Amicus Curiae Brief — United States v. Booker

“Supreme Coun, US.

FILED

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Nos. 04-104 & 04-105 OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

UNITED STATES OF AMERICA,

Petitioner,

Vv.

FREDDIE J. BOOKER,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

UNITED STATES OF AMERICA,

Petitioner,

Vv.

DUCAN FANFAN,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR THE HONORABLE ORRIN G. HATCH,

HONORABLE EDWARD M. KENNEDY, AND

HONORABLE DIANNE FEINSTEIN AS AMICI

CURIAF IN SUPPORT OF PETITIONER

GREGORY G. GARRE*

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5665

*Counsel of Record Counsel for Amici Curiae

WiLSON-EPES PrinTiING Co., INC. — (202) 789-0096 — WasHincTon, D. C. 20001

QUESTION PRESENTED

Whether, or to what extent, the Court should give effect to

the intent of Congress in enacting the Sentencing Reform

Act of 1984 to eliminate the intolerable disparities that had

plagued the federal sentencing system by creating an

integrated and cohesive sentencing guidelines system.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........:0..0:scccsecsssssssscsesessseees i

TABLE OF AUTHORITIES. ............ccccccccccsscssese cesses ili

INTEREST OF AMICI CURIAE ......0.ccees I

SUMMARY OF ARGUMENT..................ccccccccesseeeees 4

ITE weenusenemnnsiscimmnmesennemmemenemmeen 6

1. THE INTOLERABLE DISPARITIES

THAT PLAGUED THE INDETER-

MINATE FEDERAL SENTENCING

SYSTEM DEMANDED A COMPRE-

HENSIVE LEGISLATIVE RESPONSE. ..... 6

ll. THE 1984 ACT WAS THE PRODUCT

OF MORE THAN A DECADE OF

BIPARTISAN AND INTER-BRANCH

DELIBERATIONS ON RESOLVING

THE SENTENCING CRISIS....................... 12

lil. THE CENTERPIECE OF THE 1984

ACT WAS THE ADOPTION OF A

COMPREHENSIVE SENTENCING

GUIDELINES SYSTEM ..................00cs00000 15

IV. THE SENTENCING GUIDELINES

WERE INTENDED TO OPERATE AS

AN INTEGRATED SYSTEM OP

CALIBRATIONS AND BASED ON

JUDGE-MADE DETERMINATIONS. ........ 21

CO 26

TABLE OF AUTHORITIES

CASES:

Blakely v. Washington,

OO _—————ES 1,3,6

Dorszynski v. United States,

A ______——_ 7, 8,9, 16

Ex parte United States,

(EE 7

Freeman v. United States,

243 F. 353 (9th Cir. 1917),

cert. denied, 249 U.S. 600 (1919).................... 8

Gurera v. United States,

OE s

Mistretta v. United States,

OE 3, 6, 11, 16, 17, 25

United States v. Grayson,

GER TAD. GB Gee cerreerenenreeenensnesee » we

United States v. Hendrix,

505 F.2d 1233 (1974),

cert. denied, 423 U.S. 897 (1975)....................... 8

United States v. Hudson,

11 U.S. (7 Cramch) 32 (1812) ........-cccccecceneeeenennens 7

United States v. Tucker,

I y————————————————E 8

United States v. Watts,

Se 19

IV

TABLE OF AUTHORITIES—Continued

Page

United States v. Wiltberger,

18 U.S. (S Wheat.) 76 (1820) 0.0. cccccceeeeeee 7

RULE:

Supreme Court Rule 37.6 0000 cccceeeeeeeeeeeeeee. l

STATUTES:

Ee 18

1S U.S.C. § BSS3(a) 1) nnn i.eccccccceccccsceceseseecesereeeseneecees 18

a 17

18 U.S.C. § 3553(b) (1986) ccccccccccccceceeeeeeneeseeeeen 8, 18

i 20

i 8

ee OPI eiivctinstrerencinimmeetintnaianinitasiaiaasiaiita 19

ee 9

EL 16

EE | 16

28 U.S.C. § DDU(O TB)... ecccccccccccececececececeececececesens 16

I D 16, 23

eee i crertitnterietertsiaeeain at aicicis 22

ER 19

Ns citeerinieeerceinahiceeariela ea 17

v

TABLE OF AUTHORITIES—Continued

An Act for the Punishment of Certain Crimes

Against the United States, | Stat. 113-115.............

Act of Apr. 30, 1790, ch. 9, § 7, 1 Stat. 113.................

Act of Apr. 30, 1790, ch. 9, § 22, 1 Stat. 117...............

Act of Mar. 3, 1853, ch. 104, § 4,

Bn i iccnsentesnsannninsinsitnenimmetemegmempemenmennnn

Act of Mar. 3, 1891, ch. 517, 26 Stat. 826...................

Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, 98 Stat. 1837 .............ccccccceeee

Prosecutorial Remedies and Other Tools to End

the Exploitation of Children Today Act of

2003 (PROTECT Act), Pub. L. No. 108-21,

§ 401(b), (g), and (7), 117 Stat. 668-669,

i OQ yy

Sentencing Reform Act of 1984, Pub. L. No. 98-

473, title Il, ch. II, 98 Stat. 1987 000s

U.S. SENTENCING GUIDELINES:

U.S. Sentencing Guidelines § UB1.4 .......cc.c0..csceeeeseeen

U.S. Sentencing Guidelines § 1B1.11 ..........................

U.S. Sentencing Guidelines § SGI.1 ........c0ccccceceseeeeeen .

U.S. Sentencing Guidelines § 5H1.10..........................

U.S. Sentencing Guidelines § 6A1.3(b) .......................

vi

TABLE OF AUTHORITIES—Continued

LEGISLATIVE MATERIALS:

H.R. Rep. No. 1946, 85th Cong.,

Te

H.R. Rep. No. 1396, 96th Cong.,

ee Se cnncesnentetntetenmnememmmmnemnenemessat

H.R. Rep. No. 1017, 98th Cong.,

Ds Gr crerescevesssereenscemenecmemmenenmssenes 11,12, 15

S. Rep. No. 2013, 85th Cong.,

2d Sess. (1958) ....cccccccccocccvssessssssssseesessssnvessessnneeee

S. Rep. No. 223, 98th Cong.,

Ist Sess. (1983).....ccccccccccccccccseessssucssssueessnesssueesnnecen

S. Rep. No. 225, 98th Cong., .

ee

Reform of the Federal Criminal Laws: Hearing

Before the Subcomm. on Criminal Laws and

Procedures of the Senate Comm. on the

Judiciary, 95th Cong., Ist Sess., Pt. 13

a, uanibeeapanmagnemmmnenesennmseunmeaneetsumes

Federal Sentencing Revision: Hearings Before

the Subcomm. on Criminal Justice of the

House Comm. on the Judiciary,

98th Cong., 2d Sess., Pt. 2 (1984) 000. cccccceeeeeee

Sentencing Guidelines: Hearings Before the

Subcomm. on Criminal Justice of the House

Comm. on the Judiciary, \00th Cong.,

Ita inincsinsseneieneentareadinasinmtaneenadienemieanies

vil

TABLE OF AUTHORITIES— ontinued

Page

Blakely v. Washington and the Future of the

Sentencing Guidelines: Hearing Before the

Senate Comm. on the Judiciary, 108th Cong.

