentencing courts that the guideline
sentence is the presumptive sentence, immobile
absent sufficiently compelling justification
for deviation.26
Reviewing courts also should not assume that
a sentence close to the guideline range is any
more reasonable than one farther away. Suppose,
for instance, two judges are each confronted
with a defendant charged with drug possession,
with a guideline range of 57-71 months and
with similarly compelling mitigating factors. One
NEW YORK LAW JOURNAL
judge imposes a sentence of 55 months, while
the other imposes a sentence of 35 months.
Instinct may lead one to conclude that the 35month sentence is unreasonably low, or at least
worthy of greater scrutiny than the 55-month
sentence. It is equally plausible, however, that
the 55-month sentence is unreasonably high in
light of the compelling mitigating factors in the
defendant’s favor.
The only way to determine the reasonableness
of either sentence is to examine each judge’s
reasons for the sentence imposed. Given the
paucity of information presented above, it is
impossible to say that either is worthy of more
or less scrutiny, or requires greater or lesser
justification—we simply do not know what is
driving the deviation. Yet under the rule applied
in Claiborne, a reviewing court would, without
knowing anything more than what is detailed
above, unjustifiably require greater justification
for the lower sentence. As the U.S. Court of
Appeals for the Third Circuit has stated, “just
as a sentence within [a guideline] range is not
presumptively reasonable, a sentence outside of
it is not presumptively unreasonable.”27 Sliding
scale review, by requiring greater justification the
farther a sentence deviates from the guideline
range, is effectively presumptive unreasonableness
for nonguideline sentences.
Nor should reviewing courts view within-range
sentences as presumptively reasonable. As the
Ninth Circuit recognized, it is not at all clear what
a rebuttable presumption of reasonableness in
sentencing review means.28 The circuits that have
adopted the presumption indicate that they will
treat a within-range sentence as reasonable unless
the party seeking review can demonstrate that
the sentence is unreasonable in light of the other
3553(a) factors. Yet this is simply a restatement of
the burden already on the party seeking reversal
of any sentencing decision post-Booker, whether
or not the sentence is presumed reasonable. Even
some courts that have adopted the presumption
have recognized that “there does not seem to
be a practical difference between the burden of
rebutting a presumption of reasonableness” and
standard sentencing review.29
It appears, then, that the only purpose served
by the rule applied in Rita is to “indicate that
the guideline range is to be used unless (by
some evidentiary standard) a party can prove
TUESDAY, JANAURY 30, 2007
the contrary.”30 This sounds much like preBooker departure law, under which the guideline
range was used unless a deviation from that
range could be justified. Booker, however,
expressly rejected a mandatory application of
the guidelines and required only that judges
“consider” the guideline range when determining
what sentence is “reasonable.” Appellate courts
should not let in through the back door what
the Supreme Court has kept from coming in
the front door.
Conclusion
The Second Circuit has taken the
most prudent path. Rather than utilizing
presumptions or requiring varying levels of
justification, courts should equally review all
sentences for reasonableness, be they within,
in close proximity to, or well beyond the
applicable guideline range. Of course, the
guidelines are not “just another factor.” They
serve an important role, helping to reduce the
sentencing disparity Judge Marvin E. Frankel
decried over 30 years ago.31 Accordingly, they
should serve as a point of reference and,
while a court’s decision to deviate from the
guidelines need not be more or less compelling
in proportion to the sentence’s distance
from the applicable range, a court should
take care to create a rich record to enable an
appellate court to assess the reasonableness
of its sentence.
•••••••••••••
••••••••••••••••
1. United States v. Booker, 543 US 220, 261 (2005).
2. Id. at 312 (Scalia, J. dissenting).
3. United States v. Johnson, 445 F3d 339, 341 (4th Cir.
2006); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); United States v. Williams, 436 F.3d 706, 708 (6th
Cir. 2006).
4. Johnson, 445 F3d at 341 (internal citations omitted).
5. See, e.g., Mykytiuk, 415 F3d at 608 (“The guidelines
remain an essential tool in creating a fair and uniform
sentencing regime across the country…. The best way to
express the new balance, in our view, is to acknowledge that
any sentence that is properly calculated under the guidelines is
entitled to a rebuttable presumption of reasonableness.”).
