US Supreme Court: 06-5618

8/14/2019 US Supreme Court: 06-5618

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

MARIO CLAIBORNE, :

Petitioner :

v. : No. 06-5618

UNITED STATES. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

Tuesday, February 20, 2007

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 11:19 a.m.

APPEARANCES:

MICHAEL DWYER, ESQ., Assistant Federal Public Defender,

St. Louis, Mo.; on behalf of Petitioner.

MICHAEL R. DREEBEN, ESQ., Deputy Solicitor General,

Department of Justice, Washington, D.C.; on behalf of

Respondent.

1Alderson Reporting Company



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C O N T E N T S

ORAL ARGUMENT OF PAGE

MICHAEL DWYER, ESQ.

On behalf of the Petitioner 3

ORAL ARGUMENT OF

MICHAEL R. DREEBEN, ESQ.

On behalf of the Respondent 24

REBUTTAL ARGUMENT OF

MICHAEL DWYER, ESQ.

On behalf of Petitioner 47




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P R O C E E D I N G S

[11:19 a.m.]

CHIEF JUSTICE ROBERTS: We'll hear argument

next in 06-5618, Claiborne versus United States.

Mr. Dwyer.

ORAL ARGUMENT OF MICHAEL DWYER

ON BEHALF OF PETITIONER

MR. DWYER: Mr. Chief Justice, and may it

please the Court:

The district court's 15-month sentence

combined with 3 years of supervised release conditioned

on drug treatments and the acquisition of a GED was a

reasonable sentence. In the uniform and constant

tradition of Federal criminal sentencing, the district

judge in this case treated Mario Claiborne as an

individual. She considered the guidelines and after

doing so turned to the judgment that 3553(a) demands in

every case. She issued a sentence to avoid unwarranted

disparity, to impose just punishment, and to ensure that

deterrence did not throw away Mario Claiborne's chances

to resume his responsibilities to himself, to his

family, and to his community.

The court of appeals, in contrast to the

district court's careful attention to the 3553(a)

factors, focused solely on the guidelines. The court of




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appeals applied its extraordinary circumstances rule.

That rule re-tethers sentencing to the guideline.

JUSTICE GINSBURG: What would be your test

of reasonableness for appellate review?

MR. DWYER: I think a sentence would be

reasonable if a reasonable judge on the facts and

circumstances of that case would find that the sentence

imposed was sufficient but not greater than necessary to

satisfy 3553(a) standards.

JUSTICE KENNEDY: It seems to me that gives

very little weight to the goal, which I think is a

congressional goal, of nationwide consistency in

eliminating the disparities in the sentencing system

which cause great disrespect to the justice system.

MR. DWYER: I think that the statute speaks

of unwarranted disparity and does not speak in terms of

uniformity. And there is necessarily a tension between

the individualized sentencing that 3553(a) requires and

concerns about nationwide uniformity.

But I think that what distinguishes

sentencing under the advisory guidelines system from the

Presentencing Reform Act system are several. One is now

we explicitly have purposes of sentencing and factors

the judge must consider. 3553 didn't exist before that

time.




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Secondly, in every case, as a practical

matter, the guidelines are going to exert a

gravitational weight because they are there. They must

be considered as part of the statute.

JUSTICE KENNEDY: Can I substitute

"substantial" for "gravitational" without offending your

position or affecting your position?

MR. DWYER: I don't -- my position would be

that 3553(a)(4) is the correct place for consideration

of the guidelines. It's just one of seven factors. As

a practical matter, I think it's going to get --

JUSTICE KENNEDY: Kind of a weak law of

gravity like the Moon. It's only at one-seventh.

(Laughter.)

MR. DWYER: As a legal matter weak. As a

practical matter, I think unfortunately it's going to be

very strong. And I think one of the real dangers of an

advisory guideline --

JUSTICE KENNEDY: Well, I guess the question

is how strong should we say or can we say, or can

Congress say it is?

MR. DWYER: I think that the strength should

be no more than one of the 3553(a) factors, because I

think the danger, particularly after 20 years of

guideline sentencing, is that courts will routinely and




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mechanistically apply the guidelines instead of

exercising their discretion, which now runs to the full

limit of 3553(a).

JUSTICE KENNEDY: Then it seems to me that

to accomplish the goal that you want to accomplish in

this case, you almost remove the appellate courts from

the process.

MR. DWYER: I think the appellate courts

are -- I think Booker considered a very deferential

standard of review. The cases that the Booker Court

cited to illustrate the standard of review of

reasonableness were all highly deferential decisions

regarding revocations following supervised release,

affirming sentences that were many times what the

chapter 7 policy guidelines would require. The court of

appeals necessarily must be deferential or I think it

pushes the system back into a mandatory --

JUSTICE ALITO: Well, suppose the court of

appeals had done exactly what it did in this case, but

it said, we're not giving any special weight whatsoever

to the guidelines, we're basing this just on our own

evaluation of the sentencing factors that are set out in

the Sentencing Reform Act. Would there be a problem

there?

MR. DWYER: I think there would,




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Justice Alito, because I don't think that the role of

the appellate court is to substitute its judgment for

the application and weight applied to the 3553(a)

factors for the district court.

JUSTICE ALITO: That's a principle that you

derive from what? From the Sixth Amendment? From the

Sentencing Reform Act? From where?

MR. DWYER: Well, I think it derives in part

from the Sentencing Reform Act, which contemplated

individualized sentencing.

JUSTICE ALITO: The Sentencing Reform Act

required, as enacted by Congress, required trial judges

to apply the guidelines, to follow the guidelines. And

you're saying that the Sentencing Reform Act now

precludes appellate review of -- it gives the trial

judges unlimited discretion or extremely broad

discretion?

MR. DWYER: Certainly extremely broad

discretion.

JUSTICE ALITO: How do you get that out of

the statute that was enacted to narrow their discretion?

