Vol. 11, No. 51	Covering Cases Published in the Advance Sheets through Dec. 20, 2004

The Supreme Court has finally released its long-awaited decision in Booker regarding the impact of Blakely v. Washington on the Federal Sentencing Guidelines; and its complex and badly splintered two-part ruling seems to have raised as many questions as it answered. The majority opinion was itself divided into two parts - a highly unusual procedure - each written by different factions of justices who had widely divergent views on the two issues presented. (Justice Ginsburg was the only justice who voted with both majorities; but she wrote no opinion explaining her swing votes.)

First, a coalition of five Justices (Stevens, Scalia, Souter, Thomas and Ginsburg) held that the Sixth Amendment, as construed in Blakely, does apply to the Guidelines; and that Guidelines, as currently written, violate the Sixth Amendment to the extent that they permit enhanced sentences to be imposed based on facts found by the sentencing judge upon a preponderance of the evidence - rather than on facts either admitted by the defendant or determined by the jury by proof beyond a reasonable doubt.

Then a different coalition of five Justices (Breyer, Rehnquist, O’Connor, Kennedy and Ginsburg) created a surprising “remedy” to cure those constitutional defects. That majority concluded that the remedy most akin to what Congress itself would have done was to declare that henceforth the Guidelines would no longer be mandatory for judges sentencing criminal defendants in Federal courts and instead would be rendered “effectively advisory.”

Four dissenting Justices strongly disagreed with the premise that Congress would prefer a solution that vested federal judges with greater discretion over sentencing; and they argued that the chosen “remedy” (which had not previously been discussed or proposed in any of the briefs) was both misguided and without precedent.
Almost immediately, the press and the Internet were swamped with a broad range of often conflicting commentaries about the meaning and the impact of this ruling. Perhaps the only common theme among that deluge of commentaries was that the Supreme Court had left many questions unanswered; and that the struggle between Congress and the judiciary for control of the sentencing process was far from over.

Clearly, it will take months - if not years - to sort out the impact of Booker and Blakely on the Federal sentencing system. There have already been a few substantive rulings on the impact of Booker on the Federal sentencing system. In one such ruling, Judge Paul Cassell of the D.Utah has expressed the view that, despite the new “advisory” role of the Guidelines, sentencing judges will be required to follow the Guidelines’ precepts (as developed over the years by the large body of Guidelines law) in all but the most unusual cases - and even then only when the courts find persuasive reasons for any deviations.

In another case, a Magistrate Judge from the D.Me. has concluded that Booker cannot be applied retroactively to cases on collateral review; and, while the Booker court did not expressly address the retroactivity issue, most commentators have expressed the view that Booker will not be of much benefit to prisoners whose convictions became final before June 24, 2004, the date of the Blakely decision.

To cover the steady stream of ongoing developments in Booker, we will soon be posting a new Booker resource center on our Website on the Internet at www.ussguide.com.

The Supreme Court has finally released its long-awaited decision in U.S. v. Booker and U.S. v. Fanfan regarding the impact of its ruling in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004) on the Federal Sentencing Guidelines. The result was a highly unusual and complex two-part majority ruling in which Justice Ginsburg was a notably silent swing vote in both 5-to-4 parts. As a sign of how badly splintered the Court was, there were six different - and often heated - opinions in the 125-page long decision.

Writing for the majority in the first part of the Court’s ruling, Justice Stevens stated that the questions before the Court were:

"1. Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

"2. If the answer to the first question is 'yes,' the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction."

In Blakely, a 5-to-4 majority of the Court had held that Washington state’s sentencing scheme was invalid because it violated the defendant’s right to have a jury find the existence of “any particular fact” that the law makes essential to his punishment.

The Stevens Majority

In the instant case, the same five Justices who comprised the majority in Blakely (namely Justices Stevens, Scalia, Souter, Thomas and Ginsburg) (herein the “Stevens Majority”) concluded, in a relatively straightforward opinion, that the rule announced in Blakely does apply to the Guidelines; and that the Guidelines violate the Sixth Amendment to the extent that they allow judicial - rather than jury - factfinding to form the basis for sentencing.

Drawing on its precedents in Blakely and in Apprendi v. New Jersey, 530 U.S. 466 (2000), the Stevens Majority reaffirmed that “[a]ny 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.”

That ruling forced the Court to consider the second question listed above: how should the Court sever the offending Blakely-type infirmities from the Guidelines. In addressing the appropriate remedy, Justice Stevens stated the framework within which the Sixth Amendment problems arose and should be addressed. He explained:

“This conclusion rests on the premise . . . that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges. 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.” (Emphasis added.)

