Respondents Brief — United States v. Booker
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—— SEP 2 1 2004
No. 04-104
In The
Supreme Court of the United States
UNITED STATES OF AMERICA,
Petitioner,
FREDDIE J. BOOKER,
Respondent.
¢
On Writ Of Certiorari To The
United States Court Of Appeals
For The Seventh Circuit
S
BRIEF OF RESPONDENT
o
DEAN A. STRANG T. CHRISTOPHER KELLY
BRIAN T. FAHL Counsel of Record
FEDERAL DEFENDER SERVICES KELLY & HABERMEHL, S.C.
OF WISCONSIN, INC. 145 West Wilson Street
517 East Wisconsin Avenue, Madison, WI 53703
Suite 182 (608) 255-9491
Milwaukee, WI 53202
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
TABLE OF CONTENTS
Page
ED GI GI I i i cccsccsonscccsscennnscocsasinecamesseesien i
ES CI Ca ED cccerencsnnesccsnsesnsntiimesnsininsinniie iii
SUMMARY OF ARGUMENT. .............ccccccccsecccecseeeseneees 1
ITE sécccnedccicssvsenevimescsctinnniniieninasiiedeiinidddonipane 4
I. THE DISTRICT JUDGE VIOLATED THE
FIFTH AND SIXTH AMENDMENTS BY
FINDING FACTS BY A PREPONDERANCE
OF THE EVIDENCE, BY NOT SUBMITTING
THOSE FACTS TO A JURY, AND BY
IMPOSING A LONGER SENTENCE THAN
THE FEDERAL SENTENCING GUIDE-
LINES AUTHORIZED WITHOUT THOSE
FID xsncccnsesncennsnnsnenestccessananisenesinssennianinene
A. When The Maximum Sentence Authorized
By Law Depends Upon The Existence Of A
Fact, The Fifth And Sixth Amendments
Require The Fact To Be Proven To A Jury
Beyond A Reasonable Doubt Or Admitted
pe ee
B. There Is No Principled Distinction Between
The Unconstitutional Judicial Fact-Finding
In Blakely And The Judicial Fact-Finding
That Increased Respondent’s Sentence.......
C. No Contrary Result Is Compelled By Any
Of This Court’s Precedents. ..................00000
D. The District Court Exceeded Its Constitu-
tional Authority By Imposing Additional
Punishment Upon The Respondent On The
Basis Of Facts It Found By A Preponderance
Of The Evidence At Sentencing..................000
13
23
il
TABLE OF CONTENTS - Continued
Page
ie III CIIIIIIII.....cnosnnnsscsonsensmmmennnnns 26
ee 27
Il. THE SENTENCING GUIDELINES SURVIVE
AND APPLY, BUT THE JURY’S FACTUAL
FINDINGS LIMIT RESPONDENT’S GUIDE-
EERE 28
A. Blakely Does Not Invalidate The Sentencing
Reform Act Or “he United States
Sentencing Guidelines As A Whole.......... 28
B. While Courts And Congress May Adopt
Jury Trial Procedures For Sentencing
Facts In Future Cases, No Jury May Be
Convened To Try Sentencing Facts In
i i cient 44
Tit ciennrtiacidnsconendcenccoinbennanenseonete 50
ili =
TABLE OF AUTHORITIES
Page
CASES
Addison v. Holly Hill Fruit Products, Inc., 322 U.S.
iat eat ir enrnntrteniennnaninpenetes 41, 42
Alaska Airlines, Inc. v. Brock, 480 U.S. 679 (1987).... 36, 43
Apprendi v. New Jersey, 530 U.S. 466 (2000)............ passim
Blakely v. Washington, 124 S.Ct. 2531 (2004)........... passim
Buckley v. Valeo, 424 U.S. 1 (1976)..............cccccccceseeeeeeeeees 37
Burks v. United States, 437 U.S. 1 (1978) ....................... 48
Callan v. Wilson, 127 U.S. 540 (1888) ....................ceeee 29
Duncan v. Louisiana, 391 U.S. 145 (1968)................. 29, 46
Edwards v. United States, 523 U.S. 511 (1998).......... 24, 25
Federal Reserve System Board of Governors v.
Dimension Financial Corp., 474 U.S. 361 (1986) ......... 40
Griffith v. Kentucky, 479 U.S. 314 (1987)... 30
In re Metzger, 46 U.S. (5 How.) 176 (1847)........0.......000000 33
In re United States, 194 U.S. 194 (1904) .........ceccceeeees 33
Jones v. United States, 526 U.S. 227 (1999).............. passim
K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988)........... 40
Koon v. "'nited States, 518 U.S. 81 (1996).................. 18, 19
Lopez v. United States, 373 U.S. 427 (1963)..................... 31
Miller v. Florida, 482 U.S. 423 (1987) ..........ccccccccceeeeeeeeees 19
Minnesota v. Mille Lacs Band of Chippewa Indians,
eee 41
lv
TABLE OF AUTHORITIES -— Continued
Page
Mistretta v. United States, 488 U.S. 361 (1989) ........ passim
North Carolina v. Pearce, 395 U.S. 711 (1969),
overruled in part on other grounds, Alabama v.
ee, Ge Se Ce Ne creusnitiniemtttanantninttiniiniiinnniaie 49
Payne v. Tennewsee, 501 U.S. 808 (1991) ........ ee 23
Railroad Ret. Bd. v. Alton R.R., 295 U.S. 330 (1935)....... 36
Regan v. Time, Inc., 468 U.S. 641 (1984)...........0.........0. 43
Ring v. Arizona, 536 U.S. 584 (2002)........... 7, 12, 21, 22, 29
Rogers v. Tennessee, 532 U.S. 451 (2001) ......................... 19
Stinson v. United States, 508 U.S. 36 (1993)................00. 18
Teague v. Lane, 489 U.S. 288 (1989).......... cece eeeeeeeee 30
Todd v. United States, 158 U.S. 278 (1895)...................... 33
United States v. Ameline, 376 F.3d 967 (9th Cir.
SEUTETT ccevscsaeenesreseentcnaenemeensaceinesietataasieetaietiapattieaheadahaaiiaiaaitiabati 24, 32
United States v. Bell, 991 F.2d 1445 (8th Cir. 1993)........ 19
United States v. Booker, 375 F.3d 508 (7th Cir.
ED 15, 24, 32, 48
United States v. Clark, 25 F.Cas. 441 (C.C.D.
TN a ee 33
United States v. DiFrancesco, 449 U.S. 117 (1980).... 49, 50
United States v. Dunnigan, 507 U.S. 87 (1993).......... 23, 24
United States v. Grayson, 438 U.S. 41 (1978)................... 23
United States v. Hammoud, 2004 WL 2005622 (4th
Ge RD, Ge Bie crtrncitinsnssciccncsnintiiataiiinniamniiagi 11
United States v. Jackson, 390 U.S. 570 (1968)........... 47, 48
TABLE OF AUTHORITIES - Continued
. —
United States v. Johns, 2004 WL 2053275 (Pa.
SUUTITTED csccenositestaieciienaiiiielicpieeamaiiiaihiae iiaaiaitiiatinaeite 29
United States v. King, 2004 WL 1769148 (Fla. 2004)....... 35
United States v. Koch, 2004 WL 1899930 (6th Cir.
Ba, TE ee cnccacsnacrnitetnsiintimetinianiamnaatninimaines 15
United States v. Noble, 367 F.3d 681 (7th Cir. 2004)....... 49
United States v. Pineiro, 377 F.3d 464 (5th Cir
ST sicescinteieeieciiiiaieaiiimariataittiitieiaasitiataaitastateh ian 10
United States v. Price, 361 U.S. 304 (1960)...................... 37
United States v. R.L.C., 503 U.S. 291 (1992)................0 19
United States v. Watts, 519 U.S. 148 (1997) (per
See EE oF 24, 27
Williams v. New York, 337 U.S. 241 (1949)...............:.e 25
Williams v. United States, 503 U.S. 193 (1992)................ 31
Witte v. United States, 515 U.S. 389 (1995)................ 23, 24
CONSTITUTION
es GRE. GEE, VO eerceinienstticetinmnctnmnniemnetion 18, 21, 48
NG) passim
es CE ET GT, GE, Tcccnncccteiatiedoneinmnnneimeininiindinmansiani 38
STATUTES AND RULES
Bl Oe ei nenrcsenncnnenniceneusatiennsunienemmmumnnnmianemeeneasmnentiae 38
ee Gi rcentieriencnsennstcuncentenenensmenmininnninesnnnneniitied 32
es Se crsncentensecinememensimentnnimnenieananiiasn 35, 36
BB UBC. § FBIRD..nccccccceccccceccesccsceees taivinnnanuiamanaiaiaes passim
vi
TABLE OF AUTHORITIES -— Continued
Page
I I iia ala oe le 32
a UIT iciniistescihssictieehinieiitasnachetdiacte late ata 31
ir itatehisetcinmantaeiceiin tila as 32
ee NE IE a NOT 35
Ee ee ee OTS Te 5, 32
ii 18
i EE aE eT eRe 31
EST ENT eee 19
I iia 5
ee ee NT Rea 33
EE cere eS 28
PUTIN I iii ia aa 31, 33
ST I iin aa a 31
ets MUI inpsiinchtinanieiianisimineliiathichlaat hile ila 26
Oe CTE 12, 16
I I sciciarseanihicteiataiieiiiaianiainaasihhnectebiiss itieediecemnacstenien 38
Act of Oct. 30, 1995, Pub. L. No. 104-38, § 1, 109
Paris MU eiiiienichbcsehnseccihitaheaclchia sia dibleteata hacia 17, 37
Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003, Pub.
PS Oe 1, 17, 18, 19, 20
Sentencing Reform Act of 1984, Pub. L. 98-473, Tit.
II, ch. II, 98 Stat. 1987 (Oct. 12, 1984)..0000 000s 28
Sentencing Reform Act, § 217(a), 98 Stat. 1987............... 28
Wash. Rev. Code § 9.944.535.0000. cc ecccceeeeeeeceeeeee 11
Vil
TABLE OF AUTHORITIES — Continued
Page
Wash. Rev. Code § 9.944. S35(2) ...........ccccccccccccccssorcssccesees 11
I (yyy ssctennantinniinitiiininil 32
Pad. BR. Cote. Fi. SEED nccccccccccccsscesssesecsccssscsssesessosssense 32
EEE 34
ae, BR, RG, SED cccennscccsccsnnsnencsnsessssssscsnmmsmssmntinss 32
PUBLICATIONS
U.S. Sentencing Guidelines Manual '
i> TIE TF scneeincnepeceritnenetntneneneneninenemmenesenmmsamebeninicdanementaais 4,5
1 TE I vo ccconsenmasianceonteitincenaninteontssmsntunatnmnniinatnandtinaiia 4
i IEE At scranenassinbempnpapatneneiemaganesinninsanensecenbasesimiiaats 4, 24, 26
1 SETI. 0 cctencmnennrenenminscesinensmncmunsninnnndinennemmamninennnmeatetiats 46
| ee ee 4, 5, 46
i Seis cieincinactnseninineneiacesentensnnnmnseseniaunbudnmmatniiieniiii 5, 27, 31
ES ae ne 17, 23
TIES... crecnnatnaianenastdannnandaiinniinumniiipeninnninainiimmmntiinatl 5
TE iciaencanideniincsininpndenencnindiieninnitiemmninmetemiieeininnmmemnnettiiee 5
TIES... ncesvensnntnsenetanenmtennmaneentenineesenenmenmnnsiiamienits 5
ee 5,17
CS 31, 32, 37, 42, 43
U.S. Sentencing Guidelines Manual §1A1.1,
comment., ed. note (reprinting ch. 1, pt. A4(a) in
effect Nov. 1, 1987) (2003 ed..)...............ccccceceeeeeeeeeees 26, 28
U.S. Sentencing Guidelines Manual, Appendix C
SID scicinrsitresiencsnensincinameninamaninemenanendians 17, 39
Vill
TABLE OF AUTHORITIES — Continued
Page
OTHER AUTHORITIES
J. Bishop, Commentaries on Criminal Law § 961
I 8
J. Bishop, Law of Criminal Procedure § 87 (2d ed.
STRESS R aletree eve ener ar meinen ee nT NT 8
1 William Blackstone, Commentaries (1765)................... 45
4 William Blackstone, Commentaries (1769) ................... 27
Albert W. Alschuler, Jo Sever or Not to Sever: Why
Blakely Requires Action By Congress, 17 Fed.
