Brief for the United States — United States v. Fanfan

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Nos. 04-104 and 04-

Jn the Supreme Court of the Gnited States

UNITED STATES OF AMERICA, PETITIONER

Vv.

FREDDIE J. BOOKER

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA, PETITIONER

DUCAN FANFAN

ON WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

DAN HIMMELFARB

Assistants to the Solicitor

General

NINA GOODMAN

ELIZABETH A. OLSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202)514-2217

WIDEST AVARABLE COPY ©

Sr eery os

QUESTIONS PRESENTED

1. Whether the Sixth Amendment is violated by the

imposition of an enhanced sentence under the United States

Sentencing Guidelines based on the sentencing judge’s

determination of a fact (other than a prior conviction) that

was not found by the jury or admitted by the defendant.

2. If the answer to the first question is “yes,” the

following question is presented: whether, in a case in which

the Guidelines would require the court to find a sentence-

enhancing fact, the Guidelines as a whole would be inap-

plicable, as a matter of severability analysis, such that the

sentencing court must exercise its discretion to sentence the

defendant within the maximum and minimum set by statute

for the offense of conviction.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Constitutional, statutory, and guidelines provisions

involved

Statement

1. The Federal Sentencing Guidelines system ................

2. Constitutional challenges to the Guidelines ................

3. The present controversy

Summary of argument

Argument:

1. Blakely does not apply to the United States Sent-

encing Guidelines

A. The requirements of Apprendi apply to a fact

that increases the statutory maximum

sentence

B. A fact that increases a defendant’s offense

not increase the statutory maximum

sentence

1. The functions performed by the Sentenc-

ing Commission are those that have

historically been performed by sentenc-

ing judges

2. The Sentencing Guidelines bear no

resemblance to a graduated statutory

offense with different “degrees” of

seriousness

(IIT)

Table of Contents—Continued:

C. This Court has consistently recognized the

distinction between a fact that increases

the statutory maximum and a fact that

increases a defendant's offense level under

the Guideim s

If Blakeiy would require that a Guidelines

range be treated as a statutory maximum, that

aspect of Blakely should be reconsidered ..........

Il. If Blakely is held to apply to the Guidelines, the

Guidelines cannot be applied as binding sentenc-

ing rules in cases where jury factfinding would

be required

Severability analysis turns on the intent of

on whether the severed provisions are

operable as a law

Congress would not have intended the

Guidelines system to be administered with a

requirement of jury findings for sentence-

enhancing facts

innovation far greater than is permissible .........

The conversion of the Sentencing Guidelines

into “elements” would raise serious consti-

tutional questions

The appropriate remedy would be to hold

the Guidelines as a whole inapplicable in a

case in which the Guidelines would require the

court to find a sentence-enhancing fact. .............

oe ee Fra a cee Fee. + -

= a a

TABLE OF AUTHORITIES

Cases: Page

Addison v. Holly Hill Fruit Products, Inc.,

322 U.S. 607 (1944) 47

Agostini v. Felton, 521 U.S. 208 (1997) 41

Alaska Airlines v. Brock, 480 U.S. 679 (1987) .......-00000 . §,

59-60, 63, 68

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

Blakely v. Washington, 1248. Ct. 2531 (2004) ........... passim

Brown v. Ohio, 432 US. 161 (1977) 35

Buckley v. Valeo, 424 US. 1 (1976) 45

Edward J. DeBartolo Corp. v. Florida Coast Bldg.

& Constr. Trades Council, 485 U.S. 568 (188) ............. 63-64

Edwards v. United States, 523 U.S. 511 (1998) ............ 36, 37

Federal Power Comm'n v. Idaho Power Co., 344

US. 17 (1952) 47

Harmelin v. Michigan, 501 U.S. 957 (1991) 41

Harris v. United States, 536 U.S. 545 (2002) ..... 38,39, 40, 41

Hill v. Wallace, 259 US. 44 (1922) 50, 60

Jackson v. Virginia, 443 US. 307 (1979) . 68

Jones v. United States, 526 U.S. 227 (1999) 64

K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988) .......... 46

Koon v. United States, 518 U.S. 81 (1996) 48

Miller v. Florida, 482 U.S. 423 (1987) 25

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) 44, 50

Mistretta v. United States, 488 U.S. 361 (1989) ............ passim

Monge v. California, 524 U.S. 721 (1998) 40, 57

Nichols v. United States, 511 U.S. 738 (1994)... 21

Patterson v. New York, 432 U.S. 197 (1977) 51

Payne v. Tennessee, 501 U.S. 808 (1991) 41

Pennsylvania ex rel. Sullivan v. Ashe, 302 US.

