# United States v. Booker

> Supreme Court of the United States · October 1, 2004 · 543 U.S. 220

URL: https://www.frixlaw.com/law-library/cases/137739

## Case

- **Full name:** United States v. Booker
- **Court:** Supreme Court of the United States
- **Decided:** October 1, 2004
- **Citations:** 543 U.S. 220; 125 S. Ct. 738; 160 L. Ed. 2d 621; 2005 U.S. LEXIS 628
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Stevens, Scalia, Souter, Thomas, Ginsburg, Breyer, Rehnquist, O'Connor, Kennedy
- **Cited by:** 22,155 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Reported overruled by Kimbrough v. United States, 552 U.S. 85 (2007) — not on the Supreme Court's list.
- Negative treatments: 3
- Distinguished by: 17
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/137739

## How later opinions describe it (automated extraction)

- holding that the Sixth Amendment to the United States Constitution requires that facts “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…
- holding that Sixth Amendment as construed in Blakely applies to federal sentencing guidelines; therefore, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by plea of guilty or a jury …
- holding that the Sixth Amendment to the U.S. Constitution applied to the Guidelines and requiring 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 v…
- holding that the U.S. Sentencing Guidelines must be treated as advisory rather than mandatory to avoid violating the Sixth Amendment’s right to a jury trial, which requires that, other than a prior conviction, only facts admitted by a defendant or proved beyond a reasonable do…
- holding that under the formerly mandatory Guidelines regime, “[a]ny fact (other than a prior convic- tion) 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…

## Opinion text

543 U.S. 220 (2005)
UNITED STATES
v.
BOOKER
No. 04-104.
Supreme Court of United States.
Argued October 4, 2004.
Decided January 12, 2005. [*]
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
*221 *222 *223 *224 *225 STEVENS, J., delivered the opinion of the Court in part, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., delivered the opinion of the Court in part, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and GINSBURG, JJ., joined, post, p. 244. STEVENS, J., filed an opinion dissenting in part, in which SOUTER, J., joined, and in which SCALIA, J., joined except for Part III and footnote 17, post, p. 272. SCALIA, J., post, p. 303, and THOMAS, J., post, p. 313, filed opinions dissenting in part. BREYER, J., filed an opinion dissenting in part, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined, post, p. 326.
Acting Solicitor General Clement argued the cause for the United States in both cases. With him on the brief were Assistant Attorney General Wray, Deputy Solicitor General Dreeben, James A. Feldman, Dan Himmelfarb, and Nina Goodman.
T. Christopher Kelly argued the cause for respondent in No. 04-104. With him on the brief was Dean A. Strang. Rosemary Curran Scapicchio argued the cause for respondent in No. 04-105. With her on the brief were Carter G. *226 Phillips, Jeffrey T. Green, Eric A. Shumsky, and Martin G. Weinberg. [†]
JUSTICE STEVENS delivered the opinion of the Court in part. [*]
The question presented in each of these cases is whether an application of the Federal Sentencing Guidelines violated the Sixth Amendment. In each case, the courts below held that binding rules set forth in the Guidelines limited the severity of the sentence that the judge could lawfully impose on the defendant based on the facts found by the jury at his trial. In both cases the courts rejected, on the basis of our decision in Blakely v. Washington, 542 U. S. 296 (2004), the Government's recommended application of the Sentencing Guidelines because the proposed sentences were based on additional facts that the sentencing judge found by a preponderance of the evidence. We hold that both courts correctly concluded that the Sixth Amendment as construed in *227 Blakely does apply to the Sentencing Guidelines. In a separate opinion authored by JUSTICE BREYER, the Court concludes that in light of this holding, two provisions of the Sentencing Reform Act of 1984 (SRA) that have the effect of making the Guidelines mandatory must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent.
I
Respondent Booker was charged with possession with intent to distribute at least 50 grams of cocaine base (crack). Having heard evidence that he had 92.5 grams in his duffel bag, the jury found him guilty of violating 21 U. S. C. § 841 (a)(1). That statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life for that offense. § 841(b)(1)(A)(iii).
Based upon Booker's criminal history and the quantity of drugs found by the jury, the Sentencing Guidelines required the District Court Judge to select a "base" sentence of not less than 210 nor more than 262 months in prison. See United States Sentencing Commission, Guidelines Manual §§ 2D1.1(c)(4), 4A1.1 (Nov. 2003) (USSG). The judge, however, held a post-trial sentencing proceeding and concluded by a preponderance of the evidence that Booker had possessed an additional 566 grams of crack and that he was guilty of obstructing justice. Those findings mandated that the judge select a sentence between 360 months and life imprisonment; the judge imposed a sentence at the low end of the range. Thus, instead of the sentence of 21 years and 10 months that the judge could have imposed on the basis of the facts proved to the jury beyond a reasonable doubt, Booker received a 30-year sentence.
Over the dissent of Judge Easterbrook, the Court of Appeals for the Seventh Circuit held that this application of the Sentencing Guidelines conflicted with our holding in Apprendi v. New Jersey, 530 U. S. 466, 490 (2000), that "[o]ther than the fact of a prior conviction, any fact that increases *228 the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 375 F. 3d 508, 510 (2004). The majority relied on our holding in Blakely, 542 U. S. 296 , that "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. " Id., at 303. The court held that the sentence violated the Sixth Amendment, and remanded with instructions to the District Court either to sentence respondent within the sentencing range supported by the jury's findings or to hold a separate sentencing hearing before a jury.
Respondent Fanfan was charged with conspiracy to distribute and to possess with intent to distribute at least 500 grams of cocaine in violation of 21 U. S. C. §§ 846 , 841(a)(1), and 841(b)(1)(B)(ii). He was convicted by the jury after it answered "Yes" to the question "Was the amount of cocaine 500 or more grams?" App. C to Pet. for Cert. in No. 04-105, p. 15a. Under the Guidelines, without additional findings of fact, the maximum sentence authorized by the jury verdict was imprisonment for 78 months.
A few days after our decision in Blakely , the trial judge conducted a sentencing hearing at which he found additional facts that, under the Guidelines, would have authorized a sentence in the 188-to-235-month range. Specifically, he found that respondent Fanfan was responsible for 2.5 kilograms of cocaine powder, and 261.6 grams of crack. He also concluded that respondent had been an organizer, leader, manager, or supervisor in the criminal activity. Both findings were made by a preponderance of the evidence. Under the Guidelines, these additional findings would have required an enhanced sentence of 15 or 16 years instead of the 5 or 6 years authorized by the jury verdict alone. Relying not only on the majority opinion in Blakely , but also on the categorical statements in the dissenting opinions and in the Solicitor *229 General's brief in Blakely , see App. A to Pet. for Cert. in No. 04-105, pp. 6a-7a, the judge concluded that he could not follow the particular provisions of the Sentencing Guidelines "which involve drug quantity and role enhancement," id., at 11a. Expressly refusing to make "any blanket decision about the federal guidelines," he followed the provisions of the Guidelines that did not implicate the Sixth Amendment by imposing a sentence on respondent "based solely upon the jury verdict in this case." Ibid.
Following the denial of its motion to correct the sentence in Fanfan's case, the Government filed a notice of appeal in the Court of Appeals for the First Circuit, and a petition in this Court for a writ of certiorari before judgment. Because of the importance of the questions presented, we granted that petition, 542 U. S. 956 (2004), as well as a similar petition filed by the Government in Booker's case, ibid. In both petitions, the Government asks us to determine whether our Apprendi line of cases applies to the Sentencing Guidelines, and if so, what portions of the Guidelines remain in effect. [1]
In this opinion, we explain why we agree with the lower courts' answer to the first question. In a separate opinion for the Court, JUSTICE BREYER explains the Court's answer to the second question.
*230 II
It has been settled throughout our history that the Constitution protects every criminal defendant "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U. S. 358, 364 (1970). It is equally clear that the "Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged." United States v. Gaudin, 515 U. S. 506, 511 (1995). These basic precepts, firmly rooted in the common law, have provided the basis for recent decisions interpreting modern criminal statutes and sentencing procedures.
In Jones v. United States, 526 U. S. 227, 230 (1999), we considered the federal carjacking statute, which provides three different maximum sentences depending on the extent of harm to the victim: 15 years in jail if there was no serious injury to a victim, 25 years if there was "serious bodily injury," and life in prison if death resulted. 18 U. S. C. § 2119 (1988 ed., Supp. V). In spite of the fact that the statute "at first glance has a look to it suggesting [that the provisions relating to the extent of harm to the victim] are only sentencing provisions," 526 U. S., at 232 , we concluded that the harm to the victim was an element of the crime. That conclusion was supported by the statutory text and structure, and was influenced by our desire to avoid the constitutional issues implicated by a contrary holding, which would have reduced the jury's role "to the relative importance of low-level gate-keeping." Id., at 244 . Foreshadowing the result we reach today, we noted that our holding was consistent with a "rule requiring jury determination of facts that raise a sentencing ceiling" in state and federal sentencing guidelines systems. Id., at 251-252, n. 11 .
In Apprendi v. New Jersey, 530 U. S. 466 (2000), the defendant pleaded guilty to second-degree possession of a firearm for an unlawful purpose, which carried a prison term *231 of 5-to-10 years. Thereafter, the trial court found that his conduct had violated New Jersey's "hate crime" law because it was racially motivated, and imposed a 12-year sentence. This Court set aside the enhanced sentence. We held: "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." Id., at 490 .
The fact that New Jersey labeled the hate crime a "sentence enhancement" rather than a separate criminal act was irrelevant for constitutional purposes. Id., at 478 . As a matter of simple justice, it seemed obvious that the procedural safeguards designed to protect Apprendi from punishment for the possession of a firearm should apply equally to his violation of the hate crime statute. Merely using the label "sentence enhancement" to describe the latter did not provide a principled basis for treating the two crimes differently. Id., at 476 .
In Ring v. Arizona, 536 U. S. 584 (2002), we reaffirmed our conclusion that the characterization of critical facts is constitutionally irrelevant. There, we held that it was impermissible for "the trial judge, sitting alone" to determine the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty. Id., at 588-589 . "If a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt." Id., at 602 . Our opinion made it clear that ultimately, while the procedural error in Ring's case might have been harmless because the necessary finding was implicit in the jury's guilty verdict, id., at 609, n. 7 , "the characterization of a fact or circumstance as an `element' or a `sentencing factor' is not determinative of the question `who decides,' judge or jury," id., at 605 .