BG Ba, CIO cccccccsccccsnsscsssscssccsssacsssnscssnssesscsnesceess 3,24

H.R. 6915, 96th Cong., 2d Sess. (1980)............:::cccceee 13

S. 2699, 94th Cong., Ist Sess. (1975).........:ccccccceeeeeen 12

S. 1437, 95th Cong., Ist Sess. (1977)........ccccccceeeeereees 13

S. 1722, 96th Cong., Ist Sess. § 125 (1979).............+. 13

S. 1630, 97th Cong., Ist Sess. § 125 (1981)................ 13

S. 2572, 97th Cong., 2d Sess. (1982)..........ccccccceeeeeeeees 13

S. 688, 98th Cong., Ist Sess. (1983).........::ccccccceeeeeeeens 13,14

S. 829, 98th Cong., Ist Sess. (1983)..........ccccceceeeennens 14, 15

S. 1762, 98th Cong., Ist. Sess. (1983).........:ccccccceceeeeees 14, 15

S. Con. Res. 130, 108th Cong. 2d Sess. (2004)............ 3

129 Cong. Rec. $2090 (daily ed. Mar. 3, 1983)........... 14

130 Cong. Rec. $759 (daily ed. Feb. 2, 1984) ............. 14

130 Cong. Rec. H10130

(daily ed. Sept. 25, 1984) .0.....cccccccccseeneeeneennennnenens 15

150 Cong. Rec. $8572

(daily ed. July 21, 2004) 000... cccccccccnscereeeeesenneeenneens 3

vill

TABLE OF AUTHORITIES—Continued

Page

OTHER:

Hon. Stephen Breyer, Federal Sentencing

Guidelines Revisited, 11 Federal Sentencing

Reporter 180 (Jan./Feb. 1999),

1999 WL 730985 (Vera Inst. Just.) ............ccccceceeee 12

Hon. Stephen Breyer, The Federal Sentencing

Guidelines and the Key Compromises Upon

Which They Rest, 17 Hofstra 1 (1988) ..........0..00000. 21-22

Arthur W. Campbell, Law of Sentencing § 1:3

EID SIUTI cieriiesiserinesiennnsstinennenomniaiemneiipenamentsemamssnass 1]

Developments in the Law—Race and the

Criminal Process, 10\ Harv. L. Rev. 1472

(1988)

Federal Sentencing Guidelines Manual................000.... 21

Marvin Frankel, Criminal Sentences: Law

TTT ET 10

Charlton T. Lewis, The Indeterminate Sentence,

EO v7)

Long v. Short Sentences, 20 Wash. L. Rep. 135

SUITED ceevvneectrantecininsensssianseaineseenatiitiaiausennsemmsesegsciues 9

National Commission on Reform of Federal

Criminal Laws, Final Report (1971) .......cccc0c00000- 12

Whitney N. Seymour, /972 Sentencing Study

for the Southern District of New York, 45

Se ae es Ce errereenecnmasinnnnicnnsssnntssnescsnees 10

U.S. Dep’t of Justice, Annual Reports of the

I I acienccnnatbcscnenncntnsnsnssnsrssnssenntumseens 9

iX

TABLE OF AUTHORITIES—Continued IN THE

Page Supreme Court of the United States

U.S. Sentencing Comm’n, Supplementary

Report on the Initial Sentencing Guidelines “ No. 04-104

and Policy Statements (1987)......::c::ccseeseeeeeessees UNITED STATES OF AMERICA.

Petitioner,

v.

FREDDIE J. BOOKER,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

No. 04-105

UNITED STATES OF AMERICA,

Petitioner,

Vv.

DUCAN FANFAN,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR THE HONORABLE ORRIN G. HATCH,

HONORABLE EDWARD M. KENNEDY, AND

HONORABLE DIANNE FEINSTEIN AS AMICI

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE

These cases present the Court with an opportunity to re-

solve the chaos and confusion that has arisen in the wake of

2

Blakely v. Washington, 124 S. Ct. 2531 (2004), over the

continued application of the United States Sentencing

Guidelines, and to restore order and certainty to the federal

sentencing system. The federal sentencing guidelines

system at issue in these cases is the product of the Sentencing

Reform Act of 1984 (1984 Act), which was enacted as part of

the Comprehensive Crime Control Act of 1984, Pub. L. No.

98-473, 98 Stat. 1837. The 1984 Act represents the most

comprehensive effort ever undertaken by Congress to reform

the federal sentencing system. It is the product of more than

a decade of inter-branch and bipartisan legislative efforts in

both Houses of Congress to eliminate the “shameful disparity

in criminal sentences” that had long plagued the federal

sentencing system and fostered “a disrespect for the law.”

S. Rep. No. 225, 98th Cong., Ist Sess. 46, 65 (1983).

Amici are a bipartisan group of United States Senators who

have been extensively involved with sentencing issues.

Senator Orrin G. Hatch is a Republican from Utah. He is the

current Chairman of the Senate Judiciary Committee, has

served on the Judiciary Committee since 1977, and is one of

the original co-sponsors of the bill that became the 1984 Act.

See infra at 13. Senator Edward M. Kennedy is a Democrat

from Massachusetts. He has served on the Judiciary Com-

mittee since 1962, and introduced the bill that became the

1984 Act. Jd. at 14. Senator Dianne Feinstein is a Democrat

from California. She is the first woman member of the

Senate Judiciary Committee and has served on the Commit-

tee since 1994. The Senate Judiciary Committee has legisla-

tive jurisdiction over the federal criminal justice system,

including sentencing. Members of the Committee have been

extensively involved in drafting the 1984 Act, monitoring the

Pursuant to Supreme Court Rule 37.6, counsel for amici states

that no counsel for a party authored this brief in whole or part and

that no entity other than counsel for amici made a monetary

contribution to the preparation or submission of the brief. All

parties have consented to the filing of this brief.

3

operation of the federal sentencing guidelines system, and

amending federal sentencing law when appropriate.

Amici support the continued application of the United

States Sentencing Guidelines—the centerpiece of the 1984

Act—to eliminate the unwarranted disparities that prolifer-

ated under the prior sentencing regime and to foreclose the

consideration of race, gender, and other illegitimate factors at

sentencing. Amici have a strong interest in defending the

constitutionality of the 1984 Act and note that the United

States Senate filed a brief in support of the Act in Mistretta v.

United States, 488 U.S. 361 (1989). See Nos. 87-1904 & 87-

7028, Br. for U.S. Senate as Amicus Curiae. In addition, if

this Court concludes that the enhancement provisions of the

sentencing guidelines were not constitutionally applied in

these cases, amici have a strong interest in ensuring that the

guidelines are not applied in a piecemeal fashion in subse-

quent cases, but rather are applied—as they were intended to

be applied—only as a cohesive and integrated whole.

Amici have a strong interest in promoting order, consis-

tency, and fairness in the federal sentencing system. On July

13, 2004, the Senate Judiciary Committee held a hearing on

the potential impact of the Blakely decision on the federal

criminal justice system, during which the Committee re-

ceived testimony from federal judges, law enforcement

Officials, academics, and criminal lawyers. See Blakely y.

