RITA v. UNITED STATES

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Syllabus
RITA v. UNITED STATES
certiorari to the united states court of appeals for
the fourth circuit
No. 06–5754. Argued February 20, 2007—Decided June 21, 2007
Petitioner Rita sought a sentence lower than the recommended Federal
Guidelines range of 33 to 41 months based on his physical condition,
likely vulnerability in prison, and military experience. The judge con
cluded that the appropriate sentence was 33 months, the bottom of the
Guidelines range. In affirming, the Fourth Circuit observed that a sen
tence imposed within a properly calculated Guidelines range is presump
tively reasonable.
Held:
1. A court of appeals may apply a presumption of reasonableness to
a district court sentence within the Guidelines. Pp. 347–356.
(a) Such a presumption is not binding. It does not reflect strong
judicial deference of the kind that leads appeals courts to grant greater
factfinding leeway to an expert agency than to a district judge. It re
flects the nature of the Guidelines-writing task that Congress set for
the Sentencing Commission and how the Commission carries out that
task. In 18 U. S. C. § 3553(a), Congress instructed the sentencing judge
to consider (1) offense and offender characteristics; (2) the need for a
sentence to reflect the basic aims of sentencing; (3) the sentences legally
available; (4) the Sentencing Guidelines; (5) Sentencing Commission pol
icy statements; (6) the need to avoid unwarranted disparities; and
(7) the need for restitution. Statutes then tell the Commission to write
Guidelines that will carry out the same basic § 3553(a) objectives. The
Guidelines as written reflect the fact that the Sentencing Commission
examined tens of thousands of sentences and had the help of the law
enforcement community over a long period in an effort to fulfill this
statutory mandate. They also reflect the fact that judges (and others)
can differ as to how best to reconcile the disparate ends of punishment.
The resulting Guidelines seek to embody the § 3553(a) considerations,
both in principle and in practice, and it is fair to assume that they, inso
far as practicable, reflect a rough approximation of sentences that might
achieve § 3553(a)’s objectives. An individual sentence reflects the sen
tencing judge’s determination that the Commission’s application of
§ 3553(a) is appropriate in the mine run of cases, that the individual case
does not differ significantly, and consequently that a Guidelines sentence
reflects a proper application of § 3553(a) in the case at hand. The “rea

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sonableness” presumption simply recognizes these real-world circum
stances. It applies only on appellate review. The sentencing court
does not enjoy the presumption’s benefit when determining the merits
of the arguments by prosecution or defense that a Guidelines sentence
should not apply. Pp. 347–351.
(b) Even if the presumption increases the likelihood that the judge,
not the jury, will find “sentencing facts,” it does not violate the Sixth
Amendment. This Court’s Sixth Amendment cases do not forbid a sen
tencing court to take account of factual matters not determined by a
jury and increase the sentence accordingly to take account of the Sen
tencing Commission’s factual findings or recommended sentences. The
relevant Sixth Amendment inquiry is whether a law forbids a judge to
increase a sentence unless the judge finds facts that the jury did not
find. A nonbinding appellate reasonableness presumption for Guide
lines sentences does not require the sentencing judge to impose a Guide
lines sentence. Still less does it forbid the judge to impose a sentence
higher than the Guidelines provide for the jury-determined facts stand
ing alone. In addition, any general conflict between § 3553(a) and the
Guidelines for appellate review purposes is alleviated where judge and
Commission both determine that the Guidelines sentence is appropriate
in the case at hand, for that sentence likely reflects § 3553(a)’s factors.
Pp. 352–356.
2. The District Court properly analyzed the relevant sentencing fac
tors, and given the record, its ultimate sentence was reasonable. Sec
tion 3553(c) calls for the judge to “state” his “reasons,” but does not
insist on a full opinion in every case. The appropriateness of brevity
or length, conciseness or detail, when to write, what to say, depends
upon circumstances. The law leaves much, in this respect, to the
judge’s own professional judgment. In the present context, the sen
tencing judge should articulate enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority. He may say less
when his decision rests upon the Commission’s own reasoning that the
Guidelines sentence is proper in the typical case, and the judge has
found that the case before him is typical. But where a party presents
nonfrivolous reasons for imposing a different sentence, the judge will
normally go further and explain why he has rejected those arguments.
Here, the sentencing judge’s statement of reasons was brief but legally
sufficient. The record makes clear that the judge listened to each of
Rita’s arguments for a downward departure and considered the support
ing evidence before finding those circumstances insufficient to warrant
a sentence lower than the Guidelines range. Where, as here, the matter
is conceptually simple and the record makes clear that the sentencing

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340 RITA v. UNITED STATES
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judge considered the evidence and arguments, the law does not require
a judge to write more extensively. Pp. 356–359.
3. The Fourth Circuit, after applying the presumption, was legally
correct in holding that Rita’s sentence was not “unreasonable.” Like
the District Court and the Fourth Circuit, this Court simply cannot
say that Rita’s special circumstances—his health, fear of retaliation, and
military record—are special enough, in light of § 3553(a), to require a
sentence lower than the one the Guidelines provide. Rita’s argument
that the Guidelines sentence is not reasonable under § 3553(a) because
it expressly declines to consider various personal characteristics, such
as his physical condition, employment record, and military service, was
not raised below and will not be considered here. Pp. 359–360.
177 Fed. Appx. 357, affirmed.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Kennedy, Ginsburg, and Alito, JJ., joined, and in which
Scalia and Thomas, JJ., joined as to Part III. Stevens, J., filed a con
curring opinion, in which Ginsburg, J., joined as to all but Part II, post,
p. 360. Scalia, J., filed an opinion concurring in part and concurring in
the judgment, in which Thomas, J., joined, post, p. 368. Souter, J., filed
a dissenting opinion, post, p. 384.
Thomas N. Cochran argued the cause for petitioner.
With him on the briefs were Louis C. Allen III, William
C. Ingram, Elizabeth A. Flagg, Jeffrey T. Green, Robert N.
Hochman, and Eric A. Shumsky.
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the brief were Solicitor
General Clement, Assistant Attorney General Fisher, Dan
Himmelfarb, Matthew D. Roberts, Nina Goodman, and Jef
frey P. Singdahlsen.*
*Briefs of amici curiae urging reversal were filed for Families Against
Mandatory Minimums by Gregory L. Poe, Mary Price, and Peter Gold
berger; for Federal Public and Community Defenders et al. by Thomas W.
Hillier II, Amy Baron-Evans, Laura E. Mate, and Sara E. Noonan; for
the National Association of Criminal Defense Lawyers by Miguel A. Es
trada, David Debold, and Jeffrey L. Fisher; for the National Veterans
Legal Services Program et al. by Louis R. Cohen and Jonathan Nuechter
lein; for the New York Council of Defense Lawyers by Alexandra A. E.
Shapiro and Paul H. Schwartz; for the Washington Legal Foundation

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Opinion of the Court
Justice Breyer delivered the opinion of the Court.
The federal courts of appeals review federal sentences and
set aside those they find “unreasonable.” See, e. g., United
States v. Booker, 543 U. S. 220, 261–263 (2005). Several Cir
cuits have held that, when doing so, they will presume that a
sentence imposed within a properly calculated United States
Sentencing Guidelines range is a reasonable sentence. See,
e. g., 177 Fed. Appx. 357, 358 (CA4 2006) (per curiam) (case
below); see also United States Sentencing Commission,
Guidelines Manual (Nov. 2006) (USSG or Guidelines). The
most important question before us is whether the law per
mits the courts of appeals to use this presumption. We hold
that it does.
I
A
The basic crime in this case concerns two false statements
which Victor Rita, the petitioner, made under oath to a fed
eral grand jury. The jury was investigating a gun company
called InterOrdnance. Prosecutors believed that buyers of
an InterOrdnance kit, called a “PPSH 41 machinegun ‘parts
kit,’ ” could assemble a machinegun from the kit, that those
kits consequently amounted to machineguns, and that Inter-
Ordnance had not secured proper registrations for the im
portation of the guns. App. 7, 16–19, 21–22.
Rita had bought a PPSH 41 machinegun parts kit. Rita,
when contacted by the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF), agreed to let a federal agent inspect
the kit. Id., at 119–120; Supp. App. 5–8. But before meet
ing with the agent, Rita called InterOrdnance and then sent
et al. by Daniel J. Popeo and Paul D. Kamenar; and for Marc L. Miller
et al. by Mr. Miller, pro se, Robert B. Fiske, Earl J. Silbert, and Peter
Vaira.
Briefs of amici curiae were filed for Law Professors Who Study Sen
tencing Reform by Edward S. Lee; and for the United States Sentencing
Commission by David C. Frederick and Pamela O. Barron.

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back the kit. He subsequently turned over to ATF a differ
ent kit that apparently did not amount to a machinegun.
App. 23–24, 120; Supp. App. 2–5, 8–10, 13–14.
The investigating prosecutor brought Rita before the
grand jury, placed him under oath, and asked him about
these matters. Rita denied that the Government agent had
asked him for the PPSH kit, and also denied that he had
spoken soon thereafter about the PPSH kit to someone at
InterOrdnance. App. 19, 120–121; Supp. App. 11–12. The
Government claimed these statements were false, charged
Rita with perjury, making false statements, and obstructing
justice, and, after a jury trial, obtained convictions on all
counts. App. 7–13, 94, 103.
B
The parties subsequently proceeded to sentencing. Ini
tially, a probation officer, with the help of the parties, and
after investigating the background both of the offenses and
of the offender, prepared a presentence report. See Fed.
Rules Crim. Proc. 32(c)–(d); 18 U. S. C. § 3552(a). The com
pleted report describes “offense characteristics,” “offender
characteristics,” and other matters that might be relevant to
the sentence, and then calculates a Guidelines sentence.
The report also sets forth factors potentially relevant to a
departure from the Guidelines or relevant to the imposition
of an other-than-Guidelines sentence. It ultimately makes a
sentencing recommendation based on the Guidelines. App.
115–136.
In respect to “offense characteristics,” for example, the
report points out that the five counts of conviction all stem
from a single incident. Id., at 122. Hence, pursuant to the
Guidelines, the report, in calculating a recommended sen
tence, groups the five counts of conviction together, treating
them as if they amounted to the single most serious count
among them (and ignoring all others). See USSG § 3D1.1.
The single most serious offense in Rita’s case is “perjury.”

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The relevant Guideline, § 2J1.3(c)(1), instructs the sentencing
court (and the probation officer) to calculate the Guidelines
sentence for “perjury . . . in respect to a criminal offense” by
applying the Guideline for an “accessory after the fact,” as
to that criminal offense, § 2X3.1. And that latter Guideline
says that the judge, for calculation purposes, should take as
a base offense level, a level that is “6 levels lower than the
offense level for the underlying offense” (emphasis added)
(the offense that the perjury may have helped someone com
mit). Here the “underlying offense” consisted of InterOrd
nance’s possible violation of the machinegun registration law.
App. 124; USSG § 2M5.2 (providing sentence for violation of
22 U. S. C. § 2778(b)(2), importation of defense articles with
out authorization). The base offense level for the gun regis
tration crime is 26. See USSG § 2M5.2. Six levels less is
20. And 20, says the presentence report, is the base offense
level applicable to Rita for purposes of Guidelines sentence
calculation. App. 45.
The presentence report next considers Rita’s “Criminal
History.” Id., at 125. Rita was convicted in May 1986, and
sentenced to five years’ probation for making false state
ments in connection with the purchase of firearms. Because
this conviction took place more than 10 years before the
present offense, it did not count against Rita. And because
Rita had no other relevant convictions, the Guidelines consid
ered him as having no “criminal history points.” Ibid. The
report consequently places Rita in criminal history category
I, the lowest category for purposes of calculating a Guide
lines’ sentence.
The report goes on to describe other “Offender Character
istics.” Id., at 126. The description includes Rita’s per
sonal and family data, Rita’s physical condition (including a
detailed description of ailments), Rita’s mental and emotional
health, the lack of any history of substance abuse, Rita’s vo
cational and nonvocational education, and Rita’s employment
record. It states that he served in the Armed Forces for