In Blakely v. Washington, 542 U. S. 296 (2004), we dealt with a determinate sentencing scheme similar to the Federal *232 Sentencing Guidelines. There the defendant pleaded guilty to kidnaping, a class B felony punishable by a term of not more than 10 years. Other provisions of Washington law, comparable to the Federal Sentencing Guidelines, mandated a "standard" sentence of 49-to-53 months, unless the judge found aggravating facts justifying an exceptional sentence. Although the prosecutor recommended a sentence in the standard range, the judge found that the defendant had acted with "`deliberate cruelty'" and sentenced him to 90 months. Id., at 300 .
For reasons explained in Jones, Apprendi, and Ring , the requirements of the Sixth Amendment were clear. The application of Washington's sentencing scheme violated the defendant's right to have the jury find the existence of "`any particular fact'" that the law makes essential to his punishment. 542 U. S., at 301 . That right is implicated whenever a judge seeks to impose a sentence that is not solely based on "facts reflected in the jury verdict or admitted by the defendant." Id., at 303 (emphasis deleted). We rejected the State's argument that the jury verdict was sufficient to authorize a sentence within the general 10-year sentence for class B felonies, noting that under Washington law, the judge was required to find additional facts in order to impose the greater 90-month sentence. Our precedents, we explained, make clear "that 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. " Ibid. (emphasis in original). The determination that the defendant acted with deliberate cruelty, like the determination in Apprendi that the defendant acted with racial malice, increased the sentence that the defendant could have otherwise received. Since this fact was found by a judge using a preponderance of the evidence standard, the sentence violated Blakely's Sixth Amendment rights.
*233 As the dissenting opinions in Blakely recognized, there is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case. See, e. g., 542 U. S., at 325 (opinion of O'CONNOR, J.) ("The structure of the Federal Guidelines likewise does not, as the Government half-heartedly suggests, provide any grounds for distinction. . . . If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack"). This conclusion rests on the premise, common to both systems, 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. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U. S., at 481 ; Williams v. New York, 337 U. S. 241, 246 (1949). 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.
The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges. [2] While subsection *234 (a) of § 3553 of the sentencing statute [3] lists the Sentencing Guidelines as one factor to be considered in imposing a sentence, subsection (b) directs that the court " shall impose a sentence of the kind, and within the range" established by the Guidelines, subject to departures in specific, limited cases. (Emphasis added.) Because they are binding on judges, we have consistently held that the Guidelines have the force and effect of laws. See, e. g., Mistretta v. United States, 488 U. S. 361, 391 (1989); Stinson v. United States, 508 U. S. 36, 42 (1993).
The availability of a departure in specified circumstances does not avoid the constitutional issue, just as it did not in Blakely itself. The Guidelines permit departures from the prescribed sentencing range in cases in which the judge "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U. S. C. A. § 3553(b)(1) (Supp. 2004). At first glance, one might believe that the ability of a district judge to depart from the Guidelines means that she is bound only by the statutory maximum. Were this the case, there would be no Apprendi problem. Importantly, however, departures are not available in every case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is bound to impose a sentence within the Guidelines range. It was for this reason that we rejected a similar argument in Blakely , holding that although the Washington statute allowed the judge to impose a sentence outside the sentencing range for "`substantial and compelling reasons,'" that exception was not available for Blakely himself. 542 U. S., at 299 . The sentencing judge *235 would have been reversed had he invoked the departure section to justify the sentence.
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. § 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 defendant's criminal history category, authorized a sentence of 210-to-262 months. See USSG § 2D1.1(c)(4). 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." 542 U. S., at 305 . 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.
In his dissent, post, at 327-329, 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, *236 however, does not provide a sound guide to enforcement of the Sixth Amendment's guarantee of a jury trial in today's world.
It is quite true that once determinate sentencing had fallen from favor, American judges commonly determined facts justifying a choice of a heavier sentence on account of the manner in which particular defendants acted. Apprendi, 530 U. S., at 481 . In 1986, however, our own cases first recognized a new trend in the legislative regulation of sentencing when we considered the significance of facts selected by legislatures that not only authorized, or even mandated, heavier sentences than would otherwise have been imposed, but increased the range of sentences possible for the underlying crime. See McMillan v. Pennsylvania, 477 U. S. 79, 87-88 (1986). Provisions for such enhancements of the permissible sentencing range reflected growing and wholly justified legislative concern about the proliferation and variety of drug crimes and their frequent identification with firearms offenses.
The effect of the increasing emphasis on facts that enhanced sentencing ranges, however, was to increase the judge's power and diminish that of the jury. It became the judge, not the jury, who determined the upper limits of sentencing, and the facts determined were not required to be raised before trial or proved by more than a preponderance.
As the enhancements became greater, the jury's finding of the underlying crime became less significant. And the enhancements became very serious indeed. See, e. g., Jones, 526 U. S., at 230-231 (judge's finding increased the maximum sentence from 15 to 25 years); respondent Booker's case (from 262 months to a life sentence); respondent Fanfan's case (from 78 to 235 months); United States v. Rodriguez, 73 F. 3d 161, 162-163 (CA7 1996) (Posner, C. J., dissenting from denial of rehearing en banc) (from approximately 54 months to a life sentence); United States v. Hammoud, 381 F. 3d 316 , *237 361-362 (CA4 2004) (en banc) (Motz, J., dissenting) (actual sentence increased from 57 months to 155 years).
As it thus became clear that sentencing was no longer taking place in the tradition that JUSTICE BREYER invokes, the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.
III
The Government advances three arguments in support of its submission that we should not apply our reasoning in Blakely to the Federal Sentencing Guidelines. It contends that Blakely is distinguishable because the Guidelines were promulgated by a Commission rather than the Legislature; that principles of stare decisis require us to follow four earlier decisions that are arguably inconsistent with Blakely ; and that the application of Blakely to the Guidelines would conflict with separation-of-powers principles reflected in Mistretta v. United States, 488 U. S. 361 (1989). These arguments are unpersuasive.
Commission v. Legislature:
In our judgment the fact that the Guidelines were promulgated by the Sentencing Commission, rather than Congress, lacks constitutional significance. In order to impose the defendants' sentences under the Guidelines, the judges in these *238 cases were required to find an additional fact, such as drug quantity, just as the judge found the additional fact of serious bodily injury to the victim in Jones . As far as the defendants are concerned, they face significantly higher sentences — in Booker's case almost 10 years higher — because a judge found true by a preponderance of the evidence a fact that was never submitted to the jury. Regardless of whether Congress or a Sentencing Commission concluded that a particular fact must be proved in order to sentence a defendant within a particular range, "[t]he Framers would not have thought it too much to demand that, before depriving a man of [ten] more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to `the unanimous suffrage of twelve of his equals and neighbours,' rather than a lone employee of the State." Blakely, 542 U. S., at 313-314 (citation omitted).
The Government correctly notes that in Apprendi we referred to "`any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . .'" Brief for United States 15 (quoting Apprendi, 530 U. S., at 490 (emphasis in Brief for United States)). The simple answer, of course, is that we were only considering a statute in that case; we expressly declined to consider the Guidelines. See Apprendi, 530 U. S., at 497, n. 21 . It was therefore appropriate to state the rule in that case in terms of a "statutory maximum" rather than answering a question not properly before us.
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. See Jones, 526 U. S., at 244-248 . The Framers of the Constitution understood the threat of "judicial despotism" that could arise from "arbitrary punishments upon arbitrary convictions" *239 without the benefit of a jury in criminal cases. The Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton). The Founders presumably carried this concern from England, in which the right to a jury trial had been enshrined since the Magna Carta. As we noted in Apprendi :
"[T]he historical foundation for our recognition of these principles extends down centuries into the common law. `[T]o guard against a spirit of oppression and tyranny on the part of rulers,' and `as the great bulwark of [our] civil and political liberties,' trial by jury has been understood to require that ` the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and neighbours . . . .'" 530 U. S., at 477 (citations omitted).
Regardless of whether the legal basis of the accusation is in a statute or in guidelines promulgated by an independent commission, the principles behind the jury trial right are equally applicable.
Stare Decisis:
The Government next argues that four recent cases preclude our application of Blakely to the Sentencing Guidelines. We disagree. In United States v. Dunnigan, 507 U. S. 87 (1993), we held that the provisions of the Guidelines that require a sentence enhancement if the judge determines that the defendant committed perjury do not violate the privilege of the accused to testify on her own behalf. There was no contention that the enhancement was invalid because it resulted in a more severe sentence than the jury verdict had authorized. Accordingly, we found this case indistinguishable from United States v. Grayson, 438 U. S. 41 (1978), a pre-Guidelines case in which we upheld a similar sentence increase. Applying Blakely to the Guidelines would invalidate *240 a sentence that relied on such an enhancement if the resulting sentence was outside the range authorized by the jury verdict. Nevertheless, there are many situations in which the district judge might find that the enhancement is warranted, yet still sentence the defendant within the range authorized by the jury. See post, at 276-279 (STEVENS, J., dissenting in part). Thus, while the reach of Dunnigan may be limited, we need not overrule it.
In Witte v. United States, 515 U. S. 389 (1995), we held that the Double Jeopardy Clause did not bar a prosecution for conduct that had provided the basis for an enhancement of the defendant's sentence in a prior case. "We concluded that `consideration of information about the defendant's character and conduct at sentencing does not result in "punishment" for any offense other than the one of which the defendant was convicted.' Rather, the defendant is `punished only for the fact that the present offense was carried out in a manner that warrants increased punishment . . . .'" United States v. Watts, 519 U. S. 148, 155 (1997) (per curiam) (emphasis deleted) (quoting Witte, 515 U. S., at 401, 403 ). In Watts , relying on Witte , we held that the Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines. In neither Witte nor Watts was there any contention that the sentencing enhancement had exceeded the sentence authorized by the jury verdict in violation of the Sixth Amendment. The issue we confront today simply was not presented. [4]
Finally, in Edwards v. United States, 523 U. S. 511 (1998), the Court held that a jury's general verdict finding the defendants guilty of a conspiracy involving either cocaine or crack supported a sentence based on their involvement with *241 both drugs. Even though the indictment had charged that their conspiracy embraced both, they argued on appeal that the verdict limited the judge's sentencing authority. We recognized that the defendants' statutory and constitutional claims might have had merit if it had been possible to argue that their crack-related activities were not part of the same conspiracy as their cocaine activities. But they failed to make that argument, and, based on our review of the record which showed "a series of interrelated drug transactions involving both cocaine and crack," we concluded that no such claim could succeed. [5] Id., at 515 .
