KOON v. UNITED STATES

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Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument now in Number 94-1664, Stacey Koon v. United States, 94-8842, Laurence Powell v. United States.

Mr. Olson.

Mr. Olson: Mr. Chief Justice and may it please the Court--

This case involves the kind of fact intensive decision that district judges make 40,000 times each year.

It is the type of decision that trial judges are ideally suited to make, that appellate judges have neither the institutional competence nor resources to make, and that Congress and the Sentencing Reform Act explicitly vested in the district courts, and it is the kind of reasoned decisionmaking that Congress expected would provide vital data to the Sentencing Commission's continuous evolution and refinement of the Sentencing Guidelines.

The sentencing judge in this case made his decision to depart from the Sentencing Guideline range after presiding over a 7-week trial and a lengthy sentencing process involving detailed factual submissions by all of the parties.

He explained each aspect of his decision and his reasoning in a 54-page sentencing memorandum.

Each reason for departing from the guidelines was well documented and based upon the specific, highly unusual facts of this particular case.

Each departure was predicated on factors that are either encouraged as departure grounds by the Sentencing Commission or not forbidden or discouraged by the Sentencing Commission.

It is important to state at the outset that Congress explicitly authorized sentencing judges to depart from the prescribed sentencing ranges if they find factors of a kind or to a degree not taken into consideration by the commission in formulating the guidelines.

This, according to the commission, requires determining whether a case is unusual, atypical, or outside the heartland of the guideline range prescribed for this particular offense.

This is a highly fact bound inquiry.

Congress stated that sentencing judges were to have the flexibility and were required to impose that... use that flexibility to impose individualized sentences when warranted by aggravating or mitigating factors not taken into account by the guidelines.

Sentencing judges are to be guided by numerous factors in deciding whether a case is outside the heartland of the case.

As explained for the Court in the Rivera case from the First Circuit, a district judge is going to use the facts of the case, as found by him, to which deference must be given unless they're clearly erroneous, his experience or her experience as a sentencing judge, the intuition developed over years of sentencing, other statutes, the guidelines themselves, the sentencing regime prescribed by the guidelines, and to bring all that institutional superior feel, as the Rivera court put it, together to the case to determine whether a case is unusual or not.

Unknown Speaker: Mr. Olson, let me ask about the first point that you make in your argument, and which I guess you're coming to now, whether in deciding this question we use the abuse of discretion standard or we decide de novo whether the particular factor is allowable under the guidelines.

Does it really make any difference?

Does it really make any difference?

Mr. Olson: Well, I--

Unknown Speaker: Because what is being contended by the Government is that certain of these factors are not lawful factors, that the guidelines do not permit them to be used.

Now, if we reviewed it de novo, we would come to the conclusion, assuming the Government's right, you're right, the guidelines do not permit them to be used.

If we did it under an abuse of discretion standard, we would say, well, of course it is always an abuse of discretion to violate the law, and therefore we have before us the same question Does the guidelines permit it to be used?

Whichever standard you use, the appellate court has the same question before it Is it lawful to use this particular factor?

I don't see why we--

Mr. Olson: --What the--

Unknown Speaker: --should bother fighting about what standard to use.

Mr. Olson: --The answer to that question is... indeed, the answer, I can state directly that it does make a great deal of difference, because it is an experience that sentencing judges get.

What the Sentencing Commission intended to occur is that, and the Sentencing Commission specifically said that it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a Sentencing Commission, so what the Sentencing... to a sentencing decision.

So what the Sentencing Commission did is elaborate on what the experience of district judges had been and create a typical sentence for a heartland type case, but it--

Unknown Speaker: I understand, but you're missing my point.

The abuse of discretion standard simply says, within this broad range of the unlawful on this side and the unlawful on that side, the court can do whatever it wants in the middle.

Now, when it goes into the unlawful, it automatically abuses its discretion, and the contention here is that certain factors cannot lawfully be considered.

Mr. Olson: --The answer to the question, if there is an abuse of discretion, it is unlawful, but it is important that that abuse of discretion standard take place.

The Congress specifically said--

Unknown Speaker: Well, if it makes you feel better I'm willing to decide it that way, but I'm going to be asking myself the same question.

Is it lawful to consider this factor?

Mr. Olson: --Well, the decision itself as to whether or not a case falls within the guidelines involves the ascertainment of the facts of a particular case and deciding whether the facts of that case make it unusual or atypical in a particular situation.

District judges are better--

Unknown Speaker: That's a different question, whether a particular factor that could in some circumstances be used should have been used in this case, and I will acknowledge, and I don't think the Government contests that that is subject to abuse of discretion.

But the question of whether the factor is ever allowable--

Mr. Olson: --The factor is allowable, according to the Sentencing Commission, to which the authority to make those decisions was explicitly delegated by Congress.

According to the Sentencing Commission, unless we articulate... and I'm reading from part 1A(4)(b) of the Sentencing Guidelines, with the specific exceptions of factors taken off the table by the Sentencing Commission, the commission does not intend to limit the kind of factors, whether or not mentioned in the guidelines, that could constitute grounds for departure.

Unknown Speaker: --Now you're arguing the merits, and that's a different question.

That's not the standard question, that's the merits question--

Mr. Olson: Well, the... they're--

Unknown Speaker: --and I'm happy to discuss that.

Mr. Olson: --We submit that they're tightly interwoven among one another.

Unknown Speaker: I think you're saying that this case cannot involve a question of lawfulness versus unlawfulness, is that what you're saying?

Mr. Olson: What we're saying is that the authority to determine whether or not a departure could exist from the Sentencing Guidelines was delegated by Congress to the Sentencing Commission.

The Sentencing Commission stated that certain factors were off limits, the rest of the factors were on limits within the sentencing discretion limits, and that these factors considered in this case were within that discretion.

Unknown Speaker: And because this is not a case involving the application of an off limits consideration, the issue here cannot be an issue, whether it was lawful or not.

Mr. Olson: Exactly.

Unknown Speaker: You start with the premise that it was lawful, and you say, within the realm of lawfulness, what can it do?

Mr. Olson: That's--

Unknown Speaker: So that... I mean, your case, then, is really not so much a case about what the standard ought to be, it's a case that's going to turn on whether we agree with you that in fact there can be a lawfulness versus unlawfulness decision about particular factors or reasons in this case.

Mr. Olson: --As this Court indicated in the Williams decision--

Unknown Speaker: Couldn't we see the case that way?

