Lawyers for Victor Rita Jr. argue that his sentence, while within the guidelines, was unreasonable because it failed to account for "his poor health and unblemished record of federal service, both as a marine and in two civilian agencies." He challenges the presumption of reasonableness that attached to his sentence simply because it fell within the advisory guideline range.

As Doug Berman points out, Rita's charges of lying to a grand jury and obstructing an investigation are similar to those facing Scooter Libby. If Libby is convicted and sentenced below the guidelines, does anyone doubt that the sentence would withstand appellate review?

The second case concerns a sentence that was shorter than the guidelines suggest.

The defendant in the second case the court accepted on Friday is a 21-year-old first offender, Mario Claiborne, who was convicted in Federal District Court in St. Louis of possessing a small quantity of crack cocaine. Mr. Claiborne’s lawyer persuaded the trial judge to impose a sentence of only 15 months, sharply lower than the guidelines range of 37 to 46 months.

The United States Court of Appeals for the Eighth Circuit, also in St. Louis, overturned the sentence and ordered resentencing, which has not yet taken place. The Eighth Circuit is among the appeals courts that regard deviations from the guidelines as inherently dubious, requiring special justification.

If the Supreme Court ultimately rules that "advisory" guidelines really are advisory, not de facto binding, the Justice Department may sharpen its lobbying for a legislative "Booker fix" to shift sentencing power from the judicial branch to the executive by further limiting judicial discretion. Democrats may be slightly more likely than Republicans to resist, providing another reason to go to the polls on Tuesday.