A first quick take on the Rita transcript

I have now had a chance to read quickly the oral argument transcript in Rita (first discussed here).  Here are a few first-cut reactions:

1.  Though first QP in Rita asked “Was the district court’s choice of a within-Guidelines sentence reasonable?,” the Court spent most of its time focused on the presumption of reasonableness for within-guideline sentences.

2.  Counsel for defendant Rita from the outset framed the case in general terms that played into the government’s emphasis on the importance of the guidelines to foster sentencing uniformity.  I think counsel should have focused the Court explore the first QP noted above.

3.  Counsel for the Government made concessions about the application of the Booker remedy that seem to be in tension with some of DOJ’s arguments in lower court post-Booker litigation.

4.  There was disturbingly little discussion or exploration of the text of 3553(a).  Because this text seems to favor defendants, I am not surprised the Government avoided it, but I was disappointed this provision was not more central to the defendant’s arguments.

5.  Justice Breyer is clearly interested in continuing a guideline-centric sentencing system, but that’s no surprise.  Questions from other Justices left me unsure about whether others are personally committed to preserving a guideline-centric universe.

6.  I still think Justice Kennedy is an intriguing and uncertain vote in Rita.  As noted here, last week he told Congress that “I am not comfortable with anything in the federal correctional system and with our sentencing policy.”  Is someone who makes this statement, and who has repeatedly lamented the severity of federal sentencing terms, likely to embrace the notion that the federal sentencing guidelines are always presumptively reasonable?