MR. DWYER: Even under a mandatory

guidelines system that this Court considered in Koon, it

recognized that the Sentencing Reform Act also had an

important goal of individualized sentencing. And the




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Court in Koon recognized that district courts in their

institutional position have a special competence to

determine what's ordinary in a case, what's unusual in a

case. The court of appeals lacks that special

competence. It sees only a tiny fraction of the number

of guideline cases. It doesn't have --

CHIEF JUSTICE ROBERTS: So one of the guides

for reasonableness review is what's ordinary in a

particular type of case?

MR. DWYER: I think that what guides the

court of appeals on reasonableness review is to look to

the particular case and determine if the reasons on the

record in that case, the district court's --

CHIEF JUSTICE ROBERTS: It's impossible to

do in the abstract. If you're just looking at a

particular case, you have no idea whether 5 years is

reasonable or not. There has to be a background to it

so that you know that in this type of case, people

usually get a sentence of 3 years or they usually get a

sentence of 10 years. And it seems to me that what's

ordinary is going to be a judge -- a driving fact in

determining what's reasonable.

MR. DWYER: I think the court of appeals'

job is to ensure that the district judge provides

reasoned elaboration of its judgment on the facts of




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that case that establish that the district court had

complied with 3553(a), and on the facts of that case,

selected a sentence which is sufficient but not greater

than necessary.

I don't believe that it is the court of

appeals' job, as was remarked earlier, to become a

sentencing commission and begin to reexamine and reweigh

district courts' decisions.

CHIEF JUSTICE ROBERTS: Even if you're

looking at not just the number, but the reasons. In

other words, the question I asked earlier, you've got

nine district judges, they all say we do not depart

downward for military service, and you've got one

district judge that says we do. It seems to me that if

the court of appeals can't review that to bring about

some uniformity in the factors that are appropriate to

consider, then it's essentially a lawless system.

MR. DWYER: I think it is not lawless in the

sense that courts of appeals need to determine whether

in a particular case, the differences it finds are

warranted on the facts and circumstances of that case,

whether the district judge has consulted the guidelines,

has looked at the history and characteristics of that

defendant, has looked at the nature and circumstances of

the crime. And if those reasons satisfy the court that




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a reasonable judge looking at those facts --

CHIEF JUSTICE ROBERTS: On my particular

case, what's the right answer for the court of appeals?

They've got two cases before them. One, the judge

departs three years because of military service. The

prosecutor appeals. The other, the judge refuses to

depart because of military service and the defendant

appeals.

Should those -- what should happen with

those two cases?

MR. DWYER: I think the same process of

review applies to each. And it may result -- and that

process of review is on the record in that case, would a

reasonable judge have arrived at that sentence?

And that review may result in both cases

being reversed, one, or the other, or neither being

reversed.

JUSTICE BREYER: Where does that come from

as a matter of law? That is, suppose -- now you can say

I -- if you want, say my hypothesis is wrong, but if I

start with an assumption that Congress did want the

court of appeals to try to create greater uniformity in

sentencing, and it wanted cooperation between the courts

of appeals and the sentencing commission, indeed the

sentencing commission itself is an effort to copy a

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system that exists in Britain where courts of appeals

create a degree of uniformity.

Suppose I start with that assumption and say

that's what the guidelines were about and the reason

that number 4 is in 3553, it's not just one factor among

many. After all, it was attached to a bill that was the

guideline bill.

And indeed, the part we excised was a floor

amendment that came along later to make it even tougher.

So if I start with the assumption that's what Congress

wanted, not what I wanted, Congress wanted it, now is

there something in the Constitution that forbids it?

That's where I start -- I am starting

personally with that question in mind, always, if this

is what Congress wanted, we should try to do it unless

there's something in the Constitution that forbids it.

And is there something in the Constitution that would

forbid the court of appeals to do what on page 91 they

did here, leaving the word extraordinary out of it?

Now, just going through the different

elements of this case and coming to the conclusion that

what the district judge did was unreasonable?

MR. DWYER: I think there is a

constitutional problem with that. And it is that if --

it reinstitutes the mandatory guidelines system. And I

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think if there is to be an effectively advisory system,

sentencing cannot center on the guidelines. The

district judge needs to be free to accept or reject that

advice and 3553(a), instead of the guidelines, becomes

the focal point for sentencing.

JUSTICE BREYER: It's not mandatory. It

says the district, the court of appeals judge says, now,

let's think here. We have 8 -- 7 people on the

sentencing commission that have really looked into that.

And they think that in an ordinary course with this

small amount of drugs, the person ought to get so many

months. That reflects a lot of thought. Seems

reasonable to us. And here the district judge is giving

him half that or 40 percent of that without a good

reason that we can find.

The judge said he did it because it was just

one little episode and we think there were many

episodes. And that's basically their reason.

Now, now -- what -- the Sixth Amendment

forbids that?

MR. DWYER: Of course, the court of appeals

did not adhere to your hypothetical in this case. In --

JUSTICE BREYER: Yeah --

MR. DWYER: The Eighth Circuit in this case

simply said it is not a guidelines sentence, it is an

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extraordinary variance and we are reversing. The

district court has to consider the sentencing guidelines

and generally that must be part of the reason --

elaboration of judgment, so they will necessarily be

considered on appeal.

But the notion somehow that simply because a

sentence is in the guidelines, all disparity problems

have been resolved, is clearly not true. As the amici

briefs, and our brief have pointed out, even under a

mandatory guidelines system, racial disparity increased,

regional disparity increased. It's disparity that

individualized sentencing, the judicial discretion

necessary to do that kind of individualized sentencing,

can counteract. And that is genuine uniformity.

As -- as you pointed out in the Koon

decision, or the Koon pointed out borrowing your

language from Rivera, the district court's special

competence to determine what is ordinary and unusual is

exactly the kind of information the sentencing

commission needs to determine whether a guideline works

or doesn't work.

JUSTICE SOUTER: Aren't you really saying

that the most weight that the guidelines can be given,

or guidelines can be -- is that -- I apologize for my

voice -- the most weight the guidelines can be given is,

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is the weight of necessary advertence? The guidelines,

in effect, are at odds with the rest of 3553(a). The

rest of them say individualized sentencing. The

guidelines, in effect, says, no, sentencing by the

guidelines.