Washington and the Future of the Sentencing Guidelines

(transcripts available at http://judiciary.senate.gov/hearing.

cfm?id=1260). In addition, amici—along with all their

colleagues in the Senate—voted in favor of the Concurrent

Resolution that was passed unanimously by the Senate on

July 21, 2004, urging this Court to grant certiorari in these

cases and “expeditiously to resolve the current confusion and

inconsistency in the Federal criminal justice system by

promptly considering and ruling on the constitutionality of

the Federal Sentencing Guidelines.” S. Con. Res. 130 at 4;

see 150 Cong. Rec. $8572-S8574 (daily ed. July 21, 2004).

4

SUMMARY OF ARGUMENT

The Court’s resolution of the important issues presented by

these cases should be informed by the urgent practical and

policy considerations that led to the passage of the Sentenc-

ing Reform Act of 1984, the intent of Congress in establish-

ing a federal sentencing guidelines system, and the funda-

mental values and compromises on which that system rests.

During the 19th century and most of the 20th century,

federal sentencing was generally conducted pursuant to an

indeterminate system. For most offenses, Congress pro-

scribed a range of punishment that could be imposed for an

individual convicted of a particular offense, but judges were

free to impose a sentence anywhere within that statutory

range based on the consideration of virtually any information

that a court deemed relevant with respect to ue specific

characteristics of the defendant or conduct in which he had

engaged. That discretionary sentencing »ystem produced

astounding disparities among the sentences that were im-

posed on defendants convicted of the same offense with

similar backgrounds within different judicial districts across

the country—and even among different judges in the same

district. In addition, studies indicated that the disparities that

proliferated under this sentencing system not only were

arbitrary, but, in at least some cases, were based on the

consideration of race, gender, and other illegitimate factors.

The Sentencing Reform Act of 1984 represents Congress’s

considered response to that crisis. The 1984 Act reflects

more than a decade’s worth of reports, hearings, and delib-

erations on federal sentencing and is the product of an

extraordinary coalescence of inter-branch cooperation and

bipartisan support in both Houses of Congress. The corner-

stone of the Act was the creation of a federal sentencing

guidelines system. Sentencing guidelines offered 4 middle-

ground approach between sticking with the failed indetermi-

nate system of sentencing and adopting a rigid system of

5

determinate sentencing, in which Congress specified applica-

ble sentences for federal offenses and judges simply imposed

sentence without any individualized consideration of the

offender or his criminal conduct. Under the guidelines

system established pursuant to the 1984 Act, district court

judges are still free—and, indeed, obligated—to consider

available information concerning an offender and his offense,

including factors not found by a jury or contained in a plea

agreement. But the guidelines channel the manner in which

a judge may impose sentence based on that information in

order to avoid unwarranted disparities in sentencing.

Congress intended the federal sentencing guidelines to be

applied as an integrated and cohesive whole. The guidelines

establish an interlocking system of calculations and calibra-

tions that are part of a single sentencing equation. In particu-

lar, the Congress that enacted the 1984 Act intended sentenc-

ing judges to have flexibility to move a sentence both upward

and downward within the applicable guidelines range based

on an individualized consideration of the offender and his

offense and, in unusual cases, to depart upward or downward

outside of the guidelines range. Holding that sentencing

judges are free to consider facts or circumstances not found

by a jury or contained in a plea agreement for purposes of

reducing a sentence—but not enhancing it—would conflict

with Congress’s intent in enacting the 1984 Act to ensure

that the sentencing guidelines fostered individualized sen-

tencing reflecting aggravating as well as mitigating factors

found by a judge, and that the guidelines produced sentences

that were fair to the offender as well as society.

At the same time, in adopting a guidelines system, Con-

gress intended to preserve the traditional role of judges in

making the myriad factual determinations that judges—trather

than juries—have long made in the course of sentencing

defendants in noncapital cases in the federal criminal justice

system. Attempting to substitute a sentencing jury for a

sentencing judge in applying the sentencing guidelines—

6

even only for the sake of enhancing sentences—would

contravene the express terms of the 1984 Act and in all

likelihood fundamentally upset the sentencing system

established by that Act. Accordingly, that is the sort of

reform that should come, if at all, only after careful legisla-

tive inquiry and deliberation as to the potential practical and

financial costs of attempting to engraft a jury-sentencing

system onto the existing sentencing guidelines system, and as

to whether more desirable sentencing alternatives exist. In

our constitutional system, these sorts of determinations—like

the judgment whether to adopt a sentencing guidelines

system in the first place—are uniquely suited for legislative

consideration and compromise.

Like all Acts of Congress, the 1984 Act is entitled to a

strong presumption of constitutionality. The shameful

disparities that existed under the prior sentencing system,

extensive legislative deliberations on how to avoid such

disparities, and strong bipartisan consensus that emerged for

adopting a sentencing guidelines system if anything call for

even greater caution on the part of this Court in considering

the arguments that have been advanced in the wake of

Blakely for dismantling that considered legislative effort.

ARGUMENT

I. THE INTOLERABLE DISPARITIES THAT

PLAGUED THE INDETERMINATE FEDERAL

SENTENCING SYSTEM DEMANDED A

COMPREHENSIVE LEGISLATIVE RESPONSE

The Constitution does not assign to any one Branch of the

National Government the responsibility for federal sentenc-

ing—i.e., the authority to determine “the scope and extent of

punishment” for the commission of a particular criminal

offense. Mistretta v. United States, 488 U.S. 361, 364

(1989). It is well established, however, that “Congress * * *

has the power to fix the sentence for a federal crime,” and

that “the scope of judicial discretion with respect to a sen-

7

tence is subject to congressional control.” Jbid. (citing

United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820);

Ex parte United States, 242 U.S. 27 (1916)); cf. United

States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) (Before a

federal court may recognize a criminal offense, “{t]he

legislative authority of the Union must first make an act a

crime, affix a punishment to it, and declare the Court that

shall have jurisdiction of the offense.”) (emphasis added).

From the First Congress forward, Congress has passed

Statutes proscribing criminal offenses and fixing the degree

of permissible punishment for such offenses. See An Act for

the Punishment of Certain Crimes Against the United States,

1 Stat. 113-115, 117-118. For much of the first two centuries

of our history. however, Congress typically left courts broad

leeway to impose sentences on convicted offenders within a

statutory range or up to a maximum amount.” In exercising

that discretion, a sentencing judge was free to consider any

aggravating or mitigating circumstances that the judge

believed to be relevant to his decision and, after weighing

those factors, to select a sentence “within an often broad,

congressionally prescribed range.” United States v. Grayson,

438 U.S. 41, 47 (1978); see id. at 46. That discretion was not

only wide, but, as this Court put it, virtually “unfettered.”

Dorszynski v. United States, 418 U.S. 424, 437 (1974).

