Academic journal article Harvard Journal of Law & Public Policy

The Veil of Vagueness: Reasonableness Review in Rita V. United States

Academic journal article Harvard Journal of Law & Public Policy

The Veil of Vagueness: Reasonableness Review in Rita V. United States

Article excerpt

Three years ago, in United States v. Booker, (1) a 5-4 majority of the Supreme Court held that the Sentencing Reform Act of 1984 (SRA), (2) which required federal judges to impose sentences within the Federal Sentencing Guidelines (the Guidelines) (3) based upon judicially-found facts, violated the Sixth Amendment. (4) A different 5-4 majority of the Court held, in what is known as the Booker "remedial" opinion, that the appropriate remedy was to excise from the SRA the two provisions that made the Guidelines mandatory, thus rendering them effectively advisory. (5) For the federal courts of appeals, the effect of Booker was to replace a clear set of standards of review for federal criminal sentences (6) with a vague "review for unreasonableness" standard. (7) This holding left many unanswered questions--a point well noted by the dissenters--not least among them the question of the role that the Guidelines would play under the new standard of review. (8)

Last term, in Rita v. United States, (9) the Supreme Court held that courts of appeals could afford a presumption of reasonableness to sentences that fall within the relevant Guidelines range. (10) This decision fails to resolve a core problem inherent in the Booker remedial opinion: If judicially-found facts can be decisive under "reasonableness review," the constitutional defect identified by the Booker majority--that all facts necessary to increase the maximum possible sentence must be proved to a jury--remains. Conversely, if the Court drastically limits the role of the Guidelines under reasonableness review to avoid this constitutional problem, it undermines its assertion that the remedial provisions of Booker were the best possible way to further the congressional goal of sentencing uniformity. In Rita, the Court relied upon the uncertainty of the reasonableness review standard it created in Booker to dodge this problem. This holding masks, but cannot resolve, the tension inherent in Booker. (11)

Victor Rita was accused of perjury before a federal grand jury. (12) Federal agents from the Bureau of Alcohol Tobacco, Firearms and Explosives had been investigating a company named InterOrdinance for importing and selling kits that could be assembled into machineguns without required registrations. (13) Rita purchased such a kit, but after federal agents approached him, he contacted InterOrdinance and exchanged the kit for a non-machinegun kit before allowing the agents to inspect it. (14) When Rita was brought before a grand jury, he denied that the agents had asked him for the machinegun kit and denied that he had contacted InterOrdinance. (15) After a jury trial, Rita was convicted of perjury, making false statements, and obstruction of justice. (16)

After the verdict, a probation officer prepared a presentence report in accordance with federal law. (17) This report calculated that the appropriate sentence under the Guidelines, based upon the gravity of the set of offenses, the gravity of the underlying crime, and Rita's lack of relevant criminal history, was 33 to 41 months' imprisonment. (18) The report also concluded that there appeared "to be no circumstance or combination of circumstances that warrant[ed] a departure from the [Guidelines]." (19) During the sentencing hearing, Rita contended that his previous work in federal criminal justice, his lengthy and distinguished career in the armed forces, and his poor health justified a lower sentence than the minimum required by the Guidelines. (20) The judge rejected this argument and sentenced the defendant to 33 months' imprisonment, the low end of the recommended Guidelines range. (21)

On appeal to the Fourth Circuit, Rita argued that "his 33-month sentence was 'unreasonable' because (1) it did not adequately take account of 'the defendant's history and characteristics,' and (2) it '[was] greater than necessary to comply with the purposes of sentencing set forth in [federal law]. …

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