Therefore, in order to -- to break this, in

effect, logical incommensurateness, on your view, I

think the most that you can concede is that before a

district judge sentences finally, he must show that he

has considered the value of uniformity as something

different from individualized sentencing, but that's as

much as he can be required to do.

Is that a fair statement of your position?

MR. DWYER: Yeah. And I think 3553(a), in

fact -- I expect Mr. Dreeben to say this -- talks about

uniformity, twice, in the sense that both 3553(a)(4),

which requires consideration of the guidelines, and

3553(a)(6) talks about unwarranted --

JUSTICE SOUTER: Yes. I -- I stand

corrected here. I'm sorry.

MR. DWYER: But I agree with you that it is

a consideration -- and I'm not talking about a check

list. I'm not saying that we just use a list and that's

enough. There has to -- I think sentencing under an

advisory system requires reason and judgment. We tried

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to stress in our brief that judgment is somehow

different. It may involve fact-finding but is not the

determinant, the automatic jury kind of finding that the

guidelines require.

JUSTICE KENNEDY: Well, as one of the themes

that you advance, you indicate that if your approach is

followed that the guidelines will then be adjusted over

time.

I assume they would be adjusted to be more

precise, but then we are right back where we started

because you want to give the guidelines very little

effect. It seems to me, in a way, you're arguing

against yourself.

If your view is accepted and the result is

considerable disparity, I suppose all that Congress can

do is have mandatory minimums.

MR. DWYER: I don't believe that, that the

results are going to be considerable disparity.

Certainly no more disparity than existed under the

mandatory guidelines which wasn't being addressed

particularly.

I think indeed there may be more

non-guideline sentences, but less true disparity,

because it really is kind of idle to talk about

disparity unless you are measuring it against something.

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And 3553(a) provides those purposes, and true disparity

is measured --

JUSTICE KENNEDY: Do you think it is idle to

talk about disparity before the Sentencing Reform Act

was adopted? You remember those days.

MR. DWYER: I do remember those days. And I

think there are two significant points about that. One,

judges sentenced in the pre-Sentencing Reform Act,

knowing that their sentence wasn't the real time served.

So that a judge may say 20 year sentence knowing the

defendant was immediately eligible for parole and was

going to get out soon.

The real number was parole eligibility

sentencing. So that looking at just the actual sentence

imposed did not tell you very much about disparity. And

none -- in the study that the sentencing commission in

its amicus cited -- that study explicitly said that none

of the studies looking at pre-Sentencing Reform Act

interjudge disparity considered actual sentences served

as opposed to actual sentences imposed.

JUSTICE BREYER: Yeah, yeah. But there --

you know, we can go back into that, but there was a

whole history that people testified, tremendously, no

opposition, virtually none, that you needed a judge

wheel. Why do you need a judge wheel in New York if, in

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fact, the sentence didn't depend on the personality of

the judge? And why did you get different sentences

across the country which I don't -- I've never heard a

possibility of explaining that the judges didn't

understand what the parole commission was like. That's

a different issue.

So what -- what I'm concerned about is if we

followed your position literally, what we're saying is

that the Constitution of the United States prevents any

effort to create uniform sentences throughout the

country for people who different judges -- God doesn't

tell us what the right sentence is. We don't know.

There are reasonable sentences within a vast, vast range

of possible sentences.

And you're saying we have to go back to

that. And that wasn't -- I'm looking, in other words,

for you to tell me something that says we don't have to

be back to that, but we don't have to make it that rigid

either. And that's what I'm looking for, to be honest

with you, and I haven't -- I'm not certain I get it.

MR. DWYER: I don't believe that sentencing

under an effectively advisory system under the standards

of appellate review that I've described, which I think

is the standard Booker described, is in a sense an empty

exercise on appeal, and leading simply --

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JUSTICE GINSBURG: Could you describe it

again? Because I'm not clear what your answer was to

what the appellate court stance is. I take it the

appellate court would owe deference to the district

court's determination?

MR. DWYER: Yes.

JUSTICE GINSBURG: And no particular

deference to the guidelines?

MR. DWYER: That would -- yes, I would agree

with that.

JUSTICE GINSBURG: So what is it other

than -- is this arbitrary and capricious?

MR. DWYER: I think that the court of

appeals will first look to ensure that there was

reasoned elaboration of a judgment complying with

3553(a), that the district court considered all of the

factors and arrived at a judgment that this sentence was

sufficient but not greater than necessary.

Secondly, I think that the court of appeals

under that deferential standard of review that Booker

described would look to see if this is a sentence that a

reasonable judge would find sufficient but not greater

than necessary on those facts.

JUSTICE GINSBURG: But the -- one problem is

that two judges, both reasonable, might approach the

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facts in this very case differently. That is, one as in

this case might think as she expressed it, to sentence

him to more than 15 months would throw away his life.

Another might say it's -- it's unreal to assume that he

just sold 23 grams of crack when he admitted that he had

been out on that same street every night for two and a

half weeks. So the quantity is much larger. And he was

in that sense a repeater, so I'm going to sentence him

to at least the bottom of the guidelines, nothing less.

Those could be reasonable determinations,

two different reactions that judges would have to the

same set of facts.

MR. DWYER: Yes. That is correct. And I

think that is what will result under an effectively

advisory system. But here we're talking --

JUSTICE SCALIA: In any case, you -- you,

you are not driven to the alternative that

Justice Breyer suggests, that there is no way to achieve

absolute uniformity. It's very easy. It was what the

dissenters in the Booker remedial phase urged, which is

use facts found by the jury and you can have the

sentences as rigid as you like.

It is really only, only when you want to let

the facts be found by the judge that you come into the

difficulty that, that we're arguing about. But it's

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certainly not decreed by logic or by heaven that there

is no way to achieve determinate sentencing. There

certainly is.

MR. DWYER: I agree, Justice Scalia.