None of our prior cases is inconsistent with today's decision. Stare decisis does not compel us to limit Blakely 's holding.
Separation of Powers:
Finally, the Government and, to a lesser extent, JUSTICE BREYER's dissent, argue that any holding that would require Guidelines sentencing factors to be proved to a jury beyond a reasonable doubt would effectively transform them into a code defining elements of criminal offenses. The result, according to the Government, would be an unconstitutional grant to the Sentencing Commission of the inherently legislative power to define criminal elements.
There is no merit to this argument because the Commission's authority to identify the facts relevant to sentencing *242 decisions and to determine the impact of such facts on federal sentences is precisely the same whether one labels such facts "sentencing factors" or "elements" of crimes. Our decision in Mistretta, 488 U. S., at 371 , upholding the validity of the delegation of that authority, is unaffected by the characterization of such facts, or by the procedures used to find such facts in particular sentencing proceedings. Indeed, we rejected a similar argument in Jones :
"Contrary to the dissent's suggestion, the constitutional proposition that drives our concern in no way `call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature.' The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish to characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability. The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof." 526 U. S., at 243, n. 6 (citation omitted).
Our holding today does not call into question any aspect of our decision in Mistretta . That decision was premised on an understanding that the Commission, rather than performing adjudicatory functions, instead makes political and substantive decisions. 488 U. S., at 393 . We noted that the promulgation of the Guidelines was much like other activities in the Judicial Branch, such as the creation of the Federal Rules of Evidence, all of which are nonadjudicatory activities. Id., at 387 . We also noted that "Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and *243 that are appropriate to the central mission of the Judiciary." Id., at 388 . While we recognized that the Guidelines were more substantive than the Rules of Evidence or other nonadjudicatory functions delegated to the Judicial Branch, we nonetheless concluded that such a delegation did not exceed Congress' powers.
Further, a recognition that the Commission did not exercise judicial authority, but was more properly thought of as exercising some sort of legislative power, ibid., was essential to our holding. If the Commission in fact performed adjudicatory functions, it would have violated Article III because some of the members were not Article III judges. As we explained:
"[T]he `practical consequences' of locating the Commission within the Judicial Branch pose no threat of undermining the integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond constitutional bounds by uniting within the Branch the political or quasi-legislative power of the Commission with the judicial power of the courts. [The Commission's] powers are not united with the powers of the Judiciary in a way that has meaning for separation-of-powers analysis. Whatever constitutional problems might arise if the powers of the Commission were vested in a court, the Commission is not a court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial Branch." Id., at 393 .
We have thus always recognized the fact that the Commission is an independent agency that exercises policymaking authority delegated to it by Congress. Nothing in our holding today is inconsistent with our decision in Mistretta .
IV
All of the foregoing supports our conclusion that our holding in Blakely applies to the Sentencing Guidelines. We *244 recognize, as we did in Jones, Apprendi, and Blakely , that in some cases jury factfinding may impair the most expedient and efficient sentencing of defendants. But the interest in fairness and reliability protected by the right to a jury trial — a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment — has always outweighed the interest in concluding trials swiftly. Blakely, 542 U. S., at 313 . As Blackstone put it:
"[H]owever convenient these [new methods of trial] may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient ) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concerns." 4 Commentaries on the Laws of England 343-344 (1769).
Accordingly, we reaffirm our holding in Apprendi : 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.
JUSTICE BREYER delivered the opinion of the Court in part. [*]
The first question that the Government has presented in these cases is the following:
*245 "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." Pet. for Cert. in No. 04-104, p. (I).
The Court, in an opinion by JUSTICE STEVENS, answers this question in the affirmative. Applying its decisions in Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely v. Washington, 542 U. S. 296 (2004), to the Federal Sentencing Guidelines, the Court holds that, in the circumstances mentioned, the Sixth Amendment requires juries, not judges, to find facts relevant to sentencing. See ante, at 226-227, 244 (STEVENS, J., opinion of the Court).
We here turn to the second question presented, a question that concerns the remedy. We must decide whether or to what extent, "as a matter of severability analysis," the Guidelines "as a whole" are "inapplicable . . . 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." Pet. for Cert. in No. 04-104, p. (I).
We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U. S. C. A. § 3553(b)(1) (Supp. 2004), incompatible with today's constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, § 3742(e) (main ed. and Supp. 2004), which depends upon the Guidelines' mandatory nature. So modified, the federal sentencing statute, see Sentencing Reform Act of 1984 (Sentencing Act), as amended, 18 U. S. C. § 3551 et seq., 28 U. S. C. § 991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U. S. C. A. § 3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light *246 of other statutory concerns as well, see § 3553(a) (Supp. 2004).
I
We answer the remedial question by looking to legislative intent. See, e. g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Regan v. Time, Inc., 468 U. S. 641, 653 (1984) (plurality opinion). We seek to determine what "Congress would have intended" in light of the Court's constitutional holding. Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767 (1996) (plurality opinion) ("Would Congress still have passed" the valid sections "had it known" about the constitutional invalidity of the other portions of the statute? (internal quotation marks omitted)). In this instance, we must determine which of the two following remedial approaches is the more compatible with the Legislature's intent as embodied in the 1984 Sentencing Act.
One approach, that of JUSTICE STEVENS' dissent, would retain the Sentencing Act (and the Guidelines) as written, but would engraft onto the existing system today's Sixth Amendment "jury trial" requirement. The addition would change the Guidelines by preventing the sentencing court from increasing a sentence on the basis of a fact that the jury did not find (or that the offender did not admit).
The other approach, which we now adopt, would (through severance and excision of two provisions) make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender's real conduct — a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.
Both approaches would significantly alter the system that Congress designed. But today's constitutional holding means that it is no longer possible to maintain the judicial factfinding that Congress thought would underpin the mandatory *247 Guidelines system that it sought to create and that Congress wrote into the Act in 18 U. S. C. A. §§ 3553(a) and 3661 (main ed. and Supp. 2004). Hence we must decide whether we would deviate less radically from Congress' intended system (1) by superimposing the constitutional requirement announced today or (2) through elimination of some provisions of the statute.
To say this is not to create a new kind of severability analysis. Post, at 291 (STEVENS, J., dissenting in part). Rather, it is to recognize that sometimes severability questions (questions as to how, or whether, Congress would intend a statute to apply) can arise when a legislatively unforeseen constitutional problem requires modification of a statutory provision as applied in a significant number of instances. Compare, e. g., Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in result) (explaining that when a statute is defective because of its failure to extend to some group a constitutionally required benefit, the court may "either declare it a nullity" or "extend" the benefit "to include those who are aggrieved by exclusion"); Heckler v. Mathews, 465 U. S. 728, 739, n. 5 (1984) ("Although . . . ordinarily `extension, rather than nullification, is the proper course,' the court should not, of course, `use its remedial powers to circumvent the intent of the legislature . . . .'" (quoting Califano v. Westcott, 443 U. S. 76, 89 (1979) and id., at 94 (Powell, J., concurring in part and dissenting in part))); Sloan v. Lemon, 413 U. S. 825, 834 (1973) (striking down entire Pennsylvania tuition reimbursement statute because to eliminate only unconstitutional applications "would be to create a program quite different from the one the legislature actually adopted"). See also post, at 320, 323 (THOMAS, J., dissenting in part) ("[S]everability questions" can "arise from unconstitutional applications" of statutes, and such a question "is squarely presented" here); Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1950, n. 26 (1997).
*248 In today's context — a highly complex statute, interrelated provisions, and a constitutional requirement that creates fundamental change — we cannot assume that Congress, if faced with the statute's invalidity in key applications, would have preferred to apply the statute in as many other instances as possible. Neither can we determine likely congressional intent mechanically. We cannot simply approach the problem grammatically, say, by looking to see whether the constitutional requirement and the words of the Act are linguistically compatible.
Nor do simple numbers provide an answer. It is, of course, true that the numbers show that the constitutional jury trial requirement would lead to additional decisionmaking by juries in only a minority of cases. See post, at 277 (STEVENS, J., dissenting in part). Prosecutors and defense attorneys would still resolve the lion's share of criminal matters through plea bargaining, and plea bargaining takes place without a jury. See ibid. Many of the rest involve only simple issues calling for no upward Guidelines adjustment. See post, at 275. And in at least some of the remainder, a judge may find adequate room to adjust a sentence within the single Guidelines range to which the jury verdict points, or within the overlap between that range and the next highest. See post, at 278-279.
But the constitutional jury trial requirement would nonetheless affect every case. It would affect decisions about whether to go to trial. It would affect the content of plea negotiations. It would alter the judge's role in sentencing. Thus we must determine likely intent not by counting proceedings, but by evaluating the consequences of the Court's constitutional requirement in light of the Act's language, its history, and its basic purposes.
While reasonable minds can, and do, differ about the outcome, we conclude that the constitutional jury trial requirement is not compatible with the Act as written and that some severance and excision are necessary. In Part II, infra, we *249 explain the incompatibility. In Part III, infra, we describe the necessary excision. In Part IV, infra, we explain why we have rejected other possibilities. In essence, in what follows, we explain both (1) why Congress would likely have preferred the total invalidation of the Act to an Act with the Court's Sixth Amendment requirement engrafted onto it, and (2) why Congress would likely have preferred the excision of some of the Act, namely the Act's mandatory language, to the invalidation of the entire Act. That is to say, in light of today's holding, we compare maintaining the Act as written with jury factfinding added (the dissenters' proposed remedy) to the total invalidation of the statute, and conclude that Congress would have preferred the latter. We then compare our own remedy to the total invalidation of the statute, and conclude that Congress would have preferred our remedy.
