Cite as: 555 U. S. ____ (2008) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
PATRICK MARLOWE v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 07–1390. Decided October 14, 2008
The petition for a writ of certiorari is denied.
JUSTICE SCALIA, dissenting from the denial of certiorari.
Patrick Marlowe was a prison guard whose failure to
provide needed medical care caused a prisoner’s death. He
was convicted of deprivation of constitutional rights in
violation of 18 U. S. C. §242. Under the then-applicable
Sentencing Guidelines, the recommended sentence for civil
rights violations was calculated using the base offense
level of the crime underlying the civil rights violation.
Since Marlowe’s jury had not been asked to determine his
mental state in connection with the death, the facts re
solved by the jury verdict convicted him of no more than
involuntary manslaughter through criminal negligence.
The base offense level for that crime was 10, which, under
the other circumstances of Marlowe’s offense, would have
produced a recommended sentence of 51 to 63 months.
United States Sentencing Commission, Guidelines Manual
§2A1.4 (Nov. 2002). The District Judge, however, deter
mined that Marlowe had possessed the “malice afore
thought” required for second-degree murder, which in
creased the base offense level from 10 to 33, producing a
Guidelines-recommended sentence of life. The District
Judge sentenced Marlowe to life in prison.
On appeal, the Sixth Circuit applied a presumption of
reasonableness to the sentence1 because, in light of the
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1 For the reasons set forth in my separate opinion in Rita v. United
States, 551 U. S. ___, ___ (2007), I believe that it is improper for courts
to review for substantive reasonableness sentences that are within the
2 MARLOWE v. UNITED STATES
SCALIA, J., dissenting
judge-found fact that Marlowe had possessed the state of
mind required for second-degree murder, the sentence was
consistent with the Guidelines. United States v. Conatser,
514 F. 3d 508, 526–527 (2008).2 In other words, the Sixth
Circuit found the life sentence lawful solely because of the
judge-found fact that Marlowe had acted with malice
aforethought. This falls short of what we have held the
right to trial by jury demands: “Any fact (other than a
prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts estab
lished by a plea of guilty or a jury verdict must be admit
ted by the defendant or proved to a jury beyond a reason
able doubt.” United States v. Booker, 543 U. S. 220, 244
(2005).
I would grant the petition for certiorari, so that we may
either forthrightly apply Booker or announce that the case
is overruled.
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statutory limits. I give stare decisis effect, however, to the Court’s
contrary holding in that case.
2 Only one of the three-judge panel said that she would have upheld
the sentence as reasonable even if it had been calculated as an upward
departure from the Guidelines-recommended sentence. 514 F. 3d, at
528–532 (Moore, J., concurring in part and concurring in judgment). If
substantive reasonableness review has any meaning, I doubt that a life
sentence for negligent homicide could be sustained.