JUSTICE BREYER: Do you agree? Because I

think that system would, in fact, give total sentencing

power to the prosecutor, who would determine the

sentence by the kind and degree of evidence that he

introduced and what he charged. So I agree that that

might produce some kind of judicial uniformity, but only

because the prosecutor would have total power to decide

what the sentence will be.

MR. DWYER: Well, I -- I also appreciate the

dialogue. And --

JUSTICE SCALIA: You don't -- you don't have

to engage in our dispute here.

(Laughter.)

JUSTICE BREYER: We're pointing out there

are problems to every solution. And that's why I'm

still looking for the --

MR. DWYER: And -- and one of the serious

problems in the solution that Booker chose is that while

judicial discretion, which I think 3553(a) requires and

mandates, and an advisory system requires, that, too,

doesn't deal with the necessary exercise of

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prosecutorial discretion which has an enormous thumb on

the scale, and which the district court, in the day to

day work of the criminal system in the courts, in the

district courts, has a far greater appreciation for,

than a court of appeals would.

JUSTICE GINSBURG: Mr. Dwyer, before we get

to the prosecutor, you were candid in saying a district

court -- different district judges could act reasonably,

one of them giving whatever it was, 33 months, and the

other giving 15 months, both of those would be

reasonable and could be affirmed on appeal.

But one of, one of the arguments that was

made by defense counsel here was just there was -- there

is an irrational disparity between the penalty for crack

and the penalty for powdered cocaine.

Your predecessor thought that was so wrong,

he thought it was unconstitutional. I think at the very

least you ought to take into account that if this man

were distributing or possessed for distribution powdered

cocaine instead of crack, the sentence range, the

guideline sentence range would have been six months to a

year. Now we know that Congress wanted to retain that

disparity. Is a district judge free to say under

advisory guidelines, I am going to ignore the

difference, I'm going to treat this defendant as though

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he possessed powdered cocaine?

MR. DWYER: I think that the judge in the

obligation of imposing an individual sentence must

consider the advice of the guidelines but must also be

free to shape and tailor that advice as the

circumstances of that case require.

JUSTICE GINSBURG: Well, specifically, can

you take into account, can he say I'm going to treat him

as though he possessed powdered cocaine? Can he do

that? Yes or no?

MR. DWYER: Yes.

JUSTICE GINSBURG: Even though we know that

Congress didn't want that to happen?

MR. DWYER: Yes, because I think if the

judge can elaborate reasons to justify that judgment in

that case --

CHIEF JUSTICE ROBERTS: That's got nothing

to do with that case. That's got something to do with a

judgment apart from the particulars of the case about

whether crack should be treated the same as powdered

crack cocaine. It's got nothing to do with the

individual case.

MR. DWYER: Well, I beg to differ, Chief

Justice Roberts, because the differences were predicated

on assumptions about the type of individuals who would

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engage in that. And the court in her experience could

look at it and say you aren't the typical crack

defendant, you are more like the people who come before

me who are involved in powdered cocaine, or you don't

possess the violence, the weaponry and the other things

that justified Congress's decision to create disparate

sentences for these two kinds of cocaine.

JUSTICE KENNEDY: Well, I think you ran away

from Justice Ginsburg's hypothetical just a little bit.

Let's assume that Congress wants to keep this

distinction and let's assume that there's no

constitutional problem with the distinction. There

might be, but let's assume.

Can the judge simply say, I ignore that

congressional -- congressional judgment is wrong. I'm

not going to do that.

MR. DWYER: I don't think that the district

judge's role is to make categorical pronouncements.

JUSTICE KENNEDY: Is the judge permitted --

JUSTICE STEVENS: To what extent is the

Congress's purpose later than the Congress that enacted

the statute we're construing? The statute we're

construing was enacted by one Congress and these

expressions came later.

MR. DWYER: Well, I would resolve the

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problem by saying that the district judge must consider

the guidelines. The district judge doesn't sit in

review of the policy. It has to apply it to a specific

person. In a particular case, as in Mario Claiborne's,

that policy produced a sentence that would have been too

great.

And the application had some numbers to it,

so she said it was more serious because it was a crack

cocaine case, you're going to get more than somebody who

was involved with powder would get, but you don't need

to get as much as the guidelines call for, for the

reasons that she expressed on the record at the

sentencing.

If I could reserve the balance of my time,

unless there are other questions?

CHIEF JUSTICE ROBERTS: Thank you, Mr.

Dwyer. Mr. Dreeben.

ORAL ARGUMENT OF MICHAEL R. DREEBEN

ON BEHALF OF RESPONDENT

MR. DREEBEN: Mr. Chief Justice, and may it

please the Court:

This Court in Booker concluded that the

remedial severing of the statute's provision for

mandatory application of the guidelines and a provision

governing the standards of review on appeal rendered the

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statute constitutional. It further implied a standard

of review of reasonableness of guideline sentences on

appeal, and it did not elaborate what that

reasonableness requirement means.

The Government submits that the best

interpretation of a reasonableness form of review would

be one that conforms as closely as it can to Congress's

original intent of minimizing and eliminating

unwarranted sentencing disparities between similarly

situated defendants.

JUSTICE SCALIA: As closely as it can, and

the "as it can" depends upon violation of the Sixth

Amendment by entitling defendants to sentences

determined by facts found by a judge instead of a jury.

Suppose in this case the court of appeals

instead of disallowing the lower sentence, approved it?

And then in the next case that comes up involving what

was the small amount of equivalent, 5.26 grams of

cocaine powder rather than crack, okay? Suppose in the

next case it would have been 30 grams of powder. And

the district court judge once again departs just the way

the departure was here, and the court of appeals says

no, that departure is unreasonable.

You now have circuit law which says 30

grams, you get the guidelines sentence; 5.26 grams,

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you're entitled to a lesser sentence. Okay?

Why isn't -- why haven't we fallen back into

the same problem that produced Booker/Fanfan? You have

fact findings being made by the judge. It's a judge who

decides whether it's 30 grams or 5.26 grams. What

difference does it make whether that factual difference

produces an entitlement to a sentence on the basis of

the guidelines or on the basis of an opinion by or a

series of opinion by a court of appeals? Isn't the

Sixth Amendment equally violated?