II
Several considerations convince us that, were the Court's constitutional requirement added onto the Sentencing Act as currently written, the requirement would so transform the scheme that Congress created that Congress likely would not have intended the Act as so modified to stand. First, the statute's text states that "[t]he court" when sentencing will consider "the nature and circumstances of the offense and the history and characteristics of the defendant." 18 U. S. C. A. § 3553(a)(1) (main ed. and Supp. 2004). In context, the words "the court" mean "the judge without the jury," not "the judge working together with the jury." A further statutory provision, by removing typical "jury trial" evidentiary limitations, makes this clear. See § 3661 (ruling out any "limitation . . . on the information concerning the [offender's] background, character, and conduct" that the "court . . . may receive"). The Act's history confirms it. See, e. g., S. Rep. No. 98-225, p. 51 (1983) (the Guidelines system "will guide the judge in making" sentencing decisions (emphasis added)); id., at 52 (before sentencing, "the judge" *250 must consider "the nature and circumstances of the offense"); id., at 53 ("the judge" must conduct "a comprehensive examination of the characteristics of the particular offense and the particular offender").
This provision is tied to the provision of the Act that makes the Guidelines mandatory, see § 3553(b)(1) (Supp. 2004). They are part and parcel of a single, unified whole — a whole that Congress intended to apply to all federal sentencing.
This provision makes it difficult to justify JUSTICE STEVENS' approach, for that approach requires reading the words "the court" as if they meant "the judge working together with the jury." Unlike JUSTICE STEVENS, we do not believe we can interpret the statute's language to save its constitutionality, see post, at 286 (opinion dissenting in part), because we believe that any such reinterpretation, even if limited to instances in which a Sixth Amendment problem arises, would be "plainly contrary to the intent of Congress." United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994). Without some such reinterpretation, however, this provision of the statute, along with those inextricably connected to it, are constitutionally invalid, and fall outside of Congress' power to enact. Nor can we agree with JUSTICE STEVENS that a newly passed "identical statute" would be valid, post, at 283 (opinion dissenting in part). Such a new, identically worded statute would be valid only if (unlike the present statute) we could interpret that new statute (without disregarding Congress' basic intent) as being consistent with the Court's jury factfinding requirement. Compare post , at 283-284 (STEVENS, J., dissenting in part). If so, the statute would stand.
Second, Congress' basic statutory goal — a system that diminishes sentencing disparity — depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction. That determination is particularly important in the federal *251 system where crimes defined as, for example, "obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any article or commodity in commerce, by . . . extortion," 18 U. S. C. § 1951 (a), or, say, using the mail "for the purpose of executing" a "scheme or artifice to defraud," § 1341 (2000 ed., Supp. II), can encompass a vast range of very different kinds of underlying conduct. But it is also important even in respect to ordinary crimes, such as robbery, where an act that meets the statutory definition can be committed in a host of different ways. Judges have long looked to real conduct when sentencing. Federal judges have long relied upon a presentence report, prepared by a probation officer, for information (often unavailable until after the trial) relevant to the manner in which the convicted offender committed the crime of conviction.
Congress expected this system to continue. That is why it specifically inserted into the Act the provision cited above, which (recodifying prior law) says that
"[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U. S. C. § 3661 .
This Court's earlier opinions assumed that this system would continue. That is why the Court, for example, held in United States v. Watts, 519 U. S. 148 (1997) (per curiam) , that a sentencing judge could rely for sentencing purposes upon a fact that a jury had found unproved (beyond a reasonable doubt). See id., at 157 ; see also id., at 152-153 (quoting United States Sentencing Commission, Guidelines Manual § 1B1.3, comment., backg'd (Nov. 1995) (USSG), which "describes in sweeping language the conduct that a sentencing court may consider in determining the applicable guideline range," and which provides that "`[c]onduct that is not formally charged or is not an element of the offense of conviction *252 may enter into the determination of the applicable guideline sentencing range'").
The Sentencing Guidelines also assume that Congress intended this system to continue. See USSG § 1B1.3, comment., backg'd (Nov. 2003). That is why, among other things, they permit a judge to reject a plea-bargained sentence if he determines, after reviewing the presentence report, that the sentence does not adequately reflect the seriousness of the defendant's actual conduct. See § 6B1.2(a).
To engraft the Court's constitutional requirement onto the sentencing statutes, however, 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.
Several examples help illustrate the point. Imagine Smith and Jones, each of whom violates the Hobbs Act in very different ways. See 18 U. S. C. § 1951 (a) (forbidding "obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any article or commodity in commerce, by ... extortion"). Smith threatens to injure a co-worker unless the co-worker advances him a few dollars from the interstate company's till; Jones, after similarly threatening the co-worker, causes far more harm by seeking far more money, by making certain that the co-worker's family is aware of the threat, by arranging for deliveries of dead animals to the co-worker's home to show he is serious, and so forth. The offenders' behavior is very different; the known harmful consequences of their actions are different; their punishments both before, and after, the Guidelines would have been different. But, under the dissenters' approach, unless prosecutors decide to charge more than the elements of the crime, *253 the judge would have to impose similar punishments. See, e. g., post, at 303-304 (SCALIA, J., dissenting in part).
Now imagine two former felons, Johnson and Jackson, each of whom engages in identical criminal behavior: threatening a bank teller with a gun, securing $50,000, and injuring an innocent bystander while fleeing the bank. Suppose prosecutors charge Johnson with one crime (say, illegal gun possession, see 18 U. S. C. § 922 (g)) and Jackson with another (say, bank robbery, see § 2113(a)). Before the Guidelines, a single judge faced with such similar real conduct would have been able (within statutory limits) to impose similar sentences upon the two similar offenders despite the different charges brought against them. The Guidelines themselves would ordinarily have required judges to sentence the two offenders similarly. But under the dissenters' system, in these circumstances the offenders likely would receive different punishments. See, e. g., post, at 303-304 (SCALIA, J., dissenting in part).
Consider, too, a complex mail fraud conspiracy where a prosecutor may well be uncertain of the amount of harm and of the role each indicted individual played until after conviction — when the offenders may turn over financial records, when it becomes easier to determine who were the leaders and who the followers, when victim interviews are seen to be worth the time. In such a case the relation between the sentence and what actually occurred is likely to be considerably more distant under a system with a jury trial requirement patched onto it than it was even prior to the Sentencing Act, when judges routinely used information obtained after the verdict to decide upon a proper sentence.
This point is critically important. Congress' basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity. See 28 U. S. C. § 991 (b)(1)(B); see also § 994(f). That uniformity does not consist simply of similar sentences for those convicted of violations of the same statute — a uniformity consistent with the *254 dissenters' remedial approach. It consists, more importantly, of similar relationships between sentences and real conduct, relationships that Congress' sentencing statutes helped to advance and that JUSTICE STEVENS' approach would undermine. Compare post , at 288 (opinion dissenting in part) (conceding that the Sixth Amendment requirement would "undoubtedly affect `real conduct' sentencing in certain cases," but minimizing the significance of that circumstance). In significant part, it is the weakening of this real-conduct/uniformity-in-sentencing relationship, and not any "[i]nexplicabl[e]" concerns for the " manner of achieving uniform sentences," post , at 304 (SCALIA, J., dissenting in part), that leads us to conclude that Congress would have preferred no mandatory system to the system the dissenters envisage.
Third, the sentencing statutes, read to include the Court's Sixth Amendment requirement, would create a system far more complex than Congress could have intended. 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? See USSG §§ 2B3.1, 3B1.1. 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," *255 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"? §§ 1B1.3(a)(1)(A)-(B). 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"? § 2B1.1, comment., n. 3(C). 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? § 3C1.1.
Fourth, plea bargaining would not significantly diminish the consequences of the Court's constitutional holding for the operation of the Guidelines. Compare post, at 273-274 (STEVENS, J., dissenting in part). Rather, plea bargaining would make matters worse. Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing, i. e., to increase the likelihood that offenders who engage in similar real conduct would receive similar sentences. The statutes reasonably assume that their efforts to move the trial-based sentencing process in the direction of greater sentencing uniformity would have a similar positive impact upon plea-bargained sentences, for plea bargaining takes place in the shadow of ( i. e., with an eye towards the hypothetical result of) a potential trial.
That, too, is why Congress, understanding the realities of plea bargaining, authorized the Commission to promulgate policy statements that would assist sentencing judges in determining whether to reject a plea agreement after reading about the defendant's real conduct in a presentence report (and giving the offender an opportunity to challenge the report). See 28 U. S. C. § 994 (a)(2)(E); USSG § 6B1.2(a), p. s. This system has not worked perfectly; judges have often simply accepted an agreed-upon account of the conduct at *256 issue. But compared to pre-existing law, the statutes try to move the system in the right direction, i. e., toward greater sentencing uniformity.
The Court's constitutional jury trial requirement, however, if patched onto the present Sentencing Act, would move the system backwards in respect both to tried and to plea-bargained cases. In respect to tried cases, it would effectively deprive the judge of the ability to use post-verdict-acquired real-conduct information; it would prohibit the judge from basing a sentence upon any conduct other than the conduct the prosecutor chose to charge; and it would put a defendant to a set of difficult strategic choices as to which prosecutorial claims he would contest. The sentence that would emerge in a case tried under such a system would likely reflect real conduct less completely, less accurately, and less often than did a pre-Guidelines, as well as a Guidelines, trial.
Because plea bargaining inevitably reflects estimates of what would happen at trial, plea bargaining too under such a system would move in the wrong direction. That is to say, in a sentencing system modified by the Court's constitutional requirement, plea bargaining would likely lead to sentences that gave greater weight not to real conduct, but rather to the skill of counsel, the policies of the prosecutor, the case-load, and other factors that vary from place to place, defendant to defendant, and crime to crime. Compared to pre-Guidelines plea bargaining, plea bargaining of this kind would necessarily move federal sentencing in the direction of diminished, not increased, uniformity in sentencing. Compare supra, at 250-252, with post, at 288 (STEVENS, J., dissenting in part). It would tend to defeat, not to further, Congress' basic statutory goal.
Such a system would have particularly troubling consequences with respect to prosecutorial power. Until now, sentencing factors have come before the judge in the presentence report. But in a sentencing system with the Court's *257 constitutional requirement engrafted onto it, any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge entirely. Prosecutors would thus exercise a power the Sentencing Act vested in judges: the power to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment.