* In United States v. Grayson, 438 U.S. 41, 45 (1978), the Court

observed that, “[iJn the early days of the Republic, * * * [eJach

crime had its defined punishment.” From the First Crimes Act,

however, Congress generally set statutory ranges or maximums

rather than fixed sentences for federal offenses. See, e.g., Act of

April 30, 1790, ch. 9, § 7, 1 Stat. 113 (manslaughter: imprisonment

not exceeding three years and a fine not exceeding $1000); id. §

22, 1 Stat. 117 (obstruction of process: imprisonment not exceed-

ing one year and fine not exceeding $300). Historically, it was

rare for Congress to set fixed terms of imprisonment. See, e.g.,

Act of Mar. 3, 1853, ch. 104, § 4, 10 Stat. 239 (embezzlement by

government employee: imprisonment of two years plus fine).

-

8

Under this regime, a sentencing judge could “appropriately

conduct an inquiry broad in scope, largely unlimited either as

to the kind of information he may consider, or the source

from which it may come.” Grayson, 438 U.S. at 49 (quoting

United States v. Tucker, 404 U.S. 443, 446 (1972)); see also

18 U.S.C. § 3577 (1976) (“No limitation shall be placed on

the information concerning the background, character, and

conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence.”). Thus, for example, a

sentencing judge was free not only to consider information in

presentence reports, but to weigh “evidence heard during

trial,” “the demeanor of the accused,” as well as personal

“ ‘fijmpressions about the individual being sentenced—the

likelihood that he will transgress no more, the hope that he

may respond to rehabilitative efforts * * * , the degree to

which he does or does not deem himself at war with soci-

ety.”” Grayson, 438 U.S. at 50-51 (quoting United States v.

Hendrix, 505 F.2d 1233, 1236 (2d Cir. 1974) (opinion by

Frankel, J.), cert. denied, 423 U.S. 897 (1975)).

At the same time, while appellate jurisdiction initially was

available to correct egregious disparities such as unduly

harsh sentences, that changed in 1891. Courts interpreted an

1891 statute (Act of Mar. 3, 1891, ch. 517, 26 Stat. 826) to

have impliedly repealed appellate jurisdiction over sentenc-

ing. See Freeman v. United States, 243 F. 353, 357 (9th Cir.

1917), cert. denied, 249 U.S. 600 (1919). And soon the

“rule” was “firmly established * * * that the appellate court

has no control over a sentence which is within the limits

allowed by a statute.” Dorszynski, 418 U.S. at 440-441

(quoting Gurera v. United States, 40 F.2d 338, 340-341 (8th

Cir. 1930)); see id. at 441 (“{I]f a judge imposed a sentence

within that range, his exercise of discretion * * * was not

subject to challenge [on appeal].”). The result was that in the

United States—unlike every other “ ‘nation in the free

world’ ”"—“the ‘discretion of the judge . . . in (sentencing)

9

matters [was] virtually free of substantive control or guid-

ance.’ Jd. at 440 n.14 (quoting law reviews).

By the close of the 19th century, commentators had begun

to report on the “gross and startling inequities” that this

discretionary system of sentencing produced. Long v. Short

Sentences, 20 Wash. L. Rep. 135 (1892); see also Carlton T.

Lewis, The Indeterminate Sentence, 9 Yale L.J. 17, 18

(1900). And early in the 20th century, the Executive Branch

reported the problem to Congress. In 1938, Attorney General

Cummings informed Congress “that there frequently occur

wide disparities and great inequities in sentences imposed in

different districts, and even by different judges in the same

districts, for identical offenses involving similar states of

facts,” making “it difficult to maintain that equal, even-

handed justice is attained.” U.S. Dep’t of Justice, Annual

Report of the Attorney General, 6, 7 (1938). Attorneys

General Murphy, Jackson, and Biddle returned to Congress

and reiterated that same message. See id. at 6 (1939) (Mur-

phy); id. at 5-7 (1940) (Jackson); id. at 4 (1941) (Biddle).

In 1958, Congress itself took note of the “existence of

widespread disparities in the sentences imposed by Federal

courts * * * in different parts of the country, between adjoin-

ing districts, and even in the same districts.” H.R. Rep. No.

1946, 85th Cong., 2d Sess. 6 (1958). Congress responded by

authorizing the creation of judicial sentencing institutes and

joint councils to formulate advisory “objectives, policies,

standards, and criteria for sentencing.” 28 U.S.C. § 334(a).

These voluntary measures were intended to encourage

“[flederal judges [to] reach a desirable degree of consensus

as to the types of sentences which should be implemented in

different kinds of cases.” S. Rep. No. 2013, 85th Cong., 2d

Sess. 3 (1958). The 1958 statute, however, failed to curb the

disparities in federal sentencing. Indeed, one leading author-

ity—Federal Judge Marvin Frankel—went so far as to

suggest that “the sentencing institute is almost irrelevant,”

and that the disparities under the existing sentencing system

10

were “terrifying and intolerable for a society that professes

devotion to the rule of law.” Marvin Frankel, Criminal

Sentences: Law Without Order 5, 66 (1972).°

The crisis continued. During the 1970s, a number of em-

pirical studies were issued demonstrating the gross disparities

in federal sentencing. For example, a 1972 study undertaken

by the United States Attorney’s Office for the Southern

District of New York determined that “[t]he range in average

sentences for forgery runs from 30 months in the Third

Circuit to 82 months in the District of Columbia. For inter-

state transportation of stolen motor vehicles, the extremes in

average sentences are 22 months in the First Circuit and 42

months in the Tenth Circuit.” S. Rep. No. 225, 98th Cong.,

Ist Sess. 41 n.21 (1983) (quoting Whitney N. Seymour, 1972

Sentencing Study for the Southern District of New York, 45

N.Y.S. B.J. 163, 167 (1973)). A 1974 study undertaken by

the Second Circuit underscored the problem. Fifty district

court judges were given the identical files from 20 actual

criminal cases and asked to impose a sentence. “The varia-

tions in the judges’ proposed sentences in each case were

astounding.” Jd. at 41; see id. at 42-43 (chart summarizing

the results of the Second Circuit sentencing study).

Another study undertaken by the Department of Justice

asked 208 sitting federal judges to indicate the sentences that

they would impose in 16 hypothetical cases, 8 bank robbery

cases, and 8 fraud cases. The results were similarly startling:

In only 3 of the 16 cases was there a unanimous agreement

to impose a prison term. Even where most judges agreed

that a prison term was appropriate, there was a substantial

3 ” ee

To resolve the sentencing crisis, Judge Frankel proposed

creation of a permanent agency—or commission—composed of

judges and experts that would study sentencing and eventually

enact “a detailed chart or calculus to be used * * * by the sentenc-

ing judge in weighing the many elements that go into the sen-

tence.” Frankel, supra, at 113.

— —

——_ —

11

variation in the lengths of prison terms recommended. In

one fraud case in which the mean prison term was 8.5

years, the longest term was life in prison. In another case

the mean prison term was 1.1 years, yet the longest prison

term recommended was 15 years.

S. Rep. No. 225, supra, at 44 (footnotes omitted). Numerous

other reports similarly confirmed “the existence of wide-

spread sentencing disparity.” /d. at 44 n.23 (listing studies).

See also Mistretta, 488 U.S. at 365 (“Serious disparities in

sentences * * * were common” during this period.).

