NYCDL files amicus briefs in the U.S. Supreme Court in Rita and Claiborne cases December 18th, 2006 (Updated February 19th, 2007) Two years ago in United States v. Booker, the Supreme Court held that the mandatory federal sentencing guidelines violated the Sixth Amendment. To remedy the constitutional problems, the court held that the guidelines were "effectively advisory," that 18 U.S.C. 3553(a) governs a district court's sentencing decisions, and that the courts of appeals are to review sentences for unreasonableness. Since Booker, the federal courts have grappled with the mechanics of reasonableness review and seven courts of appeal have held that a sentence imposed within a properly calculated advisory-guidelines range is presumptively reasonable. Many of the courts of appeals have also held that sentences outside of the guidelines range must be justified by increasingly compelling circumstances and, in cases where the sentence varies substantially from the guidelines range, by extraordinary circumstances. The Supreme Court has granted certiorari in two cases, Rita v. United States and Claiborne v. United States to decide whether a presumption of reasonableness is consistent with Booker and whether a substantial variance must be justified by extraordinary circumstances. NYCDL has filed amicus briefs in both cases, each in support of the petitioner. To aid the Supreme Court in understanding the practical impact of the presumption of reasonableness and the requirement of extraordinary circumstances, NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases and submitted the database to the Court. NYCDL discovered that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government. These findings suggest that the courts of appeals are applying reasonableness review in a manner inconsistent with the statutory text. Counsel for NYCDL on these briefs included Alexandra A.E. Shapiro (Counsel of Record) and Nathan H. Seltzer of Latham & Watkins LLP, Professor Douglas Berman of The Ohio State University, Moritz College of Law, and Jonathan Bach, Paul H. Schwartz, Elliot F. Kaye and D. Sean Nation of Cooley Godward Kronish LLP. To review a copy of NYCDL's brief in Rita v. United States, click here. To review a copy of NYCDL's brief in Claiborne v. United States, click here. To review a copy of NYCDL's reasonableness review database, click here. To review a copy of the updated Fourth Circuit reasonableness review database (through January 10, 2007), click here. To review a copy of the updated Eighth Circuit reasonableness review database (through January 10, 2007), click here. To review a draft article about reasonableness review and the databases, by Alexandra A.E. Shapiro and Nathan H. Seltzer of Latham & Watkins, LLP, forthcoming in the Federal Sentencing Reporter, click here. Claiborne v. United States Lower Court Documents District Court Sentencing Transcript Eighth Circuit Opinion Supreme Court Petition Stage Briefs Petition for Certiorari Government's Brief in Opposition Reply Brief Supreme Court Merits Stage Briefs Brief for Petitioner Mario Claiborne Michael Dwyer, Counsel of Record Solicitor General's Brief Solicitor General's Claiborne Statutory Appendix Solicitor General's Sentencing Data Appendix 1 Solicitor General's Sentencing Data Appendix 2 Reply Brief for Petitioner Mario Claiborne Rita v. United States Lower Court Documents Fourth Circuit Opinion Supreme Court Petition Stage Briefs Petition for Certiorari Government's Brief in Opposition Reply Brief Supreme Court Merits Stage Briefs Brief for Petitioner Victor A Rita, Jr. Thomas N. Cochran, Counsel of Record. Solicitor General's Brief Solicitor General's Rita Statutory Appendix Solicitor General's Sentencing Data Appendix 1 Solicitor General's Sentencing Data Appendix 2 Reply Brief for Petitioner Victor A. Rita, Jr. Other amicus briefs Brief of Law Professors Who Study Sentencing Reform Edward Lee, Counsel of Record This brief addresses the principles of federal sentencing, the virtues of individualized and reasoned justice, and concludes with a statement of modern federal sentencing principles. Brief for the National Association of Criminal Defense Lawyers Miguel A. Estrada, Counsel of Record, Gibson, Dunn & Crutcher LLP This brief addresses how the requirement of extraordinary circumstances is inconsistent with Booker; how the guidelines should not be presumed reasonable because they do not incorporate all of the other section 3553(a) factors or the purposes of sentencing; how the guidelines amendment process undermines any argument for a presumption of reasonableness; and that reasonableness review must operate without giving the guidelines range special weight. Brief for the National Veterans Legal Services Program & Veterans for American Jonathan Nuechterlein, Counsel of Record, Wilmer, Cutler, Pickering, Hale & Dorr LLP This brief addresses how the guidelines disadvantage our nations Veterans, primarily by their failure to allow for consideration of honorable military service or mental and emotional difficulties that disproportionately afflict Veterans Brief of The Sentencing Project & The American Civil Liberties Union Matthew M. Shors, Counsel of Record, O'Melveny & Myers, LLP This brief argues that the guidelines should not be elevated above other sentencing factors and addresses the crack/cocaine sentencing disparity Brief of the Federal Public Community Defenders & the National Association of Federal Defenders Thomas W. Hillier, II, Counsel of Record This brief addresses how institutional resistance has hindered proper implementation of the Supreme Court's Booker remedy; that the presumption of reasonableness improperly skews reasonableness review; and that the guidelines are not worthy of a presumption because the relevant conduct rules rest on an unreliable factual basis Brief of Families Against Mandatory Minimums Gregory L. Poe, Robbins, Russell, Englert, Orseck & Untereiner, Counsel of Record This brief addresses the roots of the parsimony principle, the statutory text, and the need for review to focus on whether the district court considered its obligations thoroughly, articulated its reasons fully and infused all of its decisions with the principle of parsimony Brief of Marc Miller, Michael O'Hear, Kate Stith, Ronald Wright, Robert Fiske, James Richmond, Earl Silbert, and Peter Vaira Marc L. Miller, Counsel of Record This brief addresses how the guidelines do not incorporate other section 3553(a) factors or the purposes of the sentencing; how the guidelines exclude military service from consideration and fail to properly account for true first time offenders; and that federal courts should review the Commission's analysis in the same manner that they review other agency decisions Brief for the Washington Legal Foundation & Allied Educational Foundation. Paul D. Kamenar, Counsel of Record This brief argues that the guidelines do not deserve a presumption of reasonableness because they are designed to produce excessively harsh sentences, violate the parsimony provision, and increase rather than reduce unwarranted sentence disparities. Amicus Brief of the United States Sentencing Commission in Support of the Guidelines Brief filed by Senators Edward M. Kennedy, Orrin G. Hatch, and Dianne Feinstein in Support of Affirmance in Claiborne v. United States