Mr. Olson: --Well, except to the extent that it seems to me that that decision is constrained by the scheme set up by Congress which delegated certain authorities to make... authority to make those decisions to the Sentencing Commission, and the Sentencing Commission in this case has made those decisions.

Unknown Speaker: Well, the record... if there's no difference between the abuse of discretion standard and the de novo standard, we might as well dismiss this petition as improperly granted, because that's the only question raised in the petition.

Mr. Olson: We are not agreeing with that, Mr. Chief Justice.

We're suggesting that the decision that was made here, which is the application of the guidelines to the facts of this case, which is an explicit appellate review standard articulated in the statute itself, the application of the guidelines to the facts of the case, which is what the district judge did here, is subject to a due deference standard specifically adopted by Congress.

Unknown Speaker: But the reason that this is an... as it were, is an easy issue as you see it is that there cannot be an issue of law here.

This has got to be viewed as an issue of discretion.

Mr. Olson: In--

Unknown Speaker: And I suppose that if we all agree with you there, there isn't very much left to argue about.

Mr. Olson: --Well... well, I think that the case is that simple, because the... as Justice Breyer explained in his article in the Hofstra Law Review in 1988, the Sentencing Commission explicitly stated that most factors that might be eligible as departure factors have already been decided by the commission as eligible for consideration.

The commission has said, we are not deciding unusual cases.

We need the decisionmaking by district judges to tell us when a case is unusual or not, and the reason why that decision, the authority for which is vested directly in the district courts, should be made by district courts, is because district courts, day in and day out, are where the rubber meets the road.

Unknown Speaker: Yes, but you are also saying that there can be no unusualness question which raises an issue of law as distinct from an issue of discretion, and the reason it cannot raise an issue of law is that the only issues of law are issues involving whether something has been explicitly taken off the table or not.

Is that a fair--

Mr. Olson: I believe that that's a fair understanding of the guidelines themselves and--

Unknown Speaker: --But is it understanding of your argument?

Mr. Olson: --And... because we're basing that argument on the guidelines and this Court's decision in Williams, I must hasten to say that it's conceivable, I suppose, although I have not thought of one, where a pure question of law with respect to a departure factor could come up.

Unknown Speaker: Well, it's obvious that there... I mean, that isn't... you could... isn't the answer, it depends?

If... there are certain factors like race, which a statute says are totally forbidden from departure.

It's a pure question of law whether a particular case, this falls within that, and the district court has nothing to do with it.

Then there could be other situations where the reason that this is not unusual has to do with interpreting another guidelines, e.g., does this kind of conduct fall within the heartland of the physical abuse guideline or assault guideline or something else?

That's a pure question of law.

Then there's a third kind of question.

The third kind of question is, are these circumstances unusual?

In respect to that one, though, it's technically a question of law.

I take it that kind of decision is the one that you think goes primarily to the district judge.

Mr. Olson: Clearly that is the case, except to the extent that the only argument that I would offer with respect to that second category is that that... if it's purely an interpretation--

Unknown Speaker: Yes.

Mr. Olson: --of the guideline it is almost never going to be purely an interpretation of--

Unknown Speaker: Oh, no, it might be in this very case.

For example, one of the reasons that there was departed here, one of the reasons for the departure is whether or not two prosecutions, one under a Civil Rights Act and one under a State law, is a justification for departure.

I would have thought that raises a pure question of law.

I don't see what light the district court's going to throw on that, in that you'd think that the policies underlying the civil rights statutes would be relevant there.

Mr. Olson: --Well, in fact, the... as the Court put it in the Rivera case in the First Circuit, that requires an examination of the purposes of sentencing.

The Court might well consider that the specter of unfairness under those circumstances would make this case unusual.

That would be an entirely permissible--

Unknown Speaker: What the district court knows about is what's unusual.

What the district court doesn't have a comparative advantage about is the comparative policies that underlie double jeopardy, different statutes, different guidelines, et cetera.

Mr. Olson: --I agree with that, but that makes it unnecessary for the district court in making that unusualness decision to consider both the facts and the policies.

That makes it a mixed question of fact and law, and that's one to which due deference should be given to the--

Unknown Speaker: Well, as a predicate matter, when the district court addresses this issue, let's take the hypothetical issue of the twin... double prosecutions.

The district court must ask, must it not, whether or not the commission considered this in formulating the guidelines.

That's the first thing it asks.

Mr. Olson: --That's one, yes.

Unknown Speaker: All right.

Now, that surely must be a question of law.

Mr. Olson: But that is interrelated.

It can only be made in the context of the facts of the particular case.

Did the commission consider this--

Unknown Speaker: Well, all law, Mr. Olson, is applied to the facts of a particular case.

Mr. Olson: --But just like this case is a paradigm example of that, the peculiar facts inform the decision with respect to whether or not the Sentencing Commission considered that factor.

Unknown Speaker: No, no, but can't we have an orderly process in which we first ask, was this factor taken into account in considering the guidelines?

As to that, and that only, is that not a question of law?

Mr. Olson: In all fact... the commission says unless we prohibit those factors, those factors are something that we want district judges to be able to consider--

Unknown Speaker: Well, then if you're right, then you'll prevail as a matter of law.

Mr. Olson: --And then we... and they should be considered in the context of the facts of a particular case.

If it please the Court, I would like to reserve the balance of my time for rebuttal.

Unknown Speaker: Very well, Mr. Olson.

Mr. Kopeny.

Argument of William J. Kopeny

Mr. Kopeny: Mr. Chief Justice, and may it please the Court--

The question that this Court granted certiorari as to petitioner Powell included a second question and that was, what was the correct analysis of the departure in this case, and I take it that this Court would not conclude its decision in this case by simply saying what the name of the standard of review is for reviewing departures, particularly because it is the... at the core of the dispute between the parties in this case is the way the Ninth Circuit went about applying what it called the de novo standard and the way that the parties contend the reviewing court should proceed.

The opinion in Rivera as I read it states that there is an initial pure question of law which is to be decided, but it's to be decided as I think Justice Souter pointed out in his dissent in the Burns case, without regard to the evidence or facts of the case.

That is that, as a matter of law, a reviewing court or a district court can tell whether a particular factor was either taken into account or adequately taken into account by the guidelines commission, and that there are, as Justice Breyer said in the Rivera opinion, questions of interpretation of words or formulas of words in statutes and guidelines which circuit courts or reviewing courts are equally competent to determine to district courts.

Unknown Speaker: And as to them, de novo standard.

Easy, right?

Mr. Kopeny: Your Honor, I think that the words that Justice Breyer used was plenary standard, but what's important, I think, is that--

Unknown Speaker: Well, isn't that what we're getting at by de novo here?