MR. DREEBEN: Justice Scalia, as I think we

talked about in the last argument, in theory it could be

if this Court concludes that judicial determinations on

appeal are equivalent to guidelines promulgated by a

commission or statute, and if what the court of appeals

does is essentially function as a sentencing commission,

literally prescribing particular levels of punishment

for recurring sets of facts.

The Government's submission here is not that

the court of appeals has to do that in order to apply a

proportionality principle. A proportionality principle

will look to all of the facts of the case and will try

to get a handle on, is this a reasonable sentence in

response to all of the facts and circumstances that the

judge articulated within --

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JUSTICE SCALIA: But if you have two cases

that are in other respects similar, and the court of

appeals has held 5.26 is too little to apply the

guidelines, it's okay to depart downward the way this

judge did, it seems to me that the next case that comes

up, the defendant has an entitlement to that lower

sentence.

MR. DREEBEN: Well, he doesn't, Justice

Scalia, because the second defendant may not encounter a

judge who concludes that that quantity warrants the same

level of leniency or any leniency at all. That judge

will retain the judge's classic discretion to look at

the totality of the facts and conclude whether a

sentence that would be below the range is a reasonable

sentence. And unlike a situation that some of us might

prefer in which the court of appeals would ensure that

like cases are treated with reasonable consistency, the

system of reasonableness review on top of advisory

guidelines will not produce perfect levels of

consistency.

And what the defendant is entitled to under

the Sixth Amendment rulings of this Court is knowing

that if the law says if I commit this crime and these

are the facts that support it, my level of sentence is

this and no higher, that any higher sentence that's

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produced by a fact finding gives him a jury trial

entitlement. That's what the Sixth Amendment entitles

you.

But no defendant who commits a crack offense

can say that even after a series of court of appeals

rulings that mark out various points of reasonableness.

That defendant will not know whether the judge that he

or she appears in front of will give the same kind of

weight to those facts as some other judge did who was

affirmed or reversed. Nor will that judge be able to

say what is the constellation of policy and factual

reasons that this particular judge will find in

announcing the judge's sentence.

So I don't think that a proportionality

principle runs afoul of the Sixth Amendment. And I

don't think that it runs afoul of anything in 3553(a) or

any other part of the statute. What the Court is left

with is the task of interpreting reasonableness, and I

submit it should ask the same question that it asked in

Booker itself: Which alternative, the Petitioner's

alternative in this case or the Government's, conforms

more closely to Congress's original claim in the

Sentencing Reform Act?

The Petitioner's version of appellate review

as I understand it is very light review, if at all, of

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the substance of what the district judge does. It may

reach a truly extreme case such as if a judge said a

second degree murderer, I think probation is the

appropriate sentence. Perhaps the Petitioner would

concede that that would be arbitrary and irrational; but

beyond such an extreme case that it is so unlikely to

arise that Petitioner can feel free to give it away,

Petitioner gives the Court nothing, and gives the courts

of appeals nothing to apply standards to determine

whether a particular sentence is reasonable. And that

is what the court of appeals have been reaching for when

eight of them have adopted this proportionality

principle.

JUSTICE STEVENS: May I ask this question:

It seems to me that in sentencing there are two

different broad categories of decision that the judge

has to make, one involving the severity of the crime,

and the other the characteristics of the particular

offender.

And might it not be the case that you give a

greater presumption of following the guidelines when

you're talking about the severity of the offense, and a

greater deference to the trial judge when you're

evaluating the factors of the individual that might

affect the sentence? There might be a difference in the

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MR. DREEBEN: I think at a high level of

generality, that is true. Because what the sentencing

commission is good at is taking paradigmatic

circumstances and assigning them a numerical weight that

will transfer into a sentence. And what the strength of

the district judge is is looking at the defendant in

front of that particular judge and seeing how that

person's characteristics may map onto the policies of

sentencing.

But I don't agree that that distinction

would support a two-track form of appellate review that

would give the district judge greater deference to take

personal characteristics into account and to impose

widely varying sentences. That is exactly the situation

that we had in the pre Sentencing Reform Act era when

any district judge could choose whatever policies of

sentencing appeal to that judge, find the facts, and

impose a widely disparate sentence. And as the Court

well knows, there was no appellate review of that

exercise of discretion unless it could be shown that the

judge didn't exercise discretion at all.

Now it is not an exercise of discretion if a

judge simply says for this crime, I always give the same

sentence. That would not take into account the full

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range of facts and factors that are present in the

sentencing court and as a result, that wouldn't be an

exercise of discretion.

But in the pre Sentencing Reform Act era,

the judge had pretty much plenary reign to decide what

facts mattered. If we continue with that same sort of

deference on appeal in the Booker remedial opinion, then

it's hard for me to see how appellate review can serve

any valid purpose of channeling and ensuring some

consistency and uniformity in the way district judges

impose sentencing.

JUSTICE BREYER: What do you think about

taking some of the Rivera ideas -- I'm slightly

hypothesizing this -- and following up with what

Justice Stevens said. You'd say look, one thing a

district judge can't say, he can't say that I believe

the guideline is right for a typical case. And I think

this is a typical case. And I won't follow the

guideline. You couldn't think those three things?

MR. DREEBEN: I agree.

JUSTICE BREYER: So one big power a judge

has that they didn't have before, after Booker, is to

say the guideline itself is unreasonable. So we're --

let's just say -- and there if they say that, the

district judge could decide whether or not, the court of

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appeals could decide is the guideline reasonable or not

reasonable. But leave those cases aside. I imagine

they'll be few and far between.

Now we take one they assume is reasonable.

And now unlike the past, the judge has to do three

things. One, to give the kind of thing that -- the

reason he's not following the guideline, which he admits

is reasonable for a typical case. So what's the kind of

thing that leads you to think yours is not typical? And

he says it. And then he has the evidence as to the

related facts. And then he has the degree of departure.