Even more disturbing, studies indicated that the disparity in

sentencing was not just arbitrary, but, in at least some cases,

the product of judicial consideration of race, gender, and

other illegitimate factors. See Reform of the Federal Crimi-

nal Laws: Hearings Before the Subcomm. on Criminal Laws

and Procedures of the Senate Comm. on the Judiciary, 95th

Cong., Ist Sess., Pt. 13, 9047 (1977) (hereinafter 1977 Senate

Judiciary Committee Hearings) (“The statistics are appalling.

* * * [When both the crime and the previous history of the

offender are held equal, black and minority offenders fare

considerably worse.”) (testimony of Prof. Alan M. Dershow-

itz); H.R. Rep. No. 1017, 98th Cong., Ist Sess. 102 (1983)

(noting the “potential for sentencing decisions to be based on

inappropriate grounds such as race or sex”); see also Federal

Sentencing Revision: Hearings Before the Subcomm. on

Criminal Justice of the House Comm. on the Judiciary, 98th

Cong., 2d Sess., Pt. 2, at 1118, 1179 (1984); Developments in

the Law—Race and the Criminal Process, 101 Harv. L. Rev.

1472, 1630 (1988); Arthur W. Campbell, Law of Sentencing

§ 1:3, at 9-10 & nn. 45-46 (2d ed. 1991) (citing studies

reporting race- and gender-based disparities).

In short, the evidence overwhelmingly established that the

discretionary-sentencing scheme that Congress had em-

braced, with only relatively minor deviations, for more than a

century had generated a “shameful disparity in criminal

12

sentences” and, what is more, “create[d] a disrespect for the

law.” S. Rep. No. 225, supra, at 46, 65. See also H.R. Rep.

No. 1017, supra, at 31-32 (“Current practices result in

widespread disparity among sentences imposed on defen-

dants convicted of similar crimes. * * * Respect for the law

cannot flourish among convicted defendants or the public

when justice is undercut by unequal treatment.”).

Il. THE 1984 ACT WAS THE PRODUCT OF MORE

THAN A DECADE OF BIPARTISAN AND

INTER-BRANCH DELIBERATIONS ON

RESOLVING THE SENTENCING CRISIS

Congress responded to that crisis by enacting the Sentenc-

ing Reform Act of 1984—one of the most significant legal

reforms in American history. The 1984 Act was the culmina-

tion of more than a decade’s worth of studies, hearings, and

thoughtful discussions that have been traced to the Final

Report of the National Commission on Reform of Federal

Criminal Laws in 1971. See S. Rep. No. 225, supra, at 37.

The 1971 report was followed by a strong bipartisan effort to

reform the federal sentencing system that spanned four

presidential administrations, produced bills sponsored by the

leading members of both parties in both Houses of Congress,

received the support of- numerous federal judges and the

Department of Justice, and attracted the contributions of the

Nation’s leading legal academics and practitioners. See ibid.;

H.R. Rep. No. 1017, supra, at 32-34. See Hon. Stephen

Breyer, Federal Sentencing Guidelines Revisited, 11 Federal

Sentencing Reporter 180 (Jan./Feb. 1999), 1999 WL 730985

(Vera Inst. Just.), at *1 (noting the “bipartisan fashion” in

which Congress acted in passing the 1984 Act).

In 1975, Senator Kennedy introduced a bill (S. 2699) that

first proposed the creation of a commission to promulgate

sentencing guidelines. See S. 2699, 94th Cong., Ist Sess.

(1975). The concept of a sentencing commission was refined

by Senators Kennedy and McClellan and included in a more

13

comprehensive bill to revise the criminal code. See S. 1437,

95th Cong., Ist Sess. (1977). In 1977, the Senate held

extensive hearings on the 1971 National Commission Report

and the legislative proposals—including the adoption of

federal sentencing guidelines— introduced in the wake of that

report. See /977 Senate Judiciary Committee Hearings,

supra. During the hearings, Senator Kennedy stressed the

importance “of a sentencing commission, which, hopefully,

will report back to the Congress with [sentencing] guidelines

for various federal crimes.” /d. at 8578-79. The sentencing

reform bill (S. 1437) was reported out of the Senate Judiciary

Committee and was overwhelmingly passed by the Senate on

January 30, 1978. S. Kep. No. 225, supra, at 37.

This sentencing guidelines legislation was carried forward

and further refined in the next two Congresses, see S. 1722,

96th Cong., Ist Sess. § 125 ( 1979); S. 1630, 97th Cong., Ist

Sess. § 125 (1981), and reported to the Senate floor with the

nearly unanimous support of the Judiciary Committee. The

proposals were endorsed by the Attorney General’s Task

Force on Violent Crime and were included in S. 2572, 97th

Cong., 2d Sess. (1982), which passed the Senate on Septem-

ber 30, 1982, by a vote of 95 to 1. S. Rep. No. 225, supra, at

37. During this period, similar legislation was reported out

of the House Judiciary Committee, see H.R. 6915, reported

by H.R. Rep. No. 1396, 96th Cong., 2d Sess. (1980), but a

Stalemate over comprehensive reform of the criminal code

prevented passage of the sentencing guidelines law.

In 1983, an even stronger bipartisan consensus emerged on

the pending sentencing reform bills. On March 3, 1983,

Senator Kennedy introduced S. 668—entitled the “Sentenc-

ing Reform Act of 1983”—which was co-sponsored by

Senators Thurmond, Biden, Laxalt, Baucus, DeConcini,

Hatch, Leahy, Metzenbaum, Simpson, Specter, Abdnor,

Hawkins, Cohen, D’Amato, Chiles, Glenn, Huddleston,

Lugar, Stevens, Zorinsky, Moynihan, and Sasser. S. Rep.

No. 225, supra, at 37 & n.3. In his statement introducing

14

S. 668 to the Senate, Senator Kennedy recounted the urgent

need for a comprehensive legislative reform:

Federal criminal sentencing is in desperate need of re-

form. * * *

The current system is actually a nonsystem. It is unfair to

the defendant, the victim, and society. It defeats the rea-

sonable expectation of the public that a reasonable penalty

will be imposed at the time of the defendant’s conviction,

and that a reasonable sentence actually will be served.

The reforms needed to achieve a workable, rational sen-

tencing system are neither too complicated to legislate, nor

too difficult to implement. The legislation which I intro-

duce today clearly articulates the purpose of sentencing,

establishes a sentencing commission to develop guidelines

for sentencing, abolishes parole, and provides for appellate

review of sentences which are outside the guidelines.

Federal sentencing reform has been long overdue.