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over 25 years, on active duty and in the Reserve. During
that time he received 35 commendations, awards, or medals
of different kinds. The report analyzes Rita’s financial con
dition. Id., at 126–132.
Ultimately, the report calculates the Guidelines sentencing
range. Id., at 132. The Guidelines specify for base level 20,
criminal history category I, a sentence of 33-to-41 months’
imprisonment. Ibid. The report adds that there “appears
to be no circumstance or combination of circumstances that
warrant a departure from the prescribed sentencing guide
lines.” Id., at 133.
C
At the sentencing hearing, both Rita and the Government
presented their sentencing arguments. Each side addressed
the report. Rita argued for a sentence outside (and lower
than) the recommended Guidelines 33-to-41 month range.
The judge made clear that Rita’s argument for a lower
sentence could take either of two forms. First, Rita might
argue within the Guidelines’ framework, for a departure
from the applicable Guidelines range on the ground that his
circumstances present an “atypical case” that falls outside
the “heartland” to which the United States Sentencing Com
mission intends each individual Guideline to apply. USSG
§ 5K2.0(a)(2). Second, Rita might argue that, independent
of the Guidelines, application of the sentencing factors set
forth in 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV) warrants
a lower sentence. See Booker, 543 U. S., at 259–260.
Thus, the judge asked Rita’s counsel, “Are you going to
put on evidence to show that [Rita] should be getting a down
ward departure, or under 3553, your client would be entitled
to a different sentence than he should get under sentencing
guidelines?” App. 52. And the judge later summarized:
“[Y]ou’re asking for a departure from the guidelines or
a sentence under 3553 that is lower than the guidelines,
and here are the reasons:

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“One, he is a vulnerable defendant because he’s been
involved in [government criminal justice] work which
has caused people to become convicted criminals who
are in prison and there may be retribution against him.
“Two, his military experience . . . .” Id., at 64–65.
Counsel agreed, while adding that Rita’s poor physical condi
tion constituted a third reason. And counsel said that he
rested his claim for a lower sentence on “[j]ust [those] three”
special circumstances, “[p]hysical condition, vulnerability in
prison and the military service.” Id., at 65. Rita presented
evidence and argument related to these three factors. The
Government, while not asking for a sentence higher than the
report’s recommended Guidelines range, said that Rita’s per
jury had interfered with the Government’s potential “ob
struction of justice” claim against InterOrdnance and that
Rita, as a former Government criminal justice employee,
should have known better than to commit perjury. Id., at
74–77. The sentencing judge asked questions about each
factor.
After hearing the arguments, the judge concluded that he
was “unable to find that the [report’s recommended] sentenc
ing guideline range . . . is an inappropriate guideline range
for that, and under 3553 . . . the public needs to be protected
if it is true, and I must accept as true the jury verdict.” Id.,
at 87. The court concluded: “So the Court finds that it is
appropriate to enter” a sentence at the bottom of the Guide
lines range, namely, a sentence of imprisonment “for a period
of 33 months.” Ibid.
D
On appeal, Rita argued that his 33-month sentence was
“unreasonable” because (1) it did not adequately take account
of “the defendant’s history and characteristics,” and (2) it
“is greater than necessary to comply with the purposes of
sentencing set forth in 18 U. S. C. § 3553(a)(2).” Brief for
Appellant in No. 05–4674 (CA4), pp. i, 8. The Fourth Circuit

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observed that it must set aside a sentence that is not “rea
sonable.” The Circuit stated that “a sentence imposed
within the properly calculated Guidelines range . . . is pre
sumptively reasonable.” 177 Fed. Appx., at 358 (internal
quotation marks and citations omitted). It added that
“while we believe that the appropriate circumstances for im
posing a sentence outside the guideline range will depend on
the facts of individual cases, we have no reason to doubt
that most sentences will continue to fall within the applicable
guideline range.” The Fourth Circuit then rejected Rita’s
arguments and upheld the sentence. Ibid. (internal quota
tion marks omitted).
E
Rita petitioned for a writ of certiorari. He pointed out
that the Circuits are split as to the use of a presumption of
reasonableness for within-Guidelines sentences. Compare
United States v. Dorcely, 454 F. 3d 366, 376 (CADC 2006)
(uses presumption); United States v. Green, 436 F. 3d 449,
457 (CA4 2006) (same); United States v. Alonzo, 435 F. 3d
551, 554 (CA5 2006) (same); United States v. Williams, 436
F. 3d 706, 708 (CA6 2006) (same); United States v. Mykytiuk,
415 F. 3d 606, 608 (CA7 2005) (same); United States v. Lin
coln, 413 F. 3d 716, 717 (CA8 2005) (same); and United States
v. Kristl, 437 F. 3d 1050, 1053–1054 (CA10 2006) (per curiam)
(same), with United States v. Jimenez-Beltre, 440 F. 3d 514,
518 (CA1 2006) (en banc) (does not use presumption); United
States v. Fernandez, 443 F. 3d 19, 27 (CA2 2006) (same);
United States v. Cooper, 437 F. 3d 324, 331 (CA3 2006)
(same); and United States v. Talley, 431 F. 3d 784, 788 (CA11
2005) (per curiam) (same).
We consequently granted Rita’s petition. We agreed to
decide whether a court of appeals may afford a “presumption
of reasonableness” to a “within-Guidelines” sentence. We
also agreed to decide whether the District Court properly
analyzed the relevant sentencing factors and whether, given

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the record, the District Court’s ultimate choice of a 33-month
sentence was “unreasonable.”
II
The first question is whether a court of appeals may apply
a presumption of reasonableness to a district court sentence
that reflects a proper application of the Sentencing Guide
lines. We conclude that it can.
A
For one thing, the presumption is not binding. It does
not, like a trial-related evidentiary presumption, insist that
one side, or the other, shoulder a particular burden of persua
sion or proof lest they lose their case. Cf., e. g., Raytheon
Co. v. Hernandez, 540 U. S. 44, 49–50, n. 3 (2003) (citing
Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133,
143 (2000), and McDonnell Douglas Corp. v. Green, 411 U. S.
792, 802 (1973)). Nor does the presumption reflect strong
judicial deference of the kind that leads appeals courts to
grant greater factfinding leeway to an expert agency than to
a district judge. Rather, the presumption reflects the fact
that, by the time an appeals court is considering a within-
Guidelines sentence on review, both the sentencing judge and
the Sentencing Commission will have reached the same con
clusion as to the proper sentence in the particular case.
That double determination significantly increases the likeli
hood that the sentence is a reasonable one.
Further, the presumption reflects the nature of the
Guidelines-writing task that Congress set for the Commis
sion and the manner in which the Commission carried out
that task. In instructing both the sentencing judge and the
Commission what to do, Congress referred to the basic sen
tencing objectives that the statute sets forth in 18 U. S. C.
§ 3553(a) (2000 ed. and Supp. IV). That provision tells the
sentencing judge to consider (1) offense and offender charac
teristics; (2) the need for a sentence to reflect the basic aims

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of sentencing, namely, (a) “just punishment” (retribution),
(b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the
sentences legally available; (4) the Sentencing Guidelines;
(5) Sentencing Commission policy statements; (6) the need to
avoid unwarranted disparities; and (7) the need for restitu
tion. The provision also tells the sentencing judge to “im
pose a sentence sufficient, but not greater than necessary, to
comply with” the basic aims of sentencing as set out above.
Congressional statutes then tell the Commission to write
Guidelines that will carry out these same § 3553(a) objec
tives. Thus, 28 U. S. C. § 991(b) indicates that one of the
Commission’s basic objectives is to “assure the meeting of
the purposes of sentencing as set forth in [§ 3553(a)(2)].”
The provision adds that the Commission must seek to “pro
vide certainty and fairness” in sentencing, to “avoi[d] unwar
ranted sentencing disparities,” to “maintai[n] sufficient flex
ibility to permit individualized sentences when warranted by
mitigating or aggravating factors not taken into account in
the establishment of general sentencing practices,” and to
“reflect, to the extent practicable, [sentencing-relevant] ad
vancement in [the] knowledge of human behavior.” Later
provisions specifically instruct the Commission to write the
Guidelines with reference to this statement of purposes, the
statement that itself refers to § 3553(a). See 28 U. S. C.
§§ 994(f), 994(m).
The upshot is that the sentencing statutes envision both
the sentencing judge and the Commission as carrying out the
same basic § 3553(a) objectives, the one, at retail, the other
at wholesale.
The Commission has made a serious, sometimes controver
sial, effort to carry out this mandate. The Commission, in
describing its Guidelines-writing efforts, refers to these
same statutory provisions. It says that it has tried to em
body in the Guidelines the factors and considerations set
forth in § 3553(a). The Commission’s introductory state
ment recognizes that Congress “foresees guidelines that will

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further the basic purposes of criminal punishment, i. e., de
terring crime, incapacitating the offender, providing just
punishment, and rehabilitating the offender.” USSG § 1A1.1,
intro. to comment., pt. A, ¶ 2 (The Statutory Mission). It
adds that Congress “sought uniformity in sentencing by
narrowing the wide disparity in sentences imposed by differ
ent federal courts for similar criminal conduct,” as well as
“proportionality in sentencing through a system that im
poses appropriately different sentences for criminal conduct
of different severity.” Id., ¶ 3, at 2 (The Basic Approach).
The Guidelines commentary explains how, despite consid
erable disagreement within the criminal justice community,
the Commission has gone about writing Guidelines that it
intends to embody these ends. It says, for example, that
the goals of uniformity and proportionality often conflict.
The commentary describes the difficulties involved in devel
oping a practical sentencing system that sensibly reconciles
the two ends. It adds that a “philosophical problem arose
when the Commission attempted to reconcile the differing
perceptions of the purposes of criminal punishment.” Some
would emphasize moral culpability and “just punishment”;
others would emphasize the need for “crime control. ”
Rather than choose among differing practical and philosophi
cal objectives, the Commission took an “empirical approach,”
beginning with an empirical examination of 10,000 presen
tence reports setting forth what judges had done in the past
and then modifying and adjusting past practice in the inter
ests of greater rationality, avoiding inconsistency, complying
with congressional instructions, and the like. Id., ¶ 3, at 3.
The Guidelines as written reflect the fact that the Sentenc
ing Commission examined tens of thousands of sentences and
worked with the help of many others in the law enforcement
community over a long period of time in an effort to fulfill
this statutory mandate. They also reflect the fact that dif
ferent judges (and others) can differ as to how best to recon
cile the disparate ends of punishment.

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The Commission’s work is ongoing. The statutes and the
Guidelines themselves foresee continuous evolution helped
by the sentencing courts and courts of appeals in that proc
ess. The sentencing courts, applying the Guidelines in indi
vidual cases, may depart (either pursuant to the Guidelines
or, since Booker, by imposing a non-Guidelines sentence).
The judges will set forth their reasons. The courts of ap
peals will determine the reasonableness of the resulting sen
tence. The Commission will collect and examine the results.
In doing so, it may obtain advice from prosecutors, defend
ers, law enforcement groups, civil liberties associations, ex
perts in penology, and others. And it can revise the Guide
lines accordingly. See generally 28 U. S. C. § 994(p) and note
following § 994 (Commission should review and amend Guide
lines as necessary, and Congress has power to revoke or
amend Guidelines); Mistretta v. United States, 488 U. S. 361,
393–394 (1989); USSG § 1B1.10(c) (listing 24 amendments
promulgated in response to evolving sentencing concerns);
USSG § 1A1.1, comment.
The result is a set of Guidelines that seek to embody the
§ 3553(a) considerations, both in principle and in practice.
Given the difficulties of doing so, the abstract and potentially
conflicting nature of § 3553(a)’s general sentencing objectives,
and the differences of philosophical view among those who
work within the criminal justice community as to how best
to apply general sentencing objectives, it is fair to assume
that the Guidelines, insofar as practicable, reflect a rough
approximation of sentences that might achieve § 3553(a)’s
objectives.
An individual judge who imposes a sentence within the
range recommended by the Guidelines thus makes a decision
that is fully consistent with the Commission’s judgment in
general. Despite Justice Souter’s fears to the contrary,
post, at 390–392 (dissenting opinion), the courts of appeals’
“reasonableness” presumption, rather than having independ
ent legal effect, simply recognizes the real-world circum

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stance that when the judge’s discretionary decision accords
with the Commission’s view of the appropriate application of
§ 3553(a) in the mine run of cases, it is probable that the
sentence is reasonable. Indeed, even the Circuits that have
declined to adopt a formal presumption also recognize that
a Guidelines sentence will usually be reasonable, because it
reflects both the Commission’s and the sentencing court’s
judgment as to what is an appropriate sentence for a given
offender. See Fernandez, 443 F. 3d, at 27; Cooper, 437 F. 3d,
at 331; Talley, 431 F. 3d, at 788.
We repeat that the presumption before us is an appellate
court presumption. Given our explanation in Booker that
appellate “reasonableness” review merely asks whether the
trial court abused its discretion, the presumption applies
only on appellate review. The sentencing judge, as a matter
of process, will normally begin by considering the presen
tence report and its interpretation of the Guidelines. 18
U. S. C. § 3552(a); Fed. Rule Crim. Proc. 32. He may hear
arguments by prosecution or defense that the Guidelines
sentence should not apply, perhaps because (as the Guide
lines themselves foresee) the case at hand falls outside the
“heartland” to which the Commission intends individual
Guidelines to apply, USSG § 5K2.0, perhaps because the
Guidelines sentence itself fails properly to reflect § 3553(a)
considerations, or perhaps because the case warrants a dif
ferent sentence regardless, see Rule 32(f). Thus, the sen
tencing court subjects the defendant’s sentence to the thor
ough adversarial testing contemplated by federal sentencing
procedure. See Rules 32(f), (h), (i)(1)(C), and (i)(1)(D); see
also Burns v. United States, 501 U. S. 129, 136 (1991) (recog
nizing importance of notice and meaningful opportunity to
be heard at sentencing). In determining the merits of these
arguments, the sentencing court does not enjoy the benefit
of a legal presumption that the Guidelines sentence should
apply. Booker, 543 U. S., at 259–260.