Sent. Rep. __, *4 (forthcoming October 2004),
available for download at http://sentencing.
typepad.com/sentencing_law_and_policy/2004/08/
I FID vencnnincnscenssinmnnnsmnesiassensenanenteens 10, 15
Black's Law Dictionary (rev. 4th ed. 1968) ................:::006 29
Dep. Att’y Gen. James Comey, Memorandum to all
Federal Prosecutors (July 2, 2004), reprinted in
16 Fed. Sent. Rep. 357 (2004) «0.0.0.0... ceeeeeeeeet Resesens 30, 47
Dep. Att’y Gen. Larry Thompson, Testimony Before
U.S. Sentencing Commission (March 19, 2002),
available at http://www.ussc.gov/hearings/031902.
Erik Lillquist, The Puzzling Return of Jury
Sentencing: Misgivings About Apprendi, 82
rss Sec MEET CIEE verrencincieneinniitenducieininsancsbiiumiennioniendans 22
John Adams, Diary Notes on the Right of Juries
(Feb. 12, 1771) in 1 Legal Papers of John Adams
(L. Kinvin Wroth & Hiller B. Zobel eds., 1965)............. 21
ix
TABLE OF AUTHORITIES - Continued
Page
Rachel Barkow, Recharging the Jury: The Criminal
Jury's Constitutional Role in an Era of
Mandatory Sentencing, 152 U. Pa. L. Rev. 33
eae iccesiceepsdeippcahatinininataiiianieenbintieaiibiedaniaiienundanininasinidaehia 8, 21, 22
Roger D. Groot, The Early-Thirteenth-Century
Criminal Jury, in Twelve Good Men and True:
The Criminal Jury Trial in England, 1200-1800
(J.S. Cockburn & Thomas A. Green eds., Prince-
IES Ti incieiensenscenttnsitcincnainditenniaitnbieiididabadiusisnidtanimtaiiieninitinges 45
R.C. Van Caenegem, The Birth of the English
Common Law (Cambridge Univ. Press, 2d ed.
TE scsitnsinacipiociemnanonnntitesdintindiaiiineniniinianedditindstiianineisdiabenenes 45
Stephanos Bibas, Blakely’s Federal Aftermath, 16
ee Ue: Gn GE IED enncnccecccsenincnsetncccniiensnnnaninesiens 10
Susan N. Herman, The Tail That Wagged the Dog:
Bifurcated Fact-Finding Under the Federal Sen-
tencing Guidelines and the Limits of Due Process,
kl ee eee 26
The Federalist No. 48 (James Madison) (Clinton
I iit ated anneal 38
The Federalist No. 83 (Alexander Hamilton)
CE Cee nee e 8
Thomas Jefferson, Letter to Abbé Arnoux, July 19,
1789, in 15 The Papers of Thomas Jefferson
GD Be BS Cig Bi ccccnctccvcsvessnentnanssesssscscsssrvecsssens 21
SUMMARY OF ARGUMENT
1. This Court’s recent precedent consistently re-
quires any fact (other than prior conviction) necessary for
the imposition of a sentence to be found by a jury beyond a
reasonable doubt or admitted in the defendant’s plea. The
Court attaches no significance to how the fact is labeled,
but looks instead to the relationship of the fact to the
proposed sentence. If the fact is necessary to a sentence —
whether or not labeled as an element — a defendant has
the right to have the government prove the fact to a jury.
By asking whether a fact has the effect of increasing
the potential sentence to which a defendant is exposed, the
rule secures the constitutional rights to jury trial and
proof beyond a reasonable doubt. This “bright-line” rule
honors the role a jury plays as the democratic institution
that authorizes the punishment a court imposes.
This rule applies to facts that increase sentencing
ranges under the Federal Sentencing Guidelines. It does
not matter that most of the sentence-enhancing facts
under the Guidelines were designated by the Sentencing
Commission rather than Congress, because Congress
cannot delegate the authority to create rules that it cannot
constitutionally create itself. Neither the Commission’s
status as an independent agency nor its location in the
Judicial Branch render the rule inapplicable to federal
sentencing. Congress retains direct control of the Guide-
lines and of the Commission, and has assured that judges
will not comprise a majority of the Commissioners.
Moreover, petitioner’s characterization of the binding
sentencing rules that the Commission creates as mere
guidance for the exercise of sentencing discretion is inac-
curate. For the purpose of constitutional analysis, no
principled distinction can be drawn between sentencing
rules enacted by Congress and those enacted by the
Commission. None of this Court’s precedents render
inapplicable the defendant’s entitlement to jury findings of
all facts that authorize the sentence imposed.
Eight years were added to respondent’s punishment
for crimes that were never considered by his jury. By
making findings of facts that were necessary to the in-
creased sentence, the sentencing judge violated rights
secured to respondent by the Fifth and Sixth Amendments.
2. Depriving a defendant of the right to have a jury
find facts necessary to a sentence is unconstitutional, but
this does not invalidate the entire Sentencing Reform Act
or the Sentencing Guidelines promulgated pursuant to it.
The federal Guidelines remain operative so long as the
fact-finder is a jury rather than a judge.
The Sentencing Commission’s preference for judicial
fact-finding in the operation of the Guidelines does not
assist petitioner, because severability analysis must focus
on legislative intent, not on the agency’s intent. Like other
agencies, the Commission is well positioned to modify its
rules to give effect to congressional intent and to respond
to changing circumstances, including court holdings that
invalidate portions of a regulatory scheme.
Congress enacted sentencing reform to assure that
sentences were imposed uniformly and to promote cer-
tainty and proportionality in sentencing. A change in the
identity of the fact-finder from judge to jury does not
disturb these goals. Congress still would have preferred
determinate sentencing under guidelines to discretionary
sentencing, even had it understood that defendants may
insist on jury findings of facts required for an increase in a
sentencing range.
Petitioner’s argument that the Court should declare
the federal sentencing scheme not “severable” is deeply
flawed. Petitioner actually urges severability in two ways.
3
First, it wants the Guideline scheme to apply when no
fact-finding is required, but not otherwise. This position
effectively severs 18 U.S.C. § 3553(b), which directs courts
to apply the Guidelines in every case, from the balance of
the federal sentencing scheme. The result is a dual sen-
tencing scheme, one discretionary and the other controlled
by guidelines. That result does not further the desire of
Congress to promote sentencing uniformity.
Second, petitioner argues that the Guidelines should
be advisory — a position that severs the statutory subsec-
tion making the Guidelines mandatory from the subsec-
tion that permits judges to consider the Guidelines along
with other factors in imposing a sentence. Since manda-
tory Guidelines do not violate the Constitution, petitioner
would nullify a constitutional statute in order to create an
advisory system that Congress did not want.
Petitioner has not overcome the presumption that
favors the retention of legislation. The Guidelines can
continue to operate if juries substitute for judges as fact-
finders in those cases that are not resolved with a guilty
plea. However, the lower court’s suggestion that a sentenc-
ing jury may be empanelled on remand should be rejected.
While a sentencing scheme that permits juries to find
Guideline facts can be implemented with or without the
assistance of Congress, the Court should not allow that
after the trial jury has rendered a verdict and been dis-
charged. To interpret existing sentencing legislation to
permit a second jury to find facts after a prosecution has
been tried to a verdict would raise grave double jeopardy
concerns that are best avoided.
ARGUMENT
I. THE DISTRICT JUDGE VIOLATED THE
FIFTH AND SIXTH AMENDMENTS BY FIND-
ING FACTS BY A PREPONDERANCE OF THE
EVIDENCE, BY NOT SUBMITTING THOSE
FACTS TO A JURY, AND BY IMPOSING A
LONGER SENTENCE THAN THE FEDERAL
SENTENCING GUIDELINES AUTHORIZED
WITHOUT THOSE FINDINGS
Respondent was charged with two drug crimes, both
occurring on February 26, 2003. The government proved
the first crime — distribution of an unspecified quantity of
cocaine base — through the testimony of a witness who
said he had purchased an eighth ounce of the drug from
respondent minutes before both men were arrested. The
government proved the second crime — possession with the
intent to distribute more than 50 grams of cocaine base —
by presenting evidence that about 92 grams of cocaine
base were found in respondent’s satchel. (PSR 79 4-12)
Respondent was not charged with other crimes, and the
jury was not asked to decide whether respondent distrib-
uted drugs at any time prior to February 26, 2003.
Following the guilty verdict on each count, the district
judge used the United States Sentencing Guidelines
Manual to determine the respondent’s sentence. See 18
U.S.C. § 3553(b). The Manual first instructs a judge to
determine the base offense level applicable to the crime or
crimes of conviction. U.S. Sentencing Guidelines Manual
§ 1B1.1(a), (b); § 1B1.2 (hereinafter Guidelines). The base
offense level for the crime of possession with intent to sell 50
to 150 grams of cocaine base is 32. Guidelines § 2D1.1(c)(4).
However, the Manual states that the base offense level
should include all acts “that were part of the same course
of conduct or common scheme or plan as the offense of
conviction.” Jd. § 1B1.3(a)(2). The district judge found that
5
respondent distributed an additional 567 grams of cocaine
base during the weeks prior to his arrest. That judicial
finding increased respondent’s base offense level to 36. Jd.
§ 2D1.1(c)(2).
The judge next consulted chapter three of the Manual
to decide whether other facts existed that required the
offense level to be adjusted up or down. See id. § 1B1.1(c),
(e). The judge found that respondent obstructed justice by
giving false testimony during his trial. Based on that
finding, the judge added two points to respondent’s offense
level, raising it to 38. See id. § 3C1.1. After using chapter
four to calculate a criminal history category of VI, see id.
§§ 1B1.1(f), 4A1.1, the judge examined the grid in chapter
five to locate the intersection of the adjusted offense level
and respondent’s criminal history category. Jd. § 1B1.1(g).
The designated sentencing range for an adjusted offense
level of 38 and a criminal history category of VI is 360
months to life.’ Jd. § 5A.
Had the judge not included an extra 567 grams of
cocaine base in the offense level, and had this level not
been adjusted upward for an obstruction of justice, the
designated sei tencing range would have been 240 to 262
months.’ Jd. §5A. Respondent was sentenced to 360
months in prison -- more than eight years longer than the
' The sentencing range ordinarily defines the judge’s sentencing
authority. See 18 U.S.C. § 3553(b). Judges must follow the guidelines
“in typical cases (those that lie in the ‘heartland’ of the crime as the
statute defines it),” Apprendi v. New Jersey, 530 U.S. 466, 560 (2000)
(Breyer, J., dissenting), while downward departures, which are meant
to be rarely granted, U.S. Sentencing Guidelines Manual § 5K2.0, p.s.,
comment. (n.3), are subject to de novo appellate review. 18 U.S.C.
§ 3742(e).
* The minimum sentence authorized by the guideline range
increased from 210 months to 240 months because respondent’s prior
felony drug conviction subjected him to a 20 year mandatory minimum
-sentence. See 21 U.S.C. § 841(b)(1)A); Guidelines § 5G1.1(c)(2).
6
maximum sentence that the Guidelines authorized on the
basis of the facts found by the jury alone.
The court imposed extra punishment upon respondent
for crimes and acts that were never charged, never sub-
mitted to a jury, and never proven beyond a reasonable
doubt. “As a matter of simple justice,” procedural safe-
guards designed to protect the accused should apply
equally to each of his acts that the law “has singled out for
punishment.” Apprendi v. New Jersey, 530 U.S. 466, 476
(2000). Although the government charged respondent only
with selling a small quantity of cocaine base and with
possessing another 92 grams on the same day, it wanted
him to suffer added punishment for other drug crimes
committed at other times and in other places. The court
imposed still more punishment because it believed respon-
dent committed perjury during his trial. The court im-
posed this punishment without affording respondent the
procedural protections our Constitution provides against
the wrongful infliction of punishment: indictment, proof
beyond a reasonable doubt, and trial by jury. The sentenc-
ing procedure used in this case violated respondent’s
constitutional rights because the judge inflicted “punish-
ment that the jury’s verdict alone does not allow.” Blakely
v. Washington, 124 S.Ct. 2531, 2537 (2004).