Mr. Kopeny: --Well, I hesitate to use the word de novo, because the Ninth Circuit called what it did in this case de novo, but reached a conclusion which Justice O'Connor said in Williams was forbidden to the reviewing court, and that is to determine whether it was an appropriate--

Unknown Speaker: Maybe they did it wrong, but just as an abstract matter, I think what you are describing as the standard is what we normally describe as a de novo standard.

Mr. Kopeny: --I think so, too.

Unknown Speaker: A review of issues of law.

Mr. Kopeny: I agree with you.

However, I am urging the Court not to simply stop at the label.

Unknown Speaker: Well, but that's what... the de novo standard is the phrase that's used in the petition for certiorari.

Mr. Kopeny: Your Honor, I believe that there's a two step process, and that clearly any reviewing court must start, as I think Rivera instructs, with a first step which is properly called plenary, or de novo.

Unknown Speaker: Yes.

You don't have to simply devote your entire argument to de novo versus abuse of discretion, but those are the words that the Court adopted from the petition for certiorari to apparently identify a difference in approach on appeal.

Mr. Kopeny: Right.

Your Honor, my concern is this, that by calling what the Ninth Circuit did here de novo, we're either changing the meaning of it or we're not agreeing on terms, because--

Unknown Speaker: Mr. Kopeny, don't waste time on that.

Let's get to the merits of the thing.

You've got 20 minutes gone.

We've got 10 minutes to talk about the legal issue.

Mr. Kopeny: --Well, Your Honors, I think the legal issues with regard to the... whether these are valid bases for departure are clearly before this Court as well.

It's the petitioner's position that the Government makes a mistake of law in concluding, for example, that the 5-level departure in this case was invalid, as a matter of law, because victim misconduct could not, as a matter of law apply in this sort of case--

Unknown Speaker: Mr. Kopeny may I--

Mr. Kopeny: --because the police officers were the defendants.

Unknown Speaker: --May I ask a question within that 5, because there's one thing that struck me.

There were 3 points, one for specific factors, and then the largest factor was the victim's conduct.

Is there any guidance about the number of points that a district judge may assign to particular factors?

Mr. Kopeny: Yes, there is, Your Honor.

In 18 U.S.C. 3742(e), there is a reasonableness standard, but as I understand at least Justice Souter's dissent in Burns, that means an abuse of discretion standard.

Unknown Speaker: So if this judge had assigned 6 to that, or 2 to each of the others, it would just be abuse of discretion?

Mr. Kopeny: If, in fact, you could conclude that there's a range of sentences that would be appropriate but none was righter than another, then anyone within that range would be within the discretion of the district court, according to the--

Unknown Speaker: Does the district judge have... since he has to justify his departure, does he have an obligation to explain why it's 5 rather than 1 or 2?

Mr. Kopeny: --I don't know that he has an obligation to contrast it with other potential departures, but he does have an obligation to find that it's unusual, to describe the degree to which it's present, and the guidelines are very specific in 5K2.10 with the six factors that he must evaluate, and in this case there was a very specific sentencing memorandum by Judge Davies, the district judge, who... in which he went through chapter and verse of the findings of which of those factors were present and to what degree.

He talked about the persistence of the misconduct.

He talked about the reasonableness of the fear, and how it was provocative.

He spoke specifically about how the victim in this case, after being tased and put to the ground, rose up and charged at my client, petitioner Powell, and putting him in reasonable fear, because he was an unsearched felony suspect at that time.

He said that these things preceded only by seconds the offense conduct, which... and that therefore there was a relationship of substantially contributing to provoking the offense conduct, and I urge the Court to reject again, as a matter of law, the Government's claim that the lack of contemporaneous provocation and offense conduct means that this was an inappropriate guideline to use, that is, the encouraged departure downward for misconduct by the victim.

However, there is a point here that I think is essential to the Court's resolution of this legal question, and that is this.

As I read the basic philosophy of the guidelines, there is a compartmentalizing of the various elements.

For example, in any police misconduct case, whether it's conspiracy to violate someone's right to vote, or whether it's assaulting someone and using unreasonable force, the guidelines gives a formula for addressing punishment to that element of the crime.

But there's really a fact based analysis here which sort of prevents the Government from drastically changing the sentence by changing what charges it files, so that the offense conduct element in this case is 15 elements, 15 levels of sentencing for the aggravated assault.

I take it that the Government's argument should be rejected that in a police misconduct case you can never give... you can never find victim misconduct mitigating because all the judge did was find that the departure downward for victim misconduct applied to that 15 levels of aggravated assault.

In other words, I think there is a limit on that discretion, Your Honor, that if Judge Davies had gone 16 or more levels, and cut into the punishment for the violation of civil rights rather than simply reduced by a third the element of the punishment in this case that addressed the aggravated assault, then I think there would be a fairly strong argument that there was an abuse of discretion in finding the degree of departure to exceed that which was the predicate for the departure, that is, the assault itself.

Unknown Speaker: Do we know which portion was attributable to aggravated assault and which was attributable to the violation of civil rights?

Mr. Kopeny: Absolutely, Your Honor.

The guidelines are clear and specific about it.

In this case, if there had been no aggravated assault there would have been 10 levels attributable to civil rights.

However... to civil rights violation.

However, because the resulting offense level is higher, there were 15 for aggravated assault and 6 for the civil rights violation, so we know that the departure of 5 is well within the aggravated assault component of the sentencing.

Unknown Speaker: But we don't know, do we... we don't know, of the four different reasons that the district court gave for departing, how much weigh the gave to each of the reasons?

Mr. Kopeny: No, we don't, and--

Unknown Speaker: So don't we then... suppose we thought that in respect to some of the reasons it is a matter where he has expertise and can decide how unusual, but as to others, it's purely a question of law.

That is, the court of appeals could decide these in respect to others, like the double jeopardy type thing.

Is... what do we do then?

Mr. Kopeny: --Justice Breyer, if you're referring to the 3-level combination departure and not including the discussion of the 5 levels for victimless conduct, then yes, I think Your Honor is right that the analysis of that would require the Court to have due regard for the facts and to defer to those aspects, or those factors under the added punishment departure that were experiential and related to what a district judge could do.

But where there's a pure question of law, then I think that a circuit court might be able to determine it was an inappropriate factor.

However, I would urge caution in the two that the Government have made their strongest points on.

One is this lack of recidivism being prohibited, and the other is the one about the Government making a charging decision to prosecute these defendants again after they'd been prosecuted in the State court.