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352 RITA v. UNITED STATES
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B
Rita and his supporting amici make two further argu
ments against use of the presumption. First, Rita points
out that many individual Guidelines apply higher sentences
in the presence of special facts, for example, brandishing
a weapon. In many cases, the sentencing judge, not the
jury, will determine the existence of those facts. A pro-
Guidelines “presumption of reasonableness” will increase the
likelihood that courts of appeals will affirm such sentences,
thereby increasing the likelihood that sentencing judges will
impose such sentences. For that reason, Rita says, the pre
sumption raises Sixth Amendment “concerns.” Brief for
Petitioner 28.
In our view, however, the presumption, even if it increases
the likelihood that the judge, not the jury, will find “sentenc
ing facts,” does not violate the Sixth Amendment. This
Court’s Sixth Amendment cases do not automatically forbid
a sentencing court to take account of factual matters not de
termined by a jury and to increase the sentence in conse
quence. Nor do they prohibit the sentencing judge from
taking account of the Sentencing Commission’s factual find
ings or recommended sentences. See Cunningham v. Cali
fornia, 549 U. S. 270, 281–282 (2007) (citing Booker, supra,
at 243–244; Blakely v. Washington, 542 U. S. 296, 304–
305 (2004); Ring v. Arizona, 536 U. S. 584, 602 (2002); and
Apprendi v. New Jersey, 530 U. S. 466, 471 (2000)).
The Sixth Amendment question, the Court has said, is
whether the law forbids a judge to increase a defendant’s
sentence unless the judge finds facts that the jury did not
find (and the offender did not concede). Blakely, supra, at
303–304 (“When a judge inflicts punishment that the jury’s
verdict alone does not allow, the jury has not found all the
facts which the law makes essential to the punishment and
the judge exceeds his proper authority” (internal quotation
marks and citation omitted)); see Cunningham, supra, at
283–284 (discussing Blakely) (“The judge could not have sen

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tenced Blakely above the standard range without finding the
additional fact of deliberate cruelty,” “[b]ecause the judge in
Blakely’s case could not have imposed a sentence outside the
standard range without finding an additional fact, the top of
that range . . . was the relevant” maximum sentence for Sixth
Amendment purposes); Booker, 543 U. S., at 244 (“Any fact
(other than a prior conviction) which is necessary to support
a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a rea
sonable doubt”); id., at 232 (discussing Blakely) (“We re
jected the State’s argument that the jury verdict was suffi
cient to authorize a sentence within the general 10-year
sentence for class B felonies, noting that under Washington
law, the judge was required to find additional facts in order
to impose the greater 90-month sentence” (emphasis in
original)).
A nonbinding appellate presumption that a Guidelines sen
tence is reasonable does not require the sentencing judge to
impose that sentence. Still less does it prohibit the sentenc
ing judge from imposing a sentence higher than the Guide
lines provide for the jury-determined facts standing alone.
As far as the law is concerned, the judge could disregard
the Guidelines and apply the same sentence (higher than the
statutory minimum or the bottom of the unenhanced Guide
lines range) in the absence of the special facts (say, gun bran
dishing) which, in the view of the Sentencing Commission,
would warrant a higher sentence within the statutorily per
missible range. Thus, our Sixth Amendment cases do not
forbid appellate court use of the presumption.
Justice Scalia concedes that the Sixth Amendment con
cerns he foresees are not presented by this case. Post, at
373–374 (opinion concurring in part and concurring in judg
ment). And his need to rely on hypotheticals to make his
point is consistent with our view that the approach adopted
here will not “raise a multitude of constitutional problems.”

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Clark v. Martinez, 543 U. S. 371, 380–381 (2005). Similarly,
Justice Scalia agrees that we have never held that “the
Sixth Amendment prohibits judges from ever finding any
facts” relevant to sentencing. Post, at 373. In sentencing,
as in other areas, district judges at times make mistakes that
are substantive. At times, they will impose sentences that
are unreasonable. Circuit courts exist to correct such mis
takes when they occur. Our decision in Booker recognized
as much, 543 U. S., at 260–264. Booker held unconstitutional
that portion of the Guidelines that made them mandatory.
Id., at 233–234, 243–244. It also recognized that when dis
trict courts impose discretionary sentences, which are re
viewed under normal appellate principles by courts of ap
peals, such a sentencing scheme will ordinarily raise no Sixth
Amendment concern. Ibid.; see id., at 233 (opinion for the
Court by Stevens, J.) (“Indeed, everyone agrees that the
constitutional issues presented by these cases would have
been avoided entirely if Congress had omitted from the [fed
eral sentencing statute] the provisions that make the Guide
lines binding on district judges”). That being so, our opin
ion in Booker made clear that today’s holding does not violate
the Sixth Amendment.
Rita may be correct that the presumption will encourage
sentencing judges to impose Guidelines sentences. But we
do not see how that fact could change the constitutional cal
culus. Congress sought to diminish unwarranted sentencing
disparity. It sought a Guidelines system that would bring
about greater fairness in sentencing through increased uni
formity. The fact that the presumption might help achieve
these congressional goals does not provide cause for hold
ing the presumption unlawful as long as the presumption
remains constitutional. And, given our case law, we can
not conclude that the presumption itself violates the Sixth
Amendment.
The fact that we permit courts of appeals to adopt a pre
sumption of reasonableness does not mean that courts may

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adopt a presumption of unreasonableness. Even the Gov
ernment concedes that appellate courts may not presume
that every variance from the advisory Guidelines is unrea
sonable. See Brief for United States 34–35. Several courts
of appeals have also rejected a presumption of unreasonable
ness. See, e. g., United States v. Howard, 454 F. 3d 700, 703
(CA7 2006); United States v. Matheny, 450 F. 3d 633, 642
(CA6 2006); United States v. Myers, 439 F. 3d 415, 417 (CA8
2006); United States v. Moreland, 437 F. 3d 424, 433 (CA4
2006). However, a number of Circuits adhere to the proposi
tion that the strength of the justification needed to sustain
an outside-Guidelines sentence varies in proportion to the
degree of the variance. See, e. g., United States v. Smith,
445 F. 3d 1, 4 (CA1 2006); Moreland, supra, at 434; United
States v. Armendariz, 451 F. 3d 352, 358 (CA5 2006); United
States v. Davis, 458 F. 3d 491, 496 (CA6 2006); United States
v. Dean, 414 F. 3d 725, 729 (CA7 2005); United States v. Dal
ton, 404 F. 3d 1029, 1033 (CA8 2005); United States v. Bishop,
469 F. 3d 896, 907 (CA10 2006); United States v. Crisp, 454
F. 3d 1285, 1291–1292 (CA11 2006). We will consider that
approach next Term in Gall v. United States, No. 06–7949,
cert. granted, post, p. 1113.
Second, Rita and his amici claim that use of a pro-
Guidelines presumption on appeal conflicts with Congress’
insistence that sentencing judges apply the factors set forth
in 18 U. S. C. § 3553(a) (2000 ed., Supp. IV) (and that the re
sulting sentence be “sufficient, but not greater than neces
sary, to comply with the purposes” of sentencing set forth in
that statute). We have explained above, however, why we
believe that, where judge and Commission both determine
that the Guidelines sentence is an appropriate sentence for
the case at hand, that sentence likely reflects the § 3553(a)
factors (including its “not greater than necessary” require
ment). See supra, at 348. This circumstance alleviates any
serious general conflict between § 3553(a) and the Guidelines,
for the purposes of appellate review. And, for that reason,

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we find that nothing in § 3553(a) renders use of the presump
tion unlawful.
III
We next turn to the question whether the District Court
properly analyzed the relevant sentencing factors. In par
ticular, Rita argues that the court took inadequate account
of § 3553(c) (2000 ed., Supp. IV), a provision that requires a
sentencing judge, “at the time of sentencing,” to “state in
open court the reasons for its imposition of the particular
sentence.” In our view, given the straightforward, concep
tually simple arguments before the judge, the judge’s state
ment of reasons here, though brief, was legally sufficient.
The statute does call for the judge to “state” his “reasons.”
And that requirement reflects sound judicial practice. Ju
dicial decisions are reasoned decisions. Confidence in a
judge’s use of reason underlies the public’s trust in the judi
cial institution. A public statement of those reasons helps
provide the public with the assurance that creates that trust.
That said, we cannot read the statute (or our precedent)
as insisting upon a full opinion in every case. The appropri
ateness of brevity or length, conciseness or detail, when to
write, what to say, depends upon circumstances. Sometimes
a judicial opinion responds to every argument; sometimes
it does not; sometimes a judge simply writes the word
“granted” or “denied” on the face of a motion while relying
upon context and the parties’ prior arguments to make the
reasons clear. The law leaves much, in this respect, to the
judge’s own professional judgment.
In the present context, a statement of reasons is impor
tant. The sentencing judge should set forth enough to sat
isfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own
legal decisionmaking authority. See, e. g., United States v.
Taylor, 487 U. S. 326, 336–337 (1988). Nonetheless, when a
judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explana

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tion. Circumstances may well make clear that the judge
rests his decision upon the Commission’s own reasoning that
the Guidelines sentence is a proper sentence (in terms of
§ 3553(a) and other congressional mandates) in the typical
case, and that the judge has found that the case before him
is typical. Unless a party contests the Guidelines sentence
generally under § 3553(a)—that is, argues that the Guidelines
reflect an unsound judgment, or, for example, that they do
not generally treat certain defendant characteristics in the
proper way—or argues for departure, the judge normally
need say no more. Cf. § 3553(c)(2) (2000 ed., Supp. IV). (Al
though, often at sentencing a judge will speak at length to a
defendant, and this practice may indeed serve a salutary
purpose.)
Where the defendant or prosecutor presents nonfrivolous
reasons for imposing a different sentence, however, the judge
will normally go further and explain why he has rejected
those arguments. Sometimes the circumstances will call for
a brief explanation; sometimes they will call for a lengthier
explanation. Where the judge imposes a sentence outside
the Guidelines, the judge will explain why he has done so.
To our knowledge, an ordinary explanation of judicial reasons
as to why the judge has, or has not, applied the Guidelines
triggers no Sixth Amendment “jury trial” requirement.
Cf. Booker, 543 U. S., at 233 (“For when a trial judge exer
cises his discretion to select a specific sentence within a de
fined range, the defendant has no right to a jury determina
tion of the facts that the judge deems relevant”), and id., at
242 (requirement of finding, not articulation of it, creates
Sixth Amendment problem).
By articulating reasons, even if brief, the sentencing judge
not only assures reviewing courts (and the public) that the
sentencing process is a reasoned process but also helps that
process evolve. The sentencing judge has access to, and
greater familiarity with, the individual case and the individ
ual defendant before him than the Commission or the appeals