Thus, the key became how best to remove the offending mandatory aspects of the Guidelines from the law. On that issue, the Stevens Majority (minus Justice Ginsburg) proposed that the Guidelines be retained as written, but that there be engrafted on that system a “jury trial” requirement for certain enhancements which would prevent the sentencing court from increasing a sentence on the basis of a fact that the jury did not find (or that the defendant did not admit.) However, Justices Stevens, Scalia, Souter and Thomas could not muster the required fifth vote to prevail on the jury trial remedy they favored, because Justice Ginsburg inexplicably declined to endorse that remedy.

The Breyer Majority

Instead, Justice Ginsburg joined with Justices Breyer, Rehnquist, O’Connor and Kennedy to form a different 5-to-4 majority (herein the “Breyer Majority”) on the appropriate remedy. The Breyer Majority agreed that Congress would have chosen a solution that retained a partially-altered set of Guidelines as law, rather than junking the entire system. But it disagreed with the “constitutional jury trial” approach favored by Justices Stevens, Scalia, Souter and Thomas, reasoning that the use of a jury trial to validate and approve sentence increases above the otherwise-applicable Guideline maximum was “incompatible with the [Sentencing Reform Act of 1984 (SRA)] as written” and “would destroy the system.”

Therefore, the Breyer Majority adopted a different solution - and one which had not previously been proposed by any of the parties: it decided to convert the entire Guideline regimen from a mandatory system to an advisory system. Thus, at least for now, the Guidelines are no longer obligatory and binding on Federal judges; they are merely “guidelines” and the text of the Federal Sentencing Guidelines are merely advisory.

The Breyer Majority acknowledged that its remedy “would significantly alter the system that Congress designed.” But it also boldly claimed that its solution “would deviate less radically from Congress’ intended system” - an issue which was hotly disputed by the dissenting judges.

To accomplish its cataclysmic change, the Breyer Majority concluded that two provisions of the SRA had to be declared invalid and excised from the Act. Specifically, the Breyer Majority first held that 18 U.S.C. § 3553(b)(1) (which requires the sentencing courts to impose a sentence within the applicable Guidelines range in the absence of circumstances that justify a departure) was “incompatible” with the constitutional holding of the Stevens Majority and had to be invalidated.

Then it also held that one of the provisions of the Feeney Amendment (a series of highly contentious amendments to the sentencing laws that were tacked on as a last minute addition to the PROTECT Act) - namely, 18 U.S.C. § 3742(e) - was also unconstitutional. Section 3742(e) was amended on April 30, 2003 to provide, inter alia, for a de novo review of departures granted by sentencing judges. In a comment that Congressman Feeney will probably find incendiary, the Breyer Majority stated that the reasons for the 2003 amendments to § 3742(e) “have ceased to be relevant.”

There were two other aspects of the Breyer Majority’s ruling that formed an integral part of its analysis and its remedy. First, even though it held that henceforth the Guidelines would only be advisory, Justice Breyer stressed that the district courts, “while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.”

Second, In place of the Feeney Amendment’s de novo review, the Breyer Majority stated that henceforth the appropriate standard of review for appellate courts would be the standard of “reasonableness.” [For the record, we note that Justice Scalia, in a separate dissent, complained that this new standard of “reasonableness” “conflates different and distinct statutory authorizations of appeals and elides crucial differences in the statutory scope of review.” He also predicted that use of the new reasonableness standard “will produce a discordant symphony” leading to “excessive sentencing disparities” and “wreak havoc” on the judicial decision.]

Some Dissenting Views

Despite its claims that its chosen remedy most closely reflects what Congress would have wanted in response to the constitutional defects outlined in the Stevens Majority, at first blush that remedy would seem to be the exact opposite. Clearly, that remedy met with cries of ridicule and cynicism from Justices Stevens, Scalia and Thomas. In their separate dissents, those three judges went out of their way to point out that the remedy chosen by the Breyer Majority was misguided and without precedent; was nothing more than a creative fix, contrived to keep in place as much of the Guidelines as possible; and it was achieved only by deliberately misreading what they believed was a clear and contrary Congressional intent.

Consider these forceful words from Justice Scalia:

“The remedial majority takes as the North Star of its analysis the fact that Congress enacted a ‘judge-based sentencing system.’ That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read ‘Congress reaffirms judge-based sentencing’ rather than ‘Congress prescribes standardized sentences.’ Justice Breyer’s opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity. Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity - that Congress was so attached to having judges determine ‘real conduct’ on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.” (Internal citations omitted).

