Amicus Curiae Brief — United States v. Booker

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Nos. ‘04-104 and 04-105 SEP y 2004

IN THE OFFICE OF THE CLERK

Supreme Court of the Hnited States

United States, Petitioner,

Freddie J. Booker.

On Writ of Certiorar

to the United States Court of Appeals

for the Seventh Circuit

United States, Petitioner,

Vv.

Ducan Fanfan.

On Writ of Certiorari Before Judgment

to the United States Court of Appeals

for the First Circuit

BRIEF AMICUS CURIAE OF NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENTS

Thomas C. Goldstein Samuel J. Buffone

Amy Howe (Counsel of Record)

GOLDSTEIN & HOWE, P.C. David O. Stewart

4607 Asbury Place, NW Robert J. Kovacev

Washington, DC 20016 Laura G. Hoey

(202) 237-7543 Ropes & GRAY LLP

700 12th Street, NW

David M. Porter, Co-Chair Washington, DC 20001

NACDL Amicus Committee (202) 508-4657

801 I Street, 3rd Floor

Sacramento, CA 95814

(916) 498-5700

——

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

(Additional counsel)

Peter Goldberger

50 Rittenhouse Place

Ardmore, PA 19003

TABLE OF CONTENTS

Ce i

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INTERES) OF AMICUS CURIAE ..0..cssccsscccsccsssccsessssscecssncseess |

SUMMARY OF THE ARGUMENT .....00.........:cccccececceeseeeeees |

I. Under Blakely, the Federal Sentencing Guidelines

Violate The Sixth Amendment. .........................0000000 4

A. The Sixth Amendment Protects Against

Encroachments on the Right to Jury Trial by

Any Branch of Government.......................:::c000000 5

B. The Federal Sentencing Guidelines Establish

Mandatory Legislative Rules. .................:..ccccceeeee 6

C. Congress Has Repeatedly Exercised Broad

Control Over the Guidelines. ..................0.cccc0cceees 7

D. The Commission Does Not Express the

Collective Voice of Individual Sentencing

a eer 16

Il. Federal Sentencing Practices Can Be Adapted

To The Requirements Of The Sixth Amendment

Without Eliminating The Binding Effect Of The

Federal Guidelines That Congress Deemed

Essential To Reduce Sentencing Disparities. ........... 18

A. The Government’s Proposal Would Thwart the

SRA’s Principal Goal of Reducing Unwarranted

DOMAGGUNE TIUGIGTUIED, 0000<0ccccccccceseccesescscesecscceceserssees 21

B.The Proper Approach Is to Require That

Enhancing Facts Be Alleged in Indictments And

Proved to the Jury Beyond a Reasonable Doubt....... 26

SNEED Phisnscncensnscsansccesnescnnsscosccossescnscscesecscnsseceveseucoenes 30

TABLE OF AUTHORITIES

Cases

Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987) ..........- 27

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............+. passim

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

Blockburger v. United States, 284 U.S. 299 (1932) .....0000+ 20

Bouie v. Columbia, 378 U.S. 347 (1964)...........ccccceeeeeeeeeeeees 20

Brown v. Ohio, 432 U.S. 161 (1977) ......ccccccccceeseeeeereererenenees 20

Bullington v. Missouri, 451 U.S. 430 (1981)........cccceceeeeeees 21

Denver Area Educ. Telecomm. Consortium, Inc. v.

POC. FAB UDG. TAT COI cecececccescseesessssncescsccsstnemasnseecemies 27

Feltner v. Columbia Pictures Television, Inc.,

yy 29

Holmes v. United States, 363 F.2d 281 (CADC 1966)......... 19

Koon v. United States, 518 U.S. 81 (1996)............... 2, 8,9, 10

Marks v. United States, 430 U.S. 188 (1977) .......ccccccccceeeeees 20

Melendez v. United States, 518 U.S. 120 (1996)............0000: 15

Miller v. Florida, 482 U.S. 423 (1987) .........ccccccceeeeeeeeeees 7,19

Minnesota v. Mille Lacs Band of Chippewa Indians, ~

UE 19, 21

Mistretta v. United States, 488 U.S. 361 (1989)..... 7, 8, 12, 22

Monge v. California, 524 U.S. 721 (1998)........ceseceeeceeeeenes 21

Regan v. Time, Inc., 468 U.S. 641 (1984) ........ccceceeeeeeeeneenes 21

Rogers v. Tennessee, 532 U.S. 451 (2001) .......cccccceeeeeeeeenes 20

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) .............00+ 20

Splawn v. California, 431 U.S. 595 ( a, 6

State v. Gould, 23 P.3d 801 (Kam. 2001) ...............cccccccceeeeees 30

Stinson v. United States, 508 U.S. 36 (1993) .......cccccccceceeeeeees 6

United States v. Bell, 991 F.2d 1445 (CA8 1993) ............:000+ 7

United States v. Cotton, 535 U.S. 625 (2002) .........ccccccceeeeeees l

United States v. Davern, 937 F.2d 1041

(CAG 1991 ) (ean BARC) ......2000cccceeerrcerererrsersrenersrerssssoossssnes 6

United States v. Green, No. CR. A. 02-10054-WGY,

2004 WL 1381101 (D. Mass. June 18, 2004)............. 12,25

United States v. Jimenez Martinez, 83 F.3d 488

ee ees Ail y eee eae eee 25

United States v. Kim, No. 03 Cr. 413 (RPP),

2003 WL 22391190 (S.D.N.Y. Oct. 20, 2003) ....0..00000000.. 12

United States v. Kirsch, 287 F. Supp. 2d 1005

EIR AEE ee eS ee 1]

United States v. Mateo, 299 F. Supp. 2d 201

TINT I adit i a 10

United States v. Mellert, No. CR 03-0043 MHP,

2003 WL 22025007 (N.D. Cal. July 30, 2003)................. 1!

United States v. Miele, 989 F.2d 659 (CA3 1993)

asics ilar ar ES 25

United States v. Robles-Torres, 109 F.3d 83 (CA1 1997)... 25

United States v. Sandini, 816 F.2d 869 (CA3 1987)............ 19

United States v. Schnell, 982 F.2d 216 (CAT 1992) .........0000-. 7

United States v. Seacott, 15 F.3d 1380 (CA7 1994)............... 7

Statutes

IEEE SE ere NEE EE et eee 23

ev ne Oe ANT 6, 8

ER Ne eT ED A Ce, 25

PS icine 15

Sr a iii 14

eS 14

A es CI i 14

21 U.S.C. 841(D) iM Bi)... eee cceeceececsecsseseeeeees 14

RE ee eee ee Ne aE 25

SPs iia 8,9

Ss I aractaiiaialiRihi ce ee 22

SI, CRI, er ceteititteriereneceseeereerteteetneeteieecen ene 30

Pub. L. No. 103-322, § 110501, 108 Stat. 2015 (1994)........ 13

Pub. L. No. 103-322, § 180201(c), 108 Stat. 2047 (1994)... 13

Pub. L. No. 104-38, § 1, 109 Stat. 334 (1995)... eee 14

Pub. L. No. 105-101, § 2, 111 Stat. 2202 (1997)... 13

Pub. L. No. 107-204, § 1104(b)(5), 116 Stat. 809

CE cccccesennsmesenaneneenanansnemmemmnaneamemenmnmamnanumtns 7,8, 14

PROTECT Act, Pub. L. No., 108-21 § 401(n), 117 Stat.

Co , passim

Padi. £... Bhar. SOBRE. GB BB GR aD ..ncccccccccersesccsscsscsesessnssssscessssessee 13

Paid. 1. Blo. 1GB-BE., 6 CBB ..ncccceccecccccsecscccescscnvesssessscsneesese 10

Pub. L. No. 108-21, § 401(m)(2MA)..........ccccccecseeeseeeeeennees 10

Other Authorities

BD Comme, FRC. Gi Co een cenececccccsccsesesscvnsccesesscesccssessseeness 26

1995-2002 U.S. Sentencing Comm'n Ann. Reps., af

http: ‘www.usse.gov ANNRPT 1999 ar99toc.htm........... 17

1995-2002 U.S. Sentencing Comm'n Annual Reports and

Statistical Sourcebook, at http: /www.ussc.gov/

annrpts.htm (last visited Sept. 18, 2004) ...0.......cccceceeeens 17

60 FED. REG. 25,074 (May 10, 1995) ..........ccccccccceeeeeeeeeeeenees 14

Adam Liptak, Justices ' Sentencing Ruling May Have Model

in Kansas, N.Y. TIMES, July 13, 2004 0.0.00...cccccccceeeeeeeees 30

American Bar Ass’n, Justice Kennedy Commission, Reports

with Recommendations to the ABA House of Delegates,

available at http: www.abanet.org/crimjust/kennedy/

JusticeK ennedyCommissionReportsF inal.pdf (Aug. 2004) 9

Benjamin E. Rosenberg, Criminal Acts and Sentencing

Facts: Two Constitutional Limits on Criminal

Sentencing, 23 SETON HALL L. REV. 459 (1993).............. 25

David M. Zlotnick, The War Within the War on Crime:

The Congressional Assault on Judicial Sentencing

Discretion, §7 §.M.U. L. REV. 211 (2004)................. 10, 11

Elizabeth T. Lear. Js Conviction Irrelevant?, 40 UCLA L.

i Se 25

Frank O. Bowman II1, Completing the Sentencing Revolution:

Reconsidering Sentencing Procedure in the Guidelines

Era, 12 FED. SENT. R. 187 (2000)... .ccccccccccccccccccccceeseeees 25

H.R. CONF. REP. NO. 108-66, reprinted in 2003 U.S.C.C.A.N.

eT OSES Ee eT )

Hon. William H. Rehnquist, Remarks of the Chief Justice to

the Federal Judges Ass’n Bd. of Directors Mtg. (May 5,

2003), available at http://www.supremecourtus.gov/

publicinfo/speeches/sp_ 05-05-03 html .........0.cccccccccceeeeeees 11

lan Weinstein, Fifteen Years After The Federal Sentencing

Revolution: How Mandatory Minimums Have Undermined

Effective and Just Narcotics Sentencing, 40 AM. CRIM. L.