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358 RITA v. UNITED STATES
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court. That being so, his reasoned sentencing judgment,
resting upon an effort to filter the Guidelines’ general advice
through § 3553(a)’s list of factors, can provide relevant infor
mation to both the court of appeals and ultimately the Sen
tencing Commission. The reasoned responses of these lat
ter institutions to the sentencing judge’s explanation should
help the Guidelines constructively evolve over time, as
both Congress and the Commission foresaw. See generally
supra, at 351.
In the present case the sentencing judge’s statement of
reasons was brief but legally sufficient. Rita argued for a
downward departure from the 33-to-41 month Guidelines
sentence on the basis of three sets of special circumstances:
health, fear of retaliation in prison, and military record.
See App. 40–47. He added that, in any event, these same
circumstances warrant leniency beyond that contemplated by
the Guidelines.
The record makes clear that the sentencing judge listened
to each argument. The judge considered the supporting evi
dence. The judge was fully aware of defendant’s various
physical ailments and imposed a sentence that takes them
into account. The judge understood that Rita had pre
viously worked in the immigration service where he had
been involved in detecting criminal offenses. And he con
sidered Rita’s lengthy military service, including over 25
years of service, both on active duty and in the Reserve, and
Rita’s receipt of 35 medals, awards, and nominations.
The judge then simply found these circumstances insuffi
cient to warrant a sentence lower than the Guidelines range
of 33 to 45 months. Id., at 87. He said that this range was
not “inappropriate.” (This, of course, is not the legal stand
ard for imposition of sentence, but taken in context it is plain
that the judge so understood.) He immediately added that
he found that the 33-month sentence at the bottom of the
Guidelines range was “appropriate.” Ibid. He must have
believed that there was not much more to say.

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We acknowledge that the judge might have said more. He
might have added explicitly that he had heard and considered
the evidence and argument; that (as no one before him de
nied) he thought the Commission in the Guidelines had deter
mined a sentence that was proper in the mine run of roughly
similar perjury cases; and that he found that Rita’s personal
circumstances here were simply not different enough to war
rant a different sentence. But context and the record make
clear that this, or similar, reasoning underlies the judge’s
conclusion. Where a matter is as conceptually simple as in
the case at hand and the record makes clear that the sentenc
ing judge considered the evidence and arguments, we do not
believe the law requires the judge to write more extensively.
IV
We turn to the final question: Was the Court of Appeals,
after applying its presumption, legally correct in holding
that Rita’s sentence (a sentence that applied, and did not
depart from, the relevant Sentencing Guideline) was not “un
reasonable”? In our view, the Court of Appeals’ conclusion
was lawful.
As we previously said, see Part I, supra, the crimes at
issue are perjury and obstruction of justice. In essence
those offenses involved the making of knowingly false, mate
rial statements under oath before a grand jury, thereby im
peding its criminal investigation. The Guidelines provide
for a typical such offense a base offense level of 20, 6 lev
els below the level provided for a simple violation of the
crime being investigated (here, the unlawful importation of
machineguns). The offender, Rita, has no countable prior
offenses and consequently falls within criminal history
category I. The intersection of base offense level 20 and
criminal history category I sets forth a sentencing range of
imprisonment of 33 to 41 months.
Rita argued at sentencing that his circumstances are spe
cial. He based this argument upon his health, his fear of

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retaliation, and his prior military record. His sentence ex
plicitly takes health into account by seeking assurance that
the Bureau of Prisons will provide appropriate treatment.
The record makes out no special fear of retaliation, asserting
only that the threat is one that any former law enforcement
official might suffer. Similarly, though Rita has a lengthy
and distinguished military record, he did not claim at sen
tencing that military service should ordinarily lead to a sen
tence more lenient than the sentence the Guidelines impose.
Like the District Court and the Court of Appeals, we simply
cannot say that Rita’s special circumstances are special
enough that, in light of § 3553(a), they require a sentence
lower than the sentence the Guidelines provide.
Finally, Rita and supporting amici here claim that the
Guidelines sentence is not reasonable under § 3553(a) because
it expressly declines to consider various personal character
istics of the defendant, such as physical condition, employ
ment record, and military service, under the view that these
factors are “not ordinarily relevant. ” USSG §§ 5H1.4,
5H1.5, 5H1.11. Rita did not make this argument below, and
we shall not consider it.
* * *
For the foregoing reasons, the judgment of the Court of
Appeals is
Affirmed.
Justice Stevens, with whom Justice Ginsburg joins as
to all but Part II, concurring.
It is no secret that the Court’s remedial opinion in United
States v. Booker, 543 U. S. 220 (2005), was not unanimous.
See id., at 272 (Stevens, J., dissenting). But Booker is now
settled law and must be accepted as such. See B. Cardozo,
The Nature of the Judicial Process 149 (1921) (“[T]he labor
of judges would be increased almost to the breaking point if

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every past decision could be reopened in every case, and one
could not lay one’s own course of bricks on the secure founda
tion of the courses laid by others who had gone before him”).
Therefore, our task today is to apply Booker’s “reasonable
ness” standard to a District Judge’s decision to impose a
sentence within the range recommended by United States
Sentencing Guidelines that are now advisory, rather than
binding.
I
Simply stated, Booker replaced the de novo standard of
review required by 18 U. S. C. § 3742(e) with an abuse-of
discretion standard that we called “ ‘reasonableness’ ” review.
543 U. S., at 262. We noted in Booker that the de novo
standard was a recent addition to the law. Prior to 2003,
appellate courts reviewed sentencing departures for abuse
of discretion under our decision in Koon v. United States, 518
U. S. 81 (1996). In 2003, however, Congress overruled Koon
and added the de novo standard to § 3742(e). See Prosecuto
rial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003, § 401(d)(1), 117 Stat. 670. Rec
ognizing that “the reasons for th[is] revisio[n]—to make
Guidelines sentencing even more mandatory than it had
been— . . . ceased to be relevant” in light of the Court’s
constitutional holding,1 Booker excised the portion of
§ 3742(e) that directed courts of appeals to apply the de novo
standard. 543 U. S., at 261. Critically, we did not touch the
portions of § 3742(e) requiring appellate courts to “give due
regard to the opportunity of the district court to judge the
1 See 543 U. S., at 233 (opinion for the Court by Stevens, J.) (“We have
never doubted the authority of a judge to exercise broad discretion in
imposing a sentence within a statutory range. Indeed, everyone agrees
that the constitutional issues presented by these cases would have been
avoided entirely if Congress had omitted from the [Sentencing Reform Act
of 1984] the provisions that make the Guidelines binding on district
judges” (citations omitted)).

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credibility of the witnesses,” to “accept the findings of fact
of the district court unless they are clearly erroneous,” and
to “give due deference to the district court’s application of
the guidelines to the facts.” By leaving those portions of
the statute intact while severing the portion mandating a de
novo standard of review, Booker restored the abuse-of
discretion standard identified in three earlier cases: Pierce
v. Underwood, 487 U. S. 552, 558–560 (1988), Cooter & Gell
v. Hartmarx Corp., 496 U. S. 384, 403–405 (1990), and Koon.
See Booker, 543 U. S., at 260.2
In Pierce, we considered whether the District Court had
properly awarded attorney’s fees based on a determination
that the Government’s litigation position was not “substan
tially justified” within the meaning of the Equal Access to
Justice Act, 28 U. S. C. § 2412(d). Because the Act did not
specify a standard of review, we found it necessary to rely
on several “significant relevant factors” that persuaded us to
apply an “ ‘abuse of discretion’ ” standard. 487 U. S., at 559.
One factor was that a district judge was “ ‘better posi
tioned’ ” than an appellate judge to decide the issue. Id., at
560 (quoting Miller v. Fenton, 474 U. S. 104, 114 (1985)). We
noted that a district court, through its participation in “set
tlement conferences and other pretrial activities,” “may have
insights not conveyed by the record, into such matters as
whether particular evidence was worthy of being relied
upon.” 487 U. S., at 560. We likewise noted that “even
where the district judge’s full knowledge of the factual set
2 In fact, Booker expressly equated the new “reasonableness” standard
with the old abuse-of-discretion standard used to review sentencing depar
tures. See id., at 262 (“ ‘Reasonableness’ standards are not foreign to
sentencing law. The Act has long required their use in important sen
tencing circumstances—both on review of departures, see 18 U. S. C.
§ 3742(e)(3) (1994 ed.), and on review of sentences imposed where there
was no applicable Guideline, see §§ 3742(a)(4), (b)(4), (e)(4)” (emphasis
added)).

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ting can be acquired by the appellate court, that acquisition
will often come at unusual expense.” Ibid. A second fac
tor that we found significant was the impracticability of for
mulating a rule of decision for an issue that may involve
“ ‘multifarious, fleeting, special, narrow facts that utterly re
sist generalization.’ ” Id., at 561–562. In Cooter & Gell, we
held that both of these factors supported an “abuse-of
discretion” standard for review of a district judge’s imposi
tion of sanctions for violations of Rule 11 of the Federal
Rules of Civil Procedure. See 496 U. S., at 403–405. A
third factor, the District Court’s special knowledge about
“the local bar’s litigation practices,” also supported the
abuse-of-discretion standard. Id., at 404. We further noted
that “[d]eference to the determination of courts on the front
lines of litigation will enhance these courts’ ability to control
the litigants before them.” Ibid.
Recognizing that these factors bear equally upon a trial
judge’s sentencing decision, Koon expressly applied the prin
ciples of Pierce and Cooter & Gell to the sentencing context.
See Koon, 518 U. S., at 99. We adopted the same abuse-of
discretion standard, unanimously holding that a district
court’s decision to depart from the Guidelines “will in most
cases be due substantial deference, for it embodies the tradi
tional exercise of discretion by a sentencing court.” Id.,
at 98. Echoing our earlier opinions, we added that “[d]is
trict courts have an institutional advantage over appellate
courts” because they “must make a refined assessment of the
many facts bearing on the outcome, informed by its vantage
point and day-to-day experience in criminal sentencing.”
Ibid. We also relied on the following statement in our opin
ion in Williams v. United States, 503 U. S. 193 (1992):
“The development of the guideline sentencing regime
has not changed our view that, except to the extent spe
cifically directed by statute, ‘it is not the role of an ap
pellate court to substitute its judgment for that of the

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sentencing court as to the appropriateness of a particu
lar sentence.’ ” Id., at 205 (quoting Solem v. Helm, 463
U. S. 277, 290, n. 16 (1983)).
These basic considerations about the nature of sentencing
have not changed in a post-Booker world. While the specific
holding in Koon concerned only the scope of the trial judge’s
discretion on whether to depart from the Guidelines, now
that the Guidelines are no longer mandatory, our reasoning
applies with equal force to the sentencing judge’s decision
“ ‘as to the appropriateness of a particular sentence.’ ” Wil
liams, 503 U. S., at 205. After Booker, appellate courts are
now to assess a district court’s exercise of discretion “with
regard to § 3553(a).” 543 U. S., at 261. As we explained:
“Section 3553(a) remains in effect, and sets forth numerous
factors that guide sentencing. Those factors in turn will
guide appellate courts, as they have in the past, in determin
ing whether a sentence is unreasonable.” Ibid.
Guided by these § 3553(a) factors, Booker ’s abuse-of
discretion standard directs appellate courts to evaluate what
motivated the district judge’s individualized sentencing deci
sion. While reviewing courts may presume that a sen
tence within the advisory Guidelines is reasonable, appel
late judges must still always defer to the sentencing judge’s
individualized sentencing determination. As we stated in
Koon, “[i]t has been uniform and constant in the federal ju
dicial tradition for the sentencing judge to consider every
convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate, some
times magnify, the crime and the punishment to ensue.” 518
U. S., at 113. The Commission has not developed any stand
ards or recommendations that affect sentencing ranges for
many individual characteristics. Matters such as age, edu
cation, mental or emotional condition, medical condition (in
cluding drug or alcohol addiction), employment history, lack
of guidance as a youth, family ties, or military, civic, charita