A. When The Maximum Sentence Authorized
By Law Depends Upon The Existence Of A
Fact, The Fifth And Sixth Amendments
Require The Fact To Be Proven To A Jury
Beyond A Reasonable Doubt Or Admitted
By The Defendant
In Jones v. United States, 526 U.S. 227, 243 n6
(1999), the Court stated with clarity the rule of constitu-
tional law that resolves the first question presented:
“(U]nder the Due Process Clause of the Fifth Amendment
—
and the notice and jury trial guarantees of -the Sixth
Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be
charged in an indictment, submitted to a jury, and proven
beyond a reasonable doubt.” Jones construed a federal
carjacking statute to avoid the grave constitutional ques-
tions that would have arisen if the statute had allowed
judges to find facts that authorize a longer sentence.
Jones, 526 U.S. at 239. Reviewing “a series of cases over
the past quarter century,” id. at 240, the Court identified a
question identical in principle to the one in this case:
“(Mlay judicial factfinding by a preponderance support the
application of a provision that increases the potential
severity of the penalty for a variant of a given crime?” /d.
at 242. The constitutional rule articulated above permits
only one answer: Judges may not find facts by a prepon-
derance of the evidence if those facts increase the severity
of the punishment to which a defendant is exposed.
Jones asked whether “an unlimited legislative power
to authorize determinations setting ultimate sentencing
limits without a jury would invite erosion of the jury’s
function to a point against which a line must necessarily
be drawn.” Id. at 244. The Court drew that line in Ap-
prendi, 530 U.S. at 491-92, when it held that the Due
Process Clause prohibited a state court judge from decid-
ing a fact that increased a maximum sentence. The legis-
lature’s designation of the fact as a “sentence aggravator”
rather than an “offense element” provided no principled
basis for diluting constitutional safeguards. Jd. at 476. The
constitutional focus must be on “effect,” not “form.” Jd. at
494. The Court reinforced that focus in Ring v. Arizona,
536 U.S. 584, 602 (2002): “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.”
8
These rules give effect to the central function the
Framers intended a jury to perform in deciding the facts
that trigger a judge’s authority to impose a sentence.’ See
Apprendi, 530 U.S. at 476-83 (examining history); id. at
502-18 (Thomas, J., concurring) (same); Jones, 526 U.S. at
244-48 (same). No distinction between an “element” and a
legislatively prescribed “sentencing factor” was imagined
at the time our nation was founded. Apprendi, 530 U.S. at
478- The Framers had no reason to depart from the com-
mon law understanding that an indictment must allege
“every fact essential to the punishment sought to be
inflicted,” 1 J. Bishop, Commentaries on Criminal Law
§ 961, at 564-65 (5th ed. 1872), and the correlative under-
standing that “t]he idea of a jury trial” includes proof of
“any particular fact which the law makes essential to the
punishment.” 1 J. Bishop, Law of Criminal Procedure § 87,
at 55 (2d ed. 1872).
Petitioner suggests that Apprendi requires facts to be
decided by a jury only if they increase a sentence “beyond
the otherwise-applicable statutory maximum, such that it
was the functional equivalent of a different, aggravated
offense.” Pet. Br. at 15. While petitioner seizes upon the
Court's reference to facts that increase the penalty for a
crime “beyond the prescribed statutory maximum,” 530
U.S. at 490, the Apprendi Court’s analysis did not turn on
whether a sentence-enhancing fact was defined by statute
* Alexander Hamilton observed that both the Federalists and the
Anti-Federalists “if they agree on nothing else, concur at least in the
value they set upon the trial by jury.” The Federalist No. 83, at 499
(Alexander Hamilton) (Clinton Rossiter ed., 1961); see also Rachel
Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role
in an Era of Mandatory Sentencing, 152 U. Pa. L. Rev. 33, 55-59 (2003)
(describing the Framers’ belief that the jury was more than a fact-
finding body; it was a critical check on the government and its laws
mandating punishment).
: 9
or on whether it created the equivalent of an aggravated
offense. Rather, the Court focused on the role a jury must
play in finding any fact required for the imposition of a
chosen punishment. The Apprendi decision endorsed the
Jones rule as it had been expressed in a concurring opin-
ion: “{I]t is unconstitutional for a legislature to remove
from the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal defen-
dant is exposed.” 526 U.S. at 252-53 (Stevens, J., concur-
ring)-quoted and adopted in Apprendi, 530 U.S. at 490.
Accordingly, a defendant may not be exposed “to a penalty
exceeding the maximum he would receive if punished
according to the facts reflected in the jury verdict alone.”
Apprendi, 530 U.S. at 483 (emphasis in original).
The applicability of Apprendi to the finding of facts
that determine sentencing ranges below a formal statutory
maximum was established last Term in Blakely v. Wash-
ington, 124 S.Ct. 2531 (2004). Although a Washington
statute set a formal maximum sentence of ten years for
second-degree kidnapping (the crime Blakely admitted in
his guilty plea), Washington’s Sentencing Reform Act
confined the sentencing court’s discretion by setting a
“standard range” of 49 to 53 months. The court could not
exceed this range without finding facts beyond those
Blakely admitted in his plea. 124 S.Ct. at 2535. The judge
exceeded his authority by finding that Blakely acted with
“deliberate cruelty,” a fact that was necessary to the 90
month sentence that the judge imposed. Jd. at 2537.
While ten years was defined by statute as the outer
boundary of any sentence for second-degree kidnapping,
the Sixth Amendment gave the defendant a right to a jury
trial on all facts necessary to the imposition of a sentence
in excess of the “standard range.” See Blakely, 124 S.Ct. at
2538 (“The ‘maximum sentence’ is no more 10 years here
than it was 20 years in Apprendi (because that is what the
judge could have imposed upon finding a hate crime) or
10
death in Ring (because that is what the judge could have
imposed upon finding an aggravator)”). The maximum
sentence to which the Apprendi rule refers is the maxi-
mum a judge “may impose without any additional find-
ings.” Blakely, 124 S.Ct. at 2537. It 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. (emphasis in original). The maximum sentence that
could be imposed on Blakely was 53 months, not 10 years,
because this was the maximum sentence permitted by the
facts Blakely admitted in his guilty plea.
Petitioner recharacterizes Blakely by relying, not on
the language quoted above, but on the analysis of the Fifth
Circuit in United States v. Pineiro, 377 F.3d 464 (5th Cir.
2004), and on the dissent in the court below. In petitioner’s
view, Washington law creates an offense of kidnapping and
two aggravated versions of that offense: one requiring
proof that a weapon was involved, the other requiring
proof of deliberate cruelty. Pet. Br. at 18-19. This, peti-
tioner says, is similar to the sentencing statutes at issue in
Apprendi but unlike the federal Guidelines.‘
There is in fact no distinction. Washington’s sentenc-
ing scheme, like the federal Guidelines, permits the judge
to find a variety of facts that increase the “standard range”
* Commentators appear to be in unanimous agreement that no
principled distinction can be drawn between the judicial fact-finding
that violated the Constitution in Washington's sentencing scheme and
judicial fact-finding that triggers enhanced sentences under the federal
Guidelines. See Albert W. Alschuler, To Sever or Not to Sever: Why
Blakely Requires Action By Congress, 17 Fed. Sent. Rep. __, *4 (forth-
coming October 2004), available for download at http://sentencing.type
pad.com/sentencing_law_and_policy/2004/08/professer_alsch htm] (“No
academic commentator appears to have given any credence to any
asserted distinction”); Stephanos Bibas, Blakely’s Federal Aftermath, 16
Fed. Sent. Rep. 333, 334 (2004) (“No commentator who has considered
this issue agrees with the Department of Justice’s position”).
11
sentence to which the defendant is otherwise subject. See,
e.g., Wash. Rev. Code § 9.94A.535(2) (listing fourteen
aggravating circumstances that permit an increase in the
standard range sentence). The Washington scheme differs
meaningfully from the federal Guidelines only by affording
Washington judges discretion not to exceed the standard
range after finding that aggravating facts exist. Compare
Wash. Rev. Code § 9.944.535 (“court may impose a sen-
tence outside the standard sentence range”) with 18 U.S.C.
§ 3553(b) (“court shall impose a sentence of the kind, and
within the range, referred to in subsection (a)(4)” unless
circumstances exist that were not adequately considered
by the Sentencing Commission). Thus, the Guidelines pose
an even greater threat to the jury trial guaranty because
they require judges to impose longer sentences on the
basis of judicial fact-finding.
Petitioner’s argument that the jury trial right should
extend only to facts designated by statute as essential to
punishment is inconsistent not only with the Court's
analysis in Blakely, but with the broad language used in
the opinion. Blakely does not hinge upon “whether or not
the ‘statutory maximum’ for ‘Apprendi purposes’ is actu-
ally embodied in a statute.” United States v. Hammoud,
2004 WL 2005622, *39 (4th Cir. Sept. 8, 2004) (Motz, J.,
dissenting); see, e.g., Blakely, 124 S.Ct. at 2538 (“[blecause
the State’s sentencing procedure did not comply with the
Sixth Amendment, petitioner’s sentence is invalid”)
(enphasis added); id. at 2540 (describing how a sentencing
“system” runs afoul of the Sixth Amendment).
With studied understatement, petitioner acknowl-
edges that Blakely “could be read to suggest a broader
rule.” Pet. Br. at 19. So it could. Blakely’s definition of the
term “statutory maximum” is flatly inconsistent with the
one that drives petitioner’s analysis.
12
Petitioner argues, however, that the Court's focus
upon the maximum sentence a judge may impose without
finding additional facts was unnecessary to its holding.
Pet. Br. at 19. The Court’s recognition that judges obtain
their sentencing authority from the facts found by a jury
or admitted in a plea was in fact central to its analysis.
Petitioner’s vision of Blakely gives no effect to the primacy
of the jury as the entity that must authorize the punish-
ment to be imposed. Its interpretation of Blakely would
allow legislatures to structure sentencing laws to deprive a
defendant of the right to require proof to a jury of the
factual basis for punishment.’ Its interpretation also fails
to give “intelligible content to the right of jury trial,”
Blakely, 124 S.Ct. at 2538, by protecting an accused’s
entitlement to a jury finding of every fact legally necessary
to the punishment imposed. Jd. at 2537.
The unifying theme of Jones, Apprendi, Ring, and
Blakely is respect for the Framers’ belief that the core
protections of notice, jury trial, and proof beyond a reason-
able doubt ensure that the facts upon which a punishment
is based are determined accurately and consistently with
the norms of the community. The Framers scarcely could
have envisioned a sentencing scheme that allows a judge
(assisted by a probation officer) to find that a defendant
committed additional crimes and to impose additional
punishment that would not have been authorized in the
* It cannot be that the State of Washington could circumvent the
Sixth Amendment by creating its own sentencing commission and
directing the commission to promulgate the exact sentencing scheme
that the Court found unconstitutional in Blakely. That would be the
roadmap for states to follow, however, if the Court decides that Blakely
applies to guidelines promulgated by statute but not to guidelines that
are promulgated by commissions that are promulgated by statute, and
then approved (if only passively) by the legislature. See 28 U.S.C.
§ 994'p).
13
absence of that finding. The Framers would not have
tolerated “exclusively judicial factfinding to peg penalty
limits.” Jones, 526 U.S. at 244.
Respondent’s federal Guideline range of 240 to 262
months applicable to his offenses of conviction, like the
range of 47 to 53 months in Blakely, defined the limits of
the court’s sentencing authority. No jury decided that
respondent committed drug crimes prior to February 26,
2003. No jury decided that respondent obstructed justice
during his trial. Because “[t]he judge’s role in sentencing is
constrained at its outer limits by the facts alleged in the
indictment and found by the jury,” Apprendi, 530 U.S. at
482 n. 10, the district court violated respondent’s right to a
jury trial and to proof beyond a reasonable doubt by
finding the facts necessary to the imposition of an addi-
tional eight years in prison.