S. Rep. No. 223, 98th Cong., Ist Sess. 34 (1983) (quoting

129 Cong. Rec. $2090 (daily ed. Mar. 3, 1983)).

Shortly thereafter, Senators Thurmond and Laxalt proposed

S. 829 on behalf of the Reagan Administration. S. 829 was a

sixteen-title bill proposing a wide-ranging overhaul of the

criminal code; Title II of the bill comprised sentencing

reform provisions that were essentially identical to those

contained in S. 668. S. Rep. No. 225, supra, at 37. In

addition, Senator Dole proposed a similar sentencing guide-

lines bill on behalf of the Judicial Conference. Five days of

hearings were held on S. 668 and S. 829 (along with certain

other criminal law proposals) before the Subcommittee on

Criminal Law of the Senate Judiciary Committee. /bid. The

Senate Judiciary Committee reported two bills containing

identical guidelines provisions to the Senate. See S. 668,

reported by S. Rep. No. 223, supra; S. 1762, tit. II (sentenc-

15

ing reform), reported by S. Rep. No. 225, supra. Title II of

S. 1762 was modeled on Title II of S. 829.

After extended debate, the Senate passed both bills by

overwhelming majorities—91 to 1, 130 Cong. Rec. S759

(daily ed. Feb. 2, 1984), and 85 to 3, id. at S818-819 (same).

After the House of Representatives passed similar sentencing

guidelines provisions, see 130 Cong. Rec. H10130-31 (daily

ed. Sept. 25, 1984); see H.R. Rep. No. 1017, supra, at 37

(bill “mandates the development of sentencing guidelines”);

id. at 93-105 (discussing guidelines), the Sentencing Reform

Act of 1984 was enacted as part of the Comprehensive Crime

Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837.

President Reagan signed the bill into law on October 12,

1984—almost 20 years ago to the day that this Court is

scheduled to hear oral argument in these landmark cases.

Since 1984, Congress has continued to monitor this area of

law and has made revisions to the sentencing guidelines

system through amendments to the 1984 Act and other

legislation. Some of these amendments have been criticized

on the grounds that they depart from the values of the 1984

Act. The basic challenge leveled in these cases to the opera-

tion of the sentencing guidelines, however, cuts to the core of

the guidelines system established by the 1984 Acct.

Ifl. THE CENTERPIECE OF THE 1984 ACT WAS

THE ADOPTION OF A COMPREHENSIVE

SENTENCING GUIDELINES SYSTEM

The cornerstone of the 1984 Act—and the key to Con-

gress’s effort to eliminate “unwarranted sentencing dispar-

ity”—was the creation of “a sentencing guidelines system

that is intended to treat all classes of offenses committed by

all categories of offenders consistently.” S. Rep. No. 225,

supra, at 51-52; id. at 168 (provision calling for the creation

of “a detailed set of sentencing guidelines * * * is of major

significance”). The sentencing guidelines represented a

compromise between adhering to the failed indeterminate

16

sentencing system in which judges had enjoyed essentially

“unfettered sentencing discretion” (Dorszynski, 418 U.S. at

437) and moving to “a determinate sentencing system vlicatinn

of specific legislative sentences” (S. Rep. No. 225, supra, at

62) devoid of any individualized judicial consideration of the

particular offender or offense characteristics. See id. at 78-

79; Developments in the Law, supra, at 1638 (“Sentencing

guidelines represent a compromise between the extremes of

pure determinate and indeterminate sentencing: they guide

the judge’s discretion but permit some flexibility.”).

The 1984 Act thus created the Sentencing Commission as

an “independent commission in the judicial branch,” 28

U.S.C. § 991(a), and charged it with “establish{ing] sentenc-

ing policies and practices for the Federal criminal justice

system” that serve the objectives of the 1984 Act, 28 U.S.C.

§ 991(b)(1). Congress directed the Commission, inter alia,

to “provide certainty and fairness” in sentencing and “avoid(]

unwarranted sentencing disparities among defendants with

similar records who have been found guilty of similar

criminal conduct while maintaining sufficient flexibility to

permit individualized sentences when warranted.” 28 U.S.C.

§ 991(b)(1)(B). To achieve that objective, Congress directed

the Sentencing Commission to promulgate sentencing

“guidelines” that serve the goals of the 1984 Act, 28 U.S.C.

§ 994(a)(1), and to establish “sentencing range(s}” applicable

“for each category of offense involving each category of

defendant,” 28 U.S.C. § 994(b)(1). See Mistretta, 488 U.S.

at 374-375 (discussing the detailed nature of Congress’s

delegation of authority to the Sentencing Commission).

The Sentencing Commission spent more than a year can-

vassing U.S. sentencing practices—during which it held

public hearings, convened working groups of federal judges,

prosecutors, private defense attorneys, and academics,

reviewed more than 500 sets of written comments that were

submitted to it, and examined thousands of criminal sentence

reports—in an effort to identify and assign weights to the

~. ene Rec

a

17

factors that judges had traditionally used in sentencing. See

28 U.S.C. § 994(m); U.S. Sentencing Comm’n, Supplemen-

tary Report on the Initial Sentencing Guidelines and Policy

Statements 16-17 (1987). After publishing and receiving and

reviewing written comments on two separate sets of proposed

sentencing guidelines, the Commission promulgated final

guidelines that went into effect on November 1, 1987. Those

guidelines are continuously reviewed and revised by the

Commission—which remains “fully accountable to Con-

gress.” Mistretta, 488 U.S. at 393-394 (The Sentencing

Commission is “fully accountable to Congress, which can

revoke or amend any or all of the Guidelines as it sees fit.”).‘

The sentencing guidelines system created by the 1984 Act

seeks to strike a balance between two compelling policy

concerns. The first is “the need to avoid unwarranted sen-

tence disparities among defendants with similar records who

have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(7). The second is the recognition that “[s]ome

variation in sentencing is not only inevitable but desirable,”

because “each offender stands before a court as an individual,

different in some ways from other offenders,” and an offense

of conviction “may have been committed under highly

individual circumstances.” S. Rep. No. 225, supra, at 150.

To avoid unwarranted sentence disparities, Congress di-

rected the Sentencing Commission to establish a system of

sentencing guidelines detailing the generally applicable range

of punishment that is available with respect to an offense of

conviction and requiring judges to sentence defendants

pursuant to those guidelines “unless the court finds that an

aggravating or mitigating circumstance exists that was not

adequately taken into consideration by the Sentencing

. Congress has periodically exercised that authority, including

recently, through certain provisions of the Prosecutorial Remedies

and Other Tools to End the Exploitation of Children Today Act of

2003 (PROTECT Act), Pub. L. No. 108-21, § 401(b), (g), and (i),

117 Stat. 668-669, 671-673 (Apr. 30, 2003).

18

Commission in formulating the guidelines and that should

result in a [different] sentence.” 18 U.S.C. § 3553(b) (1986).

Congress “expected that most sentences will fall within the

ranges recommended in the sentencing guidelines,” but also

stressed that “the sentencing judge has an obligation to

consider all the relevant factors in a case and to impose a

sentence outside the guidelines in an appropriate case,”

S. Rep. No. 225, supra, at 52, 150 (emphases added).

To ensure that the sentencing guidelines do not foreclose

“thoughtful imposition of individualized sentences,” S. Rep.

No. 225, supra, at 52, Congress not only permitted depar-

tures from the guidelines in extraordinary situations, but

more fundamentally, stressed that, “[uJnder a sentencing

guidelines system, the judge is directed to impose sentence

after a comprehensive examination of the characteristics of

the particular offense and the particular offender.” /d. at 53.