In respondent Booker's case, for example, the jury heard evidence that the crime had involved 92.5 grams of crack cocaine, and convicted Booker of possessing more than 50 grams. But the judge, at sentencing, found that the crime had involved an additional 566 grams, for a total of 658.5 grams. A system that would require the jury, not the judge, to make the additional "566 grams" finding is a system in which the prosecutor, not the judge, would control the sentence. That is because it is the prosecutor who would have to decide what drug amount to charge. He could choose to charge 658.5 grams, or 92.5, or less. It is the prosecutor who, through such a charging decision, would control the sentencing range. And it is different prosecutors who, in different cases — say, in two cases involving 566 grams — would potentially insist upon different punishments for similar defendants who engaged in similar criminal conduct involving similar amounts of unlawful drugs — say, by charging one of them with the full 566 grams, and the other with 10. As long as different prosecutors react differently, a system with a patched-on jury factfinding requirement would mean different sentences for otherwise similar conduct, whether in the context of trials or that of plea bargaining.
Fifth, Congress would not have enacted sentencing statutes that make it more difficult to adjust sentences upward than to adjust them downward. As several United States Senators have written in an amicus brief, "the Congress that enacted the 1984 Act did not conceive of — much less establish — a sentencing guidelines system in which sentencing judges were free to consider facts or circumstances not found *258 by a jury or admitted in a plea agreement for the purpose of adjusting a base-offense level down, but not up, within the applicable guidelines range. Such a one-way lever would be grossly at odds with Congress's intent." Brief for Sen. Orrin G. Hatch et al. as Amici Curiae 22. Yet that is the system that the dissenters' remedy would create. Compare post, at 291 (STEVENS, J., dissenting in part) (conceding asymmetry but stating belief that this "is unlikely to have more than a minimal effect").
For all these reasons, Congress, had it been faced with the constitutional jury trial requirement, likely would not have passed the same Sentencing Act. It likely would have found the requirement incompatible with the Act as written. Hence the Act cannot remain valid in its entirety. Severance and excision are necessary.
III
We now turn to the question of which portions of the sentencing statute we must sever and excise as inconsistent with the Court's constitutional requirement. Although, as we have explained, see Part II, supra, we believe that Congress would have preferred the total invalidation of the statute to the dissenters' remedial approach, we nevertheless do not believe that the entire statute must be invalidated. Compare post, at 292 (STEVENS, J., dissenting in part). Most of the statute is perfectly valid. See, e.g., 18 U. S. C. A. § 3551 (main ed. and Supp. 2004) (describing authorized sentences as probation, fine, or imprisonment); § 3552 (presentence reports); § 3554 (forfeiture); § 3555 (notification to the victims); § 3583 (supervised release). And we must "refrain from invalidating more of the statute than is necessary." Regan, 468 U.S., at 652 (plurality opinion). Indeed, we must retain those portions of the Act that are (1) constitutionally valid, id., at 652-653 , (2) capable of "functioning independently," Alaska Airlines, 480 U. S., at 684 , *259 and (3) consistent with Congress' basic objectives in enacting the statute, Regan, supra, at 653 .
Application of these criteria indicates that we must sever and excise two specific statutory provisions: the provision that requires sentencing courts to impose a sentence within the applicable Guidelines range (in the absence of circumstances that justify a departure), see 18 U. S. C. A. § 3553(b)(1) (Supp. 2004), and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range, see § 3742(e) (main ed. and Supp. 2004) (see Appendix, infra, for text of both provisions). With these two sections excised (and statutory cross-references to the two sections consequently invalidated), the remainder of the Act satisfies the Court's constitutional requirements.
As the Court today recognizes in its first opinion in these cases, the existence of § 3553(b)(1) is a necessary condition of the constitutional violation. That is to say, without this provision — namely the provision that makes "the relevant sentencing rules . . . mandatory and impose[s] binding requirements on all sentencing judges" — the statute falls outside the scope of Apprendi' s requirement. Ante, at 233 (STEVENS, J., opinion of the Court); see also ibid. ("[E]veryone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act] the provisions that make the Guidelines binding on district judges"). Cf. post, at 314-320 (THOMAS, J., dissenting in part).
The remainder of the Act "function[s] independently." Alaska Airlines, supra, at 684 . Without the "mandatory" provision, the Act nonetheless requires judges to take account of the Guidelines together with other sentencing goals. See 18 U. S. C. A. § 3553(a) (Supp. 2004). The Act nonetheless requires judges to consider the Guidelines "sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant," *260 § 3553(a)(4)(A), the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims, §§ 3553(a)(1), (3), (5)-(7) (main ed. and Supp. 2004). And the Act nonetheless requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care. § 3553(a)(2) (main ed. and Supp. 2004) (see Appendix, infra, for text of § 3553(a)).
Moreover, despite the absence of § 3553(b)(1) (Supp. 2004), the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a)). See § 3742(a) (appeal by defendant); § 3742(b) (appeal by Government). We concede that the excision of § 3553(b)(1) requires the excision of a different, appeals-related section, namely § 3742(e) (main ed. and Supp. 2004), which sets forth standards of review on appeal. That section contains critical cross-references to the (now-excised) § 3553(b)(1) and consequently must be severed and excised for similar reasons.
Excision of § 3742(e), however, does not pose a critical problem for the handling of appeals. That is because, as we have previously held, a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly. See Pierce v. Underwood, 487 U. S. 552, 558-560 (1988) (adopting a standard of review, where "neither a clear statutory prescription nor a historical tradition" existed, based on the statutory text and structure, and on practical considerations); see also Cooter & Gell v. Hartmarx Corp., 496 U. S. 384, 403-405 (1990) (same); Koon v. United States, 518 U. S. 81, 99 (1996) (citing Pierce and Cooter & Gell with approval). We infer appropriate review standards from related statutory language, the structure of the statute, and the "`sound *261 administration of justice.'" Pierce, supra, at 559-560 . And in this instance those factors, in addition to the past two decades of appellate practice in cases involving departures, imply a practical standard of review already familiar to appellate courts: review for "unreasonable[ness]." 18 U. S. C. § 3742 (e)(3) (1994 ed.).
Until 2003, § 3742(e) explicitly set forth that standard. See § 3742(e)(3) (1994 ed.). In 2003, Congress modified the pre-existing text, adding a de novo standard of review for departures and inserting cross-references to § 3553(b)(1). Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108-21, § 401 (d)(1), 117 Stat. 670 . In light of today's holding, the reasons for these revisions — to make Guidelines sentencing even more mandatory than it had been — have ceased to be relevant. The pre-2003 text directed appellate courts to review sentences that reflected an applicable Guidelines range for correctness, but to review other sentences — those that fell "outside the applicable Guideline range" — with a view toward determining whether such a sentence
" is unreasonable, having regard for ... the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and . . . the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c)." 18 U. S. C. § 3742 (e)(3) (1994 ed.) (emphasis added).
In other words, the text told appellate courts to determine whether the sentence "is unreasonable" with regard to § 3553(a). 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.
Taking into account the factors set forth in Pierce , we read the statute as implying this appellate review standard — a *262 standard consistent with appellate sentencing practice during the last two decades. JUSTICE SCALIA believes that only in "Wonderland" is it possible to infer a standard of review after excising § 3742(e). See post , at 309 (opinion dissenting in part). But our application of Pierce does not justify that characterization. Pierce requires us to judge the appropriateness of our inference based on the statute's language and basic purposes. We believe our inference a fair one linguistically, and one consistent with Congress' intent to provide appellate review. Under these circumstances, to refuse to apply Pierce and thereby retreat to a remedy that raises the problems discussed in Part II, supra (as the dissenters would do), or thereby eliminate appellate review entirely, would cut the statute loose from its moorings in congressional purpose.
Nor do we share the dissenters' doubts about the practicality of a "reasonableness" standard of review. "Reasonableness" standards are not foreign to sentencing law. The Act has long required their use in important sentencing circumstances — both on review of departures, see 18 U. S. C. § 3742 (e)(3) (1994 ed.), and on review of sentences imposed where there was no applicable Guideline, see §§ 3742(a)(4), (b)(4), (e)(4). Together, these cases account for about 16.7% of sentencing appeals. See United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics 107, n. 1, 111 (at least 711 of 5,018 sentencing appeals involved departures), 108 (at least 126 of 5,018 sentencing appeals involved the imposition of a term of imprisonment after the revocation of supervised release). See also, e. g., United States v. White Face, 383 F. 3d 733 , 737-740 (CA8 2004); United States v. Tsosie, 376 F. 3d 1210, 1218-1219 (CA10 2004); United States v. Salinas, 365 F. 3d 582, 588-590 (CA7 2004); United States v. Cook, 291 F. 3d 1297, 1300-1302 (CA11 2002 (per curiam) ; United States v. Olabanji, 268 F. 3d 636, 637-639 (CA9 2001); United States v. Ramirez-Rivera, 241 F. 3d 37, 40-41 (CA1 2001). That is why we think it fair (and not, in JUSTICE SCALIA's words, a "gross exaggeratio[n]," *263 post, at 311 (opinion dissenting in part)), to assume judicial familiarity with a "reasonableness" standard. And that is why we believe that appellate judges will prove capable of facing with greater equanimity than would JUSTICE SCALIA what he calls the "daunting prospect," post, at 312, of applying such a standard across the board.
Neither do we share JUSTICE SCALIA's belief that use of a reasonableness standard "will produce a discordant symphony" leading to "excessive sentencing disparities," and "wreak havoc" on the judicial system, post, at 312-313 (internal quotation marks omitted). The Sentencing Commission will continue to collect and study appellate court decision-making. It will continue to modify its Guidelines in light of what it learns, thereby encouraging what it finds to be better sentencing practices. It will thereby promote uniformity in the sentencing process. 28 U. S. C. A. § 994 (main ed. and Supp. 2004).
Regardless, in this context, we must view fears of a "discordant symphony," "excessive disparities," and "havoc" (if they are not themselves "gross exaggerations") with a comparative eye. We cannot and do not claim that use of a "reasonableness" standard will provide the uniformity that Congress originally sought to secure. Nor do we doubt that Congress wrote the language of the appellate provisions to correspond with the mandatory system it intended to create. Compare post, at 306-307 (SCALIA, J., dissenting in part) (expressing concern regarding the presence of § 3742(f) in light of the absence of § 3742(e)). But, as by now should be clear, that mandatory system is no longer an open choice. And the remedial question we must ask here (as we did in respect to § 3553(b)(1)) is, which alternative adheres more closely to Congress' original objective: (1) retention of sentencing appeals, or (2) invalidation of the entire Act, including its appellate provisions? The former, by providing appellate review, would tend to iron out sentencing differences; the latter would not. Hence we believe Congress would have preferred *264 the former to the latter — even if the former means that some provisions will apply differently from the way Congress had originally expected. See post, at 306-307 (SCALIA, J., dissenting in part). But, as we have said, we believe that Congress would have preferred even the latter to the system the dissenters recommend, a system that has its own problems of practicality. See supra, at 254-256.
