1 Cite as: 55 5 U

. S. ____ (2008) S CALI A , J., dis s e nting 

# SUPREME CO URT O F THE UNI TED STATES PATRICK MARL OWE v. UNITE D STAT ES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATE S COU R T OF APPEALS FOR THE SIXTH CIR C UIT No. 07–1 39 0. Dec i ded Oc t o ber14, 200 8 

### The petition for a writ of certiorari is denied. J USTICE 

### S CALIA 

### , dissenting from the denial of c e rtiorari. PatrickMarlowe was a prison guard whose failure to provide needed medical care caus ed a prisoner’s death. He was convic ted of deprivation of constitutional rights in violation of 18 U. S. C. §242. Under the then-applicable Sentencing Guidelines, the re commended sentence for civil rights violations was calculated using the base offen s e level of the crime underlying th e civil rights violation. Since Marlowe’s jury had not been asked to determine his mental state in connec t ion with the death, the facts re

solved by the jury ver d ict co nvicted him of n o more tha n involuntary manslaughter throu gh crimina l negligence. The base offense level for that cri me was 10, which, under the other circumstance s of Marlo w e’s offense, would have produced arecommended sentence of 51 to 63 months. United States Sentencing Commis sion, Guidelines Manual §2A1.4 (Nov. 2002). The District Judge, ho wever, dete r mined that Marlowe had posses s ed the “malice afor e thought” r e quired for second-degree murd er, which in

creased the base offen s e level from 10 to 33, producing a Guidelines- r ecommended sentence of life. The Distric t Judge sentenced Marlowe to life inprison. On appeal, the Sixth Circuit a p plied a presumption of reasonableness to the sentence 1 

### because, inlight of the

——————

1 For t h e rea s ons s e t fort h in m ys e pa ra te opinion in Ri tav. United States , 551 U. S. ___, ___ (20 07), I be lieve t h at it is i m pro p er for courts to review fo r substantive reasonablen ess sentences that are within the2 MARLOWE v. UNITED STAT ES S CALI A , J., dis s e nting 

### judge-found fact that Marlowe had possessed the state of mind required for second-degree murder, the sentence was consistent with the Guidelines. UnitedS t ates v. Cona ts er , 514 F. 3d 508, 526–52 7 (2008). 2 

### In other words, the Sixth Circuit found the life s e ntence lawful solely b e cause of the judge-foundfact thatMarlowe had acted with malice aforethought. This fa lls short of what we h a ve held the right to tri al by jury demands: “Any fact (o ther than a prior convic tion) which is necessaryto suppor t a sentence exceeding the maximum authorized by the facts estab

lished by a plea of guilty or a ju ry verdict mu st be admit

ted by the defendant or proved to a jury beyond a reason

able doubt. ” United S t atesv. Boo k er , 543 U. S. 220, 24 4 (2005). I would gra n t the petit i on for certiorari, so that we m a y either forthrightly appl y Booker or announce that the case is overruled.

—————— s t at ut ory lim it s . I give st are deci sis effec t , howev e r , to the Cour t’ s cont ra ryholding int h a tca s e .

2 Only one o f t h e three-jud g epanel said th at she would have upheld the sentence as reasonable e v en if ith a d beenc a lc u l ated as anu p war d departure fro mthe Guideli n es-reco mmended sen t en c e . 514 F. 3d, a t 5 2 8

– 5 3 2 (Moore, J ., con c ur ri ng in pa rta n d concu rrin ginj u dgm e nt). If su bst a n t iv e r e ason ab len e ss r e v i ew h a s an ymean in g , I dou b t th at a l i fe s e ntence forn e gligent homic i de could b e s u s t a i ned.