51 (1987) 43

Cases—Continued:

Railroad Ret. Bd. v. Alton R.R., 295 US. 330

(1935)

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

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

Sattazahn v. Pennsylvania, 537 U.S. 101 (2008) ............. 18

Schmuck v. United States, 489 U.S. 705 (1989) ...ccccceceo..

Shepard v. United States, 257 F 2d 293 (6th Cir.

1958)

Staples v. United States, 511 U.S. 600 (1994) corse...

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

Tuan Anh Nguyen v. INS, 533 U.S. 58 (2001) .occcccccccsscse.

United States v. Armstrong, 517 U.S. 456 (1996) ............

United States v. Banks, 340 F 3d 683 (8th Cir.

2003)

United States v. Bell, 991 F.2d 1445 (Sth Cir.

1993) -

United States v. Caba, 241 F 3d 98 (ist Cir.

2001)

United States v. Campbell, 259 F 3d 298 (4th Cir.

2001)

United States v. Cannady, 283 F 3d 641 (4th Cir.),

cert. denied, 537 U.S 936 (2002)

United States v. Casas, 356 F.3d 104 (1st Cir.),

cert. denied, 124 S. Ct. 2405 (2004)

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

United States v. Croxford, 324 F. Supp. 2d 1230 (D.

Utah 2004)

United States v. DiFrancesco, 449 U.S. 117

(1980)

United States v. Donelson, 695 F 2d 583 (D.C. Cir.

1982)

United States v. Dunnigan, 507 U.S. 87 (1998)........

United States v. Einstman, No. 04 CR. 97 (CM),

2004 WL 1576622 (S.D.N.Y. July 14, 2004)

A AC Ni ig a all I Rath tte eta rs a iy

Vil

Cases—Continued: Page

United States v. Emmenegger, No. 04 CR. 334 (GEL),

2004 WL 1752599 (S.D.N.Y. Aug. 4, 2004) ........ 28, 31, 33, 38

United States v. Floyd, 343 F 3d 363 (5th Cir.

2003), cert. denied, 124 S. Ct. 2190 (2004) - i)

United States v. Friedman, 300 F 3d 111 (2d Cir.

2002), cert. denied, 538 U.S. 981 (2003) 28

United States v. Gaudin, 515 U.S. 506 (1995) .......ccceceseee 15

United States v. Grayson, 438 U.S. 41 (1978) .....ccceceenenees 2

United States v. Hudson, 11 U.S. (7 Cranch) 32

(1812) 65

United States v. Jackson, 390 U.S. 570 (1968) ............. 60,61

United States v. Kinter, 235 F 3d 192 (4th Cir.

2000), cert. denied, 582 U.S. 937 (2001) 9, 22

United States v. Koch, No. 02-6278, 2004 WL 1899930

(6th Cir. Aug. 26, 2004) 23, 31, 33

United States v. Longoria, 298 F 3d 367 (5th Cir.), 7

cert. denied, 537 U.S. 1038 (2002) 28

United States v. Luciano, 311 F.3d 146 (2d Cir.

2002), cert. denied, 123 S. Ct. 1185 (2004) YY

United States v._Martin Linen Supply Co., 430

U.S. 564 (1977) 48, 68

United States v. McCulligan, 256 F 3d 97 (3d Cir.

2001) 28

United States v. Mendez-Zamora, 296 F.3d 1013

(10th Cir.), cert. denied, 537 U.S. 1063 (2002)... 4

United States v. Merritt, 361 F.3d 1005 (7th Cir.

2004), petition for cert. pending, No. 03-10979

(filed June 18, 2004) i)

United States v. Ochoa, 311 F.3d 1133 (9th Cir.

2002) a)

United States v. Ortiz, 318 F.3d 1030 (11th Cir.

2003) i)

United States v. Parmelee, 319 F.3d 583 (3d Cir.

2003) i)

VIII

Cases—Continued: Page

United States v. Pettigrew, 346 F.3d 1139

(D.C, Cir, 2003) ~

United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004),

petition for cert. pending, No. 04-5263 (filed July 14,

2004) 18, 31, 32, 38

United States v. Tarwater, 308 F.3d 494 (6th Cir.