Sass IIT ichcesinessiceinienioietiiitnitansapiamaiiitiacdiaiadataieeeatMemaas 15

Justice Anthony M. Kennedy, Address to the American Bar

Association (Aug. 9, 2003), at http://www.supremecourtus.

gov/publicinfo/speeches/sp 08-09-03 html .......0000000000000.. 15

Justice Stephen Breyer, Federal Sentencing Guidelines

Revisited, 14-SPG CRIM. JUST. 28 (1999) ooo... 9, 16

Justice Stephen Breyer, Federal Sentencing Guidelines

Revisited, Speech at the University of Nebraska College of

Law (Nov. 1998), in 14-SPG CRIM. JUST. 28 o00.00..0ccccc0. 15

Kansas Sentencing Comm'n Report to the 2002 Kansas

. Legislature (2002), reprinted in 15 FED. SENT. REP. 32

Sarin atesiestersectnnsnssssspmsanmenitinenentesieitiuscinie inate ita 30

Morris B. Hoffman, The Case for Jury Sentencing, 52 DUKE

isdn Uy CTU E iccrneestcrssineesinenenceiaianaiiiiiehriihaeinaal ciate 29

Nancy J. King & Roosevelt L. Noble, Felony Jury Sentencing

in Practice: A Three-State Study, 57 VAND. L. REV. 885

News Release, Administrative Office of the United States

Courts (Sept. 23, 2003)

http://www.uscourts.gov/Press_Releases/jc903 .pdf........... 9

Note, How Unreliable Factfinding Can Undermine

Sentencing Guidelines, 95 Y ALE L.J. 1258 (1986)........... 24

Peter H. Schuck, Judicial Avoidance of Juries in Mass Tort

Litigation, 48 DEPAUL L. REV. 479 (1998)... 28

<—_——S. REP. NO. 255, 98th Cong., Ist Sess. (1983)... cece 8

S. Rep. NO. 98-225, reprinted in 1984 U.S.C.C.A.N. 3182.. 22

S. Rep. NO. 98-225, reprinted in 1984 U.S.C.C.A.N. at 3262

sacieepinanamueiveneiaiaielatadanenieiiieitenpaienmesiiaetiiidainsbatenmiamiaiiidiiabaiiiiiiids 22

Stephen Breyer, The Federal Sentencing Guidelines and the

Kev Compromises Upon Which They Rest, 17 HOFSTRA L.

aT, B Gira cicrvsiiccinniausinieniintapstiiiatiiniatiitincnenemtundeneiupieines 8

Steven L. Chanenson, Hoist With Their Own Petard?, 17

FED. SENT. REP. (forthcoming Sept. 2004), draft at 15,

available at http://papers.ssrn.com/sol3/papers/cfm?

CR Fr ei erennennmnnmenemmnninen 12

Testimony of Deputy Att’y Gen. Larry Thompson Before

U.S. Sentencing Comm’ii (Mar. 19, 2002), available at

http: /www.ussc.gov/hearings/031902.htm .................... 16

Tony Garoppolo, Fact Bargaining: What the Sentencing

Commission Has Wrought, 10 CRIM. PRAC. MAN. (BNA)

GP GE, Fe Pe enmnreninneainnians 26

U.S. Sentencing Comm ’n, /995 Special Report to Congress:

Cocaine and Federal Sentencing Policy (Feb. 1995)....... 14

U.S. Sentencing Comm’n, 2001 Annual Report 9 (2001), az

http:’ www.ussc.gov/ANNRPT/2001/ch2-2001/PDF (last

CRIES UE, CE, GID carencenscccccssssensnencenseneensmenensnnmanens 17

U.S. Sentencing Comm’n, Federal Sentencing Guidelines

ENE, Gan G Gee i rcnsceersssenmensacennnennmiemmnmmane 17

U.S. Sentencing Comm'n, Federal Sentencing Guidelines

Manual, App. C, amend. 653 (2003) 00.........ccccccceeeeeeeeeees 10

U.S. Sentencing Comm ’n, Public Hearing Testimony and

Transcripts, at http:/ www.ussc.gov/hearings.htm (last

Wile a seccterrenencrsetencnmnsminnneniinns 17

U.S. Sentencing Comm'n, Report to Congress: Cocaine and

Federal Sentencing Policy (Apr. 29, 1997) ........ccccccceeeeeee 14

U.S. Sentencing Comm'n, Report to Congress: Cocaine and

Federal Sentencing Policy (May 2002) ............ccccccccceeeees 14

Vii

U.S. Sentencing Comm’n, Special Report to the Congress:

Mandatory Minimum Penalties in the Federal Criminal

FT Er ee rncntiienininnne 15

U.S. Sentencing Comm ’n, Supplementary Report on the

Initial Sentencing Guidelines and Policy Statements

(1987), reprinted in Federal Sentencing Guidelines 313

(PLI Litig. & Admin. Practice Course, Handbook Series

SS nee en 8, 24

I ater c triers teereiinetaarataataieen reinstall aceasta 13

I, BT cicnerennennnmnennnanapiniiiiaanendeneatnes 18

eee 14

EE ae ea 24

| A 8 EERE R eevee NNN NON Dre NIT 21

Rules

RR ET 5, 24

EEE, Eat, CEU OG. TTI icitssenrsesiatatinincerienaeieeetipieneiebininenes: 29

I cerita 19

a, aaa nsiariammiaciaaitaid 25

Constitutional Provisions

ees EI, MIIIIT, "WF scncnicsnsniirnnemesentoemenienemmemenaneiel 1, 20

Tre TEI TIE. © ciisicirrrenetscnicenencemmnsinentememeneineemmnenmnenniianiness 5

FR FR FS 6

es eGR. Ti © aie Ge Drcccenssectcnenssteninnetemenen 5

Re GY ) ae 2, 4, 6, 19

INTEREST OF AMICUS CURIAE

The National Association of Criminal Defense Lawyers

(NACDL) is a non-profit corporation with more than 11,200

members nationwide and 28,000 affiliate members in fifty

states, including private criminal defense attorneys, public

defenders, and law professors.’ The NACDL seeks to

promote the proper administration of justice and to ensure

that findings that affect the length of criminal sentences are

made according to constitutionally required procedures.

NACDL’s intense concern for the fullest protection of

fundamental Fifth and Sixth Amendment rights has led it to

appear as amicus curiae in this Court on numerous occasions,

including in Blakely v. Washington, 124 S. Ct. 2531, 2542

(2004) (noting NACDL’s position), Apprendi v. New Jersey,

530 U.S. 466 (2000), and United States v. Cotton, 535 U.S.

625 (2002).

SUMMARY OF THE ARGUMENT

1. A Federal District Court violates the Fifth and Sixth

Amendment rights of a criminal defendant when it relies on

facts that were not both charged in the indictment and either

found by a jury beyond a reasonable doubt or admitted by the

defendant to increase the maximum sentence dictated by the

United States Sentencing Guidelines (“Guidelines”). It does

so regardless of whether the sentencing rules it applies were

promulgated by a legislature, by courts, by an executive

agency, or by an independent commission. There is therefore

no meaningful distinction between the Guidelines and the

Washington sentencing law that this Court examined in

Blakely. Accordingly, that decision compels the conclusion

' Letters of consent have been filed with the Clerk. Pursuant to

Rule 37.6, amicus curiae states that no counsel for a party authored

any part of this brief, and no person or entity, other than amicus

curiae, its members, and its counsel, made a monetary contribution

to the preparation or submission of this brief.

that the Guidelines establish mandatory limits on judicial

discretion and are therefore equivalent to statutory limits for

Sixth Amendment purposes.

The government’s primary argument distinguishing

Blakely is that the federal Sentencing Guidelines are judicial

rather than legislative in character. This distinction is

constitutionally irrelevant and also inaccurate. As a long line

of cases in this Court and others applying the Ex Post Facto

Clause to sentencing guideline schemes confirms, the

Guidelines are fundamentally legislative in character.

Furthermore, the Guidelines’ content and application are

closely controlled by Congress, as reflected in legislation that

dramatically altered the Guidelines by congressional fiat, the

PROTECT Act. An essential component of the Guidelines

was the preservation of limited judicial discretion in the form

of reserved judicial authority to depart from the Guideiines in

atypical cases. This departure authority is critical to the

balance Congress struck in the Sentencing Reform Act

between the need to eliminate disparity in sentencing while

still providing individualized consideration to offenders’

cases. In Koon v. United States, this Court accordingly

recognized sentencing judges’ discretion to depart on grounds

that were not enumerated in the Guidelines themselves; it also

applied a deferential abuse-of-discretion standard of review to

departure decisions. The PROTEC. Act narrowly

circumscribed the departure powers of judges and abrogated

this Court’s decision in Koon, requiring de novo review of all

departure decisions and also drastically limiting downward

departures in certain sexual offense cases to grounds

specifically approved in the Guidelines. The PROTECT Act

further directed the U.S. Sentencing Commission

(“Commission”) to enact amendments to the Guidelines that

“ensure that the incidence of downward departures are

substantially reduced.”

Nor did the PROTECT Act merely curtail sentencing

judges’ departure authority. Congress also drafted specific

guidelines for certain sexual offenses, and even wrote

commentary in the Commission’s name for those guidelines.

The Act also repealed the requirement that at least three

members of the Commission be federal judges; there is now

no requirement that the Commission include any judges at all.

Ominously, it also directed the collection of sentencing

decisions by individual judges for review by the executive

branch and Congress.

Even before the PROTECT Act, Congress had repeatedly

dictated the form and content of specific Guidelines. More

than sixty times since the Guidelines were first enacted,

Congress has issued directives to the Commission that

essentially dictated amendments to the Guidelines, sometimes

directly specifying those amendments’ language; mandated

enhancements for certain types of crimes; and rejected

amendments proposed by the Commission. Just as significant

is Congress’s creation of mandatory minimums, which short-

circuit the Commission’s role in determining appropriate

punishments for conduct and distort the application of the

Guidelines. By contrast, federal judges, individually or

collectively, have no special voice in the Commission’s

policymaking role. In short, the proposition that the

Guidelines reflect the “collective wisdom” of the judiciary,

however valid at the inception of the Guidelines, has been

disproven by years of legislative encroachment.

Il. The second question presented by these cases

addresses the consequence of a determination by this Court

that the Guidelines are subject to the holding of Blakely. The

provisions of the Sentencing Reform Act of 1984, Pub. L. No.

98-473, 98 Stat. 1987 (“SRA”), and the Guidelines that are

inconsistent with the Sixth Amendment under Blakely are

severable. Congress, of course, remains “free to reconstruct a

sentencing system to achieve its goals in a manner consistent

with constitutional requirements.” U.S. Br. 44.

