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The Supreme Court's New Blockbuster U.S. Sentencing Guidelines Decision:
A Clear Sixth Amendment Ruling, with an Invitation to Congress to Create a Better Remedy


Friday, Jan. 14, 2005

This past Wednesday, the U.S. Supreme Court finally issued its long-awaited opinion in United States v. Booker.

One of the Court's holdings is straightforward: The U.S. Sentencing Guidelines violate the Sixth Amendment to the extent that they allow judicial -- rather than jury -- factfinding to form the basis for sentencing.

The other holding is far from straightforward. It allows the Guidelines to survive, but only as "advisory," not mandatory, rules for federal judges. In addition, it allows appeals courts to strike down "unreasonable" sentences - without making clear what "unreasonable means." Finally, it invites Congress to frame a better remedy than this for the constitutional violation - which Congress, now, may well do.

Key Background: The Court's Earlier Holding in Blakely

In June 2004, the Court issued its groundbreaking opinion in Blakely v. Washington. There, the Court held that Washington State's sentencing guidelines violated the Sixth Amendment's guarantee of trial by jury in criminal cases.

Washington State's guidelines allowed judges - rather than juries - to make certain findings of fact that increased an offender's sentence. But according to the Blakely Court, that violates the Sixth Amendment: "a judge may impose [a sentence] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Emphasis added.)

Put another way, the Blakely Court made clear that judicial factfinding cannot form any part of the basis for the imposition of a criminal sentence within a mandatory sentencing guidelines system.

Courts Had to Decide What Blakely Means In U.S. Sentencing Guidelines Cases

The U.S. Sentencing Guidelines, like Washington State's, allow judicial factfinding to play a role. (For a detailed description of how the Guidelines work, please see my prior column.)

Accordingly, after Blakely, federal courts were immediately faced with arguments that the U.S. Sentencing Guidelines, too, violated the Sixth Amendment. Courts divided sharply on this issue. Some trial courts responded by issuing dual sentences, in the hope one would be right. Some decided to stay sentencing proceedings until the Court spoke to the issue. Virtually the entire legal community -- and even Congress -- urged the Court to act quickly to provide a ruling on this issue.

Thankfully, the Court quickly granted review in two cases that raised this issue: The Booker case, and United States v. Fanfan.

The Court's First Holding: Judges Cannot Find Facts That Increase Sentences

As noted above, a majority of the Court composed of Justices Stevens, Scalia, Souter, Thomas, and Ginsburg, found a Sixth Amendment violation.

Drawing on the Blakely precedent, the majority reasoned that "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."

What the First Booker Holding Means

Let's consider what this pronouncement means in practice.

A defendant who is being sentenced has either pled guilty, or else has gone to trial and been convicted by a jury. If he pled guilty, he admitted certain facts - for example, in his allocution under oath before the judge, in which he had to not only plead guilty, but also describe his crime. On the other hand, if he was convicted, that jury verdict of "Guilty" established certain facts - at a minimum, the facts necessary to show that the legal elements of the crime were proven.

These facts were determined with great certainty. If the jury found them, it did so beyond a reasonable doubt and without seeing evidence that that the judge deemed inadmissible. If the defendant admitted the facts under oath, presumably he did so because they were true - or, at least, the judicial system can hold him to his allocution, and assume they are true.

Now, the defendant is set for sentencing. Sentencing under the Guidelines, as I describe at greater length in my earlier column, depends on "criminal history category" and "offense level." After Booker, judge-found facts in the "offense level" category cannot push the possible sentence beyond the maximum that would otherwise apply - that is, the maximum based on jury-found facts, or facts admitted in connection with the guilty plea.

(Judges can take judicial notice of prior convictions - which are a matter of court record. So to the extent that criminal history category is defined by prior convictions, the judge can look at court records, and take notice of how many convictions there are, and for which offenses.)

According to the Court, letting in these judge-made facts is unconstitutional. Separately, one might think that - as a matter of constitutional due process - it might also be unreliable.

Unlike juries, judges, when sentencing under the Guidelines, had - before Booker - been able to find facts only by a "preponderance of the evidence" - meaning they are more likely than not to be true. That standard seems quite weak when a prison sentence depends on it and, indeed, is typically the standard in civil - not criminal - cases.

Also, unlike juries, judges sentencing under the Guidelines had - before Booker - been able to rely on evidence that would not be admissible at trial. They could listen to hearsay - even though that hearsay would not have been admissible at trial, and even though allowing hearsay testimony means the defendant cannot cross-examine the person who made the original statement. They could even listen to evidence of alleged prior criminal activity that never resulted in any conviction.

The Court's Second Holding: We Need Not Discard The Guidelines Entirely

Given the Court's first holding, are the U.S. Sentencing Guidelines null and void? The Court's answer, surprisingly, was no.

Interestingly, the answer was given by a very different majority - composed of Justices Breyer (a former U.S. Sentencing Commissioner), Rehnquist, O'Connor, Kennedy, and Ginsburg (the one common denominator).