2002) i)

United States vy. Watts, 519 U.S. 148 (1997) ......... 7, 30, 35, 36

United States v. Williams, 343 F 3d 423 (5th Cir.),

cert. denied, 123 S. Ct. 966 (2003) 28

United States v. Wright, 873 F.2d 437 (1st Cir.

1989) 30, 36

Williams v. New York, 337 U.S. 241 (1949) ....... 16, 26, 36, 57

Williams v. Oklahoma, 358 U.S. 576 (1959) 34

Witte v. United States, 515 U.S. 389 (1996) .......... 6, 34, 35, 36

Constitution, statutes, rules and regulations:

U.S. Const.:

Art. |:

§ 9, Cl. 3 (Ex Post Facto Clause) 25

§ 10, Cl. 1 (Ex Post Facto Clause) 25

Amend. V 14

Double Jeopardy Clause 7, 35, 48

Amend. VI ; passim

Amend. XIV (Due Process Clause) 8, 36

Act of Oct. 30, 1995, Pub. L. No. 104-38, § 1, 109 Stat.

334 24

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

Tit. VII, Subtit. C, § 7103(a)(7), 102 Stat. 4417 2.0.0.0 48

Federal Judiciary Protection Act of 2002, Pub. L.

No. 107-273, Div. C, Tit. 1, § 11008(b), 116 Stat.

1818 27

Statutes, rules and regulations—Continued:

PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650:

§ 401(b), 117 Stat. 668-669

§ 401(g), 117 Stat. 671-672

§ 401(i), 117 Stat. 672-673

Sentencing Reform Act of 1984, Pub. L. No. 98-473,

98 Stat. 1987 (18 U.S.C. 3551 et seq.)

18 U.S.C, 3553(a)

18 U.S.C, 3553(a)(1)

18 U.S.C, 3553(a)(2)

18 U.S.C, 3553(a)(4)

18 U.S.C. 3553(a)(5)

18 U.S.C, 3553(a)(6)

18 U.S.C. 3553(b)

18 U.S.C, 3582(a)

18 U.S.C, 3593(b)

18 U.S.C. 3624(a)

18 U.S.C. 3624(b)

18 U.S.C, 3742(a)

18 U.S.C. 3742(b)

18 U.S.C. 3742(d) (Supp. II 1984)

18 U.S.C, 3742(e)

18 U.S.C, 3742(e)(4)

28 U.S.C. 991

28 U.S.C. 991(a)

28 U.S.C. 991(b)(1)(B)

28 U.S.C. 994

28 U.S.C. 994 note

28 U.S.C. 994(a)

aRe SSaFaankF Fant SFSESSRSSSS FSS

28 U.S.C. 994(a)(1)

28 U.S.C. 994(b)

47, 60

28 U.S.C. 994(b)(1)

28 U.S.C, 994(¢)(2)

47, 50

28 U.S.C. 994(¢)(3)

28 U.S.C. 994(d)(9)

28 U.S.C. 994(m)

4, 21, 49, 65

28 U.S.C. 994(p)

Statutes, rules and regulations—Continued:

28 U.S.C. 994(r)

28 U.S.C. 995(a)(1)

88%

Violent Crime Control and Law Enforcement Act

of 1994, Pub. L. No. 103-322, Tit. XX VIII, § 280003,

108 Stat. 2096

ee ae

BD WE). GO cceecenssnensssccssmssssesesemmecee

19 U.S.C. 924

18 U.S.C. 924(¢e)(1 (Ai)

18 U.S.C. 1952

18 U.S.C. 3661

21 U.S.C. 841(a)(1)

21 U.S.C. 841(b)(1)

BRRESERRE

21 U.S.C. 841(b)(1)-(3)

21 U.S.C. 841(b)(1)(A(iii)

21 U.S.C, 841(b)(1)(B)(ii)

21 U.S.C. 841(b)(1(C)

21 U.S.C. 346

28 U.S.C. 334

Sentencing Reform Act of 1981, Wash. Rev. Code

§§ 9.94A et seq. (2000)

§ 9.944.125 (2000)

§ 9.944.310 (2000)

§ 9.944.350 (2000)

§ 9.944.360 (2000)

§ 9.944.370 (2000)

§ 9.944.390 (2000)

SSSSSS

Fed. R. Crim. P.:

Rule 7(¢)(1)

Rule 16(a)(1)(C) (1994)

Rule 16(a)(1)(F \(iii)

Rule 31(c)(1)

Rule 32(c)

Rule 32(d)

Rule 32(iX3)(B)

Fed. R. Evid. 1101(d)(3)