Finally, the Act without its "mandatory" provision and related language remains consistent with Congress' initial and basic sentencing intent. Congress sought to "provide certainty and fairness in meeting the purposes of sentencing, [while] avoiding unwarranted sentencing disparities ... [and] maintaining sufficient flexibility to permit individualized sentences when warranted." 28 U.S.C. § 991 (b)(1)(B); see also USSG § 1A1.1, application note (explaining that Congress sought to achieve "honesty," "uniformity," and "proportionality" in sentencing (emphases deleted)). The system remaining after excision, while lacking the mandatory features that Congress enacted, retains other features that help to further these objectives.
As we have said, the Sentencing Commission remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly. See 28 U. S. C. A. § 994 (main ed. and Supp. 2004). The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing. See 18 U. S. C. A. §§ 3553(a)(4), (5)(Supp. 2004). But compare post, at 305 (SCALIA, J., dissenting in part) (claiming that the sentencing judge has the same discretion "he possessed before the Act was passed"). The courts of appeals review sentencing decisions for unreasonableness. These features of the remaining system, while not the system Congress enacted, nonetheless continue to move sentencing in Congress' preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to *265 individualize sentences where necessary. See 28 U. S. C. § 991 (b). We can find no feature of the remaining system that tends to hinder, rather than to further, these basic objectives. Under these circumstances, why would Congress not have preferred excision of the "mandatory" provision to a system that engrafts today's constitutional requirement onto the unchanged pre-existing statute — a system that, in terms of Congress' basic objectives, is counterproductive?
We do not doubt that Congress, when it wrote the Sentencing Act, intended to create a form of mandatory Guidelines system. See post, at 291-296 (STEVENS, J., dissenting in part). But, we repeat, given today's constitutional holding, that is not a choice that remains open. Hence we have examined the statute in depth to determine Congress' likely intent in light of today's holding. See, e. g., Denver Area Ed. Telecommunications Consortium, Inc., 518 U. S., at 767. And we have concluded that today's holding is fundamentally inconsistent with the judge-based sentencing system that Congress enacted into law. In our view, it is more consistent with Congress' likely intent in enacting the Sentencing Reform Act (1) to preserve important elements of that system while severing and excising two provisions (§§ 3553(b)(1) and 3742(e)) than (2) to maintain all provisions of the Act and engraft today's constitutional requirement onto that statutory scheme.
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.
IV
We briefly explain why we have not fully adopted the remedial proposals that the parties have advanced. First, the Government argues that "in any case in which the Constitution prohibits the judicial factfinding procedures that Congress and the Commission contemplated for implementing *266 the Guidelines, the Guidelines as a whole become inapplicable." Brief for United States in No. 04-104, p. 44. Thus the Guidelines "system contemplated by Congress and created by the Commission would be inapplicable in a case in which the Guidelines would require the sentencing court to find a sentence-enhancing fact." Id., at 66-67. The Guidelines would remain advisory, however, for § 3553(a) would remain intact. Ibid. Cf. Brief for New York Council of Defense Lawyers as Amicus Curiae 15, n. 9 (A "decision that Section 3553(b) ... is unconstitutional ... would not necessarily jeopardize the other reforms made by the Sentencing Reform Act, including ... 18 U. S. C. § 3553 (a)"); see also ibid. (recognizing that the remainder of the Act functions independently); Brief for Families Against Mandatory Minimums as Amicus Curiae 29, 30.
As we understand the Government's remedial suggestion, it coincides significantly with our own. But compare post, at 282 (STEVENS, J., dissenting in part) (asserting that no party or amicus sought the remedy we adopt); post, at 309 (SCALIA, J., dissenting in part) (same). The Government would render the Guidelines advisory in "any case in which the Constitution prohibits" judicial factfinding. But it apparently would leave them as binding in all other cases.
We agree with the first part of the Government's suggestion. However, we do not see how it is possible to leave the Guidelines as binding in other cases. For one thing, the Government's proposal would impose mandatory Guidelines-type limits upon a judge's ability to reduce sentences, but it would not impose those limits upon a judge's ability to increase sentences. We do not believe that such "one-way lever[s]" are compatible with Congress' intent. Cf. Brief for Sen. Orrin G. Hatch et al. as Amici Curiae 22; see also supra, at 253-254. For another, we believe that Congress would not have authorized a mandatory system in some cases and a nonmandatory system in others, given the administrative complexities that such a system would create. *267 Such a two-system proposal seems unlikely to further Congress' basic objective of promoting uniformity in sentencing.
Second, the respondents in essence would take the same approach as would JUSTICE STEVENS. They believe that the constitutional requirement is compatible with the Sentencing Act, and they ask us to hold that the Act continues to stand as written with the constitutional requirement engrafted onto it. We do not accept their position for the reasons we have already given. See Part II, supra.
Respondent Fanfan argues in the alternative that we should excise those provisions of the Sentencing Act that require judicial factfinding at sentencing. That system, however, would produce problems similar to those we have discussed in Part II, supra. We reject Fanfan's remedial suggestion for that reason.
V
In respondent Booker's case, the District Court applied the Guidelines as written and imposed a sentence higher than the maximum authorized solely by the jury's verdict. The Court of Appeals held Blakely applicable to the Guidelines, concluded that Booker's sentence violated the Sixth Amendment, vacated the judgment of the District Court, and remanded for resentencing. We affirm the judgment of the Court of Appeals and remand the case. On remand, the District Court should impose a sentence in accordance with today's opinions, and, if the sentence comes before the Court of Appeals for review, the Court of Appeals should apply the review standards set forth in this opinion.
In respondent Fanfan's case, the District Court held Blakely applicable to the Guidelines. It then imposed a sentence that was authorized by the jury's verdict — a sentence lower than the sentence authorized by the Guidelines as written. Thus, Fanfan's sentence does not violate the Sixth Amendment. Nonetheless, the Government (and the defendant should he so choose) may seek resentencing under the system set forth in today's opinions. Hence we vacate *268 the judgment of the District Court and remand the case for further proceedings consistent with this opinion.
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. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987) ("[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a `clear break' with the past"). See also Reynoldsville Casket Co. v. Hyde, 514 U. S. 749, 752 (1995) (civil case); Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993) (same). 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.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Title 18 U. S. C. A. § 3553(a) (main ed. and Supp. 2004) provides:
"Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider —
"(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
*269 "(2) the need for the sentence imposed —
"(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
"(B) to afford adequate deterrence to criminal conduct;
"(C) to protect the public from further crimes of the defendant; and
"(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
"(3) the kinds of sentences available;
"(4) the kinds of sentence and the sentencing range established for —
"(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines —
"(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
"(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
"(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
"(5) any pertinent policy statement —
"(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to *270 any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
"(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
"(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
"(7) the need to provide restitution to any victims of the offense."
Title 18 U. S. C. A. § 3553(b)(1) (Supp. 2004) provides: "Application of guidelines in imposing a sentence. — (1) In general. — Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission."
*271 Title 18 U. S. C. A. § 3742(e) (main ed. and Supp. 2004) provides:
"Consideration. — Upon review of the record, the court of appeals shall determine whether the sentence —
"(1) was imposed in violation of law;
"(2) was imposed as a result of an incorrect application of the sentencing guidelines;
"(3) is outside the applicable guideline range, and
"(A) the district court failed to provide the written statement of reasons required by section 3553(c);
"(B) the sentence departs from the applicable guideline range based on a factor that —
"(i) does not advance the objectives set forth in section 3553(a)(2); or
"(ii) is not authorized under section 3553(b); or
"(iii) is not justified by the facts of the case; or
"(C) the sentence departs to an unreasonable degree from the applicable guidelines range, having regard for the factors to be considered in imposing a sentence, as set forth in section 3553(a) of this title and the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or
"(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.
"The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and, except with respect to determinations under subsection (3)(A) or (3)(B), shall give due deference to the district court's application of the guidelines to the facts. With respect to determinations under subsection (3)(A) or (3)(B), the court of appeals shall review de novo the district court's application of the guidelines to the facts."
*272 JUSTICE STEVENS, with whom JUSTICE SOUTER joins, and with whom JUSTICE SCALIA joins except for Part III and footnote 17, dissenting in part.
Neither of the two Court opinions that decide these cases finds any constitutional infirmity inherent in any provision of the Sentencing Reform Act of 1984 (SRA) or the Federal Sentencing Guidelines. Specifically, neither 18 U. S. C. A. § 3553(b)(1) (Supp. 2004), which makes application of the Guidelines mandatory, nor § 3742(e) (main ed. and Supp. 2004), which authorizes appellate review of departures from the Guidelines, is even arguably unconstitutional. Neither the Government, nor the respondents, nor any of the numerous amici has suggested that there is any need to invalidate either provision in order to avoid violations of the Sixth Amendment in the administration of the Guidelines. The Court's decision to do so represents a policy choice that Congress has considered and decisively rejected. While it is perfectly clear that Congress has ample power to repeal these two statutory provisions if it so desires, this Court should not make that choice on Congress' behalf. I respectfully dissent from the Court's extraordinary exercise of authority.
Before explaining why the law does not authorize the Court's creative remedy, why the reasons it advances in support of its decision are unpersuasive, and why it is abundantly clear that Congress has already rejected that very remedy, it is appropriate to explain how the violation of the Sixth Amendment that occurred in Booker's case could readily have been avoided without making any change in the Guidelines. Booker received a sentence of 360 months' imprisonment. His sentence was based on four factual determinations: (1) the jury's finding that he possessed 92.5 grams of crack (cocaine base); (2) the judge's finding that he possessed an additional 566 grams; (3) the judge's conclusion that he had obstructed justice; and (4) the judge's evaluation of his prior criminal record. Under the jury's 92.5 grams finding, the maximum sentence authorized by the Guidelines *273 was a term of 262 months. See United States Sentencing Commission, Guidelines Manual § 2D1.1(c)(4) (Nov. 2003) (USSG).