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ble, or public service are not ordinarily considered under
the Guidelines. See United States Sentencing Commis
sion, Guidelines Manual §§ 5H1.1–6, 11, and 12 (Nov. 2006).3
These are, however, matters that § 3553(a) authorizes the
sentencing judge to consider. See, e. g., 18 U. S. C.
§ 3553(a)(1). As such, they are factors that an appellate
court must consider under Booker’s abuse-of-discretion
standard.
My disagreement with Justice Scalia and Justice Sou
ter rests on the above understanding of Booker’s standard
of appellate review. I do not join Justice Scalia’s opinion
because I believe that the purely procedural review he advo
cates is inconsistent with our remedial opinion in Booker,
which plainly contemplated that reasonableness review
would contain a substantive component. See 543 U. S., at
260–264. After all, a district judge who gives harsh sen
tences to Yankees fans and lenient sentences to Red Sox fans
would not be acting reasonably even if her procedural rul
ings were impeccable. Moreover, even if some future un
usually harsh sentence might violate the Sixth Amendment
because it exceeds some yet-to-be-defined judicial standard
of reasonableness, Justice Scalia correctly acknowledges
this case does not present such a problem. See post, at 373–
374 (opinion concurring in part and concurring in judgment)
(“Nor is my claim that the Sixth Amendment was violated in
this case, for petitioner cannot demonstrate that his rela
tively low sentence would have been unreasonable if the Dis
3 See also Breyer, The Federal Sentencing Guidelines and the Key Com
promises Upon Which They Rest, 17 Hofstra L. Rev. 1, 19–20 (1988) (“The
Commission extensively debated which offender characteristics should
make a difference in sentencing; that is, which characteristics were impor
tant enough to warrant formal reflection within the Guidelines and which
should constitute possible grounds for departure. . . . Eventually, in light
of the arguments based in part on considerations of fairness and in part
on the uncertainty as to how a sentencing judge would actually account
for the aggravating and/or mitigating factors . . . the current offender
characteristics rules look primarily to past records of convictions”).

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trict Court had relied on nothing but jury-found or admitted
facts”); see also ante, at 353–354 (“Justice Scalia concedes
that the Sixth Amendment concerns he foresees are not pre
sented by this case. Post, at 373–374 (opinion concurring in
part and concurring in judgment). And his need to rely on
hypotheticals to make his point is consistent with our view
that the approach adopted here will not ‘raise a multitude of
constitutional problems.’ Clark v. Martinez, 543 U. S. 371,
380–381 (2005)”). Such a hypothetical case should be de
cided if and when it arises. See, e. g., Valley Forge Chris
tian College v. Americans United for Separation of Church
and State, Inc., 454 U. S. 464, 472 (1982).
As to Justice Souter’s opinion, I think he overestimates
the “gravitational pull” toward the advisory Guidelines that
will result from a presumption of reasonableness. Post, at
390 (dissenting opinion). Booker’s standard of review al
lows—indeed, requires—district judges to consider all of
the factors listed in § 3553(a) and to apply them to the indi
vidual defendants before them. Appellate courts must then
give deference to the sentencing decisions made by those
judges, whether the resulting sentence is inside or outside
the advisory Guidelines range, under traditional abuse-of
discretion principles. As the Court acknowledges, more
over, presumptively reasonable does not mean always rea
sonable; the presumption, of course, must be genuinely
rebuttable. See ante, at 347. I am not blind to the fact
that, as a practical matter, many federal judges continued to
treat the Guidelines as virtually mandatory after our deci
sion in Booker. See post, at 373–374, n. 3 (Scalia, J., con
curring in part and concurring in judgment). One well
respected federal judge has even written that, “after
watching this Court—and the other Courts of Appeals,
whether they have formally adopted such a presumption or
not—affirm hundreds upon hundreds of within-Guidelines
sentences, it seems to me that the rebuttability of the pre
sumption is more theoretical than real.” United States v.

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367 Cite as: 551 U. S. 338 (2007)
Stevens, J., concurring
Pruitt, No. 06–3152, 2007 U. S. App. LEXIS 12872, *35–*36
(CA10, June 4, 2007) (McConnell, J., concurring). Our deci
sion today makes clear, however, that the rebuttability of the
presumption is real. It should also be clear that appellate
courts must review sentences individually and deferentially
whether they are inside the Guidelines range (and thus po
tentially subject to a formal “presumption” of reasonable
ness) or outside that range. Given the clarity of our holding,
I trust that those judges who had treated the Guidelines as
virtually mandatory during the post-Booker interregnum
will now recognize that the Guidelines are truly advisory.
Applying this standard, I would affirm the sentence im
posed by the District Court. Although I would have im
posed a lower sentence had I been the District Judge, I agree
that he did not abuse his discretion in making the particular
decision that he did. I also agree with the Court that his
decision is entitled to added respect because it was consist
ent with the advice in the Guidelines.
II
That said, I do believe that there was a significant flaw in
the sentencing procedure in this case. The petitioner is a
veteran who received significant recognition for his service
to his country. That aspect of his background is not taken
into consideration in the Sentencing Guidelines and was not
mentioned by the District Judge in his explanation of his
choice of the sentence that defendant received. I regard
this as a serious omission because I think the judge’s state
ment to the defendant, made at the time of sentencing, is
an especially important part of the criminal process. If the
defendant is convinced that justice has been done in his
case—that society has dealt with him fairly—the likelihood
of his successful rehabilitation will surely be enhanced.
Nevertheless, given the importance of paying appropriate
respect to the exercise of a sentencing judge’s discretion,
I join the Court’s opinion and judgment.

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368 RITA v. UNITED STATES
Opinion of Scalia, J.
Justice Scalia, with whom Justice Thomas joins, con
curring in part and concurring in the judgment.
In United States v. Booker, 543 U. S. 220 (2005), five Jus
tices of this Court, I among them, held that our previous
decision in Blakely v. Washington, 542 U. S. 296 (2004), ap
plied to sentences imposed under the Federal Sentencing
Guidelines because those Guidelines were mandatory and
binding on judges. See 543 U. S., at 233–234, 243–244. We
thus reaffirmed that “[a]ny fact (other than a prior convic
tion) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Id., at 244.
In response to this constitutional holding, a different major
ity of five Justices held that the appropriate remedy was to
make the Guidelines nonmandatory in all cases and to review
sentences on appeal only for reasonableness. See id., at
258–265. I disagreed with the Court’s remedial choice, be
lieving instead that the proper remedy was to maintain the
mandatory character of the Guidelines and simply to require,
for that small category of cases in which a fact was legally
essential to the sentence imposed, that the fact be proved to
a jury beyond a reasonable doubt or admitted by the defend
ant. See id., at 272–291 (Stevens, J., joined by Scalia and
Souter, JJ., dissenting in part).
I do not mean to reopen that debate. As a matter of stat
utory stare decisis, I accept Booker’s remedial holding that
district courts are no longer bound by the Guidelines and
that appellate courts should review the sentences imposed
for reasonableness. As should be clear from our need to
decide the case today, however, precisely what “reasona
bleness” review entails is not dictated by Booker. As I
lamented then, “[t]he worst feature of the scheme is that
no one knows—and perhaps no one is meant to know—how
advisory Guidelines and ‘unreasonableness’ review will func
tion in practice.” Id., at 311 (Scalia, J., dissenting in part).

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Earlier this Term, the Court intensified its silence when it
declined to flesh out what it had in mind in the face of an
argument that the form of reasonableness review had consti
tutional implications. In Cunningham v. California, 549
U. S. 270 (2007), Justice Alito defended the constitutional
ity of California’s sentencing system in part by arguing that,
even post-Booker, some federal sentences will be upheld as
reasonable only if the judge makes additional findings of fact
beyond those encompassed by the jury verdict or guilty plea.
549 U. S., at 309, and n. 11 (dissenting opinion). The Cun
ningham majority’s response, much like the Booker remedial
opinion, was cryptic. While the Court did not explain why
Justice Alito was incorrect, it strongly intimated that his
premise was wrong: that he had erroneously “ ‘anticipate[d]’ ”
how “reasonableness review operates in practice.” Cun
ningham, 549 U. S., at 293, n. 15. Because that question is
squarely presented in this case that was then pending, the
Court found it “neither necessary nor proper . . . to join issue
with Justice Alito on this matter,” suggesting that all
would be revealed in the opinion we issue today. See id., at
288, n. 13.
Today has arrived, and the Court has broken its promise.
Nothing in the Court’s opinion explains why, under the advi
sory Guidelines scheme, judge-found facts are never legally
necessary to justify the sentence. By this I mean the Court
has failed to establish that every sentence which will be im
posed under the advisory Guidelines scheme could equally
have been imposed had the judge relied upon no facts other
than those found by the jury or admitted by the defendant.
In fact, the Court implicitly, but quite plainly, acknowledges
that this will not be the case, by treating as a permissible
post-Booker claim petitioner ’s challenge of his within-
Guidelines sentence as substantively excessive. See ante,
at Part IV. Under the scheme promulgated today, some
sentences reversed as excessive will be legally authorized
in later cases only because additional judge-found facts are

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370 RITA v. UNITED STATES
Opinion of Scalia, J.
present; and, as Justice Alito argued in Cunningham,
some lengthy sentences will be affirmed (i. e., held lawful)
only because of the presence of aggravating facts, not found
by the jury, that distinguish the case from the mine run.
The Court does not even attempt to explain how this is con
sistent with the Sixth Amendment.
No explanation is given because no explanation is possible.
The Court has reintroduced the constitutional defect that
Booker purported to eliminate. I cannot acquiesce in this
course. If a sentencing system is permissible in which some
sentences cannot lawfully be imposed by a judge unless the
judge finds certain facts by a preponderance of the evidence,
then we should have left in place the compulsory Guidelines
that Congress enacted, instead of imposing this jerry-rigged
scheme of our own. In order to avoid the possibility of a
Sixth Amendment violation, which was the object of the
Booker remedy, district courts must be able, without finding
any facts not embraced in the jury verdict or guilty plea, to
sentence to the maximum of the statutory range. Because,
therefore, appellate courts cannot reverse within-range sen
tences for being too high; and because no one would contend
that Congress intended that sentences be reviewed only for
being too low; I would hold that reasonableness review can
not contain a substantive component at all. I believe, how
ever, that appellate courts can nevertheless secure some
amount of sentencing uniformity through the procedural rea
sonableness review made possible by the Booker remedial
opinion.
I
A
The Sixth Amendment requires that “[a]ny fact (other than
a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”

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Opinion of Scalia, J.
Booker, 543 U. S., at 244. Two hypotheticals will suffice to
reveal why the notion of excessive sentences within the stat
utory range, and the ability of appellate courts to reverse
such sentences, inexorably produces, in violation of the Sixth
Amendment, sentences whose legality is premised on a
judge’s finding some fact (or combination of facts) by a pre
ponderance of the evidence.
First, consider two brothers with similar backgrounds and
criminal histories who are convicted by a jury of respectively
robbing two banks of an equal amount of money. Next as
sume that the district judge finds that one brother, fueled by
racial animus, had targeted the first bank because it was
owned and operated by minorities, whereas the other
brother had selected the second bank simply because its loca
tion enabled a quick getaway. Further assume that the dis
trict judge imposes the statutory maximum upon both broth
ers, basing those sentences primarily upon his perception
that bank robbery should be punished much more severely
than the Guidelines base level advises, but explicitly noting
that the racially biased decisionmaking of the first brother
further justified his sentence. Now imagine that the appel
late court reverses as excessive only the sentence of the non
racist brother. Given the dual holdings of the appellate
court, the racist has a valid Sixth Amendment claim that his
sentence was reasonable (and hence lawful) only because of
the judicial finding of his motive in selecting his victim.1
Second, consider the common case in which the district
court imposes a sentence within an advisory Guidelines
range that has been substantially enhanced by certain
judge-found facts. For example, the base offense level for
robbery under the Guidelines is 20, United States Sentencing
Commission, Guidelines Manual § 2B3.1(a) (Nov. 2006), which,
1 Of course, it may be that some fact other than racial animus would also
have sufficed to sustain the increased sentence. But it is undeniable that
in the case at hand the judicial finding of racial animus filled that role.
See Blakely v. Washington, 542 U. S. 296, 305 (2004).