Similarly, Justice Stevens stated that neither § 3553(b)(1) nor § 3742(e) was even “arguably unconstitutional”; that, should Congress choose to reenact the two statutory provisions that the Breyer Majority had chosen to invalidate, “that reenactment would be unquestionably constitutional.” He also commented that the remedy chosen in fact represented “a policy choice that Congress has considered and decisively rejected.” He wrote:

“Rather than rely on traditional principles of facial invalidity or severability, the majority creates a new category of cases in which this Court may invalidate any part or parts of a statute (and add others) when it concludes that Congress would have preferred a modified system to administering the statute in compliance with the Constitution. This is entirely new law. . . . There is no case of which I am aware, however, in which this Court has used ‘severability’ analysis to do what the majority does today: determine that some unconstitutional applications of a statute, when viewed in light of the Court’s reading of ‘likely’ legislative intent, justifies the invalidation of certain statutory sections in their entirety, their constitutionality notwithstanding, in order to save the parts of the statute the Court deemed most important. The novelty of this remedial maneuver perhaps explains why no party or amicus curiae to this litigation has requested the remedy the Court now orders. In addition, none of the federal courts that have addressed Blakely’s application to the Guidelines has concluded that striking down §3553(b)(1) is a proper solution.“

One other point is worth noting. While none of the Justices ever alluded to Justice Breyer’s personal stake in the Guidelines, that role has been the subject of numerous comment in the press. Before joining the Supreme Court, Justice Breyer helped draft the SRA as a Senate aide; and, later, as a member of the Sentencing Commission, he helped craft the Guidelines. Both of those roles led some judicial experts to suggest that, with such a personal stake in the outcome of the instant decision, Justice Breyer should have recused himself from participating in the instant case. (See, “Breyer Sought Legal Advice on Whether to Recuse in Sentencing Case,” by Tony Mauro, Legal Times, January 18, 2005.)

Some Early Comments on the Impact of Booker

The press and blogs on the Internet have been inundated with comments of leading proponents and protestors of Booker. A sampling of such comments were contained in “New Fight Over Controlling Punishments is Widely Seen,” by Carl Hulse and Adam Liptak, The New York Times, January 13, 2005:

• "I'm really elated, and I think most judges will be, too," Judge Jack B. Weinstein of Federal District Court in Brooklyn said. "It gives us the discretion to deal with individual cases without being unnecessarily harsh. This is now, if Congress leaves it, a marvelous system."

• "We are disappointed that the decision made the guidelines advisory in nature," Assistant Attorney General Christopher A. Wray said in a statement. "District courts are still required to consult the federal sentencing guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable. To the extent that the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent."

• "For 20 years, federal courts have been forced to impose unjust, irrational sentences based on unproven allegations, speculative calculations and the worst kinds of hearsay," Barry Scheck, president of the National Association of Criminal Defense Lawyers, said. "Congress should welcome this opportunity to create a fair and just federal sentencing system, not a quick fix."

Another noted jurist, Judge Nancy Gertner of the D.Mass. stated that “A major effect of the Supreme Court's ruling is that judges may now consider individual characteristics of a defendant - a health condition, for example. People are not from cookie cutters; cases aren't made out of the same mold. She then added that judges will now be able to consider the guidelines but not be mandated to follow them if they don't make sense in a case. "It means we will be reasonable, which is what they put us on the bench for." (See, “2 Boston jurists hail return of discretion,” by Shelley Murphy, Boston Globe, January 13, 2005.)

The Impact of Booker on Sentencing

Initially, the Court’s decision to convert the Guidelines into an advisory only system represents at least a soft revolution in sentencing law; and, if the judges (who have long chafed at the restraints imposed upon them by Congress) decide to view sentencing without regard to the sentencing practices that have become common under the Guidelines, the sentencing revolution could erupt into a major battle between Congress and the Judiciary over who will have control of the sentencing process.

While we doubt that the courts will openly go to war with Congress, it is far too early to predict whether this ruling will become a boon or a bane to criminal defendants. It is also impossible to predict the long-term impact of this decision on the Guidelines in general - or on plea bargaining in general - or on specific Guidelines’ concepts that have become ingrained in the sentencing process, such as § 5K1.1 cooperation agreements. Consider just a few of the many questions that have raised:

• Now that the Guidelines are advisory only, presumably both defendants and prosecutors will have less certainty about the sentences that will be imposed by the courts. Will that uncertainty lead to fewer plea bargains? Will that uncertainty lead to the advent of more Type C plea agreements under Rule 11(c)(1) which provides that once the court accepts the plea agreement, it is bound to impose the specific sentence negotiated by the parties?