In answering this question, this new majority sought "to determine what 'Congress would have intended'" in the event that the Court were to hold - as it did in Booker - that the Guidelines were unconstitutional to the extent that they allowed judge-made fact findings to increase sentences above the otherwise-applicable maximum.

The question for the Court thus was whether Congress would have intended that the Guidelines be defunct? Or would it have intended that a partially-altered set of Guidelines continue to be in effect?

The Court believed Congress would have intended the latter - that is, that Congress would have intended the Guidelines to survive in a way that allowed them to comply with the Sixth Amendment, rather than choosing "the total invalidation of the statute."

The Court's Surprising Remedy: The Guidelines Are Now Advisory

But what, exactly, should the partially altered U.S. Sentencing Guidelines look like?

The second majority gave an unexpected answer: The Guidelines will now become merely advisory. And that means that the only laws truly constraining the sentences judge can impose, will be the laws setting down statutory maximums and minimums for a particular offense. (Note, however, that, as I discussed in a previous column, the continuing constitutionality of mandatory minimums remains questionable).

Thus, the Guidelines - which help judges chooses a sentence in the wide range between a given statutory maximum, and a given statutory minimum - will become a source a judge can look at, but choose to ignore. While courts still must "consider" the Guidelines, they need not follow them.

(Notably, the effect of this holding is to gut the PROTECT Act of 2003 - which I discussed in another column for this site. That Act had greatly limited judges' authority to depart below sentencing guidelines minimums. It had also subjected such departures to de novo review - that is, review without deference to the trial court. Now, judges can depart below sentencing guidelines minimums - and exceed sentencing guidelines maximums -- as a matter of course; the only minimums and maximums they must worry about are those in the statutes connected to the specific offenses of which the defendant was convicted.)

In addition, sentences will become subject to appellate review for "unreasonableness." Presumably, this will allow appeals courts to clamp down on particular sentences that seem far too harsh, or far too light, given the facts established by the guilty plea or the jury verdict in the case.

Few observers projected this outcome. Indeed, as Justice Stevens noted in dissenting from this second holding, "Neither the Government, nor the respondents, nor any of the numerous amici [friends of the court, submitting briefs in the case] has suggested [this]."

No wonder, then, that the Court conceded that Congress might come up with a better remedy, remarking that, "Ours, of course, is not the last word: The ball now lies in Congress' court."

The New "Reasonableness" Standard: Insufficient to Serve the Guidelines' Goals

The Guidelines were meant to honor the principles of uniformity, certainty, and parity in sentencing. Put simply, they were meant to ensure that similarly-situated defendants were treated more or less alike. Prior to the Guidelines, a convicted defendant's fate could depend, to a shocking degree, on which judge he happened to be assigned to. The Guidelines aimed to change that - making sentencing a matter of rational decisionmaking, not just the luck of the draw, by constraining the exercise of judicial discretion.

Now that the Guidelines are merely "advisory," can they still serve their purpose? Or will judges unconstrained by the strictures of the Guidelines now delight in ignoring them? And if so, does "reasonableness" review have a hope of reining them in? Perhaps reasonableness review would require in some instances that judges depart from the Guidelines, or that the particular Guideline itself is unreasonable.

And what does "reasonableness" mean in this context, anyway? It can't be that the Guidelines reflect the only "reasonable" sentences; if so, they would be mandatory, not advisory. But are sentences consistent with the Guidelines at least presumptively reasonable, and those outside the Guidelines range at least presumptively unreasonable?

Or is there no benchmark at all as to what, exactly, a "reasonable" sentence might be? As Justice Scalia noted in his dissent from the opinion's second holding, "What I anticipate will happen is that 'unreasonableness' review will produce a discordant symphony of different standards, varying from court to court and judge to judge." If that happens, we are truly back in a pre-Guidelines world - reasonable minds, after all, can differ, and differ significantly.

There is one bright note, however: The Court did not simply force juries to play the dominant role at the sentencing stage - which would have been one way to address the Sixth Amendment problem. That potentially could have been a mistake further eroding the already minimalist role of judges in sentencing and needlessly increasing the complexity of the sentencing process.

Nor did the Court discard the Guidelines entirely, leaving the system to revert to post-Guidelines chaos. But it has come perilously close to doing so.

Congress, in conjunction with the U.S. Sentencing Commission, now has the opportunity to carefully and deliberately develop a more effective and just federal sentencing system - one that also fully honors the right to trial by jury, and one that ensures a fair distribution of sentencing power among all participants.

Mark H. Allenbaugh, an attorney in private practice, is a nationally recognized authority on federal sentencing, law, policy and practice. He currently serves as the Chair of the Federal Sentencing Guidelines Task Force for the D.C. Chapter of the Federal Bar Association, and, among other groups, is a member of the United States Sentencing Commission's Practitioners Advisory Group. Prior to entering private practice, he served as a Staff Attorney for the U.S. Sentencing Commission. The opinions expressed herein are his own and not necessarily those of any organization with which he is associated. He can be reached at

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