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372 RITA v. UNITED STATES
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if the defendant has a criminal history of I, corresponds to
an advisory range of 33–41 months, id., ch. 5, pt. A, Sentenc
ing Table. If, however, a judge finds that a firearm was dis
charged, that a victim incurred serious bodily injury, and
that more than $5 million was stolen, then the base level
jumps by 18, §§ 2B3.1(b)(2), (3), (7), producing an advisory
range of 235–293 months, id., ch. 5, pt. A, Sentencing Table.
When a judge finds all of those facts to be true and then
imposes a within-Guidelines sentence of 293 months, those
judge-found facts, or some combination of them, are not
merely facts that the judge finds relevant in exercising his
discretion; they are the legally essential predicate for his im
position of the 293-month sentence. His failure to find them
would render the 293-month sentence unlawful. That is evi
dent because, were the district judge explicitly to find none
of those facts true and nevertheless to impose a 293-month
sentence (simply because he thinks robbery merits seven
times the sentence that the Guidelines provide) the sentence
would surely be reversed as unreasonably excessive.
These hypotheticals are stylized ways of illustrating the
basic problem with a system in which district courts lack full
discretion to sentence within the statutory range. Under
such a system, for every given crime there is some maximum
sentence that will be upheld as reasonable based only on the
facts found by the jury or admitted by the defendant.
Every sentence higher than that is legally authorized only by
some judge-found fact, in violation of the Sixth Amendment.
Appellate courts’ excessiveness review will explicitly or im
plicitly accept those judge-found facts as justifying sentences
that would otherwise be unlawful. The only difference be
tween this system and the pre-Booker mandatory Guidelines
is that the maximum sentence based on the jury verdict or
guilty plea was specified under the latter but must be estab
lished by appellate courts, in case-by-case fashion, under the
former. This is, if anything, an additional constitutional dis
ease, not a constitutional cure.

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Opinion of Scalia, J.
To be clear, I am not suggesting that the Sixth Amend
ment prohibits judges from ever finding any facts. We have
repeatedly affirmed the proposition that judges can find facts
that help guide their discretion within the sentencing range
that is authorized by the facts found by the jury or admitted
by the defendant. See, e. g., Booker, supra, at 233; Ap
prendi v. New Jersey, 530 U. S. 466, 481 (2000). But there
is a fundamental difference, one underpinning our entire Ap
prendi jurisprudence, between facts that must be found in
order for a sentence to be lawful, and facts that individual
judges choose to make relevant to the exercise of their dis
cretion. The former, but not the latter, must be found by
the jury beyond a reasonable doubt in order “to give intelli
gible content to the right of jury trial.” Blakely, 542 U. S.,
at 305.2
I am also not contending that there is a Sixth Amendment
problem with the Court’s affirmation of a presumption of rea
sonableness for within-Guidelines sentences. I agree with
the Court that such a presumption never itself makes judge
found facts legally essential to the sentence imposed, since it
has no direct relevance to whether the sentence would have
been unreasonable in the absence of any judge-found facts.
See ante, at 352–354.3 Nor is my claim that the Sixth
2 For similar reasons, I recognize that the Sixth Amendment problem
with reasonableness review is created only by the lack of district court
discretion to impose high sentences, since eliminating discretion to impose
low sentences is the equivalent of judicially creating mandatory mini
mums, which are not a concern of the Sixth Amendment. See Harris v.
United States, 536 U. S. 545, 568–569 (2002). But since reasonableness
review should not function as a one-way ratchet, United States v. Booker,
543 U. S. 220, 257–258, 266 (2005), we must forswear the notion that sen
tences can be too low in light of the need to abandon the concept that
sentences can be too high.
3 For this reason, I do not join Justice Souter’s dissent. He wishes
to give “district courts [assurance] that the entire sentencing range set by
statute is available to them.” Post, at 391. That is a proper goal—in
deed, an essential one to prevent the Booker remedy from effectively over
turning Apprendi and Blakely. But eliminating the presumption of rea

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374 RITA v. UNITED STATES
Opinion of Scalia, J.
Amendment was violated in this case, for petitioner cannot
demonstrate that his relatively low sentence would have
been unreasonable if the District Court had relied on nothing
but jury-found or admitted facts.
Rather, my position is that there will inevitably be some
constitutional violations under a system of substantive rea
sonableness review, because there will be some sentences
that will be upheld as reasonable only because of the exist
ence of judge-found facts. Booker itself reveals why that
reality dooms the construct of reasonableness review estab
lished and applied by today’s opinion. Booker made two
things quite plain. First, reasonableness is the standard of
review implicitly contained within the Sentencing Reform
Act of 1984 (SRA). 543 U. S., at 260–261. Second, Con
gress wanted a uniform system of sentencing review, rather
than different schemes depending on whether there were
Sixth Amendment problems in particular cases. Id., at 265–
267. Thus, if the contours of reasonableness review must be
narrowed in some cases because of constitutional concerns,
then they must be narrowed in all cases in light of Con
gress’s desire for a uniform standard of review. The Jus
tices composing today’s Court were in total agreement with
this principle of statutory interpretation the day Booker
was decided:
“[W]hen deciding which of two plausible statutory con
structions to adopt, a court must consider the necessary
sonableness will not achieve it. In those Circuits that already decline
to employ the presumption, a within-Guidelines sentence has never been
reversed as substantively excessive, Brief for New York Council of De
fense Lawyers as Amicus Curiae 5, refuting the belief that mere elimina
tion of the presumption will destroy the “gravitational pull,” post, at 390
(Souter, J., dissenting), to stay safely within the Guidelines. The only
way to assure district courts that they can deviate from the advisory
Guidelines, and to ensure that judge-found facts are never legally essential
to the sentence, is to prohibit appellate courts from reviewing the substan
tive sentencing choices made by district courts.

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consequences of its choice. If one of them would raise
a multitude of constitutional problems, the other should
prevail—whether or not those constitutional problems
pertain to the particular litigant before the Court.”
Clark v. Martinez, 543 U. S. 371, 380–381 (2005) (opinion
for the Court by Scalia, J., joined by, inter alios, Ste
vens, Kennedy, Ginsburg, and Breyer, JJ.).
Yet they now adopt substantive reasonableness review with
out offering any rebuttal to my charge of patent constitu
tional flaw inherent in such review. The one comfort to be
found in the Court’s opinion—though it does not excuse the
failure to apply Martinez’s interpretive principle—is that it
does not rule out as-applied Sixth Amendment challenges to
sentences that would not have been upheld as reasonable on
the facts encompassed by the jury verdict or guilty plea.
Ante, at 353–354; ante, at 365–366 (Stevens, J., joined by
Ginsburg, J., concurring).4
B
Had the Court bothered to frame objections to the consti
tutional analysis undertaken above, there are four conceiv
able candidates.
1
The most simplistic objection is that the Sixth Amendment
is not violated because the judge-found facts are made le
4 The Court suggests that my reliance on hypotheticals indicates that its
interpretation of reasonableness will not create a multitude of constitu
tional problems. Ante, at 353–354; see also ante, at 366 (Stevens, J.,
concurring). Setting aside the question whether the volume of constitu
tional violations has any relevance to the application of Martinez’s inter
pretive principle, the Court is wrong to think that the constitutional prob
lem today’s opinion ignores is hypothetical, merely because I have used
hypotheticals to describe it. It is all too real that advisory Guidelines
sentences routinely change months and years of imprisonment to decades
and centuries on the basis of judge-found facts—as Booker itself recog
nized, see 543 U. S., at 236–237 (citing, inter alia, a case in which a defend
ant’s sentence increased from 57 months to 155 years).

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gally necessary by the decision of appellate courts rather
than the decision of Congress. This rebuttal errs both in
premise and in conclusion.
The premise is wrong because, according to the remedial
majority in Booker, the facts that excessiveness review ren
ders legally essential are made such by Congress. Reason
ableness is the standard of review implicitly contained
within 18 U. S. C. § 3742 (2000 ed. and Supp. IV). See
Booker, supra, at 260–261. But the Sixth Amendment
would be violated even if appellate courts really were exer
cising some type of common-law power to prescribe the facts
legally necessary to support specific sentences. Neither Ap
prendi nor any of its progeny suggests that violation of the
Sixth Amendment depends upon what branch of government
has made the prescription. To the contrary, Booker flatly
rejected the argument that the mandatory Guidelines were
constitutional because it was the Sentencing Commission
rather than Congress that specified the facts essential to
punishment. See 543 U. S., at 237–239. And for good rea
son. The Sixth Amendment is “a reservation of jury
power.” Blakely, 542 U. S., at 308. It makes no difference
whether it is a legislature, a Sentencing Commission, or an
appellate court that usurps the jury’s prerogative. Were it
otherwise, this Court could prescribe that the only reason
able sentences are those consistent with the same mandatory
Guidelines that Booker invalidated. And the California Su
preme Court could effectively reverse our decision in Cun
ningham simply by setting aside as unreasonable any trial
court sentence that does not conform to pre-Cunningham
California law.
2
The next objection minimizes the extent to which exces
siveness review makes judge-found facts legally essential to
punishment. If appellate courts will uphold, based only on
the facts found by the jury, a district court’s decision to im
pose all but the lengthiest sentences, then the number of

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sentences that are legally dependent on judge-found facts
will be quite small. Thus, the argument goes, there is no
reason to prohibit substantive reasonableness review alto
gether: Absent a claim that such review creates a constitu
tional problem in a given case, why prohibit it? I have al
ready explained why this line of defense is inconsistent with
established principles of statutory interpretation. See
supra, at 374–375. But even on its own terms, the defense
is inconsistent with Booker because reasonableness review is
an improper and inadequate remedial scheme unless it en
sures that judge-found facts are never legally necessary to
justify the sentence imposed under the advisory Guidelines.
The mandatory Guidelines system that was invalidated in
Booker had the same attribute of producing unconstitutional
results in only a small proportion of cases. Because of
guilty pleas and Guidelines ranges that did not depend on
judge-found facts, the overwhelming majority of sentences
imposed under the pre-Booker federal system were perfectly
in accord with the Sixth Amendment. See Booker, 543
U. S., at 248; id., at 275–277 (Stevens, J., dissenting in part).
Booker nevertheless excised key statutory provisions gov
erning federal sentencing, in order to eliminate constitu
tional violations entirely. If our conjured-up system does
not accomplish that goal, then by what right have we sup
planted the congressionally enacted mandatory Guidelines?
If it is true that some sentences under today’s Court
prescribed system will still violate the Sixth Amendment,
nonetheless allowing the system to go forward will produce
chaos. Most cases do not resemble my stylized hypotheti
cals, and ordinarily defendants and judges will be unable to
figure out, based on a comparison of the facts in their case
with the facts of all of the previously decided appellate cases,
whether the sentence imposed would have been upheld as
reasonable based only on the facts supporting the jury ver
dict or guilty plea. That will not stop defendants from mak

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ing the argument, however, and the Court certainly has not
foreclosed them from trying. See supra, at 375, and n. 4.
Judges will have in theory two options: create complicated
charts and databases, based on appellate precedents, to as
certain what facts are legally essential to justify what sen
tences; or turn a deaf ear to these claims, though knowing
full well that some of them are justified. I bet on the latter.5
Things were better under the mandatory Guidelines system,
where every judge could readily identify when the Sixth
Amendment was being violated, and could rule accordingly.
3
Proponents of substantive reasonableness review could
next argue that actual sentencing involves the consideration
of dozens of different facts in order to make an individualized
determination about each defendant. In the real world,
they would contend, it is difficult, if not impossible, to deter
mine whether any given fact was legally essential to the pun
ishment imposed. But identifying the particular fatal fact
is not necessary to identifying a constitutional violation. In
the second hypothetical given above, for example, it is not
possible to say which single fact, or which combination of
facts, sufficed to bring the sentence within the bounds of the
“reasonable.” But it is possible to say (indeed, it must be
said) that some judge-found fact or combination of facts had
that effect—and that suffices to establish a Sixth Amend
ment violation.
“Whether the judge’s authority to impose an enhanced
sentence depends on finding a specified fact . . . , one
5 Perhaps I am too cynical. At least one conscientious District Judge
has decided to shoulder the burden of ascertaining what the maximum
reasonable sentence is in each case based only on the verdict and appellate
precedent, correctly concluding that this is the only way to eliminate Sixth
Amendment problems after Cunningham v. California, 549 U. S. 270
(2007), if Booker mandates substantive reasonableness review. See
United States v. Griffin, 494 F. Supp. 2d 1, 12–14 (D. Mass. 2007) (Young,
J.) (Sentencing Memorandum).