This Court should hold that, in the interim, sentencing

must follow the process already employed by the Department

of Justice. The government must allege in indictments those

facts that give rise to enhanced sentences under the

Guidelines. In those few cases that do not result in a plea

bargain, the same jury that determined guilt must decide the

facts relevant to the enhancement in a bifurcated proceeding

under the traditional “beyond a reasonable doubt” standard.

The jury would itself have no sentencing authority. Instead,

judges must exercise their discretion to impose sentences in

the range determined by the Guideline provisions applicable

to the facts found by the jury.

This Court should reject the Solicitor General’s contrary

view that the Guidelines are rendered “advisory” in — but only

in - cases implicating the Blakely rule, such that the jury has

no role to play and district judges have discretion to impose

any sentence within the range set by the statute of conviction.

That proposal is profoundly illogical as it, in fact, relies on a

selective severing of portions of the SRA that Congress could

never have imagined, and it furthermore flies in the face of

Congress's determination to promulgate a binding guidelines

scheme that would rationalize federal sentencing.

We note, however, that, even if this Court applies the

Blakely rule retroactively, the Constitution’s Ex Post Facto

and Due Process Clauses prohibit the retroactive application

of either the government’s discretionary sentencing proposal

or the use of juries to find sentencing facts to the cases of

respondents and similarly situated defendants. For these

defendants, the only constitutional solution is to reduce their

sentences to the maximum permitted under applicable statutes

and the Guidelines based on the existing jury verdict.

ARGUMENT

I. Under Blakely, the Federal Sentencing Guidelines

Violate The Sixth Amendment.

The United States argues that the Guidelines are not

subject to the Sixth Amendment rule announced in Blakely

because the Commission effectively performs the sentencing

function that judges individually performed in the pre-

Guidelines system, voicing the “accumulated judicial wisdom

about the facts that matter at sentencing.” U.S. Br. 24. The

distinction on which the government primarily relies — that

the Guidelines are judicial and not legislative — is immaterial

and furthermore inaccurate, largely ignoring the dominant

role of Congress in the Commission’s work.

A. The Sixth Amendment Protects Against

Encroachments on the Right to Jury Trial by Any

Branch of Government.

The government’s singular focus on what it views as the

judicial character of the Guidelines completely misses the

mark. The right of an “accused” to trial by jury is protected

in our Constitution twice — in Article III, § 2, cl. 3, and in the

Sixth Amendment. The placement of this core constitutional

right in the Bill of Rights, rather than in Article I, shows that

it makes no difference whether the Guidelines are

“legislative” or “judicial” in character. The discussion of jury

trials in Article III demonstrates that the judicial branch, in

particular, is charged with protecting that right.

As respondents discuss at length, the Guidelines’

provenance is simply irrelevant to the question whether their

application violates defendants’ Sixth Amendment rights. A

criminal defendant has a “right to insist that the prosecutor

prove to a jury all facts legally essential to the punishment.”

Blakely, 124 S. Ct. at 2543 (emphasis in original). When

these essential facts are not submitted to the jury but are

instead determined by a judge by a mere preponderance of the

evidence, this right is violated, no matter who created the

rules authorizing or directing the judge to do so. Thus, if the

Judicial Conference were to adopt, and this Court were to

promulgate, a rule of criminal procedure authorizing a federal

judge to find facts that could raise a statutory maximum, that

rule would violate Blakely no less than a statute adopted by

Congress to the same effect. Cf. Fed. R. Crim. P. 32(i)(3).

B. The Federal Sentencing Guidelimes Establish

Mandatory Legislative Rules.

In any event, the distinction the government draws 1s

inaccurate. As the Solicitor General poiints out, the

Guidelines are the product of the Sentencing Commission, an

agency located within the judicial branch, while the

Washington State sentencing law was promullgated directly

by the legislature. The mere location of the Commission in

the judicial branch, however, is not a meaning:ful difference.

As this Court and others have consistently recognized, the

Guidelines are essentially legislative in character.

The Commission is a creation of the SRA, which

authorizes the Guidelines. Accordingly, the Gwidelines carry

the force of law and are “binding on federal cowrts.” Stinson

v. United States, 508 U.S. 36, 42 (1993). As uniformly

interpreted by the courts of appeals, Section 3:553(b) of Title

18 of the U.S. Code prohibits sentences exceeding the top of

the applicable Guidelines range unless the: court makes

_ findings of fact that justify an upward departure’ Even

though the Commission is located in the judictial branch, this

Court has treated the Guidelines as “the equivalent of

legislative rules adopted by federal agencies.” Stinson, 508

U.S. at 45. Guidelines promulgated pursuant to congressional

delegation under the SRA are subject to the Sixth

Amendment in the same fashion as any sttatute or other

legislative rule.

This conclusion is reflected in the cowrts’ consistent

application to the Guidelines of the Ex Postt Facto Clause,

U.S. Const. art. 1, § 9, cl. 3; see also id. artt. |, § 10, cl. |

(barring states from adopting ex post fact@ laws). That

constitutional provision applies only to legislative acts or

rules. See Splawn v. California, 431 U.S. ‘S95 (1977). It

applies to the Guidelines because they are mandatory and

> See, e.g., United States v. Davern, 937 F.2d 10411 (CA6 1991) (en

banc); compare id. at 1042 (Merritt, J., dissenting).

legislative in character. Indeed, every circuit that has

considered the issue has concluded that the Ex Post Facto

Clause applies to the Guidelines. See, e.g., United States v.

Schnell, 982 F.2d 216, 218 (CA7 1992) (collecting cases from

all other circuits); see also U.S. Br. 25 (effectively conceding

that “the Ex Post Facto Clause applies to changes in the

Guidelines” (citing United States v. Bell, 99\ F.2d 1445, 1447

n.4 (CA8 1993)). This Court itself applied the Clause to a

similar state sentencing scheme in Miller v. Florida, relying

on the fact that the guidelines, far from being “flexible

‘guideposts’ for use in the exercise of discretion,”

significantly constrained judicial discretion by requiring

judges to make particular findings to justify departures from

the guidelines sentencing range. 482 U.S. 423, 435 (1987).

As this Court has held, the Commission, although placed

administratively in the judicial branch, does not perform

judicial functions. Mistretta v. United States, 488 U.S. 361,

384-85 (1989) (“Although placed by the Act in the Judicial

Branch, it is not a court and does not exercise judicial

power.”); id. at 394 (listing ways in which Commission

differs from a court that exercises judicial power.); id. at 404

(observing that judges serving on the Commission assume a

“wholly administrative role” and do fot exercise judicial

powers).

C. Congress Has Repeatedly Exercised Broad

Control Over the Guidelines.

The government furthermore ignores several respects in

which Congress directly controls the contents and application

of the Guidelines. These include congressional oversight of

judicial departures from the Guidelines, statutes mandating

changes in the content of specific Guidelines, and laws

creating mandatory minimum sentences that constrain the

Guidelines’ application.

1. Congressional Control of Guidelines

Departures Restricts Judicial Discretion.

Congress exercises direct control over the primary

discretionary authority retained by sentencing judges under

the Guidelines — namely, the power to depart from an

otherwise mandatory Guidelines range. Pursuant to the

PROTECT Act, Pub. L. No. 108-21, § 401(n), 117 Stat. 667

(2003), judges must rerort all departures to the Sentencing

Commission, which must in turn report them to Congress; the

Commission is also specifically required to amend the

Guidelines in such a way as to substantially reduce the

incidence of departures.

The authority to depart from an otherwise mandatory

sentencing range is a cornerstone of the SRA. In developing

the original Guidelines under the Act, the Commission

reviewed sentencing decisions in more than 10,000 cases.

U.S. Sentencing Comm'n, Supplementary Report on the

Initial Sentencing Guidelines and Policy Statements 21-39

(Supplementary Report) (June 18, 1987). Based on this

analysis, the Commission developed a set of relatively narrow

sentencing ranges corresponding to each offense and criminal

history category. /d. at 17. The Commission recognized,

however, that this formulaic, grid-based approach would

“omit distinctions” important in many individual cases. /bid.

The Commission therefore protected the authority of a

sentencing judge to depart from the Guidelines to ensure that

each case would still be considered on the individual basis

required by the SRA. See id at 54; Stephen Breyer, The

Federal Sentencing Guidelines and the Key Compromises

Upon Which They Rest, 17 HOFSTRA L. REV. 1, 14 (1988)

(noting that the Guidelines permit flexibility for departures

when necessary); 28 U.S.C. 991(b)(1)(B); see also S. REP.

No. 255, 98th Cong., Ist Sess. 51-52 (1983) (asserting that

the Guidelines are intended to preserve judicial discretion).

Thus, although a district court must issue a sentence

within the applicable Guidelines range in most cases, it

retains the authority to depart — either upward or downward —

from that range in atypical cases. 18 U.S.C. 3553(b); Koon v.

United States, 518 U.S. 81, 92-96 (1996); Mistretta, 488 U.S.

at 367 (“[Congress] rejected strict determinate sentencing

because it concluded that a guideline system would be

successful in reducing sentence disparities while retaining the

flexibility needed to adjust for unanticipated factors arising in

a particular case.”) (citation omitted); see also Justice Stephen

Breyer, Federal Sentencing Guidelines Revisited, 14-SPG

CRIM. JUsT. 28, 35 (1999) (proposing that the Commission

“increase * * * the discretionary authority of the sentencing

judge” to depart in cases outside of the “heartland” by

simplifying the Guidelines). In Koon, recognizing “the

wisdom, even the necessity, of sentencing procedures that

take into account individual circumstances” via the departure

power, this Court applied a deferential abuse-of-discretion

standard of review to departure decisions. 518 U.S. at 92,

113 (citing 28 U.S.C. 991(b)(1)(B)). The Court also held that

the basis for departure need not be limited to the specific

reasons listed in the Guidelines. /d. at 82.

The PROTECT Act, however, upset this carefully crafted

balance between the goals of consistency and individualized

treatment in sentencing. The purpose of the sentencing

provisions of the PROTECT Act was to “address[]} the

longstanding problem of downward departures from the

Federal Sentencing Guidelines.” H.R. CONF. REP. No. 108-66,

at 58, reprinted in 2003 U.S.C.C.A.N. 683, 694. The

legislation aims to eviscerate judicial discretion in sentencing

through the departure mechanism. The Judicial Conference

of the United States has recognized the effect of the

PROTECT Act and has sought repeal of some of its

provisions. News Release, Administrative Office of the U.S.