BSSSRRRS

Regulations—Continued: Page

United States Sentencing Guidelines:

Ch. 1:

Pt. A 57, 58

§ 1Al note 57

§ 1A1.4(a) 57, 58

Pt. B:

§ 1B1.1(a) 5, 31

§ 1B1.1(b) 5, 31

§ 1B1.1(c) 5-6, 31

§ 1B1.1(d) 6, 31

§ 1B1.1(e) 6,31

§ 1B1.1(f) 6, 31

§ 1B1.1(g) 6, 31

§ 1B1.1(h) 6

§ 1B1.1(i) 6

§ 1B1.2(a) 6, 31

§ 1B1.2(b) 6, 49

§ 1B1.2, comment. (n.2) 49

§1B13 6, 57

§ 1B1.3(a) 30

§ 1B1.3(a)(1)(A) 30

§ 1B1.3(a)(1)(B) 30

§ 1B1.3(a)(2) 30

§ 1B1.3(a)(i) 32

§ 1B1.3(a\(iii) 32

§ 1B1.3, comment 57

§ 1B1.11(b)\(2) 50

Ch. 2 5, 32

Pt. A:

§ 2A5.2(a) 32

Pt. B:

§ 2B1.1 58

§ 2B1.1(a) 52

§ 2B1.1(b) 29

§ 2B1.1(b)(1) 52

§ 2B1.1(b)(5) 51

§ 2B1.1(c) 32

§ 2B1.5(b)(4) 51

XII

Regulations—Continued:

Pt. C:

§ 2C1. l(c)

Pt. D:

§2D1.1

§ 2D1.1(b)(6)

Pt. K:

§ 2K2.4, comment. (n.1) (Nov. 2001)

Pt. Q:

§ 2Q1.6(a)(3)

Pt. S:

§ 2S1.1(b\(1)

Pt. T:

§ 2T1.%b)(2)

Ch. 3:

Pt. A

§ 3A1.1(a)

§ 3A1.1(b)

§ 3AL.2

§ 3A1.3

§3Al14

Pt. B

§ 3B1.1

§ 3B1.2

§ 3B1.3

§ 3B1.4

§3B1.5

Pt. C

§3C1.1

§3C12

Pt. D

Pt. E

§3EL.1

Ch. 4:

Pt. A

Roa ZBRSVBISRBABBRBRZa

Pt. B

§ 4B1.1

aah

XIII

Regulations—Continued:

§ 4B13

§ 4B1.4(b)

§ 4B1.5(a\(1)

§ 4B1.5(b)(1)

Ch. 5:

Pt. A

Pt. G:

§ 5G1.1

§ 5G1.1(a)

Pt. K:

§ 5K2.0

Ch. 6:

§6A1.3

§ 6A1.3, comment.

§ 6A1.3(a)

Miscellaneous:

Appellate Review of Sentences, 32 F.R.D. 249

(1962)

Stephen Breyer, The Federal Sentencing Guidelines

and the Key Compromises Upon Which They Rest,

17 Hofstra L. Rev. 1 (1990)

121 Cong. Rec. 37,562-37,563 (1975)

Developments in the Law—Race and the Criminal

Process, 101 Harv. L. Rev. 1473 (1988)

Marvin R. Frankel, Criminal Sentences: Law Without

Order (1972)

Robert H. Joost, Viewing The Sentencing Guidelines

as a Product of the Federal Criminal Code Effort,

7 Fed. Sent. Rep. 118 (1994)

Charlton T. Lewis, The Indeterminate Sentence,

9 Yale L.J. 17 (1899)

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

(1892)

Gerard E. Lynch, Towards A Model Penal Code,

Second (Federal?): The Challenge of the Special

Part, 2 Buff. Crim. L. Rev. 297 (1998)

National Comm’n on Reform of Federal Criminal

Laws, Final Report (1971)

XIV

Miscellaneous—Continued:

Julie R. O'Sullivan, Jn Defense of the U.S. Sentencing

Guidelines’ Modified Real-Offense System, 91

Nw. U.L. Rev. 1342 (1997)

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

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

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

S. 1722, 96th Cong., Ist Sess. (1979)

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

Kate Stith & José A. Cabranes, Fear of Judging: Sent-

encing Guidelines in the Federal Courts (1998) .............