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of several specified facts . . . , or any aggravating fact
. . . , it remains the case that the jury’s verdict alone
does not authorize the sentence. The judge acquires
that authority only upon finding some additional fact.”
Blakely, 542 U. S., at 305.
4
The last conceivable defense of the Guidelines-light would
be to wrap them in the mantle of history and tradition.
“[W]hen a practice not expressly prohibited by the text
of the Bill of Rights bears the endorsement of a long
tradition of open, widespread, and unchallenged use that
dates back to the beginning of the Republic, we have no
proper basis for striking it down. Such a venerable and
accepted tradition is not to be laid on the examining
table and scrutinized for its conformity to some abstract
principle of [constitutional] adjudication devised by this
Court. To the contrary, such traditions are themselves
the stuff out of which the Court’s principles are to
be formed.” Rutan v. Republican Party of Ill., 497
U. S. 62, 95–96 (1990) (Scalia, J., dissenting) (footnote
omitted).
This consideration has no application here. In the federal
system, prior to the SRA, substantive appellate review of a
district court’s sentencing discretion essentially did not exist.
See, e. g., Dorszynski v. United States, 418 U. S. 424, 431
(1974) (noting “the general proposition that once it is deter
mined that a sentence is within the limitations set forth in
the statute under which it is imposed, appellate review is at
an end”); id., at 443 (“[W]ell-established doctrine bars review
of the exercise of sentencing discretion”). As for state ap
pellate review of sentences, as late as 1962, at least 39 States
did not permit appellate courts to modify sentences imposed
within the statutory limits. See Appellate Review of Sen
tences, A Symposium at the Judicial Conference of the

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United States Court of Appeals for the Second Circuit, 32
F. R. D. 249, 260 (1962). It would be an exaggeration to
say that history reflects an established understanding that
appellate review of excessive sentences conflicts with the
Sixth Amendment. But it would also be an exaggeration to
say that the historical pedigree of substantive appellate re
view of sentencing is so strong and clear as to overcome the
basic principle underlying the jury-trial right applied by this
Court in Apprendi, Blakely, Booker, and Cunningham.
C
A final defense of substantive reasonableness review
would be to invoke the intent of Congress or of the Booker
remedial opinion. As for congressional intent: Of course
Congress intended that judge-found facts be legally essential
to the punishment imposed; that was the whole reason the
mandatory Guidelines violated the Sixth Amendment. If
we are now to indulge a newfound respect for unconstitu
tional congressional intent, we should reimpose the manda
tory Guidelines system. The quasi-Guidelines system the
Court creates today manages to contravene both congres
sional intent and the Sixth Amendment.
As for the “intent” of the Booker remedial opinion: That
opinion purported to be divining congressional intent in
light of what the Sixth Amendment compelled. See 543
U. S., at 263–265. Absent some explanation of why substan
tive reasonableness review does not cause judge-found facts
to justify greater punishment than the jury’s verdict or the
defendant’s guilty plea would sustain, I fail to understand
how such review could possibly have been intended by all
five Justices who composed the Booker remedial majority.
After all, at least one of them did not intend “to override
Blakely, and to render academic the entire first part of
Booker itself,” and has confirmed that “[t]here would have
been no majority in Booker for the revision of Blakely es

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Opinion of Scalia, J.
sayed in [Justice Alito’s Cunningham] dissent.” Cun
ningham, 549 U. S., at 293, n. 15 (opinion for the Court by
Ginsburg, J.).
II
Abandoning substantive reasonableness review does not
require a return to the pre-SRA regime that the Booker re
medial opinion sought to avoid. See 543 U. S., at 263–265.
As I said at the outset, I believe it is possible to give some
effect to the Booker remedial opinion and the purposes that
it sought to serve while still avoiding the constitutional de
fect identified in the Booker merits opinion. Specifically,
I would limit reasonableness review to the sentencing proce
dures mandated by statute.
A
A central feature of the Booker remedial opinion was its
conclusion that the SRA was not completely inseverable.
See id., at 258–265. As a result, the Sentencing Commission
“remains in place, writing Guidelines, collecting information
about actual district court sentencing decisions, undertaking
research, and revising the Guidelines accordingly.” Id., at
264. Likewise, sentencing courts remain obligated to con
sider the various factors delineated in 18 U. S. C. § 3553(a)
(2000 ed., Supp. IV), including the now-advisory Guidelines
range. 543 U. S., at 259–260. And they are still instructed
by that subsection to “impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set
forth in paragraph (2) of [that] subsection.” Significantly,
§ 3553(c) (2000 ed. and Supp. IV) continues to require that
district courts give reasons for their sentencing decisions,
a requirement the requisite detail of which depends on
whether the sentence is: (1) within the advisory Guidelines
range; (2) within an advisory Guidelines range that spans
more than 24 months; or (3) outside the advisory Guidelines

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382 RITA v. UNITED STATES
Opinion of Scalia, J.
range. These explanations, in turn, help the Commission re
vise the advisory Guidelines to reflect actual sentencing
practices consistent with the statutory goals. See Booker,
supra, at 264 (citing 28 U. S. C. § 994 (2000 ed. and Supp. IV)).
Booker’s retention of these statutory procedural provi
sions furthered the congressional purpose of “iron[ing] out
sentencing differences,” 543 U. S., at 263, and “avoid[ing] ex
cessive sentencing disparities,” id., at 264. It is important
that appellate courts police their observance. Booker ex
cised the provision of the SRA containing the standards for
appellate review, see id., at 260 (invalidating 18 U. S. C.
§ 3742(e) (2000 ed. and Supp. IV)), but the remedial majority’s
creation of reasonableness review gave appellate courts the
necessary means to reverse a district court that: appears not
to have considered § 3553(a); considers impermissible factors;
selects a sentence based on clearly erroneous facts; or does
not comply with § 3553(c)’s requirement for a statement of
reasons.6 In addition to its direct effect on sentencing uni
formity, this procedural review will indirectly produce, over
time, reduction of sentencing disparities. By ensuring that
district courts give reasons for their sentences, and more
specific reasons when they decline to follow the advisory
Guidelines range, see § 3553(c)(2) (2000 ed., Supp. IV), appel
late courts will enable the Sentencing Commission to per
form its function of revising the Guidelines to reflect the
desirable sentencing practices of the district courts. See
Booker, supra, at 264 (citing 28 U. S. C. § 994 (2000 ed. and
Supp. IV)). And as that occurs, district courts will have less
6 “Substance” and “procedure” are admittedly chameleon-like terms.
See Sun Oil Co. v. Wortman, 486 U. S. 717, 726–727 (1988). As the text
indicates, my use of the term “procedure” here includes the limiting of
sentencing factors to permissible ones—as opposed to using permissible
factors but reaching a result that is “substantively” wrong. I therefore
disagree with Justice Stevens that a district court which discriminates
against Yankees fans is acting in a procedurally “impeccable” way. Ante,
at 365 (concurring opinion).

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reason to depart from the Commission’s recommendations,
leading to more sentencing uniformity.7
One possible objection to procedural review that the
Booker remedial opinion appears not to have considered is
18 U. S. C. § 3742(f) (2000 ed., Supp. IV), which limits appel
late courts to reversing sentences that are imposed “in viola
tion of law” or “as a result of an incorrect application of the
sentencing guidelines,” § 3742(f)(1), or that fall in certain cat
egories and are either “too high” or “too low,” § 3742(f)(2).8
But, as I noted in Booker, § 3742(e) and § 3742(f) are inextri
cably intertwined: Having excised § 3742(e)’s provisions set
ting forth the standards for appellate review, it is nonsensical
to continue to apply § 3742(f)’s provisions governing the “De
cision and Disposition” of appeals, which clearly track those
now-excised standards. See 543 U. S., at 306–307 (Scalia,
J., dissenting in part). I would hold that § 3742(f) is “incapa
ble of functioning independently” of the provisions excised
in Booker, and is thus inseverable from them. See Alaska
7 Courts must resist, however, the temptation to make procedural re
view more stringent because substantive review is off the table. The
judicial role when conducting severability analysis is limited to determin
ing whether the balance of a statute that contains an unconstitutional pro
vision is capable “of functioning independently.” Alaska Airlines, Inc. v.
Brock, 480 U. S. 678, 684 (1987). Courts have no power to add provisions
that might be desirable now that certain provisions have been excised.
Thus, when engaging in reasonableness review to determine whether the
district court has complied with the various procedures in § 3553, an appel
late court cannot subject the district court to any greater requirements
than existed pre-Booker.
8 I say “possible” because one could claim that the failure to comply with
18 U. S. C. § 3553’s procedural requirements results in a sentence imposed
in violation of law, and thereby covered by § 3742(f)(1). But § 3742(f)(1)’s
applicability to such procedural errors is called into question by
§ 3742(f)(2) (2000 ed., Supp. IV), which specifically addresses sentences
where “the district court failed to provide the required statement of rea
sons [mandated by § 3553(c)(2)].” For the reasons specified in the text,
however, I see no need to grapple, post-Booker, with the proper interpre
tation of § 3742(f).

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384 RITA v. UNITED STATES
Souter, J., dissenting
Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); 2 N. Singer,
Sutherland Statutes and Statutory Construction § 44:4,
p. 576 (6th ed. 2001) (“Even where part of an act is independ
ent and valid, other parts which are not themselves sub
stantively invalid but have no separate function to perform
independent of the invalid portions of the act are also held
invalid”).
B
Applying procedural review in this case does not require
much further discussion on my part. I join Part III of the
Court’s opinion. See ante, at 356–359.
* * *
The Court’s decision today leaves unexplained why the
mandatory Guidelines were unconstitutional, but the Court
created substantive-review system that contains the same
potential for Sixth Amendment violation is not. It is irre
sponsible to leave this patent inconsistency hanging in the
air, threatening in the future yet another major revision of
Guidelines practices to which the district courts and courts
of appeals will have to adjust. Procedural review would lay
the matter to rest, comporting with both parts of the Booker
opinion and achieving the maximum degree of sentencing
uniformity on the basis of judge-found facts that the Consti
tution permits.
Justice Souter, dissenting.
Applying the Sixth Amendment to current sentencing law
has gotten complicated, and someone coming cold to this case
might wonder how we reached this point. A very general
overview of the course of decisions over the past eight years
may help to put today’s holding in perspective.
Members of a criminal jury are guaranteed to be impartial
residents of the State and district of the crime, but the Sixth
Amendment right to trial by jury otherwise relies on history
for details, and the practical instincts of judges and legisla

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Souter, J., dissenting
tors for implementation in the courts. Litigation has, for
example, worked through issues of size, see Ballew v. Geor
gia, 435 U. S. 223 (1978) (prohibiting five-person state juries
but allowing juries of six), and unanimity, see Apodaca v.
Oregon, 406 U. S. 404 (1972) (allowing nonunanimous juries
in state criminal trials); Burch v. Louisiana, 441 U. S. 130
(1979) (prohibiting nonunanimous six-person juries). Such
decisions go to what William James would have called the
“cash-value” of the Constitution’s guarantee. See W. James,
Pragmatism: A New Name for Some Old Ways of Thinking
200 (1907).
One additional issue of both detail and implementation is
the line between judge and jury in determining facts, and in
particular the legitimate extent of factfinding by a judge
when sentencing a defendant after a guilty plea or a jury’s
verdict of guilty. Since the very inception of judicial discre
tion in determining a sentence, judges have acted on what
they learn in the course of a trial (and later what they gather
from a presentence report or other evidence at time of sen
tencing), including details a trial jury may not have found to
be true when it returned the guilty verdict or answered a
special question. But historically, also, the customary judi
cial use of these extraverdict facts has been in deciding on a
sentence within a range set in advance by the statute defin
ing the crime in question. See Williams v. New York, 337
U. S. 241, 246–247 (1949). Thus, traditionally when a judge
imposed a sentence at some point in the range, say, of 0-to-5
years specified by statute for some offense, every fact neces
sary to go as high as five years had been found by the jury
(or admitted), even though the jury had not made particular
or implicit findings of the facts the judge might consider in
exercising discretion to set the sentence higher or lower
within the 5-year range.
It was against this background, in Jones v. United States,
526 U. S. 227 (1999), that we called attention to a serious
threat to the practical value of a criminal defendant’s jury

