Rita V. United States - Dissenting Opinion

Dissenting Opinion

Justice Souter wrote that the majority' opinion did not avoid the fundamental Sixth Amendment violation caused by judicial factfinding even though the presumption of reasonableness is merely an appellate presumption. "Without a powerful incentive to risk reversal on the sentence, a district judge faced with evidence supporting a high subrange Guidelines sentence will do the appropriate factfinding in disparagement of the jury right and will sentence within the high subrange." And because what "works on appeal determines what works at trial," the judge will be tempted in turn to perform judicial factfinding in violation of the Sixth Amendment. This meant to Souter that the purpose of sentencing and the reasonableness review were fundamentally at odds.