As to the first thing, the court of appeals

could review it and decide whether it is or is not the

kind of thing. As to the second and third, they also

could review it but only after giving considerable

weight to what the district judge thinks about the case

in front of him.

Now maybe that's -- I mean, you might not

have a reaction to that. I'd have to sort of think

about it.

MR. DREEBEN: Well, Justice Breyer, if the

system that you're describing is a replica of the system

that existed under Koon versus United States --

JUSTICE BREYER: Not quite --

MR. DREEBEN: -- then it runs into the same

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problem that led to the constitutional problem in

Booker. Where I think I would amend Your Honor's

proposal is that if the judge concludes that this is a

typical case but the guideline really doesn't prescribe

what I think is a reasonable sentence and here are the

reasons why, in the pre-Sentencing -- in the pre-Booker

system, that could have been problematic legally.

Today, it is not forbidden. But what it should be

subject to is a reasonableness review check on appeal

that take a look at what are the reasons that the

district judge articulated for that sentence.

JUSTICE SCALIA: Why, why do we assume that

the district judge cannot depart from the guideline

recommendation unless he thinks the guideline

recommendation is unreasonable? He doesn't -- does he

have to find it's unreasonable? There can certainly be

two reasonable sentences; and he's under no obligation

to select the guidelines sentence, is he?

MR. DREEBEN: That's correct.

JUSTICE SCALIA: So he doesn't have to

determine that it's unreasonable. I don't think we

should approach the discussion as though that's, that's

the situation.

MR. DREEBEN: I do think, though, that the

Court should be concerned about each district judge

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formulating his or her own set of personal sentencing

guidelines and then applying them in the court to the

cases that appear on that judge's docket without any

check on appellate review to ensure that, although the

sentence might be in some possible world reasonable,

it's out of whack with what the Sentencing Commission

has prescribed and what other district judges are doing.

If there is no check on appeal, then I do think that the

clock has been turned back to the 1983 era before the

Sentencing Reform Act; and that does not seem to me a

reasonable interpretation of what the Booker remedial

opinion thought it was accomplishing. What the Booker

remedial opinion said that it was accomplishing was

providing an important mechanism that Congress itself

had intended, namely appellate review, in order to iron

out sentencing differences.

And our submission is that inherently means

some form of substantive proportionality review.

JUSTICE BREYER: That's the other thing I'm

not certain about, the proportionality, and the reason

I'm not certain of it is I'm not certain what it means.

That is, it sounds nice, as if you're saying something,

but proportional to what? I mean, I can think of two

problems. One problem, of course, is that the chart in

the guidelines is written on a logarithmic scale and

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that means that if you move from one level, from 9 to

10, it's 3 months or 2 months; if you move from 29 to

30, it's 2 years.

Now, whether you're at 29-30 or whether

you're at 9 and 10 might depend upon things that just

have nothing to do with your reason for departure. You

might have added on something for having a gun and your

reason for being lenient might have to do with the

person's having a gun. So you're going to say it make a

difference whether you were high up or whether you were

low down, when your reason for departing has nothing to

do with whether you're high up or whether you were low

down? You see? It doesn't actually work, I don't

think, proportionality review, because it's so hard to

say what's proportional.

MR. DREEBEN: I think what is proportional

is a matter of common sense, and the eight circuits that

have been using this rule have not had a great deal of

difficulty in noting that you look at the extent to

which the sentence varies from the guidelines range, you

look at the absolute amount of time that's involved, and

have a sense of is this a significant deviation away

from what the guidelines would actually describe.

JUSTICE BREYER: Well, why use the word

"proportional," because the other thing is what the

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Chief Justice brought out, is that why is it that if a

person has a bad reason, I mean, why should a bad reason

justify a little departure rather than a lot? And if he

has a good reason, well, why doesn't it justify a lot

just as much as it might justify a little?

MR. DREEBEN: If the sentencing court

articulates a bad reason, namely a reason that's

irrational or one that does not respond to facts of the

case, then that really shouldn't justify the sentence at

all and what the court of appeals should do is vacate

it, send it back for resentencing, and allow the

district court to articulate the reasons why the

sentence that the court now chooses to impose is an

appropriate sentence under 3553(a).

JUSTICE GINSBURG: Mr. Dreeben, if we could

focus on the facts of this case and what the district

court appeared to do, she made a kind of proportionality

judgment, too. She said this is a young man. It's his

first offense. He has a good family relationship, a

good work record. I am making a determination that will

put him away for a significant amount of time. But I'm

trying to figure the point at which he will lose touch

with his family, with his work, he will be thrown away.

That was the judgment that she made. She

tried to make a sentence that would be significant, 15

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months, but that would not be so long that it would put

him out of touch with his children and his wife and his

work.

Now, in -- by some measures that would be

entirely reasonable. But on your measure, it isn't

reasonable.

MR. DREEBEN: That's right. And I think,

Justice Ginsburg, you've done a better job of

articulating a justification for the sentence than the

judge's own articulation, which did not focus on family

separation and employment to the degree that you have

now articulated it. What the judge did was focus on the

quantity of drugs and the fact that the defendant didn't

have any criminal history and that he qualified for the

safety valve.

She also said, without specifying any other

cases, that other cases that have come before my court

have had -- you know -- perhaps larger quantity of drugs

and very different sentences. When a court of appeals

is asked to review that line of reasoning and try to

decide whether the outside the guidelines sentence is

reasonable, it makes sense for the court to ask, do we

know anything, for example, about what this judge is

saying about other cases with other drug quantities?

There's no specifics in the record that enable the Court

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of Appeals to measure the accuracy or the validity of

that observation. It's also relevant for the court of

appeals to say the guidelines range itself has taken

into account all of the factors that this judge has

previously noted and what has happened in the sentence

is that the judge has varied widely from the sentence

for reasons that the commission already took into

account. Now, that doesn't prohibit the judge from

relying on those facts, but it does mean that the

farther the sentence goes from the guidelines range the

more likely there is to be unwarranted disparity.