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386 RITA v. UNITED STATES
Souter, J., dissenting
right. Jones had been prosecuted under a statute that ex
emplified a growing practice of providing a definition and
penalty for some basic crime subject to the right of jury trial,
but then identifying variants carrying higher ranges of pen
alties depending on facts that arguably might be found by
a judge sitting alone. Thus, Jones was convicted solely of
carjacking, but if the further fact of causing “ ‘serious bodily
injury’ ” was shown, the maximum penalty jumped from 15
years to 25. Id., at 230 (quoting 18 U. S. C. § 2119 (1988 ed.,
Supp. V)). The Government’s position was that the extra
fact of serious bodily injury raising the penalty range re
quired no jury finding because it was only a condition for
imposing an enhanced sentence, up to a judge, not an element
of a more serious crime, subject to the right to a jury’s deter
mination. See Jones, 526 U. S., at 233.
It was an unsettling argument, because in prosecutions
under these statutory schemes the most serious issue in the
case might well be not guilt or innocence of the basic offense,
but liability to the substantially enhanced penalty. If, for
example, the judge found that Jones had caused not just seri
ous bodily injury, but death, such extraverdict factfinding
could have made the difference between 15 years and life
imprisonment. Id., at 230 (citing § 2119). In a case like
that, giving judges the exclusive power to find the facts nec
essary to sentence in the higher range would make the jury
a mere gatekeeper to the more important trial before a judge
alone. Id., at 243–244. The Sixth Amendment does not, of
course, speak expressly to such a scheme, but that is not a
sufficient reason to give it constitutional approval. For if
judicial factfinding necessary for an enhanced sentencing
range were held to be adequate in the face of a defendant’s
objection, a defendant’s right to have a jury standing be
tween himself and the power of the government to curtail
his liberty would take on a previously unsuspected modesty.
Jones accordingly treated this practice as suspect enough
to call for applying the doctrine of constitutional avoidance

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when the Court interpreted the statute in question. What
the Government called a mere condition for imposing a sen
tencing enhancement was treated as an element of a more
serious offense and made subject to a jury’s factfinding.
This interpretation obviated the constitutional decision
whether subjecting an unwilling defendant to a more oner
ous range of sentence on facts found solely by a judge would
violate the Sixth Amendment.
The issue did not go away with Jones, and the constitu
tional challenge was soon presented inescapably, in Apprendi
v. New Jersey, 530 U. S. 466 (2000). We held that exposing
a defendant to an increased penalty beyond the range for a
basic crime, based on facts determined exclusively by a
judge, violated the Sixth Amendment, in the absence of a
jury waiver; a defendant could not be subjected to a penalty
more serious than one authorized by the facts found by the
jury or admitted by the defendant. Id., at 490.1 A judge
could constitutionally determine facts for exercising discre
tion in sentencing up to that point, but a fact that raised the
range of possible penalties functioned like an element of a
more serious offense, even if a statute ostensibly tied that
fact to the sentence alone. Hence, in the absence of waiver,
a sentence in that weightier range could be imposed by a
judge only if the enhancing fact was found beyond a reason
able doubt by the trial jury. Ibid. In placing disputed fact
finding off judicial limits when, but only when, its effect
would be to raise the range of possible sentences, we made
a practical judgment that maintained the historical judicial
role in finding facts relevant to sentencing within the range
set by a jury’s verdict, but we recognized that the jury right
would be trivialized beyond recognition if that traditional
practice could be extended to the point that a judge alone
1 We recognized a single exception to this rule, permitting reliance on
the fact of a prior conviction without a jury determination that the defend
ant had previously been convicted. See Apprendi, 530 U. S., at 489–490;
see also Almendarez-Torres v. United States, 523 U. S. 224 (1998).

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388 RITA v. UNITED STATES
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(over objection) could find a fact necessary to raise the upper
limit of a sentencing range.
From the moment Apprendi drew that line, however, its
holding carried apparent implications for the regime of
Guidelines sentencing adopted in 1984, see Sentencing Re
form Act of 1984, 98 Stat. 1987, 18 U. S. C. § 3551 et seq. (2000
ed. and Supp. IV); 28 U. S. C. § 991 et seq. (2000 ed. and Supp.
IV). The general object of Guidelines sentencing was the
eminently laudable one of promoting substantial consistency
in exercising judicial discretion to sentence within the range
set by statute for a given crime. Thus, at the elementary
level, the Guidelines law limits the sentence that a judge may
impose even within the sentencing range provided by the
statute creating a particular offense. In effect, it divides a
basic sentencing range into subranges and assigns an of
fender to a subrange based on the particular facts of the case
and the offender’s criminal history. A judge may depart
from the assigned subrange only if the case presents a cir
cumstance “not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines.” 18
U. S. C. § 3553(b)(1) (2000 ed., Supp. IV). It follows that a
judge must find facts beyond those necessary for the jury’s
guilty verdict to sentence above (or below, for that matter)
the subrange designated for an offender with a comparable
criminal history whose case presents no relevant facts be
yond the formal elements of the crime itself. The result is
a hybrid sentencing practice. One could describe it by em
phasizing that the judge’s factfinding could never increase
the sentence beyond the range set by the law defining the
crime, or one could stress that a principal motivation for
Guidelines sentencing is eliminating some traditional judicial
discretion by forbidding a judge to impose a high sentence
except on the basis of some fact beyond those necessary for
a guilty verdict (and thus subject to the right to a jury’s
determination).

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In Blakely v. Washington, 542 U. S. 296 (2004), considering
a state sentencing system similar to the federal scheme, we
decided that the latter way of looking at it made more sense,
if Apprendi was going to mean something in preserving the
historical significance of the jury. See 542 U. S., at 305–306.
We held that the additional factfinding necessary for a judge
to sentence within a high subrange was comparable to the
finding of additional fact required for a judge to impose an
enhanced sentence under the law considered in Apprendi.
If Blakely had come out the other way, the significance of
Apprendi itself would be in jeopardy: a legislature would be
free to bypass Apprendi by providing an abnormally spa
cious sentencing range for any basic crime (theoretically
exposing a defendant to the highest sentence just by the
jury’s guilty verdict), then leaving it to a judge to make sup
plementary findings not only appropriate but necessary for
a sentence in a subrange at the high end. That would spell
the end of Apprendi and diminish the real significance of
jury protection that Apprendi had shored up.
In United States v. Booker, 543 U. S. 220 (2005), a majority
of the Court applied Blakely’s reasoning and held that the
Federal Guidelines, too, subjected defendants to unconstitu
tional sentences in upper subranges, absent a jury finding or
waiver. So far, so good for the Sixth Amendment, but there
was the further issue of remedy, and at that step consistency
began to falter. If statutory Guidelines were to survive,
there were two serious alternatives. One was already in
place in courts with the foresight to apply Apprendi to the
Guidelines: require any additional facts necessary for a possi
ble high subrange sentence to be charged and submitted to
the jury. True, the Government would have to think ahead
(and could not charge relevant facts that emerged unexpect
edly at trial). But the mandatory character of the Guide
lines would be preserved, the goal of consistency would con
tinue to be served, and the practical value of the jury right
would not face erosion.

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390 RITA v. UNITED STATES
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The second remedial alternative was a declaration by the
Court that the Guidelines were not mandatory but discre
tionary, so that finding extraverdict facts was not strictly
necessary for sentencing in a high subrange under the Guide
lines. On this alternative, a judge who found a subsidiary
fact specified as a condition for a high subrange sentence
might decide to impose a low sentence (independently of the
Guidelines’ own provisions for downward departure), and a
judge who found no such fact might sentence within the high
subrange for other reasons that seemed sufficient. If the
Guidelines were not mandatory, the subsidiary fact merely
provided one reasoned basis for a traditional exercise of dis
cretion to sentence at the high end of the sentencing range
provided by the statute defining the crime.
But that second alternative could not be so simple: it
raised yet further issues, and the reconfigured majority of
the Court that in fact adopted it, see 543 U. S., at 244, guar
anteed that we would have the case now before us. If dis
trict judges treated the now-discretionary Guidelines simply
as worthy of consideration but open to rejection in any given
case, the Booker remedy would threaten a return to the
old sentencing regime and would presumably produce the
apparent disuniformity that convinced Congress to adopt
Guidelines sentencing in the first place. But if sentencing
judges attributed substantial gravitational pull to the now
discretionary Guidelines, if they treated the Guidelines re
sult as persuasive or presumptively appropriate, the Booker
remedy would in practical terms preserve the very feature
of the Guidelines that threatened to trivialize the jury right.
For a presumption of Guidelines reasonableness would tend
to produce Guidelines sentences almost as regularly as man
datory Guidelines had done, with judges finding the facts
needed for a sentence in an upper subrange. This would
open the door to undermining Apprendi itself, and this is
what has happened today.

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Souter, J., dissenting
Without a powerful reason to risk reversal on the sen
tence, a district judge faced with evidence supporting a high
subrange Guidelines sentence will do the appropriate fact
finding in disparagement of the jury right and will sentence
within the high subrange. This prediction is weakened not
a whit by the Court’s description of within-Guidelines rea
sonableness as an “appellate” presumption, ante, at 351 (em
phasis deleted). What works on appeal determines what
works at trial, and if the Sentencing Commission’s views are
as weighty as the Court says they are, see ante, at 348–351,
a trial judge will find it far easier to make the appropriate
findings and sentence within the appropriate Guideline, than
to go through the unorthodox factfinding necessary to justify
a sentence outside the Guidelines range, see 18 U. S. C.
§ 3553(c)(2) (2000 ed., Supp. IV). The upshot is that today’s
decision moves the threat to the practical value of the Sixth
Amendment jury right closer to what it was when this Court
flagged it in Jones, and it seems fair to ask just what has
been accomplished in real terms by all the judicial labor im
posed by Apprendi and its associated cases.
Taking the Booker remedy (of discretionary Guidelines) as
a given, however, the way to avoid further risk to Apprendi
and the jury right is to hold that a discretionary within-
Guidelines sentence carries no presumption of reasonable
ness. Only if sentencing decisions are reviewed according
to the same standard of reasonableness whether or not
they fall within the Guidelines range will district courts be
assured that the entire sentencing range set by statute is
available to them. See Booker, supra, at 263 (calling for
a reasonableness standard “across the board”). And only
then will they stop replicating the unconstitutional system
by imposing appeal-proof sentences within the Guidelines
ranges determined by facts found by them alone.
I would therefore reject the presumption of reasonable
ness adopted in this case, not because it is pernicious in and

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392 RITA v. UNITED STATES
Souter, J., dissenting
of itself, but because I do not think we can recognize such a
presumption and still retain the full effect of Apprendi in aid
of the Sixth Amendment guarantee. But I would not stop
at rejecting the presumption. Neither my preferred course
nor the choice of today’s majority can avoid being at odds to
some degree with the intent of Congress; there is no question
that Congress meant to impose mandatory Guidelines as the
means of bringing greater uniformity to sentencing. So I
point out that the congressional objective can still be at
tained, but that Booker’s remedial holding means that only
Congress can restore the scheme to what it had in mind, and
in a way that gives full measure to the right to a jury trial.
If Congress has not had a change of heart about the value of
a Guidelines system, it can reenact the Guidelines law to give
it the same binding force it originally had, but with provision
for jury, not judicial, determination of any fact necessary for
a sentence within an upper Guidelines subrange. At this
point, only Congress can make good on both its enacted pol
icy of mandatory Guidelines sentencing and the guarantee of
a robust right of jury trial.
I respectfully dissent.2
2 Because I would ask the Court of Appeals to review the sentence for
reasonableness without resort to any presumption, I would not reach the
other issues in this case.