As I've indicated in, I believe the reply, petitioner's reply brief, the guidelines do address the question of when the court thinks its unfair that the Government has made a particular charging decision and suggests that that might be addressed by a departure.

So even though it's legal, completely legal for the Government to choose one charge offense over another, if the Government... if the court in its experience detects a specter of unfairness, the guidelines encourages a district judge to depart downward based on that sense of unfairness, and I would urge the Court not to reach too quickly the conclusion that, because double jeopardy is not violated here, there is no specter of unfairness which a district judge is uniquely qualified to detect, and which the guidelines would prohibit, as a matter of law, the district judge considering in the mix with all the other combined factors in determining that that unfairness should be addressed by a departure.

Unknown Speaker: But there was no description by, as I understand it by the judge in this case of any factor other than the successive prosecution.

Mr. Kopeny: Oh, to the contrary, Your Honor, there was a description of the defendants' extreme vulnerability in prison, there was a description--

Unknown Speaker: No, no, no, but that's on a different point... a different point.

Mr. Kopeny: --No, it's on the same point, because there was a single 3-level departure--

Unknown Speaker: Didn't... wait a minute.

Mr. Kopeny: --for a combination of factors.

Unknown Speaker: Help me in the facts.

Didn't the judge separately consider the successiveness of the prosecution and the vulnerability to abuse in prison?

Mr. Kopeny: No, Your Honor.

The circuit court separately considered.

Unknown Speaker: Aha.

Okay.

Mr. Kopeny: And that's what Justice Reinhardt... Judge Reinhardt said was an improper divide and conquer approach.

Unknown Speaker: All right, then would it not be correct, then, on just the analysis that you gave to Justice Breyer, to send the thing back and say, well, as a matter of law, having given no separate reason going solely to successive prosecution than the fact that there was a successive prosecution, as a matter of law it was wrong to consider that--

Mr. Kopeny: Well, Your Honor--

Unknown Speaker: --but maybe it was not wrong as a matter of law, and therefore subject to a different standard of review, that these particular defendants would be especially vulnerable?

Wouldn't that be a proper way... couldn't that be a proper way to dispose of it?

Mr. Kopeny: --No, it couldn't, and perhaps it's because... I misunderstood your former question, but the judge, the district judge did discuss individually each of the factors that he said was in the mix that gave rise to the combination 3-level departure.

And he laid on the record specific reasons why he thought that was unfair and why he thought there should be a departure in this case.

So it wouldn't be right to remand because he failed to do what the outline of the guidelines, or the framework says he must do, which is to give reasons and to make the... draw the conclusion that it's unusual.

Unknown Speaker: But what if we concluded that one or two or three of the reasons articulated by the district judge were not factors that he could properly consider?

Mr. Kopeny: Well, I'm sure, as Your Honor knows, you've already answered--

Unknown Speaker: Then what do you do?

Mr. Kopeny: --You've already answered that precise question in Williams--

Unknown Speaker: Exactly.

Mr. Kopeny: --because that was the issue before the Court, and then I take it there's no dispute about the... no one's asked this Court to reconsider its conclusions about the procedure to follow.

If Your Honor concludes that one--

Unknown Speaker: Right.

Mr. Kopeny: --but not all of the bases for departure is invalid.

However, there is a distinction, and that is this.

Each of these combined factors went into some... into a combination or mix factor, and this Court has never determined that once one valid factor is considered, that it is inappropriate for the district judge to be straitjacketed into not considering the whole of the remainder of the case in determining to what degree departure is appropriate.

In other words, where the judge says, as in Williams, or for example there's... this is not a combination departure, but there's a departure, and here are the three separate reasons, then I think the remand might be required, or obviously will be.

But where the judge says, I think an additional 3-level departure is appropriate, and these are the factors that I'm identifying in combination, that it isn't clear that it would be illegal or, as a matter of law, invalid for a judge to consider the whole of the case, even though some of those factors, if articulated separately, would be prohibited.

So I think that there is still some more work to do in drawing the inference that this case fits under Williams, because it's different in that regard.

And I think it's also correct to say that when we look at the other factor, take the question of recidivism, it seems right that at least in the Ninth Circuit at the time this case was decided it was the law that if a person is in category 1 with criminal history, you can't depart downward because you find that he won't reoffend.

It also... and therefore the Government argues that's a prohibited factor.

On the other hand, it's not clear that that is all that Judge Davies was doing in discussing the fact that as part of the mix, these defendants were not likely to be a danger to anyone, and that's because in reviewing the reasonableness of a departure the statute says, 37... well, 3742(e)(3) says that it's only in determining whether the departure is unreasonable that the reviewing court should look at those purposes of sentencing.

And one of the purposes of sentencing is protection of society, so it's a fair thing for the district judge to talk about whether or not these defendants or this defendant would be a danger in discussing the justification for a particular departure and the level of it.

I think it's a question of how this district judge's findings are read, but it is not clear that he used an improper factor, rather, that he included in the mix something which the guidelines require to be given regard to, and that is, whether the person is a danger, because obviously it would be unreasonable to set a dangerous person loose, whereas it might be more reasonable to give a person who is totally not dangerous a lower sentence, so I think it is relevant to whether it's reasonable.

Thank you very much.

Unknown Speaker: Thank you, Mr. Kopeny.

Mr. Dreeben, we'll hear from you.

Argument of Michael R. Dreeben

Mr. Dreeben: Mr. Chief Justice, and may it please the Court--

Our position is that the issue of whether a particular factor may warrant a departure from the guidelines is a legal issue that is subject to de novo review in the court of appeals, and there are two main reasons for that position.

First, a proposed ground for departure raises recurring issues which are fit for and benefit from plenary appellate review to establish consistent and coherent standards I the interpretation of the Sentencing Guidelines, and second--

Unknown Speaker: Well, you know, if Congress hadn't made any provision for the... what standard to use, that might be a good policy argument, but it's nothing more than a policy argument.

It doesn't seem to be rooted in any statutory provision, at least judging from what you've said so far.

Mr. Dreeben: --Chief Justice Rehnquist, there are... there is a statute that specifically addresses the standard of review for Sentencing Guidelines--

Unknown Speaker: Yes, and it doesn't say anything like that, as I recall.

Mr. Dreeben: --Well, the statute that governs this, which is set out in our brief at page 6a of the appendix, provides that the court of appeals shall give due regard to the opportunity of the district court to judge the credibility of witnesses and shall accept findings of fact of the district court unless they are clearly erroneous, which is, of course, the typical standard of review for findings of fact, and shall give due deference to the district court's application of the guidelines to the facts, and there are two significant points I'd like to make about the last clause.