B. There Is No Principled Distinction Between
The Unconstitutional Judicial Fact-Finding
In Blakely And The Judicial Fact-Finding
That Increased Respondent’s Sentence
Petitioner claims that because the Sentencing Guide-
lines were authored by a commission instead of a legisla-
ture, the rationale of Blakely does not apply. But it is the
effect that facts have upon a judge’s sentencing authority
that determines whether a fact must be found by a jury.
* Petitioner seemed !2ss certain of that position when it spoke to
the Court in Blakely. In .ts amicus brief, petitioner questioned whether
the differences between Washington’s sentencing scheme and the
federal Guidelines were “of constitutional magnitude” given the
Commission's accountability to Congress, its delegated authority, the
nature of the Guidelines as “binding legislative rules,” and the direct
enactment of guidelines by Congress. Brief for the United States as
Amicus Curiae Supporting Respondent at 29-30, Blakely v. Washington,
124 S.Ct. 2531 (2004).
14
Apprendi, 530 U.S. at ‘94. The source of the law that links
punishment to the existence of a fact makes no difference
to the operation of the Sixth Amendment.
Petitioner builds its argument that the Guidelines
differ significantly from statutes on a flawed premise: that
the Sentencing Commission is a unique, independent,
quasi-judicial body that promulgates rules to guide the
discretion of judges but does not legislate statutory
maxima. Neither the location of the Sentencing Commis-
sion in the Judicial Branch nor the nature of its rule-
making excuse federal sentencing from the tenet that facts
essential to the punishment imposed must be determined
by a jury. As importantly, petitioner all but overlooks
Congress's role in directly amending the guidelines, in
passively ratifying all guideline amendments, and in
structuring the Sentencing Commission to assure that
judges remain a minority (and to allow their removal from
the Commission altogether).
1. Writing for the court below, Judge Posner offered
a forceful refutation of petitioner’s argument that judges
have the authority to find fects essential to the determina-
tion of the maximum sentences established by the Sen-
tencing Commission:
Provisions of the guidelines establish a “standard
range” for possessing with intent to distribute at
least 50 grams of cocaine base, and other provi-
sions of the guidelines establish aggravating fac-
tors that if found by the judge jack up the range.
The pattern is the same as that in the Washing-
ton statute, and it is hard to believe that the fact
that the guidelines are promulgated by the U.S.
Sentencing Commission rather than by a legisla-
ture can make a difference. The Commission is
exercising power delegated to it by Congress, and
if a legislature cannot evade what the Supreme
Court deems the commands of the Constitution
15
by a multistage sentencing scheme neither, it
seems plain, can a regulatory agency.
United States v. Booker, 375 F.3d 508, 510-11 (7th Cir.
2004). It should be obvious that Congress may not assign
to the Sentencing Commission the power to do something
it could not constitutionally do itself.’ See United States v.
Koch, 2004 WL 1899930, *9 (6th Cir. Aug. 26, 2004)
(Martin, J., dissenting) (criticizing majority for undermin-
ing Blakely “by allowing Congress to accomplish indirectly
- by delegating authority to the Commission — precisely
what we now know the Sixth Amendment prohibits it from
doing directly.”). As one commentator observed, “to allow
Congress to delegate to an agency the power to create a
sentencing system that would violate the right to jury trial
if Congress enacted this system itself would be bizarre.”
Albert W. Alschuler, To Sever or Not to Sever: Why Blakely
Requires Action By Congress, 17 Fed. Sent. Rptr. __, *4
(forthcoming October 2004), available for download at
http://sentencing.typepad.com/sentencing_law_and_policy/
2004/08/professor_alsch.html. The simple, pointed logic
underlying these analyses compels the conclusion that
Blakely applies to federal sentencing.
2. There is no doubt that the Sentencing Commis-
sion is unique, see Mistretta v. United States, 488 U.S. 361,
384 (1989) (“the unique composition and responsibilities of
the Sentencing Commission give rise to serious concerns
about a disruption of the appropriate balance of govern-
mntal power among the coordinate Branches”); id. (“The
” Justice Breyer asked the obverse question in Apprendi, 530 U.S.
at 561-62 (Breyer, J., dissenting): “That is, if the Constitution permits a
delegate (the commission) to exercise sentencing-related rulemaking _
power, how can it deny the delegator (the legislature) what is, in effect,
the same rulemaking power?” It is precisely because the Sentencing
Commission exercises “the same rulemaking power” as Congress when
it links maximum sentences to the existence of certain facts that the
Sixth Amendment requires those facts to be proved to a jury.
16
Sentercing Commission unquestionably is a_ peculiar
instit ition within the framework of our Government.”),
but its unusual nature does not change its identity as a
delegate of congressional authority. While Congress
empowered the Commission with “substantial discretion
in formulating guidelines,” id. at 377, the Sentencing
Reform Act “‘explains what the Commission should do and
how it should do it,” id. at 379, quoting United States v.
Chambless, 680 F. Supp. 793, 796 (E.D. La. 1988), by
legislating the general principles that the Commission
must follow when deciding how particular “offense and
offender characteristics” should bear upon “a full hierar-
chy of punishment” that ranges “from near maximum
imprisonment, to substantial imprisonment, to some
imprisonment, to alternatives.” Jd. at 377. The Commis-
sion is not a separate and independent branch of govern-
ment; it 1s a child of Congress created to do the bidding of
Congress. Until recently, the Justice Department seemed
to share that understanding of the Commission’s role. See
Dep. Att’y Gen. Larry Thompson, Testimony Before U.S.
Sentencing Commission (March 19, 2002), availcble at
http://www.ussc.gov/hearings/031902.htm (“In our consti-
tutional system, we believe the Sentencing Commission
exists to effectuate the express will of Congress”).
Congress delegated to the Commission the authority to
make rules that govern federal sentencing, but the Com-
mission remains “fully accountable to Congress.” Mistretta,
488 U.S. at 393. Congress retained the power to accept,
reject, or modify the Guidelines. See id. at 383-94; Blakely,
124 S.Ct. at 2549 (O’Connor, J., dissenting) (“Congress has
unfettered control to reject or accept any particular guide-
line”); 28 U.S.C. § 994(p). If the Commission desires to
amend the Guidelines or to modify amendments that have
not taken effect, it must explain its reasoning to Congress,
and Congress has at least 180 days to alter or veto the
proposed change, 28 U.S.C. § 994(p), although it may do so
“at any time.” Mistretta, 488 U.S. at 394.
17
Congress has repeatedly exercised its power to shape
the Guidelines and dictate their content. It has directed
the Sentencing Commission to amend the Guidelines more
than fifty times since 1987. See U.S. Sentencing Guide-
lines Manual, Appx. C (2003 ed.) (amendments 134, 135,
141, 156, 203, 317, 363, 364, 370, 435-37, 511, 513-15, 521,
526, 527, 531, 537, 538, 541-44, 551, 554-56, 558, 562, 571,
576, 587, 590, 592, 593, 596, 605, 608-12, 615-17, 637, 647,
648, 650, 651, 653, 654, 659). It disapproved proposed
guidelines that would have reduced the disparity between
sentences for powdered cocaine and crack cocaine. Act of
Oct. 30, 1995, Pub. L. No. 104-38, § 1, 109 Stat. 334. It also
disapproved proposed guidelines that would have reduced
sentences for money laundering. /d.
In addition, Congress has itself legislated Guideline
provisions. Section 401(m)(2) of the Prosecutorial Reme-
dies and Other Tools to end the Exploitation of Children
Today Act of 2003, Pub. L. 108-21, 117 Stat. 649 (the
“PROTECT Act”), directed the Sentencing Commission to
promulgate “amendments to the sentencing guidelines,
policy statements, and official commentary to ensure that
the incidence of downward departures are substantially
reduced.” In section 401(b), moreover, Congress directly
amended the Guidelines by adding a new section to a
policy statement (Guidelines §5K2.0(b)) that limits a
court’s authority to depart downward when imposing a
sentence for certain crimes against children. In subsection
401(i), Congress amended various guidelines and applica-
tion notes pertaining to crimes against children. Finally,
section 401(g) amended the guideline governing accep-
tance of responsibility (Guidelines § 3E1.1) to permit an
additional downward departure of one level (albeit only at
the government’s request) to reward the prompt entry of a
guilty plea. Contrary to petitioner’s conception of the
process of promulgating guidelines, none of these amend-
ments fairly reflect the collective judgment of the judiciary.
18
In light of the control that Congress exercises over
guideline development, it is of no constitutional conse-
quence that most of the guideline provisions are of admin-
istrative rather than legislative origin. If a maximum
sentence determined by a guideline range that Congress
enacted directly is subject to the procedural protections of
the Fifth and Sixth Amendments (which it must be, for it
is indistinguishable from the standard range in Blakely), a
maximum sentence 2nacted administratively, but tacitly
approved by Congress, must be subject to the same protec-
tion.
3. The dissenters in Jones acknowledged that the
federal Sentencing Guidelines were only “a more detailed
version” of statutes like the one at issue in that case.
Jones, 526 U.S. at 267-68 (Kennedy, J., dissenting). The
PROTECT Act exemplifies the degree to which Congress’
control of the Guidelines renders them indistinguishable
in principle and effect from Acts of Congress. Like sentenc-
ing statutes, the guidelines are binding on courts. See
Stinson v. United States, 508 U.S. 36, 42-43 (1993) (Guide-
lines Manual, including policy statements and commen-
tary, binds federal courts); Mistretta, 488 U.S. at 391 (the
Commission uses its administrative power to create “court
rules” that “bind judges and courts in the exercise of their
uncontested responsibility to pass sentence in criminal
cases”). Judges are directed by statute to follow them. 18
U.S.C. § 3553(b). The term “Guidelines” is therefore a
misnomer. Judges are not merely guided; their discretion
is fettered by the force of law. A judge who cannot justify a
departure from the Guidelines to the satisfaction of an
appellate court will be reversed.” 18 U.S.C. § 3742(e)(3).
* The amicus brief filed by the Ad Hoc Group of Former Federal
Judges disregards the actual operation of the Guidelines and instead
describes them as it wou!d like them to be. While the brief cites Koon v.
United States, 518 U.S. 81 (1996), for its understanding that it “was not
the congressional purpose to withdraw all sentencing discretion from
(Continued on following page)
19
This Court recognized in United States v. R.L.C., 503
U.S. 291 (1992), that the federal Sentencing Guidelines
create a binding maximum sentence that has the same
force as a maximum created by statute. In deciding that
the Juvenile Delinquency Act, which limits detention to
“the maximum term of imprisonment that would be
authorized if the juvenile had been tried and convicted as
an adult,” 18 U.S.C. § 5037(c)(1)(B), referred to the maxi-
mum term of imprisonment established by the Guidelines
rather than the formal statutory maximum, the Court
rejected “any suggestion that the statutory character of a
specific penalty provision gives it primacy over adminis-
trative sentencing guidelines” because, the Court under-
stood, “the mandate to apply the Guidelines is itself
statutory.” 503 U.S. at 297. The Court’s understanding in
R.L.C. that a maximum sentence authorized by the Guide-
lines has the same limiting force as a maximum sentence
enacted by statute undermines the distinction between
guidelines and statutes upon which petitioner rests its
argument.
If there were any doubt about the legal force and
effect of the Guidelines, it has been settled many times by
decisions applying the Ex Post Facto Clause to the Guide-
lines amendments. See, e.g., United States v. Bell, 991 F.2d
1445, 1447 & n.4 (8th Cir. 1993), and cases cited; see also
Miller v. Florida, 482 U.S. 423 (1987) (retroactive applica-
tion of Florida’s sentencing guidelines violated Ex Post
Facto Clause). As petitioner concedes, Pet. Br. at 25, the
Ex Post Facto Clause limits legislative power, not judicial
decisionmaking. Rogers v. Tennessee, 532 U.S. 451, 456
(2001). The Ex Post Facto Clause applies to the Guidelines
the United States District Judge,” 518 U.S. at 113, the PROTECT Act
undermined that understanding by requiring the Commission to effect
a substantial reduction in downward departures, by reducing the
grounds for departure, and by substituting de novo appellate review for
the abuse of discretion standard adopted in Koon.