The 1984 Act accordingly specifies numerous factors that

“(t]he court, in determining the particular sentence to be

imposed, shall consider,” including “the nature and circum-

stances of the offense and the history and characteristics of

the defendant.” 18 U.S.C. §§ 3553(a) and (a)(1).

The Senate Judiciary Committee elaborated as follows:

[T]he judge must consider such things as the amount of

harm done by the offense, whether a weapon was carried or

used, whether the defendant was a lone participant in the

offense or participated with others in a major or minor way,

and whether there were any particular aggravating or miti-

gating circumstances surrounding the offense. With re-

spect to the history and characteristics of the defendant, the

judge must consider such matters as the criminal history of

the defendant, as well as the nature and effect of any previ-

ous criminal sanctions. All of these considerations and

others that the judge believed to be appropriate would assist

him in assessing how the sentencing guidelines and policy

statements should apply to the defendant.

19

S. Rep. No. 225, supra, at 75; see id. at 52 (“[T]he sentenc-

ing judge has an obligation to consider all the relevant factors

in a case” before imposing a sentence) (emphasis added).

In making that determination, the sentencing judge is not

limited to facts found by a jury or contained in a plea agree-

ment, but rather is directed to consider the same type of

information that judges have traditionally relied on in making

sentencing determinations, including, perhaps foremost, “a

presentence report that notes the presence or absence of each

relevant offense and offender characteristics.” S. Rep.

No. 225, supra, at 53. Indeed, the 1984 Act recodified the

general rule that “[(njo limitation shall be placed on the

information concerning the background, chaiacter, and

conduct of a person convicted of an offense wh:ch a court of

the United States may receive and consider for the purposes

of imposing an appropriate sentence.” 18 U.S.C. § 3661; see

U.S. Sentencing Guideline § 1B1.4 cmt.; United States v.

Watts, 519 U.S. 148, 151-152 (1997) (per curiam). Unlike

the prior indeterminate sentencing scheme, however, the

sentencing guidelines channel the manner in which the

sentencing court may make sentencing decisions based on

such information in order to avoid the intolerable disparities

that plagued the indeterminate sentencing regime, and limit

the degree to which a judge may depart upward or downward

within a sentencing range based on such information.

At the same time, Congress specifically directed the Com-

mission to “assure that the guidelines * * * are entirely

neutral as to the race, sex, national origin, creed, and socio-

economic status of offenders.” 28 U.S.C. § 994(d). The

Senate Judiciary Committee “added th{at] provision to make

it absolutely clear that it was not the purpose of the list of

offender characteristics set forth in [the Act] to suggest in

any way that the Committee believed that it might be appro-

priate, for example, to afford preferential treatment to defen-

dants of a particular race or religion or level of affluence.”

S. Rep. No. 225, supra, at 171. The sentencing guidelines

20

thus explicitly state that “Race, Sex, National Origin, Creed,

Religion, and Socio-economic status * * * are not relevant in

the determination of a sentence.” U.S. Sentencing Guide-

lines § 5Hi.10 (emphasis added). As an additional check to

ensure that sentencing determinations are not based on such

illegitimate considerations, courts are required to give written

reasons for their sentencing decisions. See 18 U.S.C. §

3553(c); S. Rep. No. 225, supra, at 79-80; see also Develop-

ments in the Law, supra, at 1641 (“sentencing guidelines

* * * place institutional checks on invidious discrimination”).

Thus, while the 1984 Act sought to channel the discretion

of sentencing judges in order to assure greater fairness and

equality in sentencing, the Act nonetheless sought to preserve

the traditional discretion that the sentencing judges have

exercised to consider background information that they deem

relevant to their sentencing decision. See supra at 8. As the

Judiciary Committee stressed, “[t]he purpose of the sentenc-

ing guidelines is to provide a structure for evaluating the

fairness and appropriateness of the sentence for an individual

offender, not to eliminate the thoughtful imposition of

individualized sentences” based on “a comprehensive exami-

nation of the particular offense and the particular offender.”

S. Rep. No. 225, supra, at 52-53. The ranges set by the

guidelines establish a structure designed to avoid unwar-

ranted disparities, but the guidelines permit sentencing judges

to individualize sentences within those ranges by adjusting

sentences both upward and downward based on particular

offense and offender characteristics.

All sentences imposed under the guidelines, however,

ultimately must conform to the minimum and maximum

punishments prescribed by Congress and set forth in the

United States Code. See U.S. Sentencing Guidelines

§ 5G1.1. Nothing in the 1984 Act or the sentencing guide-

lines authorizes the imposition of a sentence for an offense of

conviction that deviates from a statutory maximum or

minimum set by Congress for a particular offense.

21

IV.THE SENTENCING GUIDELINES WERE IN-

TENDED TO OPERATE AS AN INTEGRATED >

SYSTEM OF CALIBRATIONS AND BASED ON

JUDGE-MADE DETERMINATIONS

Congress intended the federal sentencing guidelines to be

applied as a cohesive and integrated whole. As Congress

made clear in enacting the 1984 Act, the sentencing guide-

lines system reflected a “comprehensive plan” to reform

sentencing. S. Rep. No. 225, supra, at 46; see id. at 150

(1984 Act introduced a “systematized sentencing system”).

The 1,000-plus page Federal Sentencing Guidelines Manual

that implements the 1984 legislation amply demonstrates the

“comprehensive” nature of the sentencing guidelines system

that Congress created. Moreover, as the various charts and

sentencing table contained in the Manual underscore, the

sentencing guidelines establish an interlocking system of

calculations and adjustments that are part of a single sentenc-

ing equation. See S. Rep. No. 225, supra, at 168 (“The result

[of Commission’s determinations] should be a complete set

of guidelines that covers in one manner or another all impor-

tant variations that commonly may be expected in criminal

cases, and that reliably breaks cases into their relevant

components and assures consistent and fair results.”). -The

sentencing guidelines are explicitly predicated on that

comprehensive approach. See U.S. Sentencing Guidelines

§ 1B1.11 (“The Guidelines Manual in effect on a particular

date shall be applied in its entirety.”) (emphasis added).

Attempting to apply the sentencing guidelines in a piece-

meal fashion not only would be inconsistent with the “sys-

tematized sentencing system” (S. Rep. No. 225, supra, at

150) that Congress intended to create, but would upset the

many compromises struck in fashioning the guidelines. As

Justice Breyer has explained, the sentencing guidelines are

the product of numerous compromises that balance “the

practical needs of administration, institutional considerations,

and the competing goals of a criminal justice system.” Hon.

22

Stephen Breyer, The Federal Sentencing Guidelines and the

Key Compromises Upon Which They Rest, 17 Hofstra 1, 2

(1988); see id. at 28 (“The Guidelines create a final set of

compromises concerning the problems endemic to the

criminal justice system.”); id. at 32 (“[WJhile it may be

possible to focus on a single aspect of the current Sentencing

Guidelines and suggest ways to improve upon them, such an

enterprise may be unproductive unless it properly accounts

for the changes that would result elsewhere in the system.”)

(emphasis added). Indeed, as Justice Breyer has detailed,

“compromise * * * permeates the Guidelines.” /d. at 2.

