West Law Report

Presumption of Reasonableness of Sentencing

A leading case summery of Harvard Law Review: Rita v. United States (2007) (11 pages)

Sixth Amendment — Federal Sentencing Guidelines — Presumption of Reasonableness

In United States v. Booker, the Supreme Court found that the Federal Sentencing Guidelines violated the Sixth Amendment. It held the Guidelines unconstitutional because they required judges to increase sentences above the level authorized by facts conceded by the defendant or found by a jury beyond a reasonable doubt. Its remedy — making the Guidelines advisory rather than mandatory and changing the standard of review on appeal to reasonableness — created a host of contested legal questions, including whether appellate courts could apply a presumption of reasonableness in reviewing sentences falling within the applicable Guidelines range.

Last Term, in Rita v. United States, the Supreme Court held that an appellate court could apply such a presumption. But by also articulating a weak standard for the requirement that a sentencing judge provide a statement of reasons for the penalty she imposes, the Court
undermined the rationale justifying the presumption. In so doing, i implicitly sanctioned lower court treatment of the Guidelines as de facto mandatory after Booker. To justify an appellate presumption founded on the exercise of independent trial-level judgment and to make real the constitutional promise of Booker, trial judges should be required to express in writing their precise reasons for choosing a particular sentence and rejecting any departures sought by the defendant. In January 2003, Victor Rita purchased a machine gun parts kit from InterOrdnance of America, Inc., the target of a Bureau of Alcohol, Tobacco, Firearms, and Explosives investigation. That October, Rita provided testimony before a grand jury that was contradicted by separate evidence. The government indicted Rita in the United States District Court for the District of North Carolina on various charges, including making false statements under oath to a federal grand jury. The jury convicted Rita on all counts.

Allocation of Factfinding in Sentencing

A leading case summery of Harvard Law Review: Cunningham v. California (2007) (11 page)

Sixth Amendment — Allocation of Factfinding in Sentencing

Apprendi v. New Jersey spawned a series of Supreme Court sentencing decisions which, when viewed together, are at best confusing and at worst contradictory. Commentators and courts have struggled to find a coherent governing principle uniting Apprendi, Blakely v. Washington, and United States v. Booker. The holding in Apprendi, originally described as a “bright-line rule,” has proved anything but. Last Term, in Cunningham v. California, the Court added another chapter to the Apprendi saga when it declared unconstitutional California’s Determinate Sentencing Law (DSL). Justice Ginsburg authored the majority opinion that overturned the California Supreme Court’s determination that the DSL did not differ in any constitutionally relevant way from the Federal Sentencing Guidelines, as revised by Booker.

Although at first blush Cunningham seems to be an ode to meaningless formalism, reading between the lines of its opinions exposes a substantive debate about what the Sixth Amendment means and why it matters. The Court’s decision implicitly protects the role of the jury, so that the voices of individual citizens may serve as a check against the legislature when it diverges from the will of the people.

United States v. Ankeny

Posted in Amendment 4th, search order, sentence by mrkooenglish on May 15, 2008

Richard M. Re’s comment in Yale Law Journal, United States v. Ankeny: Remedying the Fourth Amendment’s Reasonable Manner Requirement.

Better read the case first:

A conviction and sentence for being a felon in possession of a firearm and possession of an unregistered sawed-off shotgun are affirmed in part where, even if knock-and-announce violation and other aspects of a search amounted to Fourth Amendment violations, suppression was not warranted. However, the judgment is reversed in part and vacated in part as to the sentence, as the convictions were multiplicitous and material errors were made at sentencing.