20
because, just as a legislature does, the Commission creates
legally enforceable rights.
Thus, the administrative origin of maximum sen-
tences established by the Guidelines does ndt distinguish
them from maximum sentences established legislatively.
As Justice O’Connor noted, the Guidelines “have the force
of law,” and their promulgation by an administrative
agency “is irrelevant to the majority’s reasoning” in
Blakely. 124 S.Ct. at 2549 (O’Connor, J., dissenting).
4. Neither is the Commission's “nominal” placement
in the Judicial Branch relevant to Blakely’s reasoning. See
id., 124 S.Ct. at 2549 (O’Connor, J., dissenting). “Although
placed by the [Sentencing Reform] Act in the Judicial
Branch, it is not a court and does not exercise judicial
power.” Mistretta, 488 U.S. at 384-85. Nor is the Commis-
sion “controlled by or accountable to members of the
Judicial Branch.” Jd. at 393. Judges may be appointed to
the Commission, but Congress recently amended the law
to assure that judges would comprise a minority (“no more
than three”) of the Commission members. The appoint-
ment of judges to the Commission is no longer required.”
PROTECT Act, supra, § 401n. It is fanciful to characterize
the work of the Commission as “judges guiding judges”
when judges necessarily are a minority and need not sit on
the Commission at all.
The Commission exercises political, not adjudicative,
power. The authority that Commissioners wield “is not
judicial power; it is administrative power derived from the
enabling legislation.” Mistretta, 488 U.S. at 404. When the
Commissioners do their work, they do not work as judges.
Id.. The Commission’s work is of a “significantly political
nature,” id. at 393, and the Commission exercises “politi-
ca] judgment” to carry out its responsibilities. /d. at 395. It
* At the time Mistretta was decided, at least three of the seven
voting members were required to be judges. 488 U.S. at 368.
21
is precisely because the Commission was not granted
adjudicatory functions that its authority to craft sentenc-
ing rules does not violate the constitutional principle of
separation of powers. Jd. at 388-90. Because the Commis-
sion’s work is functionally legislative rather than adjudica-
tive, its location in the Judicial Branch cannot insulate the
rules it creates from the demands of the Fifth and Sixth
Amendments.
5. Juries are the embodiment of democracy in the
courts. See Blakely, 124 S.Ct. at 2539; John Adams, Diary
Notes on the Right of Juries (Feb. 12, 1771) in 1 Legal
Papers of John Adams 228, 229 (L. Kinvin Wroth & Hiller
B. Zobel eds., 1965) (the Constitution requires the “Com-
mon People” to act as “an absolute Check” upon the
legislature); Thomas Jefferson, Letter to Abbé Arnoux,
July 19, 1789, in 15 The Papers of Thomas Jefferson 282,
283 (Julian P. Boyd ed., 1958) (“Were I called upon to
decide whether the people had best be omitted in the
legislative or judiciary department, I should say it is
better to leave them out of the Legislative.”). Juries
provide a counterweight to executive and judicial abuse
and bestow democratic approval (or disapproval) upon the
government’s action by finding (or declining to find) the
facts that authorize punishment. See Rachel E. Barkow,
Recharging the Jury: The Criminal Jury’s Constitutional
Role in an Era of Mandatory Sentencing, 152 U. Pa. L.
Rev. 53, 54-59 (2003) (reviewing evidence that Framers
expected jury to represent the community’s sense of justice
when government seeks to condemn or punish behavior as
blameworthy). The need to preserve that role animated
the decisions in Apprendi, Ring, and Blakely. Neither the
source of the authorizing law (Congress or its delegate),
the label attached to it (statute or administrative rule),
nor the branch of government in which it was promulgated
can make a principled difference in the operation of the
constitutional imperative that all facts legally necessary to
the punishment imposed must be found by a jury.
22
The Framers could not have envisioned a Sentencing
Commission,” but if the idea had been proposed, it is
impossible to believe that they would have given Congress
the power to deprive a defendant of the right to have a
jury find the facts that are necessary for punishment
simply by delegating the authority to link facts and
punishment to a commission that it establishes and
controls. It would not have mattered to the Framers
whether maxima were created by Congress or its delegate.
What would have mattered is ensuring that the facts
triggering the judge’s authority to impose a particular
sentence are found by a jury. That “bright-line rule,”
Blakely, 124 S.Ct. at 2540, secures the role of the jury
envisioned by the Framers.
6. Just as the decision in Ring was compelled by a
need to implement the holding of Apprendi “in a principled
way,” Ring, 536 U.S. at 613 (Kennedy, J., concurring), the
decision in Blakely requires sentences authorized by the
federal Guidelines to be grounded in facts found by a jury
or admitted in a plea. Petitioner concedes as much by
acknowledging that if Blakely means what it says, the
It is thus disingenuous for petitioner to fault the Court for
pointing to “no historical authorities” that considered sentencing
schemes similar to the federal Sentencing Guidelines. Pet. Br. at 39-40.
As the Court observed in Apprendi, 530 U.S. at 479, sentencing
schemes with which the Framers were familiar did not include nar-
rowly defined sentencing ranges that were triggered by the judicial
finding of one or more facts in addition to those that defined some
underlying crime. The Court has considered at length the role that
juries have historically played as the finders of those facts that are
necessary to the punishment sought and imposed. Blakely, 124 S.Ct. at
2539; Apprendi, 530 U.S. at 476-83; id. at 502-18 (Thomas, J., concur-
ring), Jones, 526 U.S. at 244-48. Petitioner offers no historical analysis
of its own, and the Court's view of history is entirely consistent with
chat of recent commentators. See, eg. Erik Lillquist, The Puzzling
Return of Jury Sentencing: Misgivings About Apprendi, 82 N.C.L. Rev.
621, 629-41 (2004), Barkow, supra, at 48-65.
23
Guidelines set maximum sentences that depend upon facts
admitted in a plea or found by a jury. Pet. Br. at 39.
The Court should reject petitioner’s invitation to
overrule Blakely just months after its announcement.
Stare decisis “is the preferred course because it promotes
the evenhanded, predictable, and consistent development
of legal principles, fosters reliance on judicial decisions,
and contributes to the actual and perceived integrity of the
judicial process.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). Petitioner’s dissatisfaction with Blakely provides
no cause to reconsider a decision so recently written.
C. No Contrary Result Is Compelled By Any
Of This Court’s Precedents
1. No case decided by this Court prior to Apprendi is
“fundamentally at odds” with the view that Blakely ap-
plies to federal sentencing, as petitioner contends. Pet. Br.
at 33. Relying on a pre-Guidelines holding that a judge
may consider a defendant’s trial perjury when selecting a
discretionary sentence, United States v. Grayson, 438 U.S.
41 (1978), the Court in United States v. Dunnigan, 507
U.S. 87 (1993), rejected an argument that enhancing a
defendant’s sentence pursuant to Guidelines § 3C1.1 for
committing perjury at trial undermined the defendant's
right to testify." In Witte v. United States, 515 U.S. 389
(1995), the Court rejected a claim that an indictment
violated the Double Jeopardy Clause when the facts
underlying the charged offense had produced an increase
in the defendant’s Guideline sentence. See Guidelines
" Dunnigan viewed “the risk of incorrect findings of perjury by
district courts” as “inherent in a system which insists on the value of
testimony under oath.” 507 U.S. at 97. When the law links a fact to
increased punishment, however, the risk of error in finding that fact
should be minimized by constitutional protections against the errone-
ous infliction of punishment.
24
§ 1B1.3 (relevant conduct). Neither Dunnigan nor Witte
addressed the Sixth Amendment. Enforcing the Sixth
Amendment’s mandate for jury fact-finding does not
contravene the logic or the holding of either case.
United States v. Watts, 519 U.S. 148 (1997) (per
curiam), and Edwards v. United States, 523 U.S. 511
(1998), presented questions of Guidelines interpretation.
Watts construed relevant conduct under § 1B1.3 to include
acquitted conduct.” Edwards held that it did not matter
whether the jury found the defendant guilty of conspiring
to possess cocaine or cocaine base because all of the
defendant’s relevant conduct would be considered at
sentencing. Neither case decided whether the relevant
conduct fact-finder should be a judge or a jury.
Petitioner attempts to elevate Edwards to the status
of a Sixth Amendment holding by arguing that Edwards
relied upon the Sixth Amendment’s jury-trial guarantee to
bolster his contention that the sentencing court should
have assumed the jury found him guilty only of conspiring
to possess cocaine. Pet. Br. at 36. But “Edwards did not
argue that the Guidelines sentencing scheme violated his
Sixth Amendment right to a jury trial; indeed, Edwards
presumed that had the jury identified whether cocaine or
cocaine base was the object of the conspiracy, the district
court could have properly determined the quantity of the
identified drug at sentencing consistent with the Sixth
Amendment.” United States v. Ameline, 276 F.3d 967, 978
(9th Cir. 2004). Accord Booker, 375 F.3d at 514 (“The Court
... did not rebuff a Sixth Amendment challenge to the
guidelines because there was no Sixth Amendment chal-
lenge to the guidelines.”). In any event, the Court flatly
“ The Court suggested that the Court of Appeals’ holding to the
contrary might have been based on the view of double jeopardy that the
Court rejected in Witte. Watts, 519 U.S. at 154.
25
stated “we need not, and we do not, consider the merits of
petitioners’ statutory and constitutional claims.” 523 U.S.
at 516. The Court should be taken at its word.
Edwards did not become a constitutional holding by
virtue of a footnote in Apprendi, as petitioner suggests.
Pet. Br. at 37-38. Responding to a dissenting observation
that the logic of Apprendi applied to the federal Guide-
lines, the footnote “express[ed] no view on the subject
beyond what this Court has already held.” 530 U.S. at 497
n.21. By way of example, the Court cited Edwards’ refer-
ence to a constitutional claim that might have arisen if
Edwards had been sentenced to more than the statutory
maximum for a cocaine-only conspiracy. Id. The Apprendi
footnote did not mutate a decision that expressly declined
to consider a constitutional claim and that never men-
tioned the Sixth Amendment into a decision of controlling
constitutional precedent.
2. Petitioner relies heavily on Williams v. New York,
337 U.S. 241 (1949), a case that decided whether a New
York court violated the defendant’s right to due process by
considering information at sentencing that it learned of
after the trial. Although it viewed the question as “serious
and difficult,” id. at 244, the Court decided that the
“prevalent modern philosophy” of individualized punish-
ment made it necessary for a sentencing judge to consider
a full range of information.Jd. at 247. The Court noted
that indeterminate sentences had “to a large extent taken
the place of the old rigidly fixed punishments” and that
rehabilitation had replaced retribution as the dominant
goal of criminal justice. Jd. at 248. In the context of these
“progressive efforts to improve the administration of
criminal justice,” the Court was careful not to hinder the
judge’s ability to exercise discretion wisely. Jd. at 251.
Changing philosophies of punishment have rendered
the reasoning of Williams “almost wholly inapplicable to
26
guidelines sentencing in federal court.” Susan N. Her-
man, The Tail That Wagged the Dog: Bifurcated Fact-
Finding Under the Federal Sentencing Guidelines and the
Limits of Due Process, 66 S. Cal. L. Rev. 289, 318 (1992).
Blakely underscored that point by rejecting the argument
that the constitutionality of judicial fact-finding in a
discretionary sentencing scheme implies the constitution-
ality of judicial fact-finding in a scheme that ties facts to
specified sentencing ranges. 124 S.Ct. at 2540. A judge's
authority to consider facts that shape a discretionary
sentence has no bearing on the defendant’s right to a
particular sentence — “and that makes all the difference
insofar as judicial impingement upon the traditional role
of the jury is concerned.” Jd.