JUSTICE GINSBURG: But you did leave out

what -- she didn't elaborate on it, but she said, I

would be throwing him away. And I take it what she was

saying by that is it would be -- he would be

incarcerated beyond the point where he could reintegrate

into the community.

MR. DREEBEN: Well, this brings me to my

last point about this particular sentencing, which is

that in this very case Judge Jackson looked at the

defendant. She said, candidly I don't know really very

much about you other than what I've learned about in the

presentence report and I can't tell whether you're

unlucky or you're stupid, and then effectively gave him

a sentence that reflected, you know, a tremendous

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indulgence of a presumption that maybe this kid needs a

wakeup call and nothing more. What she ignored is his

own proffer in the safety valve that he had been on a

street corner for 2-1/2 months selling crack cocaine,

that he was arrested and placed into the State system,

put into a pretrial diversion program through a drug

court, in essence being said, here's your chance, you

know, straighten up, we are going to be lenient on you,

we're going to give you an opportunity to reintegrate

with your family, and what did the defendant do but get

caught within 6 months with 5 grams of crack.

And on that record -- and this is what the

court of appeals said -- there's a disconnect between

the judge's conclusion that, with little information

more than what she had in the PSR, the kid deserved

leniency versus the fact that he had already had that

chance and he had not --

JUSTICE STEVENS: Yes, but didn't the court

of appeals draw the inference that he had been

distributing drugs during that 6-month period and that

was not supported by the record? Am I wrong on that?

MR. DREEBEN: Well, Justice Stevens, we're

not relying on the inference of the --

JUSTICE STEVENS: Would it have been error

for the court of appeals to find a fact like that that

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was not supported by the record and didn't it do it in

this case.

MR. DREEBEN: Well, supported by the record

is something of a judgment call. You'd have to assume

that Mr. Claiborne was found by the police, 6 months

after he had previously been arrested for crack

offenses, holding a 5-gram bag of crack and that was the

very first time after his arrest that he had been in

possession of drugs, that just he got extremely

unlikely, the police caught him.

JUSTICE STEVENS: And the court of appeals

is willing to draw a factual conclusion that he had in

fact distributed during that 6-month period?

MR. DREEBEN: That's right. And I would say

that a reasonable fact-finder could draw that

conclusion.

JUSTICE STEVENS: But should the court of

appeals act as a fact-finder in that posture of the

case?

MR. DREEBEN: Not in my view. And I think

on this record that's not a fact that we're relying on.

It's not a fact that the Government --

JUSTICE STEVENS: Is it not possibly a fact

that would justify the conclusion that they committed

error?

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MR. DREEBEN: This aspect of the court of

appeals opinion in my view is not essential to the

judgment that it reached, which is correct.

JUSTICE STEVENS: It may not have been

essential, but it may have contributed to their

judgment.

MR. DREEBEN: It may have, but what they did

not mention is an equally validate reason for concluding

that this is a defendant who is in effect a recidivist

even though he had no criminal history. He had been

previously arrested for crack distribution crimes. He

had admitted that this was not -- the occasion of his

arrest wasn't the first opportunity that he had to deal

crack. He'd been doing it for 2-1/2 months. And the

judge essentially turned all of those facts off. She

did not really factor that into her sentence at all.

And the court of appeals, although it may

have fastened on the wrong time frame in concluding that

this defendant was in effect a recidivist and not the

sort of blameless ingenue that the trial judge had

treated him as, the record does indeed support the court

of appeals' central conclusion, which is this defendant,

despite his criminal history, really looks more like a

recidivist. And when you're talking about a defendant

whose mandatory minimum sentence would have been 5

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years, but who gets out of that sentence because he

satisfies the safety valve which allows defendant who is

a first-time offender and meets certain other

requirements to get a sentence under the mandatory

minimum, that defendant's culpability had already been

substantially reduced under the guidelines because of

the safety valve and because of his criminal history.

And the judge basically said: I'm going to take a

chance with him and give him a much lower sentence than

what the guidelines described.

Our view is the judge can look at the facts

she looked at, but she went down to a level that is

productive of unwarranted disparity.

JUSTICE STEVENS: May I ask just one other

question? I do not understand you to argue that the

court of appeals can apply a presumption of

unreasonableness just because there's a departure.

MR. DREEBEN: That's correct. We're not

arguing for a presumption of unreasonableness on appeal.

We're arguing for a presumption of reasonableness for a

guidelines sentence. For an out of guidelines sentence

there is no presumption that it is unreasonable, but the

court of appeals under a proportionality analysis would

look and require increasingly strong reasons with the

increasing degree of variance from --

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JUSTICE BREYER: That's the part, they said

that. An extraordinary reduction must be supported by

extraordinary circumstances. What worries me about that

it sounds like a slogan. I would think an extraordinary

reduction must be supported by whatever reasons that

justify the extraordinary reduction, period.

And it also sounds like you're going to

start getting a mechanical set of charts and things,

which is going to be a true nightmare, and if we really

were to repeat that it would take on a tremendous force

of generative law which would worry me quite a lot

because I just think it's too complex to reduce to a

formula. What you want is a reason that supports the

sentence.

It is --

MR. DREEBEN: I think you want a better

reason for a sentence that is farther away from some

mean.

JUSTICE BREYER: Better than what? Better

than justifies it?

MR. DWYER: Perhaps the best way to do this

is to give a example. Suppose that the shoe were on the

other foot. Suppose that Judge Jackson had looked at

this defendant and said, you know, this defendant did

not learn from his experience. He was given leniency in

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the State court. He didn't take advantage of that

opportunity. His statutory maximum is 20 years and I'm

going to give him, maybe not the statutory maximum, I'm

going to give him an 18-year sentence, or suppose she

said a 15-year sentence or a 10-year sentence.

I submit that in that circumstances the

Petitioner would be here saying, well, the guidelines

recommended a sentence of between 37 and 46 months and

this is a dramatic increase from that and the reason is

not something that's particularly unusual, it's a very

usual reason, and as a result, the magnitude of this

deviation is unreasonable.