Unknown Speaker: Well, you've left out one provision, which is where your... where the court of appeals is supposed to be reviewing a district court's decision to depart.

It says, on appeal, if the court--

--Where are you reading from?

I'm reading from... well, I'm embarrassed to say I'm reading from Rivera--

[Laughter]

But it is... I'm reading the quotation of the statute, which is 18 U.S.C. 3742(f).

(f)?

Yes, and... yes, it says on appeal, if the court of appeals determines the sentence is unreasonable... and at least I'd thought that that makes a difference.

That is, it suggests that what the court of appeals is supposed to do is to decide whether or not the departure of the district court is unreasonable, which is different from simply reviewing it de novo all the time.

Mr. Dreeben: Well, the Supreme--

Unknown Speaker: So I thought that that added some support to the notion that at least sometimes the court of appeals is supposed to pay attention to what the district court says where that's appropriate, where the district court knows more about it, particularly in respect to whether or not a particular set of circumstances is unusual.

Mr. Dreeben: --Let me, if I may, Justice Breyer, address the statutory point that you raised and then turn to the policy consideration of what a district court should do and what a court of appeals should do.

This Court held in Williams v. United States that the reasonableness determination and the component of the statute that you read that refers to that goes only to the second step of whether a resulting sentence is an unreasonably high or low departure from the guidelines.

It only goes to magnitude.

The question of whether a departure is permissible in the first place raises two antecedent issues.

The first is whether it is a violation of law, which it would be if, for example, a district court departed based on an explicitly socioeconomic factor, or a factor that is so close to a socioeconomic factor as to be a proxy for it.

The second issue of law that is antecedent to the reasonableness determination is whether there is a misapplication of the guidelines which could occur, for example, as the Court made clear again in the Williams opinion, if the district court relied on a factor that the Sentencing Commission has explicitly taken into consideration and has given adequate consideration to.

So in those two--

Unknown Speaker: You really think... I mean, you have 500, 700 district court judges.

They have thousands of different kinds of circumstances.

The basic theory written into the statute is, judge, if you have a normal case, apply the guidelines, judge, if you have an unusual case, depart, and you think that the courts of appeals that don't see those cases are, no matter what, supposed to decide to every factual circumstance, whether or not this particular odd factual circumstance... you know, the person had a low IQ, or, I don't know, some very weird thing... in each instance, they're the ones that are supposed to decide, ab initio, whether it's unusual or not unusual, pay no particular attention to the expertise of the district court.

Mr. Dreeben: --Well--

Unknown Speaker: That's your view of it?

Mr. Dreeben: --No, I certainly wouldn't say they should pay no attention whatsoever--

Unknown Speaker: All right, then the question is, what kind of attention do they pay, and once you say that, you get into the job of saying... you get into the idea that the kind of attention you should pay is the kind of attention that comes out of their experience.

Their experience is to know when circumstances are unusual, so when they think they're unusual, we pay some attention to that in the court of appeals, and don't just substitute our own judgment.

Mr. Dreeben: --Well, Justice Breyer, I think that the key factor is what they think is unusual will stem from the experience that they derive from their courtrooms hearing the particular cases that come across their dockets.

Where the court of appeals have a distinct advantage in that respect is the ability to harmonize the results that are obtained in different district courts throughout the circuit, which may have very different circumstances.

A family circumstance that a district judge in Manhattan may think is a ground for departure may be entirely different from one that a judge sitting in Hartford, Connecticut would think.

Unknown Speaker: So over time you get to understand that, and over time a common law develops, and over time it becomes more sensible, and that's either done in the rubric of use of discretion, where it's the kind of thing that depends on the expertise of the district court, or it's done without any deference, or it's the kind of thing that depends on purely legal interpretations.

Mr. Dreeben: I think that the Government has no quarrel with the general approach you're suggesting of a common law development of unusualness.

When the guidelines do not give specific guidelines on how a departure factor is to be applied, and there is not a statutory prescription or a policy underlying the sentencing statutes that would preclude taking the departure--

Unknown Speaker: And then once you're there, then they say at least look at the question of how much violence was involved in this instance and how much provocation, and they're saying that that's a paradigm instance of where, in fact, the district court has some experience as to whether or not in this kind of case there is a lot, a little, not too much violence by way of provocation, and so there should have been deference in respect to that matter.

Mr. Dreeben: --I... well, there are several reasons why I do not think that there should have been any deference given in this case.

First of all, district courts happen to see a very, very small sampling of civil rights cases because there are few of them in the Federal system, so that the idea that a particular district judge is going to develop substantial expertise at gauging them is probably not an experientially correct judgment.

Unknown Speaker: But if there are few of them in the Federal system the courts of appeals would see few also, I would think.

Mr. Dreeben: The courts of appeals would have the ability to do what courts of appeals do best, which is to evaluate the policies underlying the particular guideline provisions that were applied, and we think there are legal issues that govern the victim misconduct issue in this case, and take the time to go through the body of reported cases and other sources of law that would help illuminate the question of what typically is found in these kinds of cases.

Unknown Speaker: What about assault cases?

Are there a lot of assault cases in the district courts?

Mr. Dreeben: Yes, there are a lot of assault cases in the district courts.

Unknown Speaker: The factor of provocation was used in this case to reduce the assault portion of the punishment, not the civil rights violation portion of the punishment.

Mr. Dreeben: Well, I think that in itself was an error of law, Justice Scalia, because the guidelines themselves provide that the departure question, whether a guidelines sentence should be departed from, is the last step in the process after all of the other factors have been put into the mix, and in this case the only guideline that was applicable to determine ultimately what the base offense level was for these defendants was the civil rights guideline, which refers to another guideline and incorporates that guideline only for the purpose of establishing a component.

A departure that would be made solely--

Unknown Speaker: Call it a component.

It was that component that was reduced, and certainly unusualness with regard to assault cases is really what should be relevant in the case.

Mr. Dreeben: --Well, first of all, that raises the legal issue of what should the proper comparison group of typical cases be?

In the Government's view, when your violate... when you violate 18 U.S.C. 242 through an excessive force violation and you are sentenced by the... under the guideline applicable to that civil rights violation, the heartland of typical cases must be defined with reference to that civil rights violation and not assaults that are committed by private persons which have very different situations.

It was undisputed in the district court that the kind of pursuit and eventual arrest that occurred in this case was the sort of thing that police officers typically encounter every day.