If the 566 gram finding had been made by the jury based on proof beyond a reasonable doubt, that finding would have authorized a Guidelines sentence anywhere between 324 and 405 months — the equivalent of a range from 27 to nearly 34 years — given Booker's criminal history. § 2D1.1(c)(2). Relying on his own appraisal of the defendant's obstruction of justice, and presumably any other information in the presentence report, the judge would have had discretion to select any sentence within that range. Thus, if the two facts, which in this case actually established two separate crimes, had both been found by the jury, the judicial factfinding that produced the actual sentence would not have violated the Constitution. In other words, the judge could have considered Booker's obstruction of justice, his criminal history, and all other real offense and offender factors without violating the Sixth Amendment. Because the Guidelines as written possess the virtue of combining a mandatory determination of sentencing ranges and discretionary decisions within those ranges, they allow ample latitude for judicial factfinding that does not even arguably raise any Sixth Amendment issue.
The principal basis for the Court's chosen remedy is its assumption that Congress did not contemplate that the Sixth Amendment would be violated by depriving the defendant of the right to a jury trial on a factual issue as important as whether Booker possessed the additional 566 grams of crack that exponentially increased the maximum sentence that he could receive. I am not at all sure that that assumption is correct, but even if it is, it does not provide an adequate basis for volunteering a systemwide remedy that Congress has already rejected and could enact on its own if it elected to.
When one pauses to note that over 95% of all federal criminal prosecutions are terminated by a plea bargain, and the *274 further fact that in almost half of the cases that go to trial there are no sentencing enhancements, the extraordinary overbreadth of the Court's unprecedented remedy is manifest. It is, moreover, unique because, under the Court's reasoning, if Congress should decide to reenact the exact text of the two provisions that the Court has chosen to invalidate, that reenactment would be unquestionably constitutional. In my judgment, it is therefore clear that the Court's creative remedy is an exercise of legislative, rather than judicial, power.
I
It is a fundamental premise of judicial review that all Acts of Congress are presumptively valid. See Regan v. Time, Inc., 468 U. S. 641, 652 (1984). "A ruling of unconstitutionality frustrates the intent of the elected representatives of the people." Ibid. In the past, because of its respect for the coordinate branches of Government, the Court has invalidated duly enacted statutes — or particular provisions of such statutes — "only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U. S. 598, 607 (2000); see also El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 97 (1909). The exercise of such power is traditionally limited to issues presented in the case or controversy before the Court, and to the imposition of remedies that redress specific constitutional violations.
There are two narrow exceptions to this general rule. A facial challenge may succeed if a legislative scheme is unconstitutional in all or nearly all of its applications. That is certainly not true in these cases, however, because most applications of the Guidelines are unquestionably valid. A second exception involves cases in which an invalid provision or application cannot be severed from the remainder of the statute. That exception is inapplicable because there is no statutory or Guidelines provision that is invalid. Neither exception supports the majority's newly minted remedy.
*275 Facial Invalidity:
Regardless of how the Court defines the standard for determining when a facial challenge to a statute should succeed, [1] it is abundantly clear that the fact that a statute, or any provision of a statute, is unconstitutional in a portion of its applications does not render the statute or provision invalid, and no party suggests otherwise. The Government conceded at oral argument that 45% of federal sentences involve no enhancements. Cf. United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics 39-40 (hereinafter Sourcebook). [2] And, according to two U. S. Sentencing Commissioners who testified before Congress shortly after we handed down our decision in Blakely v. Washington, 542 U. S. 296 (2004), the number of enhancements that would actually implicate a defendant's Sixth Amendment rights is even smaller. See Hearings on Blakely v. Washington and the Future of the Federal Sentencing Guidelines before the Senate Committee on the Judiciary, 108th Cong., 2d Sess., 2 (2004) (hereinafter Hearings on Blakely ) (testimony of Commissioners John R. Steer and Hon. William K. Sessions III) ("[A] majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely "), available at http://www.ussc.gov/hearings/BlakelyTest.pdf (all Internet materials as visited Jan. 7, 2005, and available in Clerk of Court's case file). Simply stated, the Government's *276 submissions to this Court and to Congress demonstrate that the Guidelines could be constitutionally applied in their entirety, without any modifications, in the "majority of the cases sentenced under the federal guidelines." Ibid. On the basis of these submissions alone, this Court should have declined to find the Guidelines, or any particular provisions of the Guidelines, facially invalid. [3]
Accordingly, the majority's claim that a jury factfinding requirement would "destroy the system," ante, at 252 (opinion of BREYER, J.), would at most apply to a minority of sentences imposed under the Guidelines. In reality, given that the Government and judges have been apprised of the requirements of the Sixth Amendment, the number of unconstitutional applications would have been even smaller had we allowed them the opportunity to comply with our constitutional holding. This is so for several reasons.
First, it is axiomatic that a defendant may waive his Sixth Amendment right to trial by jury. Patton v. United States, 281 U. S. 276, 312-313 (1930). In Blakely we explained that "[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant *277 either stipulates to the relevant facts or consents to judicial factfinding." 542 U. S., at 310 . Such reasoning applies with equal force to sentences imposed under the Guidelines. As the majority concedes, ante, at 248, only a tiny fraction of federal prosecutions ever go to trial. See Estimate, at 2 ("In FY02, 97.1 percent of cases sentenced under the guidelines were the result of plea agreements"). If such procedures were followed in the future, our holding that Blakely applies to the Guidelines would be consequential only in the tiny portion of prospective sentencing decisions that are made after a defendant has been found guilty by a jury.
Second, in the remaining fraction of cases that result in a jury trial, I am confident that those charged with complying with the Guidelines — judges, aided by prosecutors and defense attorneys — could adequately protect defendants' Sixth Amendment rights without this Court's extraordinary remedy. In many cases, prosecutors could avoid an Apprendi v. New Jersey, 530 U. S. 466 (2000), problem simply by alleging in the indictment the facts necessary to reach the chosen Guidelines sentence. Following our decision in Apprendi , and again after our decision in Blakely , the Department of Justice advised federal prosecutors to adopt practices that would enable them "to charge and prove to the jury facts that increase the statutory maximum — for example, drug type and quantity for offenses under 21 U. S. C. 841." [4] Enhancing the specificity of indictments would be a simple matter, for example, in prosecutions under the federal drug statutes (such as Booker's prosecution). The Government has already directed its prosecutors to allege facts such as the *278 possession of a dangerous weapon or "that the defendant was an organizer or leader of criminal activity that involved five or more participants" in the indictment and prove them to the jury beyond a reasonable doubt. [5]
Third, even in those trials in which the Guidelines require the finding of facts not alleged in the indictment, such factfinding by a judge is not unconstitutional per se. To be clear, our holding in Parts I-III, ante, at 243-244 (STEVENS, J., opinion of the Court), that Blakely applies to the Guidelines does not establish the "impermissibility of judicial factfinding." Brief for United States 46. Instead, judicial factfinding to support an offense level determination or an enhancement is only unconstitutional when that finding raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant. This distinction is crucial to a proper understanding of why the Guidelines could easily function as they are currently written.
Consider, for instance, a case in which the defendant's initial sentencing range under the Guidelines is 130-to-162 months, calculated by combining a base offense level of 28 and a criminal history category of V. See USSG ch. 5, pt. A (Table). Depending upon the particular offense, the sentencing judge may use her discretion to select any sentence within this range, even if her selection relies upon factual determinations beyond the facts found by the jury. If the defendant described above also possessed a firearm, the Guidelines would direct the judge to apply a two-level enhancement under § 2D1.1, which would raise the defendant's total offense level from 28 to 30. That, in turn, would raise the defendant's eligible sentencing range to 151-to-188 months. That act of judicial factfinding would comply with the Guidelines and the Sixth Amendment so long as the sentencing *279 judge then selected a sentence between 151-to-162 months — the lower number (151) being the bottom of offense level 30 and the higher number (162) being the maximum sentence under level 28, which is the upper limit of the range supported by the jury findings alone. This type of overlap between sentencing ranges is the rule, not the exception, in the Guidelines as currently constituted. See 1 Practice Under the Federal Sentencing Guidelines § 6.01[B], p. 7 (P. Bamberger & D. Gottlieb eds. 4th ed. 2003 Supp.) (noting that nearly all Guidelines ranges overlap and that "because of the overlap, the actual sentence imposed can theoretically be the same no matter which guideline range is chosen"). Trial courts have developed considerable expertise in employing overlapping provisions in such a manner as to avoid unnecessary resolution of factual disputes, see § 7.03[B][2], at 34 (2004 Supp.), and lower courts have shown themselves capable of distinguishing proper from improper applications of sentencing enhancements under Blakely , see, e. g., United States v. Mayfield, 386 F.3d 1301 (CA9 2004) (upholding a two-level enhancement for firearm possession from offense level 34 to 36 because the sentencing judge selected a sentence within the overlapping range between the two levels). The interaction of these various Guidelines provisions demonstrates the fallacy in the assumption that judicial factfinding can never be constitutional under the Guidelines.
The majority's answer to the fact that the vast majority of applications of the Guidelines are constitutional is that "we must determine likely intent not by counting proceedings, but by evaluating the consequences of the Court's constitutional requirement" on every imaginable case. Ante, at 248 (opinion of BREYER, J.). That approach ignores the lessons of our facial invalidity cases. Those cases stress that this Court is ill suited to the task of drafting legislation and that, therefore, as a matter of respect for coordinate branches of *280 Government, we ought to presume whenever possible that those charged with writing and implementing legislation will and can apply "the statute consistently with the constitutional command." Time, Inc. v. Hill, 385 U.S. 374, 397 (1967). Indeed, this Court has generally refused to consider "every conceivable situation which might possibly arise in the application of complex and comprehensive legislation," Barrows v. Jackson, 346 U.S. 249, 256 (1953), because "[t]he delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined," United States v. Raines, 362 U.S. 17, 22 (1960). The Government has already shown it can apply the Guidelines constitutionally even as written, and Congress is perfectly capable of redrafting the statute on its own. Thus, there is no justification for the extreme judicial remedy of total invalidation of any part of the SRA or the Guidelines.
In sum, it is indisputable that the vast majority of federal sentences under the Guidelines would have complied with the Sixth Amendment without the Court's extraordinary remedy. Under any reasonable reading of our precedents, in no way can it be said that the Guidelines are, or that any particular Guidelines provision is, facially unconstitutional.