Courts (Sept. 23, 2003), available at http://www.uscourts.

gov/Press Releases/jc903.pdf. Thus far, such efforts have

been unsuccessful. See American Bar Ass'n, Justice

Kennedy Commission, Reports with Recommendations to the

ABA House of Delegates, available at http://www.abanet.org/

crimjust/ kennedy JusticeKennedyCommissionR eportsF inal.

pdf (Aug. 2004) (criticizing the PROTECT Act’s effect on

judicial discretion); David M. Zlotnick, The War Within the

War on Crime: The Congressional Assault on Judicial

Sentencing Discretion, 57 $.M.U. L. REV. 211 (2004).

Among other requirements, the statute specifically directs

the Commission to promulgate amendments to the Guidelines

that “ensure that the incidence of downward departures [is]

substantially reduced.” Pub. L. No. 108-21, § 401(m)(2)(A).’

It also abrogates this Court's decision in Koon by mandating

that departures be reviewed de novo on appeal, id

§ 401(d)(2), and, in cases involving certain sexual offenses,

by forbidding departures on any ground not “affirmatively

and specifically identified as a permissible ground of

downward departure in the sentencing guidelines or policy

statements issued under section 994(a) of title 28, United

States Code,” id. § 401(b)(1)(B). Congress also abolished

many pre-existing grounds of departure for certain crimes, id.

§ 401(b) (adding § 5K2.22), and expressly prohibited the

Commission from adding any new grounds of downward

departure, or from amending the Guidelines in a manner

“inconsistent with” any of the congressional amendments to

the Guidelines themselves, id. § 401(j). With the judiciary

now stripped by Congress of much of its departure power, the

government cannot credibly argue that the Guidelines merely

“channel” traditional judicial discretion, or that they are

judicial rather than legislative in nature.

The PROTECT Act also requires the Chief Judge of each

district to report to the Commission with a statement

providing reasons for every sentence in her district that

’ Obeying this congressional directive, the Commission amended

the Guidelines to sharply curtail the available grounds for

downward departures. See U.S. Sentencing Comm'n, Federal

Sentencing Guidelines Manual, app. C at 352-58, amend. 653

(2003); see also United States v. Mateo, 299 F. Supp. 2d 201, 205

(S.D.N_Y. 2004). =

departs from the otherwise applicable Guidelines range. Pub.

L. No. 108-21, § 401(h). The Commission in turn must make

these reports available to the Attorney General and to the

Judiciary Committees of the House and Senate. This

provision pointedly requires that “the identity of the

sentencing judge” be included in these reports. /bid. In

addition, the Attorney General must report any downward

departure, except for substantial assistance departures

requested by a prosecutor, to the Judiciary Committees of the

House and Senate, again including “the identity of the Gates

court judge.” /d. § 401(1)(2)(B){iii)."

Taken together, these provisions of the PROTECT Act

substantially limited the ability of sentencing judges to

exercise the departure authority that was so central to the

SRA. As one district judge has put it: “{T}he day of the

downward departure is past. Congress and the Attorney

General have instituted policies designed to intimidate and

threaten judges into refusing to depart downward, and those

policies are working.” United States v. Kirsch, 287 F. Supp.

2d 1005, 1006 (D. Minn. 2003). In the short history of the

PROTECT Act, other judges have recognized its coercive

impact on departure authority. See, e.g, United States v.

* The potential for intimidation of individual judges is not illusory.

After a respected district judge testified on sentencing issues before

a House committee, the committee threatened to subpoena the

judge’s records regarding sentences he had imposed and publicly

accused him of judicial misconduct in those decisions. See

Zlotnick, supra, at 227-28; see also Hon. William H. Rehnquist,

Remarks of the Chief Justice to the Federal Judges Ass’n Bd. of

Directors Mig. (May 5, 2003), available at

http://www _.supremecourtus.gov/publicinfo/speeches/sp_05-05-

03.html (“[O}ne portion of the [PROTECT Act] provides for the

collection of such information on an individualized judge-by-judge

basis * * * [that] could amount to an unwarranted and ill-

considered effort to intimidate individual judges in the performance

of their judicial duties.”’).

Mellert, No. CR 03-0043 MHP, 2003 WL 22025007, at *2

(N.D. Cal. July 30, 2003) (“[T}he wisdom of the years and

breadth of experience accumulated by judges and the

Sentencing Commission * * * is shucked * * *.”); United

States v. Kim, No. 03 Cr. 413 (RPP), 2003 WL 22391190, at

*7 (S.D.N.Y. Oct. 20, 2003) (noting that the legislature has

taken departure authority away from judges in favor of

Assistant U.S. Attorneys), United States v. Green, No. Cr. A.

02-10054-WG4, 2004 WL 1381101, at *15 (D. Mass. June

18, 2004).

2. Congress Increasingly Dictates Specific

Guidelines.

At the time of this Court’s Mistretta decision, the

relationship between Congress and the Commission was

relatively new and developing. Since then, Congress has

increasingly dictated the form, content, and specific language

of the Guidelines. Steven L. Chanenson, Hoist With Their

Own Petard?, 17 FED. SENT. REP. (forthcoming Sept. 2004),

draft at 15, available at http://papers.ssrn.com/sol3/

papers/cfm?abstract_id=586782. Thus, although the

government characterizes the Guidelines as “the product of

* * * 4 body in the Judicial Branch,” U.S. Br. 12, it is forced

to concede that Congress “has rejected proposed guidelines,”

“has directed the Commission to review and, if appropriate,

amend Guidelines,” and “has even enacted Guidelines

amendments itself,” id. at 24-25 (citations omitted). Even

these concessions, however, substantially understate the

frequency and intrusiveness of congressional intervention in

the Guidelines process.

Since Mistretta was argued in October 1988, Congress

has enacted over sixty laws that either directly dictate the

content of particular Guidelines or mandate that the

Commission enact specified revisions. These directives fall

into several discrete categories, each a substantial legislative

interference in a supposedly “judicial process.” The specific

measures are collected in the Appendix, in/ra.

Congress has issued fifty-five directives that directly alter

the Guidelines. Four enactments redrafted Guidelines

provisions into language of the legislature’s choosing, such as

when Congress in the PROTECT Act increased the base

offense level for kidnapping from twenty-four to thirty-six,

see Pub. L. No. 108-21, § 104(a), and furthermore dictated

the text of and even the “commentary” to the Guidelines

provisions dealing with sexual offenders, id. § 401(b), (g), (i).

Fifty-one statutory provisions directed the Commission to

make a specific change to particular provisions of the

Guidelines without specifying the precise language. Examples

range from a sweeping mandate to increase by at least two the

offense level for certain drug offenses involving List |

chemicals, see Pub. L. No. 104-237, § 302(c), 110 Stat. 3105

(1996), to a narrowly focused enhancement of at least two

levels for property offenses at national cemeteries, see Pub. L.

No. 105-101, § 2, 111 Stat. 2202 (1997).

On twelve additional occasions, Congress directed the

Commission to enhance the sentencing ranges for certain

types of conduct, leaving only the precise level of

enhancement to the Commission. Again, these mandatory

changes ranged widely in scope and content. Compare Pub.

L. No. 103-322, § 110501, 108 Stat. 2015 (1994) (mandating

that the Commission enact an enhancement for all crimes of

violence or drug trafficking involving a semiautomatic

firearm) with id. § 180201(c), 108 Stat. 2047 (1994)

(requiring an enhancement for drug offenses committed at

truck stops and safety rest areas).

Eleven additional provisions, while not expressly

requiring amendments, have nevertheless “requested” or

“recommended” changes. Each has resulted in a Guidelines

change, nine of which expressly refer to Congress’s

instructions. For example, as part of the Sarbanes-Oxley Act

of 2002, Congress issued a directive to the Commission to

“ensure that the guideline offense levels and enhancements

under Guideline § 2B1.1 (as in effect on the date of enactment

of this Act) are sufficient for a fraud offense when the number

of victims adversely involved is significantly greater than

50° Pub. L. No. 107-204, § 1104(b)(5), 116 Stat. 809

(2002). The Commission revised the Guidelines accordingly.

See U.S. Sentencing Comm'n, Federal Sentencing Guidelines

Manual, app. C, at 286-94, amend. 647 (2003).

Furthermore, Congress has specifically rejected the

Commission's proposals for amendments to the Guidelines

that would have lowered sentences for money-laundering

offenses and offenses involving crack cocaine. See Pub. L.

No. 104-38, § 1, 109 Stat. 334 (1995). In the Anti-Drug

Abuse Act of 1986, Congress mandated that, for sentencing

purposes, any given quantity of crack cocaine be treated as

equivalent to one hundred times its weight in powder cocaine.

See 21 U.S.C. 841(b)(1)(A)(ii), (it). ~The = crack-powder

distinction, which was subsequently incorporated into the

Guidelines, resulted in gross sentencing disparities along

racial lines. U.S. Sentencing Comm'n, /995 Special Report

to Congress: Cocaine and Federal Sentencing Policy (Feb.

1995). Seeking te redress this problem, the Commission

proposed an amendment to the Guidelines that would reduce

those disparities. 60 FED. REG. 25,074 (May 10, 1995).

Congress rejected that amendment despite the Commission’s

strong recommendation and two subsequent Commission

reports advising that “the current federal cocaine sentencing

policy is unjustified and fails to meet the sentencing

objectives * * * [of] the Sentencing Reform Act.” U.S.

Sentencing Comm'n, Report to Congress: Cocaine and

Federal Sentencing Policy, 91 (May 2002); see also U.S.

Sentencing Comm'n, Report to Congress: Cocaine and

Federal Sentencing Policy (Apr. 29, 1997).

3. Congress Controls the Guidelines Through

Its Enactment Of Mandatory Minimum

Sentences.

Congress has repeatedly enacted mandatory minimum

sentences that supersede the otherwise applicable Guideline

and control a sentence regardless of the appropriate

Guidelines range for the offense, U.S.S.G. 5GI.1(b). See,

e.g.. 21 U.S.C. 841(b)(1)(A), (B) (mandatory minimums for

manufacture or distribution of controlled substances); 18

U.S.C. 924(c) (mandatory minimums for use of a firearm in

the commission of a crime of violence or drug trafficking

crime)... Such congressionally mandated minimums thus

“prevent the commission from carrying out its basic,

congressionally mandated task: the development, in part

through research, of a rational, coherent set of punishments.”

