News Release

Guidelines Only One Factor Among Many At Sentencing, Supreme Court Holds

Washington, DC (June 21, 2007) – In a Federal Sentencing Guidelines decision handed down today, the Supreme Court again made it clear that the guidelines are merely advisory. Counsel may argue that the case falls outside the “heartland” of the guidelines, or that the guidelines sentence fails properly to reflect the sentencing factors Congress identified, or that the “case warrants a different sentence regardless.” The Court reaffirmed that district courts must exercise discretion based on the individual characteristics of the defendant and the circumstances of the offense, imposing a sentence that is “sufficient, but not greater than necessary” to comply with the goals of sentencing.

“In determining the merits” of these arguments “the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply,” Justice Stephen Breyer wrote for a majority of the court. The Guidelines may reflect a “rough approximation” of an appropriate sentence in a criminal case, but will be presumed reasonable in any given case only on appeal, the majority said. Breyer’s opinion was joined in whole or in part by seven other justices, with only Justice David Souter dissenting.

In a split decision in 2005, United States v. Booker, 543 U.S. 220, the Court held 5-4 that the mandatory nature of the Sentencing Guidelines made them unconstitutional, while a different 5-4 majority, led by Breyer, held that “advisory” guidelines would pass constitutional muster, providing that the guidelines sentence was “reasonable.” In today’s decision, Rita v. United States, No. 06-5754, the Court outlined the factors which constitute a “reasonable” within-the-Guidelines sentence.

In a telephone news conference arranged by the National Association of Criminal Defense Lawyers (NACDL), a number of noted sentencing experts said that the decision was by and large helpful to defendants in whose cases a Guidelines sentence would be unduly harsh, but recognized that a sentencing court’s discretion cuts both ways. Whether the sentence is appealed by the government as too “lenient,” or by the defendant as too harsh, the presumption that a sentence falling within the Guidelines range is “reasonable” can be rebutted on review by the court of appeals.

“The Court went out of its way to clarify this idea of a ‘presumption of reasonableness’ for a within-Guidelines sentence only applies at the appellate level,” explained Douglas Berman, giving an overview of the decision. Berman is a professor at Moritz College of Law at Ohio State University.

Concurring with the judgment but highly critical of the Court’s opinion, Justice Antonin Scalia, joined by Justice Clarence Thomas, wrote that the “Court has reintroduced the constitutional defect that Booker purported to eliminate.”

In his dissent, Justice Souter questioned the practical implications of the Court’s ruling explaining that he would reject the appellate reasonableness presumption “because I do not think we can recognize such a presumption and still retain the full effect of Apprendi in aid of the Sixth Amendment guarantee.” Apprendi v. New Jersey, 530 U.S. 466 (1996) was the first case to hold that any fact that increases a defendant’s sentence beyond the statute’s maximum penalty must be found by the jury, beyond a reasonable doubt.

Harkening back to the holding of Koon v. United States, 518 U.S. 81 (1996), that “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment,” Justice John Paul Stevens concurred, explaining that he trusted “that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory.”

Continue reading below

“The only reason that the presumption applies at the appellate level is that the Guidelines and, independently, the district judge, have come to the same conclusion, so that the court of appeals can be more comfortable” that the district court’s sentence is the correct one, said David Debold, of Gibson, Dunn & Crutcher, LLP. Debold was one of the principal authors of NACDL’s amicus curiae, or friend-of-the-court, brief filed on behalf of the petitioner, Victor Rita. He pointed out during the news conference that many sentencing court judges have assumed that any sentence under the Guidelines would be presumed reasonable, which is no longer the case.

“Do a lot of judges continue to do that?” observed NACDL President-Elect Carmen Hernandez. “No question about it. Every day we’re proceeding in court as if the Guidelines were still what they once were. But it does allow for the judge who wants to be a judge and exercise judicial discretion … to do the right thing.”

Hernandez said that the Guidelines are “nothing more than an advisory set of Guidelines, and they are still open to challenge – individually as to a defendant, and categorically where the Commission, in a particular guideline, did not take the [statutory] factors into account.”

Berman agreed that judicial discretion prevailed in Rita, and will continue to prevail as more federal sentencing cases are decided next term. “The fact is, the Court has taken up two other cases in which a district court exercised its discretion to go below the guidelines, and the circuit court reversed,” he noted, looking toward October.

Continue reading below

“There are lots of reasons to believe that over the long haul, district court discretion will prevail, and that will ultimately tend to inure to the benefit of defendants, against the backdrop of a Guidelines system that is particularly severe.”

Also “reading the tea leaves” of the next Term, Stanford law professor Jeffrey L. Fisher noted that in concurring with Justice Stevens, Justice Ruth Ginsburg had seemingly shifted sides to the group of Justices who agree with the holding of Apprendi. A stiff sentence will enjoy a presumption of reasonableness on appeal, if the sentencing court decides the case correctly. “But,” he added, “on the other had, if the district court wants to give a lower sentence than what the Guidelines suggest, then [the majority is] suggesting very strongly that the appellate courts better not mess with that [either], unless there’s an extremely good reason to do so.”

Families Against Mandatory Minimums (FAMM) has been concerned, both before and after Booker, that the Guidelines in general have been overly-punitive and rigid, in some cases excessively so. FAMM General Counsel Mary Price also noted that sentencing judges are bound by the federal sentencing law, which requires that “the judge set a sentence that is sufficient, but not greater than necessary, and it also requires a judge consider individualized factors, and the purposes of sentencing, in determining whether or not the Guidelines sentence is, in fact, appropriate.”

Rita may help ameliorate a trend in some courts to make the advisory Guidelines more rigid, she said.

Continue reading below

Featured Products

The Court's opinions may be downloaded from the Supreme Court's Web site at: 

NACDL’s amicus brief in Rita, which also argues that a sentence below the Guidelines need not require extraordinary circumstances, a question to be decided next term, can be found in the associations online Amicus Curiae Brief library at


NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.