Federal sentencing guidelines unconstitutional

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The U.S. Supreme Court held on Jan. 12 that the U.S. Supreme Court decision in Blakely v. Washington — striking down a state’s sentencing guidelines — applies to the federal sentencing guidelines, as well.

On the issue of remedy, however, the court held that the guidelines were not entirely invalid, and did not require submission of sentencing issues to the jury, but were to be considered advisory by sentencing courts. The court also held that its decision was not retroactive to cases on collateral review.

Freddie J. Booker was charged in Wisconsin federal court with possession with intent to distribute at least 50 grams of cocaine base, which carries a minimum sentence of ten years and a maximum of life.

A jury found him guilty and, at sentencing, U.S. District Court Judge John C. Shabaz found by a preponderance of the evidence that Booker (1) had distributed 566 grams over and above the 92.5 grams found in his duffel bag (an amount Booker did not contest, but claimed that he didn’t possess); and (2) had obstructed justice.

The effect of those findings, under the federal sentencing guidelines, was to place the defendant in a sentencing range of 360 months to life. Without those findings, his maximum would have been 262 months. Shabaz sentenced Booker to 360 months, and Booker appealed, arguing that the sentence violated his right to a jury.

The Seventh Circuit expedited the appeal, agreed with Booker, and vacated the sentence, in a decision written by Judge Richard A. Posner, and joined by Judge Michael S. Kanne. Judge Frank H. Easter-brook dissented.

The U.S. Supreme Court granted review and, by a vote of 5-4, affirmed the holding of the Seventh Circuit that application of the sentencing guidelines violates defendants’ rights to a jury trial, in a decision by Justice John Paul Stevens.

In a separate opinion addressing the appropriate remedy, written by Justice Stephen G. Breyer and consisting of a different five-justice majority, the court held that the guidelines should be deemed advisory.

The case spawned dissents by four separate justices: Stevens; Breyer; Antonin Scalia; and Clarence Thomas.

The court also reversed in the companion case, Fanfan v. U.S., in which the First Circuit had held the federal sentencing guidelines constitutional, notwithstanding Blakely.

Blakely

In Blakely v. Washington, the U.S. Supreme Court invalidated, pursuant to the Sixth Amendment right to jury trial, a statute of the State of Washington that authorized the sentencing court to impose a sentence above the "standard range" set forth in the statute, if it found any aggravating factors that justified such a departure. Pursuant to that grant of authority, the judge had imposed a sentence of 90 months, exceeding the standard range of 49 to 53 months for his offense, second-degree kidnapping.

The Supreme Court had already held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt," in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

In Blakely, the court held, "the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."

The court added, "In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority."

Stevens’ Opinion

Turning to the federal guidelines, a majority of the court concluded, in a decision by Stevens, that they are indistinguishable from those in the State of Washington.

Stevens wrote, "If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court’s answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant."

Addressing the case at bar, the court observed, "Booker’s case illustrates the mandatory nature of the Guidelines. The jury convicted him of possessing at least 50 grams of crack in violation of 21 U.S.C. sec. 841(b)(1)(A)(iii) based on evidence that he had 92.5 grams of crack in his duffel bag. Under these facts, the Guidelines specified an offense level of 32, which, given the defe
ndant’s criminal history category, authorized a sentence of 210-to-262 months. Booker’s is a run-of-the-mill drug case, and does not present any factors that were inadequately considered by the Commission. The sentencing judge would therefore have been reversed had he not imposed a sentence within the level 32 Guidelines range.

"Booker’s actual sentence, however, was 360 months, almost 10 years longer than the Guidelines range supported by the jury verdict alone. To reach this sentence, the judge found facts beyond those found by the jury: namely, that Booker possessed 566 grams of crack in addition to the 92.5 grams in his duffel bag. The jury never heard any evidence of the additional drug quantity, and the judge found it true by a preponderance of the evidence. Thus, just as in Blakely, ‘the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.’ There is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases (cites omitted)."