Justice Stephen Breyer, Federal Sentencing Guidelines

Revisited, Speech at the University of Nebraska College of

Law (Nov. 1998), in 14-SPG CRIM. JuST. 28, 33; see

generally U.S. Sentencing Comm’n, Special Report to the

Congress: Mandatory Minimum Penalties in the Federal

Criminal Justice System (1991) (Mandatory Minimum

Penalties). They also “transfer sentencing power from the

courts to the prosecution” by precluding a district court from

departing below the mandatory minimum except on the

request of the prosecution. Mandatory Minimum Penalties,

supra, at ii; see 18 U.S.C. 3553(e); Melendez v. United

States, 518 U.S. 120 (1996).°

* -There are dozens more such mandatory minimum provisions in

the federal code. Ian Weinstein, Fifteen Years After The Federal

Sentencing Revolution’ How Mandatory Minimums Have

Undermined Effective and Just Narcotics Sentencing, 40 AM.

CRIM. L. REV. 87, 99 & n.56 (2003) (citing U.S. Sentencing

Comm'n, Special Report to the Congress: Mandatory Minimum

Penalties in the Federal Criminal Justice System (1991)).

* See also Hon. Anthony M. Kennedy, Address to the American

Bar Association (Aug. 9, 2003), at http://www.supremecourtus.

gov/publicinfo/speeches/sp 08-09-03.html (“Under the federal

mandatory minimum statutes a sentence can be mitigated by a

prosecutorial decision not to charge certain counts. There is a

debate about this, but in my view a transfer of sentencing discretion

from a judge to an Assistant U.S. Attomey, often not much older

than the defendant, is misguided * * * . Most of the sentencing

discretion should be with the judge, not the prosecutors.”’).

In short, mandatory minimums “skew the entire set of

criminal punishments, for Congress rarely considers more

than the criminal behavior directly at issue when it writes

these provisions.” Speech of }: stice Breyer, supra, at 33.

When a court sentences in a case involving a mandatory

minimum that exceeds the applicable Guidelines range, it has

no discretion at all, but rather must sentence exactly at the

statutory minimum, so as to come as close as possible to

satisfying the Guidelines without violating the conflicting

statute. The fact that Congress can and often does impose this

kind of distortion further demonstrates that sentencing under

the Guidelines operates pursuant to a legislative scheme, not a

judicial one.

D. The Commission Does Not Express the Collective

Voice of Individual Sentencing Judges.

Despite the government's description of the Guidelines

as “accumulated judicial wisdom * * * collectively reflected,”

U.S. Br. 24, the Commission offers no controlling voice or

role for the judiciary. Although judges do serve on the

Commission, that agency is not in any meaningful respect a

vehicle for gathering and expressing the views of judges.

Testimony of Deputy Att'y Gen. Larry Thompson Before

U.S. Sentencing Comm’n (Mar. 19, 2002), available at

http: www-.ussc.gov hearings/031902.htm (“In our

constitutional system, we believe the sentencing commission

exists to effectuate the express will of Congress.”).

A key part of the PROTECT Act repealed the prior

requirement that at least three judges must be members of the

Commission, replacing it with a mandate that no more than

three judges may serve. This provision thus expressly forbids

judges from constituting a majority of the Commission, and

even permits a Commission with no judicial members at all.

And even if the Commission were composed entirely of

judges, it could hardly be said that the few chosen represented

the “collective[]” wisdom of the hundreds of members of the

federal judiciary.

The governing statutes and the Commission’s rules

prescribe no special role for the judiciary. New and amended

Guidelines may be proposed by anyone, and no institutional

preference exists to ensure that the views of judges will

receive special weight. The Commission repeatedly explains

its amendments as “responding to congressional directives,”

“addressing Commission interests,” and “resolving circuit

conflicts.” See, e.g., U.S. Sentencing Comm’n, 2001 Annual

Report 9 (2001), at http://www.ussc.gov/ANNRPT/2001/ch2-

2001/PDF. Nowhere does it cite a direct response to judicial

comment or opinion as a reason for a change to the

Guidelines. And despite the fact that more than 650 Guideline

amendments have been effected since 1988, we have not

found more than three or four instances in which the

Commission reported that a Guideline amendment was in any

way influenced by judges who were not members of the

Commission. See U.S. Sentencing Comm’n, Federal

Sentencing Guidelines Manual, app. C (2003) (setting forth

amendments and reasons for adoption); 1995-2002 U.S.

Sentencing Comm’n Ann. Reps., at http://www.ussc.gov/

ANNRPT/1999/ar99toc.htm. Nor, as a practical matter, are

judges substantially involved in the Guidelines revision

process. During the past eight years, fewer than fifteen

judges appeared to testify before the Commission on matters

pertaining to the Guidelines; by comparison, non-judicial

testimony was offered by more than 150 witnesses at those

same hearings. See U.S. Sentencing Comm’n, Public Hearing

Testimony and_ Transcripts, at http://www.ussc.gov/

hearings.htm (last visited Sept. 18, 2004); 1995-2002 U.S.

Sentencing Comm’n Annual Reports and Statistical

Sourcebook, af http://www.ussc.gov/annrpts.htm (last visited

Sept. 18, 2004) (collecting the Commission’s annual reports

from 1995-2002 with public hearing witness lists).

The Court should accordingly hold that factual findings

that enhance sentences under the federal Guidelines are

subject to the strictures of the Sixth Amendment.

Il. Federal Sentencing Practices Can Be Adapted

To The Requirements Of The Sixth Amendment

Without Eliminating The Binding Effect Of The

Federal Guidelines That Congress Deemed

Essential To Reduce Sentencing Disparities.

In answering the second question presented, this Court

should reject the government’s argument that the district

courts should treat the Guidelines as merely “advisory,” a

proposal that both lacks any internal coherence and runs

contrary to Congress's principal goal of reducing sentencing

disparity. The Court should instead require sentence-

enhancing facts to be alleged in the indictment and proven

beyond a reasonable doubt to the jury in a bifurcated

sentencing hearing. Under this system, the jury would not act

as a “sentencing jury” — i.e., it would not actually “select an

appropriate sentence from within a statutory range of

punishment,” Nancy J. King & Roosevelt L. Noble, Felony

Jury Sentencing in Practice: A Three-State Study, 57 VAND.

L. REV. 885, 886 (2004) — but instead would simply find the

relevant facts. The judge would determine an appropriate

sentence within the Guidelines range that those facts generate.

For example, in fraud cases, the applicable sentencing

range is determined in significant part based on the monetary

value of the loss inflicted by the offense. U.S.S.G.

2B1.1(b)(1). Thus, in a typical fraud case, the loss amount

should be charged in the indictment, and the jury at

sentencing should be instructed to identify, through an

interrogatory or special verdict form, the amount of loss that

is proven by the government beyond a reasonable doubt. The

judge would then determine the appropriate Guidelines range

based. in part. on the applicable offense level, which would in

turn be based on the jury’s findings regarding, inter alia, the

amount of loss. The judge would retain the discretion to

select a sentence within that range and to determine if

departures permitted by law are appropriate. The principal

difference between this system and the one employed pre-

Blakely would be that more rigor, and thus enhanced

reliability, would be introduced into the fact-finding process.”

Preliminarily, however, we n« te that the second question

presented will not resolve the dispesition of these cases. For

a variety of reasons, the government is precluded from

seeking to have respondents re-sentenced. In Fanfan, the

government had the opportunity to seek jury findings of the

relevant sentencing facts in the wake of Blakely, but made no

such request. And to the extent the Court concludes that a

single jury must determine a defendant’s guilt and the facts

relevant to any enhancement (albeit in bifurcated

proceedings), re-sentencing is precluded in both cases

because the juries have been discharged.

Re-sentencing of these respondents would also likely be

unconstitutional, although (for the reasons just stated) the

Court need not reach that issue in these cases. It would

violate the Ex Post Facto Clause to adopt a rule under which

respondents would be re-sentenced subject only to the range

set by the statute of conviction. That approach would

substitute the higher statutory maximum for the lower

Guidelines maximum to which respondents previously had a

“legal right” at the time of the offense, Blakely, 124 S. Ct. at

2540, in violation of the Ex Post Facto Clause, see Miller v.

Florida, 482 U.S. 423, 424 (1987).*

” Federal courts may impose appropriate procedural safeguards,

such as bifurcation of the guilt and sentencing phases, to protect

defendants’ rights. Holmes v. United States, 363 F.2d 281, 283

(CADC 1966) (Bazelon, C.J.). See also FED. R. CRIM. P. 57(b) .

* The scheme imposed pursuant to the Court’s severability analysis

would be subject to the Ex Post Facto Clause rather than the Due

Process Clause because the Court’s ruling would constitute a

determination of “legislative intent,” Minnesota v. Mille Lacs Band

of Chippewa Indians, 526 U.S. 172, 191 (1999), as opposed to an

act of “common law judging,” such as “the daily task of

formulating and passing upon criminal defenses and interpreting

such doctrines as causation and intent,” Rogers v. Tennessee, 532

Re-sentencing respondents — as the Scolicitor General

strongly suggests, J.S. Br. 53 — would furtherrmore violate the

Double Jeopardy Clause. The government comitted from its

indictments of respondents the facts that, undler the Apprendi

line of cases, were required to be alleged beczause they trigger

the enhancements of respondents’ sentences. Those facts are,

at the least, “the functional equivalent[s] of ** * * element|s}

of a greater offense than the one covered by the jury’s guilty

verdict.” Apprendi, 530 U.S. at 494 n.19. Tio now re-indict

respondents would thus be to pprosecute them

unconstitutionally for greater offenses than thee ones for which

they have already been convicted, see Blocklburger v. United

States, 284 U.S. 299, 304 (1932); Brown v.. Ohio, 432 U.S.

161 (1977), as there is “no principled reason tto distinguish * *

* between what constitutes an offense for purposes of the

Sixth Amendment's jury-trial guarantee and what constitutes

an ‘offence’ for purposes of the Fifth Amemdment’s Double

Jeopardy Clause,” Sattazahn v. Pennsylvanica, $37 U.S. 101,

111-12 (2003) (plurality opinion). Alternatiwely, even if such

additional “enhancing. facts’ were not deemed further

“elements” for purposes of double jecopardy analysis,

subsequent indictments in __ these cases would

unconstitutionally prosecute respondents furtther for the same

offenses for which they were previously conwicted.”