Police officers typically encounter suspects who resist arrest, who use various forms of violence, who are provocative in the common sense, and police officers are trained to respond to that and to do so without stepping the line, over the line into excessive force and constitutional violations which--

Unknown Speaker: Mr. Dreeben, what would be an example, in the Government's view, of the application of the last portion of the last sentence of section (e), where it says the courts of appeals shall give due deference to the district court's application of the guidelines to the facts?

Give me an example of where the district court has applied the guidelines to the facts, and it's the kind of application that the court of appeals should give deference to.

Mr. Dreeben: --Certainly.

There is an adjustment that applies under the guidelines to the base offense level depending on what role in the offense the defendant had.

Was he a leader?

Was he a manager?

Was he a minimal participant?

Was he a minor participant?

There are guidelines that address those issues.

There are application notes that give examples of how those guidelines are to be applied, and when a district court makes the determination that this defendant was a minimal participant, this defendant was a minor participant, those determinations are applications of the guidelines to the facts.

Unknown Speaker: Those are determinations of the facts, whether he was minor, major, or whatnot.

I mean, to convey that meaning I would have said, and shall give due deference to the district court's determination of the facts.

Mr. Dreeben: Well, whether--

Unknown Speaker: It doesn't say determination of the facts.

Which is in another sentence.

Mr. Dreeben: --Well--

Unknown Speaker: It says, application of the guidelines to the facts.

Mr. Dreeben: --But that is an application of the guidelines, Justice Scalia.

There is not a fact that somebody was a minor participant or minimal participant.

Those are legal labels that are attached to particular conduct and that provide a basis for a district court to impose a different sentence.

Unknown Speaker: Well, why do you... okay, you've given an example.

Now, why do you select that example rather than some others that have been talked about here as places where the court of appeals shall give due deference?

Mr. Dreeben: Well, the particular context that we're dealing with here today are departures from the guidelines.

Departures were not intended to be the norm.

They are in a sense disfavored.

They are to be granted in unusual cases when the circumstances were not taken into account by the Sentencing Commission.

For almost all of the departure factors that the district court relied on in this case, there was no guideline that was applicable that gave him any sort of guidance on how to adjust a particular sentence, and as a result, it is only in a technical sense that the district judge applied the guidelines at all.

What he really found was, incorrectly in our view, that certain factors had not been taken into account in the guidelines, and that other factors, though, were not only unusual but that they should result in a departure from the sentence, such as the fact that the defendants in this case had been tried in a California court for assault and acquitted.

And the Federal Government then made a determination that there was probable cause to believe that they had committed Federal civil rights violations, and they should therefore be tried for those, and that kind of a factor is clearly not something that's taken into account in the guidelines in any sort of explicit sense, but in our view it's the sort of unusual factor that it would be contrary to the purposes of sentencing to consider.

The fact that the--

Unknown Speaker: Why do you say that so positively?

Aren't there varieties of prior proceedings that might pose... one impose an extreme burden on a defendant, another be a very trivial burden?

There are differences among... within a category like that that might require some judgment as to whether it should affect the ultimate sentence.

Mr. Dreeben: --Yes, Justice--

Unknown Speaker: For example, if he had huge expenses, monetary expenses, might not that bear on the amount of the fine that should be imposed, or something like that?

Mr. Dreeben: --Well, our view would be it should not.

Unknown Speaker: It should never bear.

Mr. Dreeben: That's correct.

Unknown Speaker: It's not in the category of sometimes.

You can say, aw, it was never or sometimes.

Mr. Dreeben: That's right.

Unknown Speaker: You'd say this was a never factor.

Mr. Dreeben: Let me make a distinction with respect to the way the district court used that factor, because I think it's important for this case.

The district court in this case did not say that because the defendants had suffered the burdens of a trial in another jurisdiction I believe that they have already been punished for their offenses in a way that mitigates the need to punish them here.

The district court instead relied on two other factors, the fact that they would lose their jobs, and that they might be abused in prison, under its further punishment rubric.

For this factor, the district court made a categorical qualitative judgment that it raised a specter of unfairness for the defendants to be tried in two proceedings, and in our view that raises a pure question of law.

Can a district court say, it is unfair for the United States to attempt to vindicate Federal civil rights laws by bringing an independent prosecution?

To allow district courts to use such words as, I think this was unfair, is a wholesale invitation to the kind of unguided, disparate sentencing that Congress intended to remedy through the--

Unknown Speaker: But the idea... the idea of the guidelines, I think, is to get sentences that are fair, and if the judge, in fact, gives his reasons, isn't... don't you then turn... I mean, I'm more interested in the general principle than in the facts of this case, because that's what we have to get right.

There are thousands and thousands of cases, 50,000 a year, so if you look... isn't the guiding principle in 3742(e), which says... I was wrong about (f), (f) is the same as (e), but it's really (e).

It tells us what to do.

It says, we review the record, the court of appeals should say, is it outside the guideline range?

This is outside the guideline range, right?

Mr. Dreeben: --Yes.

Unknown Speaker: So we have one of those before us, and then say, is it unreasonable?

That's the word they use, and when the court of appeals decides whether it is unreasonable, it should have regard for the reasons that the district court gives as well as the purposes of punishment.

So my belief is, and I want you to respond if I'm not right, that that is a rather general framework within which courts of appeals can work out principles over time on the basis of what is unreasonable, and that they ought to give particular consideration to the expertise of the district courts in telling us at least initially what is unusual and what isn't.

Mr. Dreeben: Justice Breyer, I believe that the most straightforward answer to you is that that is wrong.

Unknown Speaker: That's wrong, okay.

Mr. Dreeben: It was a prevalent view before this Court decided Williams v. United States, but at page 200 of 503 United States Reports, the Court made clear that it can be an incorrect application of the guidelines to rely on a factor... and I'll quote here... to depart from the applicable sentencing range based on a factor that the commission has already fully considered in establishing the guidelines range.

Unknown Speaker: Yes, right.

Mr. Dreeben: And I would submit that the same is true with respect to a factor--

Unknown Speaker: Except at the beginning the guidelines say, the commission has considered no factor fully, but for the statutory factors that they're prohibited from taking into account.

Mr. Dreeben: --Well--

Unknown Speaker: Doesn't it say that right at the beginning?

Mr. Dreeben: --Yes, it does, but it's certainly true that a district court can make a mistake in believing a case is unusual based on a factor that, in fact, the commission did consider.

But the important point for us here, I think, is that the court went on to say that the second determination that a court of appeals must make... and I'll quote again.

