Early last year, the Supreme Court sent shockwaves through the federal criminal justice system when, in its decision in the Booker and Fan Fan cases, it threw out mandatory federal sentencing guidelines, instead making them merely advisory. Since then, federal district and appeals courts have struggled to interpret just what that means. Last Friday, the high court agreed to hear two cases, Claiborne v. US and Rita v. US, from a pile of pending appeals in an effort to provide greater clarity for jurists, prosecutors, and defendants.

Mario Claiborne is a 21-year-old first offender who was convicted of possessing a small amount of crack cocaine. Although the now advisory sentencing guidelines called for a sentence of 37 to 46 months, a federal district court judge in St. Louis was persuaded to sentence him to only 15 months. Federal prosecutors appealed, and the 8th US Circuit Court of Appeals in St. Louis overturned the lenient sentence. Noting that it was an "extraordinary" departure from the guidelines, the appeals court held that "an extraordinary reduction must be supported by extraordinary circumstances."

As the Supreme Court noted when it accepted the case, it must answer two questions: "1) Was the district court's choice of below-Guidelines sentence reasonable? 2) In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?"

The second case, that of Victor Rita, raises sentencing issues that are the flip-side of the Claiborne case. Rita, a retired Marine and former federal worker, was convicted of making false statements in a federal investigation of the sale of machine gun kits. His sentence, 33 months, was within the range recommended by the sentencing guidelines, but he appealed, saying it was unreasonably long given his poor health and unblemished record. But the US 4th Circuit Court of Appeals in Richmond, Virginia, denied his appeal, holding that sentences within the guidelines must be presumed to be reasonable.

In the Rita case, the Supreme Court noted it will consider three questions: "1) Was the district court's choice of within-Guidelines sentence reasonable? 2) In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences? 3) If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. §3553(a) factors and any other factors that might justify a lesser sentence?"

The Booker and Fan Fan cases were decided by a divided Supreme Court that did not include Chief Justice John Roberts and Justice Samuel Alito, and it is unclear how they will attempt to interpret it. But the two cases taken together have the potential to further open the door to more just and reasonable sentencing in the federal courts.