U.S. 451, 460, 461-62 (2001). But ceven were that not so, the

retroactive application of such a sscheme to respondents would

violate the Due Process Clause. SSee Bowie v. Columbia, 378 U.S.

347, 353 (1964) (“An unforeeseeable judicial enlargement of a

criminal statute, applied retrroactively, operates precisely like an ex

post facto law.””); Marks wv. United States, 430 U.S. 188 (1977).

* A subsequent proseceution would not be saved by the fact that

jeopardy has not terminated with respect to respondents’

sentencing. The .very point of Apprendi and its progeny is that

these are not nmere sentencing facts, but rather that, like any

elements, theyy must be alleged in an indictment and proved to a

jury beyond. a reasonable doubt (unless admitted). In circumstances

For this reason, if this Court applies the Blakely rule

retroactively, it should hold that defendants in respondents’

situation made be sentenced only on the basis of the existing —

indictments and jury verdicts in their cases.

A. The Government's Proposal Would Thwart the

SRA’s Principal Goal of Reducing Unwarranted

Sentencing Disparities.

Despite the strong presumption in favor ot severability,

see Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality

opinion), the Solicitor General contends that the SRA and

Guidelines — including judicial fact-finding by a bare

preponderance of “reliable,” albeit non-evidentiary,

“information,” U.S.S.G. 6A1.3(a) — “embod[y] a single

coherent policy,” such that the provisions deemed violative of

the Sixth Amendment cannot be severed from the whole.

U.S. Br. 45 (quoting Minnesota vy. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, 191 (1999)). On that basis,

he contends, this Court should deem the entire Guidelines

scheme “advisory” and empower the district courts with the

discretion to impose a sentence within the range set by the

statute of conviction. That view of severability is inconsistent

with both the government's own proposed solution and

ae intent in enacting the SRA.

The government's proposal to authorize district court

een tn tlie aan ciate ete te came eben Oe

statute of conviction flies in the face of Congress's principal

objective in passing the SRA: the adoption of a binding

sentencing system to reduce sentencing disparity. Congress

like these, where the facts in question must determined in a

proceeding with “the hallmarks of a trial on guilt or innocence,”

double jeopardy protections apply. Budlington v. Missouri, 451

U.S. 430 (1981). Compare Monge v. California, $24 U.S. 721, 728

(1998) (sentencing proceedings generally “do not place a defendant

in jeopardy for an ‘offence™”).

would not have tatended federal sentencing to operate in a

manner contrary to that fundamental goal. As the Solicitor

General elsewhere acknowledges, “both the decrease in

uniformity and the decrease in proportionality would be

directly contrary to Congress's intent that the Guidelines

would avoid unwarranted disparities and ensure just

punishment.” U.S. Br. 54-55 (emphasis added).

Congress thus directed the Commission to pay “particular

attention” to “providing certainty and fairness in sentencing

and reducing unwarranted sentence disparities.” 28 U.S.C.

994(f). The Senate Report that accompanied the SRA

reiterated Congress's belief that “[t}he shameful disparity in

criminal sentences is a major flaw in the existing criminal

justice system, and makes it clear that the system is npe for

reform.” S. REP. NO. 98-225, at 65, reprinted in 1984

U.S.C.C_A.N. 3182, 3248 and declared that, as a result of the

SRA’s passage, “[flor the first time, federal law will assure

that the federal criminal justice system will adhere to a

consistent sentencing philosophy,” id. at 59, reprinted in 1984

U.S.C.C_A.N. at 3242.

Indeed, the government would have this Court enact a

proposal that Congress explicitly spurned. See Mistretta, 488

U.S. at 367. In rejecting Senator Mathias’s attempts to make

the Guidelines only advisory, the Senate Judiciary Committee

specifically cited the “poor record[s]” of states with voluntary

guideline systems: the distnct attorney for Middlesex County

Massachusetts, testified that “the voluntary guidelines in that

state” were completely ineffective in reducing sentencing

disparities and imposing a rational order on criminal

sentencing in the state, because judges generally did not

follow them.” S. REP. No. 98-225, at 79, reprinted in 1984

— at 3262.

. The Solicitor General's claims of non-severability are,

moreover, profoundly inconsistent with its proposed solution,

which would in fact cherry-pick for retention as binding law

the provisions of the SRA and Guidelines that the government

prefers. Thus, the government argues that basic provisions of

the SRA — such as the sentencing factors set out in 18 U.S.C.

3553(a) — would remain in force even if this Court held other

provisions of the SRA unconstitutional. See U.S. Br. 67.

Similarly, the government apparently would leave the

Guidelines in place in the myriad cases that do not involve an

enhancing fact triggering the Sixth Amendment. Even in

those cases in which the Guidelines were deemed no longer

element of the compromise embodied in the SRA.

Notwithstanding the government's reliance on the

selective severance of the SRA and Guidelines, it notably

makes no effort at all to defend its position under this Court's

severability precedents. Nor could it do so, because its

proposal is indefensible. Congress would not have intended

the determination whether a particular case is subject to

mandatory Guidelines sentencing to hinge (as it would under

the government's position) solely on whether it involves an

enhancing fact, or that the Sentencing Commission . wild

have anticipated such a scheme.

2. The prosecutorial authority inherent in the

government's proposal would moreover be so sweeping as to

violate basic principles of due process. After a trial or guilty

plea, prosecutors alone would have the complete discretion

whether to assert enhancing facts that would not merely

trigger an increase in sentence pursuant to a given sentencing

scheme, but would trigger a shift to another sentencing

scheme entirely. That is, under the government's proposal,

whether the Guidelines control the sentence in any given case

would depend soiely on whether the prosecutor asks for an

enhancement based on facts not charged to the jury. The

prosecutor would be free to decide what facts to allege on the

basis of her assessment of whether application of the

Guidelines would increase or decrease the defendant's

sentence. The result would be to compound the sentencing

dispanties that orginally plagued pre-Guidelines sentencing,

because disparities would be introduced not just within but

between sentencing schemes. This system would exacerbate

the grave due process concerns that arise from the

government's proposal to permit virtually indiscriminate

judicial sentencing without any of the protections of the Sixth

Amendment.

In 1987, the Commission anticipated that increased

formality would be required in the fact-finding portion of the

sentencing process that would accompany a determinative

guidelines system. See US. Sentencing Comm'n,

Supplementary Report, supra, reprinted in Federal Sentencing

Guidelines 313, 363 (PLI Litig. & Admin. Practice Course,

Handbook Series No. 146, 1987) (citing Note, How

Unreliable Factfinding Can Undermine Sentencing

Guidelines, 95 YALE LJ. 1258 (1986)). The Commission

thus recognized in its initial Guidelines that because “(t}he

court's resolution of disputed sentencing factors usually has a

measurable effect on the applicable punishment{,) * * *

{mjore formality is * * * unavoidable if the sentencing

process is to be accurate and fair” U.S.S.G. 6A1.3 cmt.

(1987). However, the Commission opted not to mandate

formal fact-finding procedures, instead relying on the federal

courts to resolve the “procedural details” of the sentencing

process. See Supplementary Report, supra, at 363

The ad hoc fact-finding procedures subsequently

developed by federal courts under the very general language

of Federal Rule of Criminal Procedure 32(i1)(3) and Guideline

§ 6A1.3 to resolve disputed factual issues in the federal

sentencing scheme do not even begin to approach the formal,

reliable procedures envisioned by the Commission and

guaranteed by the Due Process Clause. By retaining the

current system’s use of unfair and unreliable fact-finding

procedures despite their deleterious effects on the defendant's

constitutionally protected interests, while at the same time

eliminating the restraints on judicial discretion imposed by

the Guidelines scheme, the government’s proposal would

exacerbate those constitutional concerns immeasurably. Just

to cite the most prominent examples:

(1) defendants are not guaranteed the right to a hearing

on disputed factual issues, see, e.g., United States v. Robles-

Torres, 109 F.3d 83, 85 (CAI 1997);

(2) sentencing factors need be proved only by the lesser

preponderance-of-the-evidence standard, thereby leading to

the inclusion of uncharged and even acquitted conduct in the

calculation of a defendant’s guideline range, see, ¢.g.,

Benjamin E. Rosenberg, Criminal Acts and Sentencing Facts:

Two Constitutional Limits on Criminal Sentencing, 23 SETON

HALL L. REV. 459 (1993); Elizabeth T. Lear, Js Conviction

Irrelevant?, 40 UCLA L. REV. 1179, 1186-1207 (1993);

(3) the factual reliability provided by the Federal Rules of

Evidence, including protection against the use of hearsay,

does not apply in sentencing hearings, see, e.g, Fed. R. Evid.

1101(d)(3); 18 U.S.C. 3661, 21 U.S.C. 850; United States v.

Miele, 989 F.2d 659, 663 & n.S (CA3 1993) (Becker, J.)

(citing authorities); Frank O. Bowman III, Completing the

in the Guidelines Era, 12 FED. SENT. R. 187, at *7 (2000);

(4) defendants may also be denied the nght to subpoena

witnesses to challenge factual allegations at sentencing, see,

e.g., United States v. Jimenez Martinez, 83 F.3d 488, 498

(CAI 1996); and

(5) prosecutors are consistently engaging in fact- and

ultimately presented to the court seldom constitute a complete

and accurate report, see, e.g., United States v. Green, No. CR.

A. 02-10054-WGY, 2004 WL 1381101, at *9 (D. Mass. June

18, 2004) (“The most repugnant of the Department's tactics is

to lie to the Court in order to induce a guilty plea. This is the

process known as ‘fact bargaining.””); Tony Garoppolo, Fact

Bargaining: What the Sentencing Commission Has Wrought,

10 CRIM. PRAC. MAN. (BNA) 405, 405 (Oct. 9, 1996)

(terming fact-bargaining “the dirty little secret in the

prosecution of federal criminal cases’’).

B. The Proper Approach Is to Require That

Enhancing Facts Be Alleged in Indictments And

Proved to the Jury Beyond a Reasonable Doubt.

Rather than defending its own position, the government

concentrates on attacking the use of juries to determine facts

under the Guidelines as inconsistent with congressional intent

and thus militating against severability. The government

argues principally that Congress (and in turn the Sentencing

Commission) anticipated that the Guidelines generally

“would be applied based on fact-finding by the sentencing

court, not a jury.” See U.S. Br. 46-49. That is not, however,

an argument against severability; it is instead a recitation of

the characteristic of the Guidelines that violates the Sixth

Amendment. Judicial fact-finding is not so inextricably

intertwined with the essential elements of federal sentencing

that the Guidelines cannot function without it.