It says, if the court concludes that the departure is not the result of an error in interpreting the guidelines, it should proceed to the second step.

Is the resulting sentence an unreasonably high or low departure from the relevant guidelines sentencing range?

If so, a remand is required under 3742(f)(2).

That's at page 202.

What Williams did was draw a distinction between errors of law that can infect a departure and the question of whether it is unreasonable, which the Williams court made clear is unreasonably high or unreasonably low, and I would agree with you entirely that once a district court relies on a permissible factor that is legally within its ken to consider in departing, that the extent of the departure is subject to deferential review on appeal under the reasonableness component of the statute, and it probably will not be often set aside unless the district court explicitly regards some form of guidance that the Sentencing Guidelines themselves give.

But it is not the case that simply because a factor was not given adequate consideration by the Sentencing Commission that the courts have found that it thereby licenses district courts to depart.

One factor that is, I think, very clear in this case is the one that we've been talking about with respect to the specter of unfairness resulting from dual prosecutions.

Certainly, the commission did not consider that, but that does not mean that it justifies a departure, and the question of whether it does or does not justify a departure, namely whether we are right or wrong, is clearly a question of law that should not be within the bounds of district courts to resolve differently.

Unknown Speaker: What do you say about petitioner's contention that that is no different from the level of charging offense?

Maybe the court shouldn't have used the word unfair, but where a court departs because it thinks that a lesser offense should have been charged?

Mr. Dreeben: That is--

Unknown Speaker: It's perfectly lawful for the Government to make the higher charge, but in fact the court thought it was unfair, use whatever word you like.

Why is that any different from this?

Mr. Dreeben: --We would appeal, and I think we would prevail, on arguing that it is not the function of the court of appeals to criticize the Government's exercise of prosecutorial discretion in determining what the charge is.

We have had cases that are almost exactly like that, where defendants have claimed, in the District of Columbia, that the United States Attorney's Office could have brought this case across the street in the superior court, and if they had done that, the defendant would only be exposed to the sentence of 2 years.

But because the United States Attorney exercised charging discretion to bring the case in Federal court, the defendant was subject to a mandatory minimum of 5 years, or 10 years, or what have you, and district courts have departed downwards, and the court of appeals has reversed that as a matter of law, because it intrudes upon the discretion of the Government to make a selection as to what charges it will bring in court.

Unknown Speaker: So you simply contest the factual accuracy of the contention--

Mr. Dreeben: I think--

Unknown Speaker: --that a departure is permitted--

Mr. Dreeben: --That's correct.

Unknown Speaker: --if the court thinks that a different or lower charge should have been brought.

Mr. Dreeben: That is correct, and the Court may disagree with me on that, but I would suggest that if the Court does so, it is disagreeing with me on an issue of law which should be for the Court to resolve de novo and not for a district court to be able to have the right to say, in my courtroom, if the jury recommends leniency, I am automatically going to lower the defendant's sentence, and for another district judge to say, sentencing is solely my legal responsibility, and it makes no difference to me whether a jury recommends leniency or not.

In our view, those are the kinds of issues that under a guidelines sentencing system should be resolved consistently, and those kinds of issues arise with remarkable frequency.

We cite it--

Unknown Speaker: They won't be resolved consistently.

I mean, let us not exaggerate the kind of consistency you're going to get.

Even if you decide it's a permissible factor, you're going to have some judges who are going to say, in my courtroom... I know it's permissible, but in my courtroom I'm not going to use it.

Mr. Dreeben: --That's correct.

Unknown Speaker: You're going to have a great deal of divergence in the district courts anyway, so I mean, let us not paint the picture that we're going to get uniform nationwide sentencing.

We certainly aren't.

Mr. Dreeben: No, I--

Unknown Speaker: Because merely... merely... the fact that we pronounce something to be permissible does not make it mandatory, and as long as it's permissible but not mandatory, you're going to get a lot of variation.

Mr. Dreeben: --I think that is a fair statement.

The Sentencing Guidelines are in a sense a compromise between competing values.

There is a recognition that the district courts should have discretion imposing sentences within the sentencing ranges themselves, or one particular district judge may say, I always sentence drug mules at the bottom of the range, and another district judge will say, I always put them at the top of the range, and that was deemed to be an acceptable amount of disparity, if you will, between sentences that did not offend the overriding goal of the Sentencing Guidelines to eliminate wholesale disparity.

But the kind of disparity that I'm talking about would be the disparity that would result from different district judges having different beliefs about what the governing law requires, and there is no reason in the Federal guideline system to tolerate disagreements between district judges on what the law permits them to do or what the law requires them to do.

Those are issues that, by providing for a structure of appellate review, Congress anticipated would be resolved in the courts of appeals, that the Sentencing Commission would be able to look at the work product of the courts of appeals as well as the district courts--

Unknown Speaker: The use of permissible factors would be reviewed under an abuse of discretion standard?

Mr. Dreeben: --Well, in our view, it may not matter very much what label you attach to it.

I think that that has become clear through some of the questions from the Court.

We think that the proper approach is for a court of appeals to review departure factors that have been recognized to be permissible under something close to a de novo standard.

Unknown Speaker: Well then, what on earth does that language we've talked about before mean?

Where the... After it says the court of appeals shall give due regard to the district court's judgment credibility, accept findings of fact that aren't clearly erroneous, and shall give due deference to the district court's application of the guidelines to the facts?

Mr. Dreeben: Well, when the district court is, in fact, applying guidelines to the facts and it's doing so under a correct legal standard--

Unknown Speaker: Well, but that already tremendously circumscribes that statutory language in a way that there's no indication that it should be.

Mr. Dreeben: --Well, I think--

Unknown Speaker: You can almost define it out of existence.

Mr. Dreeben: --I think, in fact, there's quite a bit of indication that that's exactly what Congress intended.

Unknown Speaker: Well--

Mr. Dreeben: At pages 26 and 27 of our brief we set out the legislative history that accompanied--

Unknown Speaker: --Well, you're saying that the legislative history overrides the language that Congress enacted?

Mr. Dreeben: --No, but I'm saying that in order to apply a guideline to the facts one must first know legally what that guideline means, and that raises a question of law which should be resolved de novo.

To take an example in this case, the defendants contended that they can defend, on appeal, the district court's determination to depart under the victim misconduct guideline, 5K2.10, because Rodney King's misconduct substantially contributed to provoking their offense conduct.

That's their contention.

Our reading of the district court's opinion and the court of appeal's reading of the district court's opinion is that the district court didn't really find that.