D. The District Court Exceeded Its Constitu-
tional Authority By Imposing Additional
Punishment Upon The Respondent On
The Basis Of Facts It Found By A Prepon-
derance Of The Evidence At Sentencing
1. Relevant conduct
Sentencing in federal court is designed to punish the
“real offense” the defendant committed. U.S. Sentencing
Guidelines Manual § 1A1.1, comment., ed. note (reprinting
ch. 1, pt. A4(a) in effect Nov. 1, 1987) (2003 ed.). The
Guidelines accomplish that objective in large part by
basing punishment on “relevant conduct” pursuant to
Guidelines § 1B1.3. That provision requires punishment to
reflect “the entire range of conduct, regardless of the
number of counts tiat are alleged or on which a conviction
is obtained.” § 1B).3 comment, backg’d.
Federal sentencing eschews rehabilitation as a legitimate goal of
imprisonment. 28 U.S.C. § 994(k).
27
In Watts, this Court explained that “sentencing
enhancements do not punish a defendant for crimes of
which he was not convicted, but rather increase his sen-
tence because of the manner in which he committed his
crime.” Jd. at 154. Respondent was convicted of two
discrete crimes that occurred on February 26, 2003. His
relevant conduct (as found by the judge at sentencing)
included acts of drug distribution that occurred on earlier
days in different places. His relevant conduct did not
-reflect “the manner in which he committed his crime”; it
reflected other crimes. By imposing extra punishment for
additional crimes that were never submitted to a jury -
punishment that was only authorized under the Guide-
lines by a finding that the crimes occurred — the district
judge violated respondent’s Sixth Amendment right to
have a jury decide the facts that were essential to his
punishment.
2. Obstructing justice
The sentencing judge increased respondent’s offense
level (and thus the maximum available sentence) after
finding that respondent obstructed justice by lying during
his trial testimony. Guidelines § 3C1.1. The threat of
punishment for false testimony has historically invoked
the right to a jury trial. Blakely expressly addressed that
point: “Why perjury during trial should be grounds for a
judicial sentence enhancement on the underlying offense,
rather than an entirely separate offense to be found by a
jury beyond a reasonable doubt (as it has been for centu-
ries, see 4 William Blackstone, Commentaries 136-138
(1769)), is unclear.” 124 S.Ct. at 2539-40 n.11.
Seeking punishment at sentencing for perjury that
was never charged or proved beyond a reasonable doubt to
the satisfaction of a jury may have been more convenient
28
for the government than commencing a second criminal
prosecution, but it was an affront to the Constitution.
Because the verdict did not authorize the additional
punishment imposed upon respondent, the Seventh
Circuit's decision to vacate respondent’s sentence must be
affirmed.
Il. THE SENTENCING GUIDELINES SURVIVE
AND APPLY, BUT THE JURY’S FACTUAL
FINDINGS LIMIT RESPONDENT’S GUIDE-
LINE RANGE
A. Blakely Does Not Invalidate The Sentenc-
ing Reform Act Or The United States Sen-
tencing Guidelines As A Whole
The Sixth Amendment principles that this Court has
explicated since Jones and Apprendi, and that it applied in
Blakely to a guideline sentencing scheme, apply first in
federal cases. But Blakely and the jury trial guaranty
neither require nor preclude any particular theory of
penology or system of sentencing. The Court's words in
Blakely serve here as well. “This case is not about whether
determinate sentencing is constitutional, only about how it
can be implemented in a way that respects the Sixth
Amendment.” Blakely, 124 S. Ct. at 2540. Both determi-
nate sentencing and systems in which guidelines channel
sentencing discretion are compatible with Blakely.
1. Because the Sixth Ame.idment operates before
sentencing to determine a sentence’s limits, not at sen-
tencing or in its imposition, Blakely and the Seventh
Circuit’s decision below leave intact the primary purposes
of the Sentencing Reform Act of 1984, Pub. L. 98-473, Tit.
II, ch. I], 98 Stat. 1987 (Oct. 12, 1984). Those purposes
include certainty, uniformity, proportionality and fairness.
See id., § 217(a), 98 Stat. 1987, 2018 (in part enacting 28
U.S.C. § 991(b\ 1) B)); U.S. Sentencing Guidelines Manual
§ 1A1.1 Commentary.
29
Blakely and the decision below address the scope of
the Sixth Amendment’s jury trial guaranty, not the merits
of Congress’ sentencing goals. A court’s power to sentence
rests on a finding of guilt, which ordinarily is the jury’s
province if the defendant elects a trial. Callan v. Wilson,
127 U.S. 540, 556-57 (1888); Duncan v. Louisiana, 391
U.S. 145, 151-57 (1968). The jury’s finding determines the
maximum sentence that the defendant may receive.
Blakely, 124 S. Ct. at 2537; Ring, 536 U.S. at 602.
In federal court specifically, the Sentencing Guidelines
may continue to govern sentencing. See United States v.
Johns, 2004 WL 2053275, *6 (M.D. Pa. 2004) (“Once this
maximum is established [by the jury], the court may
employ the Guidelines as they were intended . . . ”) Blakely
and the Sixth Amendment govern the predicates of sen-
tencing, but not-the scheme for imposing sentence once the
predicates are determined. If an increased sentence hinges
on facts that have not been admitted in a plea, the jury
must find them on proof beyond a reasonable doubt.
Sentencing then goes forward.
Within that limit, Blakely and the Sixth Amendment
do not speak to whether the judge decides a term of
imprisonment absolutely (determinate sentencing); de-
cides that term provisionally, subject to later reduction by
the executive (indeterminate sentencing); or merely
imposes a sentence selected by the legislature (mandatory
sentencing). Likewise, the Sixth Amendment and Blakely
‘* Some judges have described the resul. of declaring the Sentenc-
ing Guidelines non-severable as “indeterminate sentencing”. That is a
misnomer. Indeterminate sentencing refers to schemes in which a judge
imposes a term of imprisonment with an upper limit, subject to
discretionary release at an earlier time by an executive authority
(usually a parole board). Black's Law Dictionary 911 (rev. 4th ed. 1968).
Sentencing without the guidelines, as some district judges are
practicing it after Blakely, is not indeterminate sentencing. It is
(Continued on following page)
30
do not dictate how legislatures and courts should assure
proportionality, uniformity, certainty, fairness, or other
sentencing goals. Legislators have room to select a pe-
nological theory they favor within the limits of the Sixth
Amendment.
2. Judges no longer may decide what facts are
probable and increase the guideline range on the basis of
those decisions. Some defendants who (prior to Blakely)
waived jury trial without admitting facts that support
upward adjustments under the Sentencing Guidelines, or
who had jury trials that failed to determine those facts,
will receive lower sentences than they would have received
before Blakely. Cases straddling Blakely are short-term
phenomena. Prosecutors and courts adapted rapidly to the
Blakely decision. See Dep. Att'y Gen. James Comey,
Memorandum to all Federal Prosecutors (July 2, 2004),
reprinted in 16 Fed. Sent. Rep. 357 (2004). And in some
cases the unfairness that the petitioner perceives in
shorter sentences is mitigated by the government’s ability
to charge defendants with the additional crimes that
cannot be considered as relevant conduct at sentencing.
Still, some defendants — those whose convictions were
not final at the time Blakely was decided — may, as peti-
tioner fears, escape significant Guideline enhancements as
a result of Blakely’s application to federal sentencing. This
result is unavoidable because the holding of Blakely
applies to cases pending in trial courts and on direct
review. Griffith v. Kentucky, 479 U.S. 314, 328 (1987);
Teague v. Lane, 489 U.S. 288 (1989). The price is worth
paying when compared to the alternative of sacrificing
these defendants’ constitutional rights. Petitioner’s con-
cern that a limited number of straddle defendants may
discretionary but determinate sentencing unless the perceived invalid-
ity of the Sentencing Reform Act resurrects parole.
31
receive a windfall” is of little relevance to the Court’s
constitutional or severability analysis.
To the extent that this guideline system will have
asymmetrical burdens of proof on aggravating and miti-
gating factors, see Pet. Br. at 50, that is not novel either in
legislative schemes, cf. 18 U.S.C. § 3593(c) (in capital
cases, government must prove aggravating factors beyond
reasonable doubt; defendant must prove mitigating factors _
by a preponderance of the information), or in judicial
schemes. See, e.g., Lopez v. United States, 373 U.S. 427,
433 n.4, 434-35 (1963) (defendant must make “some
showing” of government inducement to raise entrapment
defense; quoting approvingly trial court’s instruction
calling that burden a preponderance).
3. Because the Sixth Amendment affects only ame-
nability to sentencing and the outer limits of punishment,
Blakely calls into doubt on their face very few provisions of
the Sentencing Guidelines and the Sentencing Reform Act.
a. Applied to the Guidelines, Blakely seems to
invalidate outright only one procedural policy statement,”
Guidelines §6A1.3, and perhaps parts of one rule of
criminal procedure. All else it affects only indirectly, by
application.”
* In cases like respondent’s, there is no “windfall.” Pet. Br. at 68. If
a sentence of almost 22 years for a man in his 50’s, rather than a 30
year sentence, conforms to petitioner’s concept of a windfall, that
concept is not likely to be widely shared.
* This Court has distinguished between “guidelines” and “policy
statements,” Williams v. United States, 503 U.S. 193, 200 (1992), just as
the Sentencing Reform Act does. See 28 U.S.C. §§ 994(a)(1), (a)(2).
Federal courts must follow both. Williams, 503 U.S. at 200-01, discuss-
ing 18 U.S.C. § 3742(f\(1).
" The only guideline petitioner identifies as lost after Blakely is
§ 3C1.1, applicable to an obstruction of justice. It is true that an
enhancement could not be imposed for an obstruction (like perjury)
occurring during or after trial, but an enhancement for pre-indictment
obstruction remains available, provided it is proved to a jury.
32
Guidelines § 6A1.3(a) directs “the court” to resolve any
dispute over factors important to the sentencing determi-
nation, using information reliable enough to support its
“probable accuracy.” Subsection (b) provides that “(t]he
court” shall resolve those disputed sentencing factors at a
sentencing hearing under Fed. R. Crim. P. 32. For that
reason, Blakely and the lower court’s decision in Booker
may invalidate Fed. R. Crim. P. 32(i(3)(B) (requiring “the
court” to resolve disputed portions of the presentence
report at sentencing if the dispute will affect the sen-
tence).”"
b. Blakely’s direct effect on the Sentencing Reform
Act itself extends only to parts of two subsections of the
Act: § 212(a\(2), which created 18 U.S.C. § 3553 and other
provisions; and § 213(a), which created 18 U.S.C. § 3742.
Section 3553(b\(1) requires the imposition of a sentence
within the applicable guideline range unless “the court”
finds aggravating or mitigating circumstances not ade-
quately considered by the Sentencing Commission. Section
3742\e) provides for appellate review of the district court’s
findings of fact. Severing the term “court” as fact-finder in
these statutes does not assault Congress's basic intentions.
Accord United States v. Ameline, 376 F.3d 967, 980-83 (9th
Cir. 2004).
Indeed, the specific identity of the fact-finder does not
appear prominently anywhere in the Sentencing Reform
Act. Had Congress been concerned centrally with the
difference between judge and jury as fact-finder, § 3742(e)
~ addressing appellate review of “the findings of fact of the
district court” after sentencing - would have been an
* Because a jury trial invokes the Federal Rules of Evidence,
Blakely and Booker also may affect the word “sentencing” in Fed. R.
Evid. 1101(\d”3), which provides that the rules are inapplicable at
sentencing. They do not abrogate it, however, as Blakely does not affect
a judge's ability to find facts at sentencing that do not determine the
guideline range.
33
unlikely place to express that concern, as if an after-
thought. Taken in whole, the Act suggests that Congress
was less concerned with the identity of the predicate fact-
finder than with certainty, uniformity and proportionality.
Petitioner suggests that Blakely also directly impairs
§ 217(a) of the Sentencing Reform Act, which created 28
U.S.C. §§ 991-998, and therefore § 994(a)(1). Pet. Br. at 47.
But Blakely does not affect the statute’s assignment of
guidelines for “use of a sentencing court.” 28 U.S.C.
§ 994(a)(1). Sentencing courts may continue to apply the
Guidelines. When and how the sentencing court applies
which guidelines will depend on predicate jury findings,
just as a jury verdict traditionally has set the limits of the
sentence that a judge may impose. The use of Guidelines
by a “sentencing court” leaves room to accommodate the
jury’s constitutional role.