The government does correctly note that “Congress was

responding to perceived problems with the sentences imposed

by judges, not juries, and so the Senate Report made clear that

the projected guidelines ‘are designed to structure judicial

sentencing discretion."” U.S. Br. 48. But this is an argument

against the government's position. The SRA and the

Guidelines were both developed with the explicit and

overnding purpose of limiting judicial sentencing discretion.

Congress’s concern with the role of judges in sentencing was

clear both to the SRA’s supporters and opponents. Compare

130 CONG. REC. 976 (1984) (statement of Sen. Laxalt) (“The

present problem with disparity in sentencing * * * stems

precisely from the failure of [flederal judges — individually

and collectively — to sentence similarly situated defendants in

a consistent, reasonable manner. There is little reason to

believe that judges will now begin to do what they have failed

to do in the past.”) with d. at 973 (statement of Sen. Mathias)

(“The proponents of the bill * * * argue in essence that judges

cannot be trusted. You cannot trust a judge * * * you must not

trust a judge.”). By transforming judicial fact-finding from a

vice that Congress sought to limit into a value that it sought to

preserve, the government thus turns both logic and history on

their heads.

The government’s contention that the use of juries would

be inconsistent with this Court’s statement that the “relevant

inquiry in evaluating severability is whether the statute will

function in a manner consistent with the intent of Congress,’”

U.S. Br. 45 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S.

678, 685 (1987) (emphasis in U.S. Br.)), is incorrect as well.

It is fair to say, as the Solicitor General does, that “Congress’s

means of achieving particular goals, as well as its ultimate

ends, must be considered.” /bid. But that argument cuts

against the government’s position as well, for the relevant

means that Congress enacted to rationalize federal sentencing

was to direct the promulgation of binding sentencing

guidelines. The Solicitor General’s contention that the

Guidelines should be merely “advisory” obv’aies Congress’s

choice; the use of juries preserves it.

Faced with the choice of junking the Sentencing

Guidelines in their entirety or, on the other hand, using juries

to determine sentencing facts, “Congress would probably

have thought that [the use of juries to determine sentencing

facts} was an effective (though, perhaps, not the most

effective) means of pursuing its objective.” Denver Area

Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727,

767-68 (1996) (plurality opinion). Although the legislative

history of the SRA does not endorse the use of juries to find

sentencing facts, “Congress’ silence is just that — silence -

and does not raise a presumption against severability.” Alaska

Airlines, Inc.,480 U.S. at 686. If Congress really is as

opposed to an expanded role for the jury in sentencing as the

government claims, then it can easily enact an alternative

solution. Until then, however, it would cause far less

disruption to require that sentence-enhancing facts be found

by the jury than to strike down the entire Guidelines scheme

pending possible congressional action.

The Solicitor General also argues against the use of juries

on the ground that the fact-finding required would be

“unfeasibly complex.” U.S. Br. 54. Of course, in ninety-

seven percent of all federal criminal prosecutions, the case

never reaches the jury. But in all events, the government's

argument here “is not so much a criticism of Apprendi as an

assault on jury trial generally.” Blakely, 124 S. Ct. at 2543.

“Our Constitution and the common-law traditions it

entrenches. however, do not admit the contention that facts

are better discovered by judicial inquisition than by

adversarial testing before a jury.” /bid. In our system, juries

are trusted to resolve matters of considerable complexity,

such as complicated matters involving statistical evidence

and or conflicting expert testimony."

The means for conducting jury fact-finding are moreover

well established — so much so that, on directions from the

Department of Justice following Blakely, federal prosecutors

'’ Thus, for example,

Antitrust litigation * * * involves evidence concerning

market definition, market shares, and a host of other highly

technical questions of economic theory and effects on

competition and prices. Securities litigation often involves a

long chain of intricate commercial and financial transactions,

comprehension of which requires immersion in arcane

terminology, practices, and concepts. The same is true of

some white collar crime prosecutions under RICO. Patent

litigation is also technically demanding, as are medical

malpractice cases and litigation involving engineering issues.

Peter H. Schuck, Judicial Avoidance of Juries in Mass Tort

Litigation, 48 DEPAUL L. REV. 479, 501 (1998).

have been alleging enhancing facts in indictments and

proving them to juries at sentencing. And ever since

Apprendi, the government has regularly pleaded drug quantity

and type in indictments and secured special jury findings on

those questions. The government never explains how its

claim that jury fact-finding is impracticable can be reconciled

with this actual experience. Indeed, several lower federal

courts have already called for juries to be convened if

prosecutors insist on seeking enhanced sentences based on

facts that were neither admitted by the defendant nor found by

a jury. See, e.g., United States v. Ameline, 376 F.3d 967, 983

(CA9 2004); United States v. Booker, 375 F.3d 508, 514

(CA7 2004). See generally United States v. Khan, 325 F.

Supp. 2d 218, 231-32 (E.D.N.Y. July 20, 2004) (describing

history of jury sentencing). In several states’ criminal justice

systems, moreover, juries have for centuries been responsible

for determining the sentence itself — a role that encompasses

and extends beyond the mere fact-finding role that we urge

and that the Constitution requires. See Morris B. Hoffman,

The Case for Jury Sentencing, 52 DUKE L.J. 951, 953 n.l

(2003) (listing states).

“There is no novelty in a separate jury trial with regard to

the sentence.” Booker, 375 F.3d at 514. Such bifurcated jury

trials are already a mandatory part of capital prosecutions,

Ring v. Arizona, 536 U.S. 584 (2002), and are commonly

used to adjudicate criminal forfeiture allegations, Fed. R.

Crim. P. 32.2(b)(4). Federal civil trials typically involve

(and, under the Seventh Amendment, arguably require) a jury

to determine liability and damages in separate proceedings.

Cf. Feltner’v. Columbia Pictures Television, Inc., 523 U.S.

340, 353 (1998) (“The [Seventh Amendment’s] right to a jury

trial includes the right to have a jury determine the amount of

statutory damages, if any.”). Indeed, the only anomaly in the

federal system today is the absence of jury fact-finding for

criminal sentencing. See Hoffman, supra, at 954

(Apparently, jurors are necessary and trustworthy only at the

two ends of the ‘importance’ continuum—in civil cases where

only money is at stake and in capital cases where a life is at

stake. They are somehow unnecessary or untrustworthy in the

vast middle, where only judges are trusted to impose prison

sentences that can run from one day to a lifetime.”).""

CONCLUSION

For the foregoing reasons, the judgments should be

affirmed.

'' The practicality of requiring jury determination of sentencing

facts, while judges retain control over sentencing, 1s demonstrated

by the positive experience of Kansas. In the wake of Apprendi and

a Kansas Supreme Court decision applying Apprendi to the Kansas

sentencing guidelines, State v. Gould, 23 P.3d 801, 809-14 (2001),

the Kansas legislature enacted legislation requiring a post-

conviction jury proceeding to determine any facts that could —

increase the length of a defendant's sentence. See Kan. Stat. Ann.

21-4718(b) (2003); see also Kansas Sentencing Comm'n Report to

the 2002 Kansas Legislature (2002), reprinted in 15 FED. SENT.

REP. 32 (2002). Cf. Adam Liptak, Justices ' Sentencing Ruling May

Have Model in Kansas, N.Y. TIMES, July 13, 2004, at Al2 (quoting

a Kansas prosecutor as saying that the new procedure “tacked about

an hour onto a four-day trial”).

Respectfully submitted,

Samuel J. Buffone

(Counsel of Record)

David O. Stewart

Robert J. Kovacev

Laura G. Hoey

Ropes & GRAY LLP

700 12th Street, NW

Washington, DC 20001

(202) 508-4657

Thomas C. Goldstein

Amy Howe

GOLDSTEIN & HOwE, P.C.

4607 Asbury Place, NW

Washington, DC 20016

David M. Porter, Co-Chair

NACDL Amicus Committee

801 I Street, 3rd Floor

Sacramento, CA 95814

Peter Goldberger

50 Rittenhouse Place

Ardmore, PA 19003

September 21, 2004"

'2 Counsel for amicus were assisted by Joshua Block, Allon

Kedem, and Steven Wu, students at Yale Law School. Counsel

were also assisted by the following students in the Stanford Law

School Supreme Court Litigation Clinic: Eric J. Feigin, Daniel S.

Goldman, and Mara Silver. Clinic members Michael S. Abate,

Clifford L. Reeves, and David Sapp also contributed.

APPENDIX

SELECTED CONGRESSIONAL DIRECTIVES

PERTAINING TO THE SENTENCING GUIDELINES

Congressional Directives Amending the Guidelines

Directly (4)

Pub. L. No. 108-21, § 104(a), 117 Stat. 653 (2003)

(enhancing penalties for kidnapping)

Pub. L. No. 108-21, § 401(b), 117 Stat. 668 (2003) (limiting

downward departures for child crimes and sexual

offenses)

Pub. L. No. 108-21, § 401(g), 117 Stat. 671 (2003) (limiting

the availability of certain acceptance of responsibility

reductions)

Pub. L. No. 108-21, Title I, § 401(i), 117 Stat. 672 (2003)

(enhancing penalties for certain sexual offenses)

Congressional Directives Prohibiting the Commission

from Enacting Certain Types of Amendments (3)

Pub. L. No. 108-21, § 401(j)(2)-(3), 117 Stat. 673 (2003)

(prohibiting the Commission from altering certain

changes Congress itself wrote into the Guidelines)

Pub. L. No. 108-21, § 504(c), 117 Stat. 682 (2003)

(prohibiting the Commission from promulgating

amendments that lower the penalties specified by

Congress for obscene visual representations of child

sexual abuse)

Pub. L. No. 104-38, § 1, 109 Stat. 334 (1995) (rejecting

amendments proposed by the Commission relating to

crack cocaine and money laundering)

Congressional Directives Mandating Changes to the

Guidelines (51)

Pub. L. No. 108-275, § 5, 118 Stat. 833 (2004) (enhancing

penalties for identity theft offenses involving abuse of

trust)

Pub. L No. 108-21, § 401(m), 117 Stat. 675 (2003) (ordering

the Commission to “assure that the incidence of

downward departures are substantially reduced”)

Pub. L. No. 107-273, § 11009%(c), 116 Stat. 1819 (2002)

(requiring an enhancement of two levels for offenses

involving the use of body armor)

Pub. L. No. 107-155, § 314, 116 Stat. 107 (2002) (specifying

enhancements for election law violations)

Pub. L. No. 107-56, § 814(f), 115 Stat. 384 (2001) (stating

that the Commission “shall amend” the Guidelines to

assure that individuals convicted under 18 U.S.C.