The court added, "In his dissent, Justice Breyer argues on historical grounds that the Guidelines scheme is constitutional across the board. He points to traditional judicial authority to increase sentences to take account of any unusual blameworthiness in the manner employed in committing a crime, an authority that the Guidelines require to be exercised consistently throughout the system. This tradition, however, does not provide a sound guide to enforcement of the Sixth Amendment’s guarantee of a jury trial in today’s world."

The court acknowledged that in Apprendi, "we referred to ‘"any fact that increases the penalty for a crime beyond the prescribed statutory maximum …."’" However, the court found this irrelevant, reasoning, "More important than the language used in our holding in Apprendi are the principles we sought to vindicate. Those principles are unquestionably applicable to the Guidelines. They are not the product of recent innovations in our jurisprudence, but rather have their genesis in the ideals our constitutional tradition assimilated from the common law. The Framers of the Constitution understood the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions’ without the benefit of a jury in criminal cases. The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta (cites omitted)."

Breyer’s Opinion

The majority opinion addressing the remedy for the unconstitutionality of the mandatory Guidelines, however, was written by Justice Breyer, and joined by the four justices who dissented from Stevens’ majority opinion (only Justice Ruth Bader Ginsburg joined both). That majority found the guidelines could be made compatible with the Sixth Amendment by severing two sections, 18 U.S.C. 3553(b)(1) and 3742(e).

The majority recognized two possible options: severance of the statutes cited above; and retaining the guidelines, but engrafting onto the system a requirement that the jury make the factual findings needed to enhance a sentence. The majority acknowledged that either option "would significantly alter the system that congress designed," but adopted the former option as more compatible with Congressional intent.

The majority found, "To engraft the Court’s constitutional requirement onto the sentencing statutes … would destroy the system. It would prevent a judge from relying upon a presentence report for factual information, relevant to sentencing, uncovered after the trial. In doing so, it would, even compared to pre-Guidelines sentencing, weaken the tie between a sentence and an offender’s real conduct. It would thereby undermine the sentencing statute’s basic aim of ensuring similar sentences for those who have committed similar crimes in similar ways."

Breyer asked, "How would courts and counsel work with an indictment and a jury trial that involved not just whether a defendant robbed a bank but also how? Would the indictment have to allege, in addition to the elements of robbery, whether the defendant possessed a firearm, whether he brandished or discharged it, whether he threatened death, whether he caused bodily injury, whether any such injury was ordinary, serious, permanent or life threatening, whether he abducted or physically restrained anyone, whether any victim was unusually vulnerable, how much money was taken, and whether he was an organizer, leader, manager, or supervisor in a robbery gang? If so, how could a defendant mount a defense against some or all such specific claims should he also try simultaneously to maintain that the Government’s evidence failed to place him at the scene of the crime? Would the indictment in a mail fraud case have to allege the number of victims, their vulnerability, and the amount taken from each? How could a judge expect a jury to work with the Guidelines’ definitions of, say, ‘relevant conduct,’ which includes ‘all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and [in the case of a conspiracy] all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity’? How would a jury measure ‘loss’ in a securities fraud case — a matter so complex as to lead the Commission to instruct judges to make ‘only … a reasonable estimate’? How would the court take account, for punishment purposes, of a defendant’s contemptuous behavior at trial — a matter that the Government could not have charged in the indictment? (cites omitted)."

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Turning to appellate review of district court sentences, Breyer wrote that appellate courts are t
o review sentences for "reasonableness," stating, "Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable."

The court analogized the reasonableness standard to that standard currently used for appellate review of decisions to depart from the guidelines, and for those crimes not subject to any express Guideline.

Retroactivity

Finally, Breyer addressed application of the court’s decision to other cases, stating, "we must apply today’s holdings — both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act — to all cases on direct review. … That fact does not mean that we believe that every sentence gives rise to a Sixth Amendment violation. Nor do we believe that every appeal will lead to a new sentencing hearing. That is because we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the ‘plain-error’ test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.

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David Ziemer can be reached by email.