Severability:
Even though a statute is not facially invalid, a holding that certain specific provisions are unconstitutional may make it necessary to invalidate the entire statute. See generally Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76 (1937) (hereinafter Stern). Our normal rule, however, is that the "unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative *281 as a law." Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U. S. 210, 234 (1932) (emphasis added). [6]
Our "severability" precedents, however, cannot support the Court's remedy because there is no provision of the SRA or the Guidelines that falls outside of Congress' power. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987). Accordingly, severability analysis simply does not apply.
The majority concludes that our constitutional holding requires the invalidation of §§ 3553(b)(1) and 3742(e). The first *282 of these sections uses the word "shall" to make the substantive provisions of the Guidelines mandatory. See Mistretta v. United States, 488 U.S. 361, 367 (1989). The second authorizes de novo review of sentencing judges' applications of relevant Guidelines provisions. Neither section is unconstitutional. While these provisions can in certain cases, when combined with other statutory and Guidelines provisions, result in a violation of the Sixth Amendment, they are plainly constitutional on their faces.
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. Usually the Court first declares unconstitutional a particular provision of law, and only then does it inquire whether the remainder of the statute can be saved. See, e.g., Regan v. Time, 468 U.S., at 652 ; Alaska Airlines, 480 U. S., at 684 . Review in this manner limits judicial power by minimizing the damage done to the statute by judicial fiat. 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.
*283 Most importantly, the Court simply has no authority to invalidate legislation absent a showing that it is unconstitutional. To paraphrase Chief Justice Marshall, an "act of the legislature" must be "repugnant to the constitution" in order to be void. Marbury v. Madison, 1 Cranch 137, 177 (1803). When a provision of a statute is unconstitutional, that provision is void, and the Judiciary is therefore not bound by it in a particular case. Here, however, the provisions the majority has excised from the statute are perfectly valid: Congress could pass the identical statute tomorrow and it would be binding on this Court so long as it were administered in compliance with the Sixth Amendment. [7] Because the statute itself is not repugnant to the Constitution and can by its terms comport with the Sixth Amendment, the Court does not have the constitutional authority to invalidate it.
The precedent on which the Court relies is scant indeed. It can only point to cases in which a provision of law was unconstitutionally extended to or limited to a particular class; in such cases it is necessary either to invalidate the provision or to require the legislature to extend the benefit to an excluded class. [8] Given the sweeping nature of the *284 remedy ordained today, the majority's assertions that it is proper to engage in an ex ante analysis of congressional intent in order to select in the first instance the statutory provisions to be struck down is contrary to the very purpose of engaging in severability analysis—the Court's remedy expands, rather than limits, judicial power.
There is no justification for extending our severability cases to cover this situation. The SRA and the Guidelines can be read—and are being currently read—in a way that complies with the Sixth Amendment. If Congress wished to amend the statute to enact the majority's vision of how the Guidelines should operate, it would be perfectly free to do so. There is no need to devise a novel and questionable method of invalidating statutory provisions that can be constitutionally applied.
II
Rather than engage in a wholesale rewriting of the SRA, I would simply allow the Government to continue doing what it has done since this Court handed down Blakely —prove any fact that is required to increase a defendant's sentence *285 under the Guidelines to a jury beyond a reasonable doubt. As I have already discussed, a requirement of jury factfinding for certain issues can be implemented without difficulty in the vast majority of cases. See supra, at 276-280.
Indeed, this already appears to be the case. "[T]he Department of Justice already has instituted procedures which would protect the overwhelming majority of future cases from Blakely infirmity. The Department of Justice has issued detailed guidance for every stage of the prosecution from indictment to final sentencing, including alleging facts that would support sentencing enhancements and requiring defendants to waive any potential Blakely rights in plea agreements." Hearings on Blakely 1-2 . [9] Given this experience, I think the Court dramatically overstates the difficulty of implementing this solution.
The majority advances five reasons why the remedy that is already in place will not work. First, the majority points to the statutory text referring to "the court" in arguing that jury factfinding is impermissible. While this text is no doubt evidence that Congress contemplated judicial factfinding, it does not demonstrate that Congress thought that judicial factfinding was so essential that, if forced to choose between a system including jury determinations of certain facts in certain cases on the one hand, and a system in which the Guidelines would cease to restrain the discretion of federal judges on the other, Congress would have selected the latter.
*286 As a textual matter, the word "court" can certainly be read to include a judge's selection of a sentence as supported by a jury verdict—this reading is plausible either as a pure matter of statutory construction or under principles of constitutional avoidance. Ordinarily, "`where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.'" Jones v. United States, 526 U.S. 227, 239 (1999) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909)). This principle, which "has for so long been applied by this Court that it is beyond debate," Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988), is intended to show respect for Congress by presuming it "legislates in the light of constitutional limitations," Rust v. Sullivan, 500 U. S. 173, 191 (1991).
The Court, however, reverses the ordinary presumption. It interprets the phrase "[t]he court ... shall consider" in 18 U.S.C.A. § 3553 (a) (Supp. 2004) to mean: The judge shall consider and impose the appropriate sentence, but the judge shall not be constrained by any findings of a jury. See ante, at 249 (opinion of BREYER, J.) (interpreting the word "court" to mean "`the judge without the jury'"). The Court's narrow reading of the statutory text is unnecessary. Even assuming that the word "court" should be read to mean "judge, and only the judge," a requirement that certain enhancements be supported by jury verdicts leaves the ultimate sentencing decision exclusively within the judge's hands—the judge, and the judge alone, would retain the discretion to sentence the defendant anywhere within the required Guidelines range and within overlapping Guidelines ranges when applicable. See supra, at 278-279. The judge would, no doubt, be limited by the findings of the jury in certain cases, but the fact that such a limitation would be required by the Sixth Amendment in those limited circumstances is not *287 a reason to adopt such a constrained view of an Act of Congress. [10]
In adopting its constrictive reading of "court," the majority has manufactured a broader constitutional problem than is necessary, and has thereby made necessary the extraordinary remedy it has chosen. I pause, however, to stress that it is not this Court's holding that the Guidelines must be applied consistently with the Sixth Amendment that has made the majority's remedy necessary. Rather, it is the Court's miserly reading of the statutory language that results in "constitutional infirmities." See ante, at 254 (opinion of BREYER, J.)
Second, the Court argues that simply applying Blakely to the Guidelines would make "real conduct" sentencing more difficult. While that is perhaps true in some cases, judges could always consider relevant conduct obtained from a presentence report pursuant to 18 U.S.C. § 3661 and USSG § 6A1.1 in selecting a sentence within a Guidelines range, and of course would be free to consider any such circumstances in cases in which the defendant pleads guilty and waives his Blakely rights. Further, in many cases the Government could simply prove additional facts to a jury beyond a reasonable doubt—as it has been doing in some cases since Apprendi —or the court could use bifurcated proceedings in which the relevant conduct is proved to a jury after it has convicted the defendant of the underlying crime.
*288 The majority is correct, however, that my preferred holding would undoubtedly affect "real conduct" sentencing in certain cases. This is so because the goal of such sentencing—increasing a defendant's sentence on the basis of conduct not proved at trial—is contrary to the very core of Apprendi . That certain applications of "relevant conduct" sentencing are unconstitutional should not come as a complete surprise to Congress: The House Report recognized that "real offense" sentencing could pose constitutional difficulties. H. R. Rep. No. 98-1017, p. 98 (1984). In reality, the majority's concerns about relevant conduct are nothing more than an objection to Apprendi itself, an objection that this Court rejected in Parts I-III, ante (opinion of STEVENS, J.).
Further, the Court does not explain how its proposed remedy will ensure that judges take real conduct into account. While judges certainly may do so in their discretion under § 3553(a), there is no indication as to how much or to what extent "relevant conduct" should matter under the majority's regime. Nor is there any meaningful standard by which appellate courts may review a sentencing judge's "relevant conduct" determination—only a general "reasonableness" inquiry that may discourage sentencing judges from considering such conduct altogether. The Court's holding thus may do just as much damage to real conduct sentencing as would simply requiring the Government to follow the Guidelines consistent with the Sixth Amendment.
Third, the majority argues that my remedy would make sentencing proceedings far too complex. But of the very small number of cases in which a Guidelines sentence would implicate the Sixth Amendment, see supra, at 275-276, most involve drug quantity determinations, firearm enhancements, and other factual findings that can readily be made by juries. I am not blind to the fact that some cases, such as fraud prosecutions, would pose new problems for prosecutors and trial judges. See ante, at 252-253 (opinion of BREYER, J.). In such cases, I am confident that federal trial *289 judges, assisted by capable prosecutors and defense attorneys, could have devised appropriate procedures to impose the sentences the Guidelines envision in a manner that is consistent with the Sixth Amendment. We have always trusted juries to sort through complex facts in various areas of law. This may not be the most efficient system imaginable, but the Constitution does not permit efficiency to be our primary concern. See Blakely v. Washington, 542 U. S., at 312-313 .
Fourth, the majority assails my reliance on plea bargaining. The Court claims that I cannot discount the effect that applying Blakely to the Guidelines would have on plea-bargained cases, since the specter of Blakely will affect those cases. However, the majority's decision suffers from the same problem to a much greater degree. Prior to the Court's decision to strike the mandatory feature of the Guidelines, prosecutors and defendants alike could bargain from a position of reasonable confidence with respect to the sentencing range into which a defendant would likely fall. The majority, however, has eliminated the certainty of expectations in the plea process. And, unlike my proposed remedy, which would potentially affect only a fraction of plea bargains, the uncertainty resulting from the Court's regime change will infect the entire universe of guilty pleas which occur in 97% of all federal prosecutions.
The majority also argues that applying Blakely to the Guidelines would allow prosecutors to exercise "a power the Sentencing Act vested in judges," ante, at 257 (opinion of BREYER, J.), by giving prosecutors the choice whether to "charge" a particular fact. Under the remedy I favor, however, judges would still be able to reject factually false plea agreements under USSG § 6B1.2(a), and could still consider relevant information about the offense and the offender in every single case. Judges could consider such characteristics as an aid in selecting the appropriate sentence within the Guidelines range authorized by the jury verdict, determining the defendant's criminal hi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/137739. Public record. Not legal advice.