4. If Congress intended judges and not juries to
decide facts that increase a guideline range beyond that
Petitioner’s contention that 28 U.S.C. § 994(a\(1) is invalid if
Blakely applies to federal sentencing turns on the premise that “court”
means “judge” and thus excludes a jury. See Pet. Br. at 47-48. It does
not. Federal courts long have distinguished between courts, as inani-
mate institutions, and judges, as human officers who work in those
institutions. See, e.g., In re Metzger, 46 U.S. (5 How.) 176, 191 (1847). As
Justice Story explained while riding circuit, “A court is not a judge, nor
a judge a court. A judge is a public officer who, by virtue of his office, is
clothed with judicial authorities. A court is defined to be a place in
which justice is judicially administered.” United States v. Clark, 25
F.Cas. 441, 442 (C.C.D. Mass. 1813) (No. 14,804) (Story, Circuit
Justice).
Sometimes the distinction between judge and court is important,
Todd v. United States, 158 U.S. 278, 282-84 (1895) (witness intimida-
tion indictment dismissed, where testimony was at a preliminary
examination before a commissioner who was not a “court of the United
States”); Clark, 25 F. Cas. at 442-43 (perjury indictment dismissed on
same grounds), and sometimes not. Jn re United States, 194 U.S. 194,
196-97 (1904). But the term “court” at least allows a construction that
makes room for a jury’s role as well as a judge's.
34
authorized by the verdict, the Court must decide whether
the balance of the Sentencing Reform Act, or the Guide-
lines promulgated pursuant to it, can stand. Petitioner
correctly notes that some lower courts have held that the
Guidelines do not apply at all after Blakely. Those courts
have envisioned a purely discretionary, yet still determi-
nate, sentencing scheme. That vision declares the Guide-
lines not severable, while apparently leaving in place as
severable much of the Act itself — its elimination of parole,
its statutory good time formula, supervised release, and its
limitation of motions to modify a sentence to the prosecu-
tion’s use. Fed. R. Crim. P. 35(b).
Petitioner endorses that reasoning. As it urges non-
severability, petitioner relies tacitly on severability at
crucial points. The United States apparently would sever a
statutory provision that Blakely does not invalidate, 18
U.S.C. § 3553(b),” to leave a discretic nary but determinate
scheme that exacerbates the worst qualities of the inde-
terminate sentencing system that the Sentencing Reform
Act replaced: judges on the free range, now without the
post-sentencing tool of parole, which prior to the Sentenc-
ing Reform Act corralled sentences toward uniformity and
proportionality. Petitioner turns severability on its head. It
would excise the valid, resurrect the invalid, and so create
a new system antithetical to the purposes of the Act.
Worse yet, petitioner proposes that this Court sever
federal sentencing into two distinct, and quite different,
schemes functioning side by side. For defendants who can
* Section 3553'b) directs the court to impose a sentence within the
applicable guideline range unless unusual circumstances exist. Blakely
does not invalidate that directive because Blakely is concerned only
with how facts necessary to a sentence are found Once a jury deter-
mines the necessary facts, a statutory directive that courts sentence
within designated Guideline ranges dues not violate the Sixth Amend-
ment 7
35
be sentenced without judicial fact-finding, the Guidelines
would continue to apply untouched. If fact-finding is
necessary at sentencing, the Guidelines would not apply
other than as advisory shadow laws, Pet. Br. at 67, al-
though the Sentencing Reform Act’s determinate features
would apply. Petitioner nowhere explains why Congress
would have intended determinate sentencing witnout the
channeling effect of mandatory guidelines in some cases
but not in others.”
Neither does petitioner explain how retaining the
Guidelines as advisory laws that shape discretion, pre-
sumably by preserving 18 U.S.C. § 3553(a) while striking
§ 3553(b), is consistent with its argument that the Guide-
lines are not severable. Petitioner's argument is that none
of the guidelines survive to bind, but all of them survive to
guide.” The argument necessarily urges severability as a
*“ The dual scheme that petitioner proposes would be subject to
manipulation by both parties. If a party did not want the Guidelines to
apply, a mere claim that a sentence-enhancing fact must be found
seemingly would assure that the Guidelines are not binding at sentenc-
ing. A party who wanted the Guidelines to apply would argue that no
additional facts need be found at sentencing. Petitioner's “schizo-
phrenic” application of the Guidelines in some cases but not in others,
United States v. King, 2004 WL 1769148, *3 (M.D. Fla. 2004), is
unworkable for that reason.
* Whether that guidance would be enforceable or reviewable on
appeal, petitioner does not say. The law provides for “plainly unreason-
able” review when “there is no sentencing guideline,” 18 U.S.C.
§ 3742\a4), but petitioner does not explain whether that standard, or
any other, would apply if a judge did not follow advisory guidelines. Any
appellate review of a court's application of an “advisory” guideline
would seem to imply that the guideline has binding force Petitioner's
proposed remedy either nullifies appellate review of sentences, which
Congress plainly did not intend, or uses appellate review as a back door
restoration of binding guidelines, complete with judicial fact-finding, in
violation of the Sixth Amendment.
36
court’s only authority to consider the Guidelines comes
from § 3553(a).
Strikingly, petitioner does not explain how its dual
sentencing schemes would advance, rather than impede,
uniformity and proportionality in federal sentencing.
Duality cannot advance uniformity. Congress thought in
1984 that federal judges were not singing from the same
sheet of muss. Petitioner would not only restore, but
increase the cacophony.
With its dual sentencing schemes, petitioner tacitly
proposes that this Court “rewrite a statute and give it an
effect altogether different from that sought by the measure
viewed as a whole.” Railroad Ret. Bd. v. Alton R.R., 295
U.S. 330, 362 (1935). That is precisely what petitioner
elsewhere agrees a court may not do. Pet. Br. at 45.
For these reasons, the Court should reject peti-
tioner’s purely discretionary, yet determinate, proposal
for one side of a dual system of federal sentencing.
Congress did not intend the Guidelines to be used in
some cases but not in others. Congress did not intend
judges to impose wholly discretionary sentences in any
case. The remedy proposed by petitioner does not advance
uniformity, and without the national perspective and
leveling influence of the Parole Commission, it does not
advance proportionality. Petitioner's proposed remedy
less resembles what Congress intended than a surviving
guideline system (admittedly dependent on jury findings)
that continues to cabin discretion.
5. Because the root question is whether the statute
will continue to function in a manner consistent with
legislative intent, Alaska Airlines, Inc. v. Brock, 480 U.S.
679, 685 1987), severability presupposes legislation as its
object. Legislators express their intentions in legislation,
and in the process that produces legislation.
37
The legislature does not typically write regulations. It
leaves that task to the executive branch. Congress there-
fore does not ordinarily express its intent through regula-
tions.” It expresses its intent only by the manner in which
it authorizes regulations.
Petitioner's focus on the manner in which the Sen-
tencing Commission intended the Guidelines to work
therefore is misplaced. The Guidelines do not reflect
legislative intent directly. They reflect the Sentencing
Commission's mediate intent in implementing congres-
sional directives. While the Commission’s work must be
consistent with Congress’s, the Commission’s intent is one
step removed from legislative intent. The Commission's
intent also is of little relevance to severability analysis.
What is relevant is fidelity to congressional intent, as
expressed in the statute.
It therefore makes no difference whether the Sentenc-
ing Commission would have promulgated the existing
Guidelines if it could not have included Guideline § 6A1.3.
As petitioner suggests, the Guidelines are lengthy and
detailed. They account for a variety of facts that might be
more conveniently determined by a judge than a jury. But
Congress did not tell the Sentencing Commission to write
lengthy and detailed guidelines that are better suited to
judicial fact-finding than to jury fact-finding. It told the
* Although Congress has written sentencing guidelines, see
discussion of PROTECT Act, supra at 17, they reveal little about the
intent of the Congress that enacted the Sentencing Reform Act. See
United States v. Price, 361 U.S. 304, 313 (1960) (“the views of a
subsequent Congress form a hazardous basis for inferring the intent of
an earlier one”) Neither do they reveal whether Congress would have
enacted the Guidelines knowing that juries rather than judges could
not find the facts that determine sentences. See Buckley v. Valeo, 424
U.S. 1, 128 (1976) (intent is determined by whether Congress would
have enacted the law without the offending provision).
38
Commission to devise a guideline scheme that would
accomplish the goals of uniformity and proportionality.
The question is not whether the Sentencing Commis-
sion would have written identical Guidelines if it had
known it could not assign the finding of every guideline
fact to a judge. The question is whether Congress would
have directed the Commission to create a determinate
guideline sentencing scheme if it had known that the
Constitution requires juries to find facts necessary to
increase guideline ranges. That question is easily an-
swered: Congress wanted to end sentencing disparities by
reducing judicial discretion, and it likely would have
believed the Commission capable of creating such guide-
lines within the framework of the Constitution.
6. There are other good reasons to bring severability
analysis to bear only on the intent of the legislature,
rather than on the intent of the body that promulgates
regulations or guidelines. In our constitutional system, the
legislature is the principal author of broad policy. The
legislative branch is the most responsive to public prefer-
ences. But the Framers feared that the legislature would
breed tyranny (and addressed the legislative branch first
as a matter of priority, not accident; see generally The
Federalist No. 48 (James Madison) (Clinton Rossiter ed.,
1961)). They accordingly established a rigid and counter-
balanced process of enacting legislation. Both houses of
Congress must approve a bill. The president must sign or
veto it. U.S. Const. art. I, §7, cl. 2. Only an enhanced
majority in Congress overrides a presidential veto. U.S.
Const. art. 1, § 7, cl. 2.
Executive branch regulations and judicial branch
guidelines under an authorizing statute, by contrast, require
a less mgd process. While the Administrative Procedures Act
usually requires public notice and opportunity for comment,
5 U.S.C. § 553, and those requirements bind the Sentencing
Commission, 28 USC. §994/x), the regulatory process,
39
including the Commission’s work, remains more fluid than
the legislative process.
It must be that way. Congress acts at a moment in
time; agencies and the Sentencing Commission implement
that legislation over time. Given that task, agencies
amend, modify or repeal regulations as shifting demo-
graphic, political, economic, technological, or other trends
warrant. They repromulgate regulations easily, in most
instances.
When a court strikes down a particular regulation,
then, it usually has no reason to doubt that the agency can
amend or reconsider the troublesome provision and con-
tinue apace. With this fluidity of response, only rarely
should there be reason to suppose that the loss of a single
fruit might imperil the tree, let alone despoil the entire
regulatory orchard.
In this regard, the Sentencing Commission and its
Guidelines are no different than executive branch agencies
and their regulations. The Commission in fact has
amended the Guidelines almost annually, sometimes more
often, since their inception. In the first 16 years, the
amendments added up to hundreds. The Sentencing
Commission adopted 662 through November 5, 2003,
many with several parts. See U.S. Sentencing Guidelines
Manual, Appx. C (2003 ed.). The Commission has tinkered
as it has seen fit, both in response to congressional direc-
tives and on its own. Possessed of that demonstrated
capacity to amend and adapt, the Sentencing Commission
gives little reason to fear that the loss of any particular
guideline or guidelines should threaten the whole.
7. Almost all of this Court’s severability precedent
addresses legislation. However, this Court on rare occasion
has applied severability analysis to regulations or an
executive order. Those cases provide few rules for a coher-
ent application of severability doctrine to administrative
enactments.
40
In K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988),
this Court struck down a subsection of a Customs Service
regulation permitting importation of certain “gray-market”
goods, but held that the subsection was “severable.”” K
Mart, 486 U.S. at 294. The Court’s entire explanation of
this ruling was: .
The severance and invalidation of this subsection
will not impair the function of the statute as a
whole, and there is no indication that the regula-
tion would not have been passed but for its inclu-
sion.
Id. at 294. In its brevity, the K Mart Court did not explain
why invalidation of one regulation ever would “impair the
function” of a statute. Impairment seems unlikely, for an
agency faces no bar to promulgating a new regulation that
serves the legislative intent and satisfies a court’s objection.