• As an initial matter, it would seem that the district courts have been vested with precisely the type of broad discretion that Congress has been attempting (with increasing frequency and fervor) to remove. At a minimum, any such additional judicial discretion is bound to increase the tension between judges and Congress over control of the sentencing process - and it could lead to a major overhaul of the sentencing process. If that happens, will Congress seek to constrain judicial discretion through the enactment of a broad and far-reaching scheme of mandatory minimum sentences?

• How advisory will the Guidelines really be? Despite the early giddy prognostications that judges will ignore the Guidelines and impose lighter sentences, many are now predicting little real change in sentencing practices. See, for example, “Judges’ New Leeway in Passing Sentence Will Change Little,” by Adam Liptak, The New York Times, January 18, 2005.

• In view of the long-established judicial rules on retroactivity, which drastically limit the ability to cite new rules of law on collateral appeals, will Blakely and Booker be a boon or a bust to prisoners who have already been sentenced? In that connection, see “The Impact of Booker on Pending and Future Appeals” below.

Because these questions (and many more similar questions) will be debated in the courts and in Congress for a long time to come, we are in the process of setting up on our Website at www.ussguide.com a special new Booker resource center, just like we did for Blakely. The new Booker section will start with developments from and after January 12, 2005 and will track (by Circuit) key cases interpreting Booker, key legislative developments from Congress and the U.S. Sentencing Commission, and key media articles. In the meantime, we highly recommend Professor Douglas Berman’s continuing coverage of the latest Blakely/Booker developments at his Website at http://sentencing.typepad.com/.

The Impact of Booker on Pending and Future Appeals

Clearly, the question foremost on the mind of most prisoners is how will this decision affect their sentences. The Court did specifically address that issue - although we feel that it is unlikely that Booker will be of much benefit to most prisoners whose convictions became final before June 24, 2004 - the date on which Blakely was decided - unless they had clearly articulated a Blakely/Booker error in their prior appeals. Already, at least one court has ruled that Booker does not apply retroactively to cases on collateral review. (See Quirion v. U.S., Civ. No. 05-06-B-W, (D.Me. Jan. 14, 2005) (Magistrate Judge Kravchuk)).

On the other hand, it is clear that Booker does apply to defendants who are awaiting trial or sentencing, and to those who are in the process of a direct appeal from their convictions. Even Justice Breyer acknowledged that: “As these dispositions indicate, 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.” However, perhaps fearing a flood of prisoner appeals, he also encouraged the courts to use “ordinary prudential doctrines” to weed out meritless appeals.

For those who are able to raise a Blakely/Booker issue, another interesting issue will be whether the sentencing court can increase the defendant’s sentence beyond that which was initially imposed. On that issue, some commentators have already expressed the view that increased sentences are not likely for two reasons. First, there is a presumption against vindictiveness under the due process clause that generally protects against an increased sentence following a successful appeal. The parameters of that presumption were spelled out in North Carolina v. Pearce, 395 U.S. 711, 723-26 (1969).

Second, the ex post facto clause (and the extension of its principles to court rulings through the due process clause) protects a defendant from exposure to any higher discretionary sentence that he was exposed to at the time of the commission of the offense, which, at that time, was the top of the applicable Guideline range.
The Future of the Guidelines

One strong indication of the intended meaning of the “must consult” language used by Justice Breyer can be gleaned from Judge Cassell’s suspiciously early ruling in U.S. v. Wilson, No. 2:03-CR-00882 (D.Utah Jan. 13, 2005). The morning after Booker was decided, and well before most people had even had a chance to read - much less digest - its complex language, Judge Cassell posted this 39-page analysis and interpretation of Booker. Clearly, in his view, the Guidelines may no longer be mandatory in a technical sense - but they will remain binding on Federal judges in spirit. In expressing his own views about how he would deal with the Guidelines in the future, he wrote:

“Over the last 16 years, the Sentencing Commission has promulgated and honed the Guidelines to achieve [various] congressional purposes. Congress, too, has approved the Guidelines and indicated its view that Guidelines sentences achieve its purposes. Indeed, with respect to the congressionally-mandated goal of achieving uniformity, the Guidelines are the only way to create consistent sentencing as they are the only uniform standard available to guide the hundreds of district judges around the country. Therefore, in all future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only depart from those Guidelines in unusual cases for clearly identified and persuasive reasons.”

In short, Judge Cassell will treat the Guidelines as non-mandatory (to the degree needed to escape from any Sixth Amendment problems), but otherwise as virtually binding on the district courts. If other courts follow that same route, there will obviously be little difference in Federal sentencing practices after Booker.

Clearly, the struggle between Congress and the Judiciary for control of the sentencing process will continue - and for a while it will probably become more intense. Even Justice Breyer, whose decision rested on the premise that his solution most clearly reflected what Congress wanted, stated:

“Ours, of course, is not the last word. The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.”

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