In particular, the Congress that enacted the 1984 Act did

not conceive of—much less establish—a sentencing guide-

lines system in which sentencing judges were free to consider

facts or circumstances not found by a jury or admitted in a

plea agreement for the purpose of adjusting a base-offense

level down, but not up, within the applicable guidelines

range. Such a one-way-lever would be grossly at odds with

Congress’s intent. In establishing the guidelines system,

Congress made clear that a sentencing judge should take into

account aggravating as weil as niitigating factors. See

28 U.S.C. § 994(c)(2) (directing the Sentencing Commission

to consider “the circumstances under which the offense was

committed which mitigate or aggravate the seriousness of the

offense”); S. Rep. No. 225, supra, at 74 (The Act “requires

the court to impose sentence within the sentencing guidelines

unless an aggravating or mitigating circumstance exists that

was not adequately considered in the formulation of the

guidelines and that should result in a different sentence.”).

Moreover, such a one-sided system would conflict with

Congress’s objective of ensuring that the sentences produced

under the guidelines system would be “fair both to the

offender and to society.” S. Rep. No. 225, supra, at 39

(emphasis added); id. at 45-46 (“a sentence that is unjustifia-

bly low is * * * unfair to the public”). And, to the extent that

the base-offense level could be adjusted in only one direc-

23

tion—downward—based on individual or offense character-

istics found by a judge, the guidelines would transgress

Congress’s intention of “actually enhanc/ing] the individu-

alization of sentences as compared to current law.” Jd. at 52-

53 (emphasis added). Permitting sentencing judges to

consider specific offender or offense characteristics not

found by a jury to reduce a sentence—but not enhance it—

would produce sentences that do not reflect a full and accu-

rate profile of the individual before the court and, therefore,

are not based on a proper evaluation of the “fairness and

appropriateness of the sentence for [that] offender.” Jbid.

Subjecting the enhancement side of the guidelines equation

to a jury-factfinding or plea-admission requirement also

would fundamentally upset the scheme that Congress en-

acted. To begin with, the 1984 Act specifies that the sentenc-

ing guidelines are “for use of a sentencing court in determin-

ing the sentence to be imposed in a criminal case.” 28 U.S.C.

§ 994(a)(1) (emphasis added); see U.S. Sentencing Guide-

lines § 6A1.3(b) cmt. Moreover, Congress intended that the

findings necessary for the operation of the guidelines typi-

cally would be made by the court in performing that sentenc-

ing role. Indeed, in reporting the Act to the Senate, the

Judiciary Committee observed that “the sentencing judge has

an obligation to consider all the relevant factors in a case”

before imposing a sentence. S. Rep. No. 225, supra, at 52

(emphases added). See ibid. (“The bill requires the judge,

before imposing sentence, to consider the history and charac-

teristics of the offender, the nature and circumstances of the

offense, and the purposes of sentencing.”); id. at 53 (“Under

a sentencing guidelines system, the judge is directed to

impose sentence after a comprehensive examination of the

characteristics of the particular offense and the particular

offender.”); id. at 75 (discussing the myriad of “factors a

judge is required to consider in selecting the sentence”).

Furthermore, attempting to substitute a jury for the sentenc-

ing judge in applying the sentencing guidelines—even just

24

for purposes of finding facts that could result in sentencing

enhancements—would require consideration of a number of

potentially serious practical issues. For example, new rules

might be required to bifurcate previously routine criminal

trials into a guilt phase and a sentencing phase, complex new

jury instructions might be required to cover the lexicon of

specialized guidelines terms and concepts that would now

have to be considered by a jury in evaluating sentencing

factors, and elaborate special verdicts might become neces-

sary. See 2004 Blakely Hearings, supra (statement of Prof.

Frank Bowman) (available at http://judiciary.senate.

gov/testimony.cfm?id =1260&wit_id=647). All of this could

revamp the ordinary federal criminal trial, create a host of

new and complex legal issués for the courts, and place a

significant if not potentially crippling practical and financial

drain on the federal criminal justice system. At a bare

minimum, such a possibly far-reaching and costly overhaul

of the federal criminal process should come only from the

hand of Congress. In enacting the 1984 Act, there is no

evidence that Congress considered any such consequences. >

But that is not surprising. In enacting the 1984 Act, Con-

gress had no intention of shifting the responsibility for

imposing sentence—including the responsibility for making

the sorts of myriad factual determinations that judges have

for centuries made in the course of imposing sentence—from

sentencing judges to sentencing juries. To the contrary, as

this Court aptly observed in its first exposure to the 1984

Act, the sentencing guidelines “do no more than fetter the

discretion of sentencing judges to do what they have done for

> Indeed, although Congress took care to amend specific provi-

sions of the Federal Rules of Criminal Procedure “in order to

nee we Fe [of the 1984 Act],” S. Rep. No. 225,

supra, at 157-158 (discussing provisions providing for the appel-

late review of sentences), Congress did not alter federal rules

governing the use of juries in federal criminal trials.

25

generations—impose sentences within the broad limits

established by Congress.” Mistretta, 488 U.S. at 396.°

ee eat

Determining the appropriate scope of punishment for an

offense is one of the most complex areas of criminal law. It

is the product of a delicate—and at times potentially vola-

tile—mix of policy, practical, and societal considerations. It

is, in short, an area uniquely suited for legislative considera-

tion and Compromise. The 1984 Act is the result of the most

careful examination that Congress and, indeed, all three

Branches collectively have ever devoted to the federal

sentencing system. The Act sought to eliminate the gross

disparities that had proliferated under the prior indeterminate

sentencing system—disparities that in at least some cases

were believed to stem from the improper consideration of

race and other illegitimate factors. Nearly two decades later,

debate is ongoing in the Halls of Congress and the other

Branches on ways of improving the sentencing system, but—

especially when viewed against the backdrop of the intoler-

able state of affairs that existed before 1984— bipartisan

Support continues to exist for the basic structure of the

sentencing guidelines system created by the 1984 Act and the

6

The understanding that judges—and not juries—would en-

gage in the factfinding necessary to administer the guidelines was

reaffirmed before the initial set of guidelines went into effect on

November 1, 1987. In House subcommittee hearings, witnesses

discussed that the guidelines would call for judicial factfinding, by

a preponderance of the evidence, to resolve contested issues at

sentencing, and debated the effect on judicial efficiency and

fairness. See Sentencing Guidelines: Hearings Before the

Subcomm. on Criminal Justice of the House Comm. on the Judici-

ary, 100th Cong., Ist Sess. 659, 799 (1987). But there was no

factfinding,

though suggested

See id. at 814 n.3 (testimony of Judge R. Becker) (“com-

mend[ing] to the Congress’ attention the use of the jury to make

critical fact findings that bear upon sentencing”).

26

core principles on which it rests. In our representative

Republic, only the clearest constitutional command should be

cause for dismantling such a considered legislative effort.

CONCLUSION

For the foregoing reasons, amici respectfully urge this

Court to give effect to Congress’s intent in enacting the 1984

Act and sustain the continued application of the federal

sentencing guidelines as a cohesive and integrated whole.

Respectfully submitted,

GREGORY G. GARRE*__.-

HOGAN & HARTSON L.L.P.

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5665

*Counsel of Record Counsel for Amici Curiae