Last Updated: 12:01am GMT 03/01/2008

Court of Appeal (Criminal Division)
Moore-Bick LJ, Wilkie J and the Recorder of Chester
December 18, 2007

Admissibility – Consent – Criminal evidence – Cross-examination – Prosecution evidence – Prosecution witnesses – Rape – Sentence length – s. 41 Youth Justice and Criminal Evidence Act 1999 – s. 41(5) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(c)(i) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(a) Youth Justice and Criminal Evidence Act 1999 – Art. 6 European Convention on Human Rights 1950


The appellant (H) appealed against a conviction for rape and the consequent sentence of imprisonment for public protection with a minimum term of five years. The victim (V) had been on a night out and was separated from her boyfriend (B) following an argument. On her way home, H drew alongside her in his truck and offered her a lift, which she accepted. V alleged that once inside the truck, H drove to some wasteland and proceeded to rape her. H accepted that he sometimes drove around late at night seeking sexual activity, but denied that he had raped V. He asserted that V had initiated the sexual activity and that she had become angry when he refused to participate in certain activities. The accounts provided by V and H differed greatly, providing the jury with the sole issue of whom to believe.

The judge acceded to H’s application to adduce evidence of aspects of V’s previous sexual behaviour under the Youth Justice and Criminal Evidence Act 1999 s. 41. However, the judge refused to admit evidence from a witness (W) about a sexual relationship he had had with V approximately two months before the alleged rape when V was with B. V had stated during cross-examination that she had never had relations with other people whilst seeing B. The judge ruled that W’s evidence did not have any probative value.

H submitted that

  1. the judge erred in excluding W’s evidence to the effect that V did have sexual relations with other men whilst she was seeing B and that, as a consequence, his conviction was unsafe. He argued that V’s assertion in cross-examination fell within s. 41(5) of the Act as evidence adduced by the prosecution, so that W’s evidence should have been admitted to prevent the jury being misled as to V’s sexual inclinations. Alternatively, H argued that events described in W’s evidence were similar to that which occurred in the instant case so that the latter ought to have been admitted under s. 41(3)(c)(i) of the Act;
  2. the judge was wrong to conclude that B posed a significant risk of serious harm to the public, and argued that a notional determinate sentence of 10 years was manifestly excessive.


Whether evidence provided by a prosecution witness under cross-examination by defence counsel was not evidence to which the Youth Justice and Criminal Evidence Act 1999 s. 41 was aimed when given its natural meaning, and could not be extended to cover such evidence.

HELD (appeal allowed in part)

(1) The test of admissibility to be applied under s. 41(3)(a) of the Act was whether the evidence sought to be adduced was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial required by the European Convention on Human Rights 1950 Art. 6.

The wider principle was that the importance of protecting complainants from indignity and humiliating questions to which s. 41 was directed had to give way to the right to a fair trial, R v A (Complainant’s Sexual History) [2001] UKHL 25, [2002] 1 AC 45 considered. However, in R v A, the application was made by the defendant in relation to previous sexual intercourse he had had with the complainant. Allegations of a previous consensual relationship with an accused raised considerations of a different nature to that of a previous relationship with a third party, R v White (Andre Barrington) [2004] EWCA Crim 946, (2004) 148 SJLB 300 considered.

It was clear that V’s evidence that she was faithful to B at all times in their relationship amounted to evidence about her sexual behaviour, but it was questionable as to whether it fell within s. 41(5) of the Act as asserted by H. In the context of the instant case, “evidence adduced by the prosecution” within s. 41(5) of the Act, given its natural meaning, meant evidence placed before the jury by a prosecution witness as part of the evidence-in-chief and of other witnesses in the course of cross-examination by the prosecution. It did not naturally extend to evidence given by prosecution witnesses under cross-examination by the defence. Therefore, it could not be extended to cover all evidence given by prosecution witnesses as contended for by H. Further, the similarities identified by H could not reasonably be explained as a coincidence having regard to the background to the case, and the evidence was not truly probative in relation to the issue of consent.

(2) Before his conviction, H was a man of good character with a stable family background and had not demonstrated any pattern of offending. However a pre-sentence report concluded that H remained at a high risk of repeating similar offences in the light of H’s own description of his nocturnal activities. It was inappropriate to interfere with the conclusions of a sentencer where the sentencer accurately identified the relevant principles and applied his mind to the relevant facts. However, the aggravating features identified by the judge were not so significant as to warrant the minimum term imposed. Accordingly, the minimum term would be reduced to four years’ imprisonment.