And I have no problem with a Petitioner

making that argument if that's what happens to his or

her client. My problem is that without that kind of

anchoring effect of the guidelines in a proportionality

review, a court of appeals has almost nothing to work

with.

JUSTICE SCALIA: But what happens when that

case -- it goes back down to the district court. The

district court says well, okay, not 10 years. Nine

years. Okay? It goes back up. I mean, you know, when

do we end this game? Or does the court of appeals take

over the sentencing function and specify -- you know,

five years?

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MR. DREEBEN: Justice Scalia, I don't think

that the courts of appeals are, at least absent very

unusual circumstances, to act as sentencers to specify a

sentence. There have been a couple of instances where

courts of appeals have said this is really the bottom

sentence that we can see that would be reasonable on

this particular constellation of facts. I think that

reflect as sense of potential impatience with a

ping-pong game that would occur if the court of appeals

says your sentence is unreasonable, Mr. District Judge,

and the district judge imposes a sentence that's one day

lower.

Another solution to that problem would be

reassignment to a different judge who would start with a

clean slate and could read the court of appeals' opinion

and apply the section 3553 factors.

We are not suggesting that the court of

appeals should assume the sentencing role here. All

we're suggesting is that the court of appeals needs to

have some intelligible legal principles that allow it to

identify and select unreasonable sentences versus

reasonable sentences; and when you have wide statutory

ranges as you do in the Federal system, if you don't

have the guidelines describing at least a benchmark,

it's not more, then I don't think courts of appeals have

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a good, coherent, consistent way of fulfilling their

tasks. And if the courts of appeals can do that, can

look more with greater scrutiny at a sentence the

farther that it goes outside the guidelines range,

without violating the statute and without violating the

Constitution, then it seems to me the only thing for the

Court to ask at that point is which approach, that

approach of proportionality, or and approach that

basically says appellate review is procedural only,

absent the most glaringly aberrant sentences, conforms

to Congress's intent of producing a greater degree of

uniformity and consistency.

JUSTICE SCALIA: Well, it wouldn't be, just

be procedural only. You -- you could say procedural

plus, you know, certainly review of the facts on, on

which the district court was -- was proceeding. So you,

if you could find that the determination that this was

just a good kid who made a mistake is, is an

unreasonable finding, you could reverse for that reason.

MR. DREEBEN: That -- that is true. But I

submit that -- I would like to hear what Petitioner has

to say. If Petitioner's client had been given 10 years

in this case, I have no doubt that Petitioner would be

arguing that's an unreasonable sentence. But I don't

see how you reach that judgment assuming that the court

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has articulated a rationale that's consistent with

section 3553 and a rational interpretation of the facts,

unless you have the guidelines as an anchor for the

analysis.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you, Mr.

Dreeben.

Mr. Dwyer, you have two minutes remaining.

REBUTTAL ARGUMENT OF MICHAEL DWYER,

ON BEHALF OF PETITIONER

MR. DWYER: I believe that Justice Breyer

put his finger on one of the central problems with the

Government's proposed rule. And that is what does it

mean? The Government talks about substantial variances

in Petitioner's case. The court of appeals spoke of it

as extraordinary variances. And the Government doesn't

suggest to us that substantial means the same thing or

means something different from extraordinary. And we've

already demonstrated in our brief why relying on

percentages as the court of appeals also did, is

pointless, because, one, if -- the arithmetic gets very

complicated at the low end and the percentages just

don't make any sense from a proper application of a rule

of law.

The Government's proposal, apart from having

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no basis in the statute and no basis in Booker, is just

not susceptible of any kind of application because

nobody really knows what it means.

CHIEF JUSTICE ROBERTS: What about Mr.

Dreeben's parting challenge? What are you going to do

if your client gets 10 years? You're going to argue

that's an extraordinary departure from the guidelines,

right?

MR. DWYER: I'm certainly going to argue

that under the facts and the record before the Court,

that was not a sentence that was sufficient but not

greater than necessary. And I think the absence of a

prior record, the young man's work history, all of those

factors, the low amount of crack cocaine involved, his

age, all of the things which as Justice Ginsburg pointed

out that judge relied on in her sentencing decision,

could not possibly support a 10-year sentence.

And you know, it is easy to do this in a, in

a hypothetical sort of way. But the district judge --

and this was a very experienced district judge --

looking at the person in the eye, made a call based on

judgment. And that call was not treated with any

respect in the court of appeals. It was sloganeered

away as an extraordinary variance. And -- because the

court of appeals focused only on the guidelines.

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The -- this Court in crafting the appellate

standard can't just look to determine what Congress

might have intended because of the constitutional

problem that lurks behind it. And that constitutional

problem is a resumption of mandatory guidelines.

Thank you very much.

CHIEF JUSTICE ROBERTS: Thank you, Counsel.

The case is submitted.

(Whereupon, at 12:18 p.m., the case in the

above-titled matter was submitted.)

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8:16,19,2010:5 35:3 42:144:2,21,22,2546:22 48:6York 16:25young 36:18

48:13

0 06-5618 1:5 3:4

1 10 8:20 35:2,5

44:21 46:2248:610-year 44:5

48:1711:19 1:13 3:212:18 49:915 19:3 21:10

36:25

2 2 35:2,32-1/2 39:4 41:1420 1:9 5:24

16:10 44:22007 1:923 19:524 2:729 35:229-30 35:4

3 3 2:4 3:11 8:19

35:230 25:20,24 26:5

35:3

33 21:93553 4:24 11:5

45:16 47:23553(a) 3:17,24

4:9,18 5:23 6:37:3 9:2 12:414:2,14 16:118:16 20:2328:16 36:143553(a)(4) 5:9

14:16

3553(a)(6) 14:1837 44:8

4 4 11:540 12:1446 44:847 2:10

5 5 8:16 39:11

41:25

5-gram 40:75.26 25:18,25

26:5 27:3

7 7 6:15 12:8

8 8 12:8

9 9 35:1,591 11:18

Documents

US Supreme Court: 06-5618