The Court also did not explain its inquiry into the
likelihood that the agency would have promulgated the
rest of the regulation without the offending portion. This is
an inquiry into agency intent, while severability turns on
legislative intent. A more telling question would be
whether Congress would have wanted a regulatory scheme
to exist “even if the regulation at issue could not be prom-
ulgated.
“In the only case that K Mart cited in applying severability
analysis to a regulation, Federal Reserve System Board of Governors v.
Dimension Financial Corp., 474 U.S. 361 (1986), the Court struck down
the Federal Reserve Board’s definition of a “bank” as contrary to the
Bank Holding Company Act of 1956. Without addressing severability,
the Court apparently left intact other Federal Reserve Board regula-
tions ‘at least the Court did not say otherwise). Dimension Financial,
474 US. at 374-75. The Court well may have proceeded on the assump-
tion that a stricken regulation simply becomes inoperative, and that the
agency is free to write a replacement consistent with legislative intent.
41
In Minnesota v. Mille Lacs Band of Chippewa Indians,
526 U.S. 172 (1999), the Court tentatively applied sever-
ability doctrine to an 1850 executive order of President
Zachary Taylor. Mille Lacs Band, 526 U.S. at 190-95. The
Court declared the executive order not severable. Jd. at
191. However, Mille Lacs Band noted at the outset that,
“Although this Court has often considered the severability
of statutes, we have never addressed whether Executive
Orders can be severed into valid and invalid parts, and if
so, what standard should govern the inquiry.” Jd. (italics in
original). The Court also observed that no party chal-
lenged the court of appeals’ assumption that executive
orders are severable and that the standards applicable to
statutes also apply to those orders. Jd. With no challenge
to those assumptions, the Court wrote cautiously that, “for
purposes of this case we shall assume, arguendo, that the
severability standard for statutes also applies to Executive
Orders.” Jd. The decision offers scant support for the
proposition that the Sentencing Commission’s intent in
crafting the Guidelines has any bearing on whether
judicial fact-finding was so essential to congressional
intent that Congress would not have enacted sentencing
reform without it.
To the extent that these cases offer any help at all,
they suggest that federal courts usually will view regula-
tory schemes as severable. Respondent has discovered no
case in which this Court held a regulatory scheme (as
distinct from President Taylor’s 150-year old executive
order) non-severable. But the cases offer little support for
petitioner’s contention that the Commission’s intent in
creating a detailed set of interrelated Guidelines has any
bearing on what Congress intended in enacting sentencing
reform.
Petitioner also cites Addison v. Holly Hill Fruit
Products, Inc., 322 U.S. 607, 618-19 (1944), in support of
its argument that the Sentencing Commission's policy
42
judgments are important to a severability analysis. Pet.
Br. at 47. That decision undercuts petitioner's point. Holly
Hill Fruit invalidated one part of one section within a
group of regulations under the Fair Labor Standards Act
of 1938. Rather than try to save that single section by
rewriting it to patch the invalid portion, the Court re-
manded that job to the Administrator and directed the
district court to stay the case pending that regulatory
rewrite. Holly Hill Fruit, 322 U.S. at 619. The Court
nowhere cast doubt on the rest of the sections within that
regulatory scheme under the FLSA.
Holly Hill Fruit therefore supports respondent's view
that agencies, not courts, write and rewrite regulations;
that agencies quickly can correct their mistakes; and that
the failure of one regulatory section provides no occasion
to apply severability analysis to the whole, or even to
consider the possibility that the loss of one provision might
invalidate the entire scheme. By analogy here, this Court
may refrain from rewriting Guidelines § 6A1.3 to correct
the word “court,” if that word does not bear a construction
that accommodates the jury’s role. The Sentencing Com-
mission is capable of responding to this Court’s application
of Blakely to federal sentencing by rewriting Guidelines
§ 6A1.3 and by amending other guidelines if doing so will
better advance the goals of uniformity and proportionality
in sentencing. But the loss of Guidelines § 6A1.3 gives no
reason to consider discarding all other guidelines.
8. If the focus is on legislative rather than agency
intent, the question is not whether the Sentencing Com-
mission would have written the current Guidelines if it
had known that facts requiring longer sentences must be
found by a jury. The question is whether Congress would
have enacted the Sentencing Reform Act with the benefit
43
of that knowledge. The answer is that Blakely does not
threaten the demise of the entire Act.”
This Court starts with a presumption of severability.
Regan v. Time, Inc., 468 U.S. 641, 653 (1984). The pre-
sumption serves democracy by avoiding the unnecessary
invalidation of legislation. Jd. at 652-53. Here, the pre-
sumption underscores the need to save those portions of
the law that serve the broad purposes Congress identified.
Changing the fact-finder from judge to jury to comply
with Blakely does not impede the purposes of the Act. The
Sentencing Commission remains. Sentences will be fixed
and predictable. Discretionary parole will not reappear.
Sentencing will continue generally to operate in the
manner Congress intended. See Alaska Airlines, 480 U.S.
at 685.
Although Blakely prevents judges from finding prob-
able facts that require an increased sentence, federal
courts retain a determinate sentencing scheme that will
preserve the key congressional objectives of certainty,
uniformity and proportionality. Fact-finding as a predicate
to sentencing may not operate after Blakely as Congress
intended, but legislative intent always yields to constitu-
tional imperatives. That in itself is not sufficient reason to
discard the entire law.
9. Changing the identity of the fact-finder will not
cause the Sentencing Reform Act to lose its ability to
function independently. In any event, no statute functions
“independently” in the sense that petitioner argues. See
* Severability analysis leads to the same result whether it focuses
on the Act or on the Guidelines. The loss of one policy statement,
Guidelines §6A1.3, and the constitutionally required insertion of a
different predicate (a jury finding on a higher standard of proof) for
upward adjustments does not undermine the basic sentencing scheme
that both Congress and the Commission designed.
44
Pet. Br. at 59-63. No statute can. Federal law is complex
and connected, in the sense that constitutional rights,
rules of procedure, and sta. ites always inform the opera-
tion of court proceedings, oti.er statutes, and regulations.
No statutory scheme ever functions with complete inde-
pendence, devoid of impact upon other rules, statutes, and
rights. Neither can it avoid their impact.
Like all federal statutes, the Sentencing Reform Act
works within a complex matrix of rights, rules, and stat-
utes that makes absolutes few, and requires courts fre-
quently to reconcile competing interests. That truism
makes the function of the Sentencing Reform Act no less
independent. Where a constitutional requirement, like the
right to jury trial, collides with a statute, to some degree
the statute vields. But the legislature's enactments are not
so inconsequential that they must collapse in the collision.
B. While Courts And Congress May Adopt
Jury Trial Procedures For Sentencing
Facts In Future Cases, No Jury May Be
Convened To Try Sentencing Facts In Re-
spondent’s Case
If this Court applies Blakely to federal sentencing but
leaves in place the Sentencing Reform Act, as respondent
urges, the Court will face the question whether federal
courts may submit facts to juries that support guideline
range increases. They may, in cases not already tried.
This Court and lower courts are capable of fashioning
procedures to assure a fair determination of Guideline
facts. This Court also might elect to wait for Congress to
fashion the best procedures for submitting Guideline facts
to juries. Both courses constitutionally are open.
As petitioner notes, choices need to be made when
applying Blakely to federal sentencing. Congress may wish
to make some of those choices. Congress may desire to
45
address the charging of additional facts in an indictment.
Congress may wish to provide statutory authority to
empanel a jury to decide sentencing factors after a guilty
plea is entered to an underlying charge, or to designate
standards for the bifurcated trial of Guideline facts. But
the absence of legislation serves as no barrier to compli-
ance with the Constitution. Even without the assistance of
Congress, this Court and the lower courts have ample
authority to bring federal sentencing practice into compli-
ance with the Sixth Amendment right to jury trial.
1. The forerunner of the modern jury existed before
writings of kings or parliaments authorized it. The jury
was developing in regions of Europe and Scandinavia,
including England, by the twelfth century. R.C. Van
Caenegem, The Birth of the English Common Law 71-79
(Cambridge Univ. Press, 2d ed. 1988). The year 1215
marked both the Fourth Lateran Council (which forbade
clerical participation ‘in trials by ordeal, and so sped
reliance on other forms of trial), Roger D. Groot, The
Ecrly-Thirteenth-Century Criminal Jury, in Twelve Good
Men and True: The Criminal Jury Trial in England, 1200-
1800, 10 (J.S. Cockburn & Thomas A. Green eds., Prince-
ton 1988), and John’s reluctant accession to Magna Carta.
But “[t)here was little in Magna Carta that directly
affected the development of the jury.” Groot, supra, at 10.
Magna Carta acknowledged the right to a jury, rather than
created or defined that fact-finding body. 1 William Black-
stone, Commentaries *123-24 (1765) (describing Magna
Carta and English liberties: “Which charter contained very
few new grants; but, as Sir Edward Coke observes, was for
the most part declaratory of the principal grounds of the
lat
460
fundamental laws of England”). The jury has non-
statutory, or common law, roots many centuries old.”
2. This Court and the lower federal courts are
capable of adapting jury trials to the Sixth Amendment
predicates of federal sentencing. Petitioner’s pragmatic
concerns cannot trump a constitutional right, but those
concerns are overstated. Federal courts long have con-
ducted bifurcated trials in criminal cases (on insanity
defenses or forfeiture provisions, for example) and in civil
cases (on liability and damages). Instructing jurors on the
law is what courts always have done, even when the law is
complex, as in a patent or securties fraud trial. Federal
courts are familiar with special verdicts; they have been
employed in criminal cases routinely since Apprendi
The facts that are often most critical to sentencing
and those that result in the most severe offense level
increases) include drug quantities (Guidelines § 2D1.1
and financial loss (Guidelines § 2B1.1). Those facts are
readily susceptible to jury determination in special ver-
dicts. And proving relevant conduct is little different from
proving a separately charged crime.” While the Sentenc-
ing Guidelines include dozens or hundreds of potential
enhancements, in any given case but a few are implicated.
Giving notice of potential sentence enhancements
already has proven feasible. The Department of Justice
began seeking superseding indictments that include
This Court acknowledged 36 years ago that historians now
regard as mistaken the view that the jury trial traces back only to Magna
Carta. Duncan v. Louisiana, 391 U.S. at 151 n.16 (citing 1 Frederick
Pollock & Frederic W. Maitland, The History of the English Law Before
the Time of Edward I 173 (2d ed. 1909))
” A few guideline enhancements, such as obstruction of justice by
perjury at trial, are not capable of charging in advance or submission to
the jury. Those are rare exceptions causing little or no harm. Often, the
government will have a remedy: it may charge a new offense.
17
sentencing allegations within days or weeks after this
Court's decision in Blakely. See Comey memorandum,
supra. They can continue t¢ do so
Petitioner's fears about complexity ultimately are
fears of juries and judges. As to juries, the Framers under-
stood that governments would not always appreciate the
jury’s role; in part, that was the point of securing the right
to jury trial in the Constitution. As to judges, there is no
reason to fear an inability to manage complex trials and to
instruct upon complex legal rules. They do so regularly
3. As petitioner correctly notes, this Court has
refused to fashion a sentencing jury where the legislature
has not provided one. United States v. Jackson, 390 U.S
570 (1968); Pet. Br. 60-61. The Jackson Court declined “to
extend the capital punishment provision of the Federal
Kidnaping Act in a new and uncharted direction, without
the compulsion of a legislative mandate and without the
benefit of legislative guidance.” 390 U.S. at 581.
The Kidnapping Act applied the death penalty only to
defendants who lost a trial; the lives of those who pled
guilty were automatically spared. The Court deemed this
too great a burden on the right to a jury trial. Jd. at 572.
To avoid that consequence, the government asked the
Court to instruct lower courts to convene juries after guilty
pleas were entered to decide upon death. The Court
declined to do so. Jd. at 580-81.
Jackson applies here to this extent: for those defen-
dants who have entered a guilty plea or against whom a
verdict has been rendered, no new and separate sentenc-
ing jury can be convened. Empanelling a sentencing jury
in a noncapital case after the trial jury has been dis-
charged would be an innovation unknown in federal
criminal law; the Court would have to create it “from
whole cloth.” Jd. at 580. Jackson restrains courts from
going that far.
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CONCLUSION
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.