Edward Fitzgerald QC and Paul Taylor (instructed by Michael Henderson & Co) for the appellant. Bruce Houlder QC and Timothy Gittins (instructed by Crown Prosecution Service) for the respondent.


Posted in Criminal Justice Act, Murder, sentence, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 1:26AM BST 07/06/2007
Queen’s Bench Division
Rafferty J
May 23, 2007

May 17, 2007 Minimum term – Murder – Setting appropriate minimum term – Criminal Justice Act 2003


The court was required to determine the minimum term to be served by the offender (K) who had been sentenced to life imprisonment for murder. The victim (V), who had been aged 17, had been shot in his neck whilst sat in a parked car and had had a gold chain stolen by two assailants on bicycles. K was subsequently seen with bloodstained clothing in possession of V’s necklace. K denied the offence and stated that he had been at his sister’s house at the time. The trial judge concluded that K had been both the gunman and the individual who stole the necklace. The trial judge recommended a minimum term of 14 years, which was also recommended by the Lord Chief Justice and adopted by the secretary of state. K contended that there was no intention to kill, only to cause grievous bodily harm, and that the appropriate minimum term was therefore 13 years.


Determination of the minimum term to be served by K who had been sentenced to life imprisonment for murder.

HELD (judgment accordingly)

Under the Criminal Justice Act 2003 the starting point would have been 30 years. The contention that there was no intention to kill was not accepted and the progress made in prison was not so significant so as to reduce the period. There was no reason to disagree with the recommendation of the trial judge, the Lord Chief Justice and the secretary of state. The appropriate minimum term was 14 years’ imprisonment.

A Gee QC and A Lowcock (instructed by the Crown Prosecution Service) for the Crown. P Birkett QC and P Dockery (instructed by Michael Purdon, Newcastle-upon-Tyne) for the defendant.


Posted in Criminal Justice Act, Murder, sentence, Westlaw Reports by mrkooenglish on May 2, 2008

Last Updated: 1:26AM BST 07/06/2007
Queen’s Bench Division
Rafferty J
May 17, 2007

Mandatory life imprisonment – Minimum term – Murder – Robbery – Savage attack Defenceless victim – Danger to public – Criminal Justice Act 2003


The court was required to determine the minimum term to be served by the offender (X) who had been sentenced to life imprisonment following his conviction for murder. Prior to the commencement of the Criminal Justice Act 2003, X and his sister had met the victim (V) and gone with him to a public house where V had bought them drinks. The bar staff told of V being harassed and of X saying that he knew V had some more money. That evening, X was seen dragging V towards an alley leading to a car park. In the car park X punched and kicked V’s head and repeatedly and forcibly stamped on his face and head. V died from ingesting blood from his facial injuries. When the police found V’s body, all his pockets had been rifled and no money was on or near to him. At that point X was in a nearby public house buying drinks. The trial judge found as aggravating features that it was a savage merciless sustained attack on a defenceless man on the ground, the motive was robbery and the savagery indicated that X might be a danger to the public if prematurely released. The judge considered mitigating factors to be X’s youth and his earlier unsettled life. The trial judge recommended a minimum term of 12 years and the Lord Chief Justice recommended 14 or 15 years. The secretary of state set a term of 15 years.


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Determination of the minimum term to be served by X who had been sentenced to life imprisonment following his conviction for murder.

HELD (judgment accordingly)

As the offence had been committed prior to the commencement of the Act, the appropriate starting point was to consider the practice of the Lord Chief Justice at that time which took 14 years as the period to be served for a “normal” murder. The starting point under the current regime was 15 years. The aggravating and mitigating features were those as set out by the trial judge whose conclusions were adopted. There was no reason to depart from his assessment and it was therefore appropriate to impose a minimum term of 12 years.

J D Hall QC and J I Hillis (instructed by the Crown Prosecution Service) for the Crown. K R Keen QC and R N Sheldon (instructed by Jack Danaher & Co, Barnsley) for the defendant.