# Amicus Curiae Brief — United States v. Booker

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0029%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 220

## Text

“Supreme Coun, US.

FILED

(=) (4) | sr\-m

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0029%3A12. Public record. Not legal advice.