1030 “can be subjected to appropriate penalties,

without regard to any mandatory minimum term of

imprisonment’)

Pub. L. No. 106-420, § 3, 114 Stat. 1868 (2000) (specifying

that the penalty for a certain type of fraud should be

comparable to the base offense level for another type

of fraud)

Pub. L. No. 106-310, § 3611, 114 Stat. 1228 (2000) (requiring

that penalties for amphetamine laboratory operators be

equivalent to those for methamphetamine laboratory

operators)

Pub. L. No. 106-310, § 3612, 114 Stat. 1228 (2000)

(specifying enhancements for manufacturing

amphetamine and methamphetamine)

Pub.

L. No. 106-310, § 3651, 114 Stat. 1238 (2000)

(mandating increased penalties for trafficking in list I

chemicals)

L. No. 106-310, § 3663, 114 Stat. 1242 (2000)

(mandating increased penalties for trafficking in

ecstasy)

L. No. 105-314, § 502, 112 Stat. 2980 (1998)

(mandating enhancement for transportation of persons

for illegal sexual activity)

L. No. 105-314, § 503, 112 Stat. 2980 (1998)

(mandating enhancement for using a computer in the

sexual abuse or exploitation of a child)

L. No. 105-314, § 504, 112 Stat. 2980 (1998)

(mandating enhancement for misrepresenting the

defendant’s identity in the sexual abuse or exploitation

of a child)

L. No. 105-314, § 505, 112 Stat. 2980 (1998)

(mandating enhancement for a pattern of activity

involving the sexual abuse or exploitation of a minor)

L. No. 105-314, § 506, 112 Stat. 2980 (1998)

(mandating that the Commission promulgate

amendments clarifying that “distribution of

pornography” applies to distribution both for

monetary remuneration and nonpecuniary interests)

L. No. 105-184, § 6, 112 Stat. 521 (1998) (mandating

“substantially increased” penalties for telemarketing

fraud)

L. No. 105-147, § 2(g), 111 Stat. 2680 (1997)

(mandating that the penalties for electronic copyright

infringement be dependent upon the retail value and

quantity of the items involved)

Pub. L. No. 105-101, § 2, 111 Stat. 2202 (1997) (mandating

“an enhancement of at least two levels for offenses

against property at national cemeteries)

Pub. L. No. 104-237, § 301, 110 Stat. 3105 (1996)

(mandating enhancement for manufacturing and

trafficking of methamphetamine)

Pub. L. No. 104-237, § 302(c), 110 Stat. 3105 (1996)

(mandating a two-level increase for offenses involving

list | chemicals)

Pub. L. No. 104-208, § 203(e), 110 Stat. 3009-566 (1996)

(mandating precise enhancements for alien

smuggling)

Pub. L. No. 104-208, § 211(b), 110 Stat. 3009-569 (1996)

(mandating precise enhancements for fraudulent _

acquisition and use of government-issued documents)

Pub. L. No. 104-208, § 218(b), (c), 110 Stat. 3009-573, 3009-

$74 (1996) (mandating amendments to apply specific

enhancements for crimes of involuntary servitude)

Pub. L. No. 104-208, § 334, 110 Stat. 3009-635 (1996)

(mandating an increase in the base offense level for

failure to depart, illegal reentry, and passport and visa

fraud) .

Pub. L. No. 104-132, § 730, 110 Stat. 1303 (1996) (requiring

amendment so that an adjustment for international

terrorism applies only to federal crimes of terrorism)

Pub. L. No. 104-132, § 805, 110 Stat. 1305 (1996)

(mandating amendment to assure that individuals

convicted of terrorist activity damaging a federal

interest computer are imprisoned for at least six

months)

Pub. L. No. 104-132, § 807(h), 110 Stat. 1308 (1996)

(mandating enhancement for conviction of

international counterfeiting of United States currency)

Pub

Pub.

Pub

Pub.

Pub

Pub.

. L. No. 104-71, § 2, 109 Stat. 774 (1995) (mandating

two-level increases in the base offense level for two

statutes involving sex crimes against children)

_L. No. 104-71, § 3, 109 Stat. 774 (1995) (mandating

two-level increases in the base offense level for using

a computer in committing certain sex crimes against

children)

. L. No. 104-71, § 4, 109 Stat. 774 (1995) (mandating a

three-level increase in the base offense level for

transporting minors across state lines for the purposes

of engaging in illegal sexual activity)

. L. No. 103-322, § 80001(b), 108 Stat. 1986 (1994)

(mandating amendments to add a “safety valve” to

limit the applicability of mandatory minimum

sentences for certain drug defendants)

L. No. 103-322, § 90102, 108 Stat. 1987 (1994)

(mandating enhancements for drug-dealing in “drug-

free” zones)

. L. No. 103-322, § 90103(b) 108 Stat. 1987 (1994)

(mandating enhancement for use or distribution of

illegal drugs in the federal prisons)

L. No. 103-322, § 110501, 108 Stat. 2015 (1994)

(mandating enhancement for use of semiautomatic

firearm during crime of violence or drug trafficking)

. L. No. 103-322, § 110502, 108 Stat. 2015 (1994)

(mandating enhancement for a second offense of using

explosive to commit felony)

. L. No. 103-322, § 110512, 108 Stat. 2019 (1994)

(mandating enhancement for using firearm in

commission of counterfeiting or forgery)

L. No. 103-322, § 110513, 108 Stat. 2019 (1994)

(mandating enhancement for firearms possession by

violent felons and serious drug offenders)

Pub.

Pub

Pub.

Pub

Pub.

L. No. 103-322, § 120004, 108 Stat. 2022 (1994)

(mandating enhancement for felonies promoting

international terrorism)

L. No. 103-322, § 140008, 108 Stat. 2033 (1994)

(mandating enhancement for soliciting a minor to

commit a crime)

_L. No. 103-322, § 180201(c), 108 Stat. 2047 (1994)

(mandating enhancement for possession or

distribution of drugs at truck stops or safety rest areas)

L. No. 103-322, § 240002, 108 Stat. 2081 (1994)

(mandating review and suggesting enhancement for

crimes against victims over 65)

L. No. 103-322, § 280003, 108 Stat. 2096 (1994)

(mandating enhancement of at least three levels for

hate crimes)

_L. No. 102-141, § 632, 105 Stat. 876 (1991) (mandating

specific offense levels for sexual abuse or exploitation

of minors)

L. No. 101-647, § 401, 104 Stat. 4819 (1990)

(mandating specific enhancements for kidnapping

offenses involving children)

L. No. 101-647, § 2507, 104 Stat. 4862 (1990)

(mandating specific offense levels for certain major

bank crimes)

L. No. 101-647, § 2701, 104 Stat. 4912 (1990)

(mandating a two-level enhancement for

methamphetamine convictions involving smokable

crystal methamphetamine)

L. No. 100-700, § 2(b), 102 Stat. 4631 (1988)

(mandating enhancement for fraud resulting in

personal injury and suggesting that the enhancement

be two levels)

Pub. L. No. 100-690, § 6453, 102 Stat. 4371 (1988)

(specifying precise penalties for importation of

controlled substances by aircraft and other vessels)

Pub. L. No. 100-690, § 6454, 102 Stat. 4372 (1988)

(specifying precise penalties for drug offenses

involving children)

Pub. L. No. 100-690, § 6468(c),(d), 102 Stat. 4376 (1988)

(specifying precise penalties for drug offenses within

federal prisons)

Pub. L. No. 100-690, § 6482(c), 102 Stat. 4382 (1988)

(specifying precise penalties for operating a common

carrier under the influence of alcohol or drugs)

Congressional Directives Suggesting Penalty

Enhancement (11)

Pub. L. No. 108-187, § 4(b), 117 Stat. 2705 (2003)

(specifying enhancement factors for the Commission

to consider in adding guidelines for the offense of

sending unsolicited electronic mail), implementation

pending in Amendments to the Sentencing Guidelines

63-64 (2004), at http://www.ussc.gov/2004guid/

RFMay04.pdf.

Pub. L. No. 107-296, § 225(b), 116 Stat. 2156 (2003)

(specifying enhancement factors to consider for

computer fraud and abuse), implemented by

Guidelines, app. C, at 1448-50 (2003)

Pub. L. No. 107-273, § 11008(e), 116 Stat. 1819 (2003)

(suggesting enhancement for assaults and threats

against judicial officers)

Pub. L. No. 107-204, Title VIII, § 805, 116 Stat. 802 (2002)

(requesting amendments to enhance the penalty for

obstruction of justice), implemented by Guidelines,

app. C, at 1373 (2003)

Pub. L. No. 107-204, Title IX, § 905, 116 Stat. 805 (2002)

(requesting amendments to enhance the penalties for

white collar crimes), implemented by Guidelines, app.

C, at 1440 (2003)

Pub. L. No. 107-204, § 1104, 116 Stat. 808 (2002)

(suggesting enhancement for fraud by officers of

publicly- traded corporations), implemented by

Guidelines, app. C, at 1373 (2003)

Pub. L. No. 106-386, § 112(b), 114 Stat. 1489 (2000)

(suggesting reconsideration of the penalties for

interstate human trafficking and suggesting specific

sentencing enhancements), implemented by

Guidelines, app. C, at 1192 (2003)

Pub. L. No. 105-318, § 4, 112 Stat. 3009 (1998) (suggesting

enhancements for intellectual property crimes),

implemented by Guideline, app. C, at 1144-46 (2003)

Pub. L. No. 104-201, § 1423, 110 Stat. 2725 (1996) (urging

penalty increases for offenses relating to importation

and exportation of nuclear, biological, or chemical

weapons or technologies) .

Pub. L. No. 103-322, § 40112, 108 Stat. 1903 (1994)

(suggesting enhanced penalties for certain types of sex

crimes), implemented by Guidelines, app. C, at 983

(2003)

Pub. L. No. 103-322, Title XXV, § 250003, 108 Stat. 2085

(1994) (suggesting enhancement for fraud against

victims over 55), considered by Guidelines, app. C, at

1003 (2003)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.