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 resolved 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, determined that Marlowe had possessed the “malice aforethought” required for second-degree murder, which increased 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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1For 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 established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable 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. 2Only 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.