6. United States v. Fernandez, 443 F3d 19, 28 (2d Cir.
2006) (quoting United States v. Rubenstein, 403 F.3d 93, 98-99
(2d Cir. 2005)); see also United States v. Jimenez-Beltre, 440
F.3d 514, 518 (1st Cir. 2006); United States v. Cooper, 437
F.3d 324, 332 (3d Cir. 2006); United States v. Talley, 431
F.3d 784, 787 (11th Cir. 2005) (per curiam). The Ninth
Circuit remains the only circuit that has not decided the
question of whether a guideline sentence is presumptively
reasonable. See United States v. Zavala, 443 F.3d 1165, 1169
(9th Cir. 2006) reh’g en banc granted, 462 F.3d 1066 (9th
Cir. 2006).
7. United States v. Crosby, 397 F.3d 103, 113 (2d Cir.
2005).
8. United States v. Fernandez, 443 F.3d 19, 28 (2d Cir.
2006).
9. United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005);
see also United States v. Thurston, 456 F.3d 211, 215 (1st Cir.
2006); United States v. Moreland, 437 F.3d 424, 434 (4th Cir.
2006); United States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006); United States v. Davis, 458 F.3d 491, 496 (6th Cir.
2006); United States v. McMannus, 436 F.3d 871, 874 (8th
Cir. 2006); United States v. Cage, 451 F.3d 585, 594-95 (10th
Cir. 2006); United States v. Crisp, 454 F.3d 1285, 1291-92
(11th Cir. 2006); cf. United States v. Simpson, 430 F.3d 1177,
1187 n.10 (D.C. Cir. 2005).
10. See United States v. Rattoballi, 452 F.3d 127, 134 (2d
Cir. 2006).
11. See United States v. Pereira, 465 F3d 515, 524 (2d Cir.
2006). For a recent example of reasonableness review of a
below-range sentence without resort to sliding scale review,
see United States v. Trupin, No. 05-2934 (2d Cir. Jan. 23,
2007), reversing a sentence 80 percent below the applicable
guideline range.
12. See Rattoballi, 452 F.3d at 135-36.
13. Pereira, 465 F.3d at 524 (quoting Rattoballi, 452 F.3d
at 135).
14. Transcript of Sentencing Hearing at 4-5, United States
v. Claiborne, No. 04-cr-423 (DJS) (E.D. Mo. 2005).
15. United States v. Claiborne, 439 F.3d 479, 480 (8th
Cir. 2006).
16. Transcript of Sentencing Hearing at 11-12, United States
v. Claiborne, No. 04-cr-423 (DJS) (E.D. Mo. 2005).
17. Claiborne, 439 F.3d at 480.
18. See Id at 481.
19. United States v. Rita, 177 Fed. Appx. 357, 2006 WL
1144508 (4th Cir. 2006); see also Brief for the Petitioner, Rita
v. United States, No. 06-5754, at 3.
20. Brief for the Petitioner, Rita v. United States, No. 065754, at 1-5.
21. Rita, 177 Fed. Appx. at 358, 2006 WL 1144508 at
*1.
22. See id.
23. See Rattoballi, 452 F.3d at 133.
24. See Fernandez, 443 F.3d at 28.
25. See Booker, 543 U.S. at 308-09 (Scalia J.,
dissenting).
26. See, e.g., Jimenez-Beltre, 440 F.3d at 518 (“Although
making the guidelines ‘presumptive’ or ‘per se reasonable’
does not make them mandatory, it tends in that direction”);
Cooper, 437 F.3d at 331 (if a guideline sentence were per se
reasonable, “we would come close to restoring the mandatory
nature of the guidelines excised in Booker.”)
27. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir.
2006).
28. See Zavala, 443 F.3d at 1169.
29. Alonzo, 435 F.3d at 554; see also United States v.
Buchanan, 449 F.3d 731, 739 (6th Cir. 2006) (Sutton, J.
concurring) (arguing in support of presumptive reasonableness
but asking “what difference does it make that a sentence
already receiving deferential review receives a presumption
of reasonableness as well? Probably not a lot in most cases,
it is true.”).
30. Zavala, 443 F3d at 1169 (emphasis omitted).
31. See MARVIN E. FRANKEL, “CRIMINAL
SENTENCES: LAW WITHOUT ORDER” (1973).
This article is reprinted with permission from the
January 30, 2007 edition of the NEW YORK LAW
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