78
Rehnquist, C. J., dissenting
which point in the Guidelines range should serve as the basis for calculating a revocation sentence. After describing the four possible reference points within the range, the Court selects the maximum available sentence. It rejects selecting a point in the middle of the available range, because to do so "would be purely arbitrary." Ante, at 55. Yet the Court does not explain why choosing the top end of the range is any less arbitrary, or any more "sensible," than picking a point in the middle of the range. Indeed, the Court's selection smacks of awarding a consolation prize to the Government simply out of concern that the Government was mistakenly done out of victory in the main event. And choosing the maximum possible sentence under the Guidelines hardly seems consistent with the rule of lenity which the Court purports to apply.9
A straightforward reading of § 3565(a) creates no similar uncertainty. Because I think the language of § 3565(a) is clear, I would apply it. Accordingly, I would reverse the Court of Appeals.
9 The Government suggests that if "original sentence" does not refer to the sentence of probation imposed, then it might just as readily refer to the statutory sentence. The Court rejects this suggestion because imposing the maximum statutory sentence would require an upward departure from the Guidelines range, and probation "is a most unlikely prospect" in any case involving an upward departure. Ante, at 56, n. 14. Thus, according to the Court, it "makes scant sense" to assume that "original sentence" is the statutory maximum sentence. Ibid. By the same reasoning, however, it makes little sense to assume that the maximum Guidelines sentence is the "original sentence," as probation is an "unlikely prospect" in any case where a defendant would otherwise receive the maximum available sentence under the Guidelines. Indeed, if the plausibility of the potential sentence is the Court's guide, one would think the Court would choose the bottom of the Guidelines range as its benchmark.
Page: Index Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40Last modified: October 4, 2007