What the district court found is that but for Rodney King's misconduct in sending the police on a chase through the streets of Los Angeles and eventually stopping and acting in a way that led them to believe he was not submitting to arrest and engaging in an attempt to escape, but for those events, the defendants never would have been put in the position where they engaged in the constitutional violation of wilfully using excessive force, which they ultimately did.

Our point of view on that is that but for causation is not the kind of provocation that that guideline contemplates.

We could be right about that, we could be wrong about it, but we believe it's a question of law.

If ultimately, however, a court were to correctly construe the guideline and to understand that it did not mean that but for causation was alone enough, and it then went through and applied the factors to the specific facts of the case, that is the kind of determination that should get some sort of deference on appeal.

So we are not seeking wholly to remove sentencing discretion from district courts either in the decision whether to depart from the guidelines when there's a permissible factor or in the way that they sentence within the guidelines.

But we do think that the guidelines contemplate a regime under which two things will happen.

One is, the law will be clarified in the court of appeals, and then the Sentencing Commission can react to it if it so chooses, and can amend the guidelines to clarify what the proper principles are.

And that is a process that Congress clearly and specifically contemplated.

And second, to provide a common law development of how the recognized departure factors should be applied in a particular case, so that a district court sitting in New York doesn't think that it's unusual family circumstances if you have one small child under the age of 3 and you've been sentenced to a 10-year drug offense and it was your first time offense, while a different district judge says no, as a matter of law that can't possibly be unusual.

In our view what the courts of appeals should do is review the decided cases that come to them, which is a very small fraction of the departures to begin with, and then attempt to harmonize the cases and make the facts of the decided cases reconcilable with each other.

It may be that in carrying out that task the courts of appeals will apply limited deference at first until they gain enough experience.

It may also be that after they chart the particular area by deciding enough cases, there will be little law left to develop, and in that--

Unknown Speaker: It's very hard to do, though, because as we've established, the court is not going to say to the district court, you should, much less you must, depart downward because of the 3-year-old.

They're just going to say, you may if you want, and you're going to have the same kind of diversity anyway.

I don't understand how this common law consistency is going to build up by this decision of law that the court of appeals is making.

Mr. Dreeben: --It will not be perfect consistency, Justice Scalia, and I doubt seriously that anyone could come up with a system that would produce perfect consistency.

Unknown Speaker: Far from perfect, there won't be any consistency at all if they're just saying this is one of the myriad factors you can use.

If you want to use it, use it, if you don't want to use it, don't use it.

Mr. Dreeben: Sentences within the guidelines are favored under this regime.

The very purpose of the sentencing guideline system was to provide a regime under which the majority of the cases would fall within the ranges established by the Sentencing Commission.

Unknown Speaker: Mr. Dreeben, on that, do we defer... does the court of appeals defer to a district judge's determination that this case is unusual?

Ordinarily, I follow the guidelines, but this is not a heartlands case.

This case is unusual.

Do courts of appeals owe deference to taking the case out of the usual box and into the special box?

Mr. Dreeben: I think that they do not, Justice Ginsburg, and I can give you examples of why I think they should not do that.

Many of the determinations of what constitutes the heartland are really determinations about what are the legal requirements that are applicable to sentencing that applicable defendant, or the class of--

Unknown Speaker: Yes, but why doesn't that argue for the answer that sometimes it does and sometimes it doesn't, sometimes it reveals a clear issue of law, sometimes it reveals a mixed issue which would get a more deferential standard?

Mr. Dreeben: --Well, I agree with you that there are two classes of cases, Justice Souter, although for the reasons I've stated I think that the theory of the sentencing guideline system requires that appellate courts make an effort to harmonize the departure--

Unknown Speaker: That's true, but I thought the theory also was that you'd build on the experience of district judges collecting information about what they consider significant enough to depart, the commission itself analyzing that information, and revising the guidelines in light thereof.

I mean, how is a court of appeals supposed to know, as a straight question of law, whether the woman whose first offense it is with the cocaine has five children, was trying to earn money for Christmas, had no one to leave the children with when she goes to prison... you know, the facts of Rivera.

Is a court of appeals supposed to look that up in a statute book about whether that story, which happens to be true, let's say, in this instance... I know some of them wouldn't be true, but suppose it was in this instance.

Is there a statute book or a law book where you look up whether that's unusual or not unusual?

Mr. Dreeben: --Of course the--

Unknown Speaker: What is it a judge is supposed to... you see the problem?

Mr. Dreeben: --I see the problem, and I think it would have been a more difficult problem were we not living with about 8 years of experience under the Sentencing Guidelines and a fairly vast body of appellate case law that has defined the permissible parameters of such departures as family circumstances.

Of course, this case is not at all about a departure like family circumstances.

This case is far closer to the kind of example that the Court considered in Rivera itself.

Are typical needs to make restitution, part of the heartland of embezzlement cases, such that the fact that the defendant will be put in prison and have more difficulty making restitution constitutes a ground for departure?

The court of appeals in that case correctly, in our view, said obviously not, because in the typical embezzlement case it's fairly clear that you're going to have the need for some restitution, and it's obvious that it would be far more difficult to make restitution if you're in prison, so the question of whether typical restitution needs are within the heartland was resolved as one of law.

Other courts have taken a look at... thank you, Mr. Chief Justice.

Unknown Speaker: Thank you, Mr. Dreeben.

Mr. Olson, you have a minute remaining.

Rebuttal of Theodore B. Olson

Mr. Olson: Let me address that point, because in the ad damnum portion of the Rivera case the court indeed sent that back to the district court and said, if you find the need for restitution in that case particularly unusual, please explain your reasons.

Then the court of appeals would examine that and give that whatever deference was appropriate because of the superior feel of the district court with respect to the facts of that case that made it unusual.

The Government is presenting here a sharply discrete and different view of how the Sentencing Guidelines, the Sentencing Commission, the district courts and the appellate courts ought to work.

The Sentencing Commission believes that unless it has... because it is the delegee of legislative authority from Congress, unless it has taken factors off the table, it intends the district courts to look at those factors, explain them, and then when they're abused, when there's an abuse of discretion, that can be corrected in a specific case by an appellate court or it can be corrected in gross by the Sentencing Commission, which examines and processes all of those departure decisions and decides whether it's necessary to amend the guidelines, and it does that on a yearly basis by sending changes and amendments to the guidelines to Congress and... if it's necessary to do that.

Because the Sentencing Commission--

Chief Justice Rehnquist: Thank you, Mr. Olson.

Mr. Olson: --Thank you.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.