Rita, Victor v. U.S. (06/21/2007)

Questions presented: (1) Was the district court's choice of within-Guidelines sentencing reasonable? (2) In making that determination, is it consistent with U.S. v. Booker to accord a presumption of reasonableness to within-Guideline sentences? (3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district courtof the 18 U.S.C. sec. 3553(a) factors that might justify a lesser sentence?

CHERYL RICCI, MEDILL NEWS SERVICE

The scales of justice weigh facts and laws in any given case. Nowhere is this truer than sentencing, as crimes are weighed with other factors to determine punishment. Yet there's always a place to start: sentencing guidelines.

The Supreme Court ruling in United States v. Booker said that Federal Sentencing Guidelines, adopted in the 1980s, are advisory not mandatory, leaving sentencing to a judge's discretion.

The Booker ruling came in 2005, and according to Linda Greenhouse, in a recent column for the New York Times, since the Booker ruling, the system has "anxiously" awaited an explanation as to what "advisory" means to clarify how much discretion judges can use.

Since the ruling, hundreds of appeals have been filed as to reasonableness of sentences.

The Supreme Court recently dismissed almost all of its sentencing guideline petitions except two. One of these cases, Rita v. U.S., asks if a sentence applied within the guidelines, but without a full analysis of factors, is justified or simply "de facto" mandatory. The Court has also agreed to look at sentencing guidelines this term in Claiborne v. U.S.

During a 2002-2004 investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives, Victor Rita spoke to agents about purchasing and returning gun parts kits from the investigation's target. He was called to testify before a Grand Jury where he gave answers "contrary to his literal actions." Those answers would be his downfall.

In April of 2004, Rita was charged with two counts of giving false testimony to a grand jury, two of making false statements and one count of obstruction of justice. In November, he was found guilty on all counts. In June 2005, he was sentenced to 33 months in prison, a sentence within the guideline range.

Rita appealed his sentence and the 4th Circuit denied him, saying the sentence was reasonable. "We will affirm a post-Booker sentence if it is both reasonable and within the statutorily prescribed range," they wrote, and continued that the district court properly calculated the sentence.

However, in the petition to the Supreme Court, Rita's lawyers see a problem with this method of evaluation. They say the 4th Circuit along with six others, finds the guideline presumptively reasonable, which creates a situation of preserving "de facto mandatory" guidelines.

If it's presumed a sentence within the guidelines will be considered reasonable, there is little reason to look beyond the guidelines at other factors, they contend.

Rita's lawyers point to patterns of behavior in the 4th Circuit where the court "overwhelmingly vacated and remanded cases where the sentence imposed was outside the suggested guideline range." This, they say, is "clear error" in regard to Booker.

The pattern rarely waivers, according to Rita's lawyers. In fact, the say, they can only identify one unpublished case where a variation was upheld. "The impact of this precedent is to effectively make mandatory the ‘advisory' guideline range," they conclude.

While the 4th Circuit is not alone in finding sentences within guidelines to be presumptively reasonable (it's joined by the 5th, 6th, 7th, 8th, 10th and District of Columbia, according to the petition), there is a split among the circuit courts.

The 1st, 2nd, 3rd and 9th circuits have declined to find a sentence within the guideline to be presumed reasonable. This split illustrates the necessary clarification on the "advisory" nature of guidelines.

Despite this split, and the hundreds of cases filed, the Solicitor General urged the Court not to hear the cases. He says treating a sentence guideline with a presumption of reasonableness isn't an issue. In fact, he calls it "consistent with Booker and with the Sentencing Act of 1984."

However, Rita wants the Court to examine his case for factors that should have been considered. His lawyers argue the district court didn't properly calculate his sentence by virtue of the fact that they didn't give proper weight to all factors.

If the guidelines really are guidelines, a sentence could be imposed outside of them. A reduced sentence in Rita's case could be acceptable, especially given factors that justify it, the petition says.

Sentencing should consider evidence relating to all the factors of law, his lawyers say, citing Booker. Putting emphasis solely on guidelines is inconsistent. "Congress gave no single factor greater weight than any other," they write. Other factors, they claim, were ignored.

Rita is a veteran of Vietnam and the first Gulf War. His military service was "commendable;" he earned more than 35 awards and medals. Citing U.S. v. McCaleb, United States v. Neil and United States v. Pipich, they say commendable military service warrants a shorter sentence.

These wars, they go on, caused many medical problems, some deriving from exposure to Agent Orange during Vietnam, and include: Type II diabetes, numbness, skin rashes, a herniated disk, arthritis, and sleep apnea. These medical problems constitute issues rarely seen or treated in the prison system.

Rita suffers from diseases the system couldn't treat easily and that derive from his service, his lawyers contend. "'Supporting our troops,' even those whose mistakes have resulted in a criminal conviction, deserves more than reference to bumper stickers," the petition concludes.

The petition also lists the following reasons Rita deserves a shorter sentence: civilian government service, likelihood of being a target in prison due to civilian service and the fact that he doesn't pose a threat to the public.

Not making these considerations during sentencing, says the petition, only goes back to treating guidelines as mandatory. No other factors were given substantial weight or consideration. As such, the guidelines weren't acting as guides but rules, they contend. There is no wiggle room.

By asking the court to reconsider the flexibility of sentencing, and the proper weighing of factors, Rita will help in the explanation of the advisory nature of guidelines established in Booker. It has the potential to provide clarification and precedent for others to follow.

It only stands to see what the guidelines this case establishes will do to the guidelines of sentencing.