United States Dep’t of Justice, Annual Report of the

Attorney General of the Un'ted States:

(1938)

(1939)

(1940)

(1941)

United States Sentencing Comm'n, Supplementary

Report on the Initial Sentencing Guidelines and

Policy Statements (1987)

William W. Wilkins, Jr. & John R. Steer, Relevant

Conduct: The Cornerstone of the Federal Sentencing

Guidelines, 41 S.C. L. Rev. 495 (1990)

pheno s

In the Supreme Court of the Gnited States

UNITED STATES OF AMERICA, PETITIONER

Vv.

FREDDIE J. BOOKER

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

UNITED STATES OF AMERICA, PETITIONER

DUCAN FANFAN

ON WRIT OF CERTIORARI BEFORE JUDGMENT

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals in United States v.

Booker (04-104 Pet. App. la-27a) is reported at 375 F.3d 508.

The sentencing proceedings in United States v. Fanfan (04-

105 Pet. App. la-13a) are unreported.

JURISDICTION

The judgment of the court of appeals in United States v.

Booker was entered on July 9, 2004. The judgment of the

district court in United States v. Fanfan was entered on

June 30, 2004 (04-105 Pet. App. 16a-21a), the notice of appeal

was filed on July 16, 2004 (id. at 26a), and the case was

docketed in the court of appeals on July 19, 2004 (id. at 27a).

The petitions for a writ of certiorari were filed on July 21,

(1)

2004, and were granted on August 2, 2004. The jurisdiction

of this Court rests on 28 U.S.C. 1254(1) and 2101(e).

CONSTITUTIONAL, STATUTORY, AND GUIDELINES

PROVISIONS INVOLVED

The relevant constitutional, statutory, and Sentencing

Guidelines provisions are set forth in appendices to the peti-

tions. 04-104 Pet. App. 33a-68a; 04-105 Pet. App. 28a-63a.

STATEMENT

1. The Federal Sentencing Guidelines system

a. “From the beginning of the Republic, federal judges

were entrusted with wide sentencing discretion.” Apprendi

v. New Jersey, 530 U.S. 466, 482 n.9 (2000) (quoting Kate

Stith & José A. Cabranes, Fear of Judging: Sentencing

Guidelines in the Federal Courts 9-10 (1998)). “Statutes

specified the penalties for crimes but nearly always gave the

sentencing judge wide discretion to decide whether the

offender should be incarcerated and for how long.” Mistretta

v. United States, 488 U.S. 361, 363 (1989). With the rise of

rehabilitation as a goal of sentencing, some legislatures, in-

cluding Congress, also adopted systems in which the actual

period of imprisonment was left largely to parole boards

and other officials outside of the courts. United States v.

Grayson, 438 U.S. 41, 46-48 (1978); Parole Act, ch. 387, 36

Stat. 819 (1910). In the exercise of sentencing discretion,

judges traditionally considered “aggravating and mitigating

circumstances surrounding an offense” in order to determine

the appropriate sentence within broad statutory limits.

United States v. Grayson, 438 U.S. at 46. And as long as the

sentence fell within the statutory range set by Congress, the

sentence imposed by the district court as a matter of its

discretion was given “virtually unconditional deference on

appeal.” Mistretta, 488 U.S. at 364.

Almost from its inception, wholly discretionary sentencing

met with criticism, much of it severe, from commentators,|

Attorneys General,’ and federal judges.’ The criticism

focused on the gross disparities in the sentences imposed on

similar offenders for similar offenses. This concern was later

validated by empirical studies. See S. Rep. No. 225, 98th

Cong., Ist Sess. 41-46 & nn.18-27 (1983) (Senate Report).

Some studies suggested that disparities were not only arbi-

trary, in that sentences varied from circuit to circuit, district

to district, and judge to judge, but also invidious, in that

minority defendants were at times sentenced more harshly

than similarly situated whites. See Developments in the

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

1473, 1630-1632 & nn.35-44 (1988).

In his 1972 book, Criminal Sentences: Law Without

Order, Judge Marvin E. Frankel of the Southern District of

New York captured the thinking of many critics when he

wrote that the “almost wholly unchecked and sweeping”

discretion of sentencing judges was “terrifying and intoler-

able for a society that professes devotion to the rule of law.”

Id. at 5. Judge Frankel proposed an expert commission that

would “prescribe in rules of general application the factors to

be considered in individual sentences,” and thereby bring a

measure of uniformity, rationality, and fairness to sen-

tencing. Jd. at 123. Judge Frankel’s ideas had a great in-

fluence on Congress. See, ¢.g., 121 Cong. Rec. 37,562-37,563

(1975); Senate Report 37. In 1975, Senator Kennedy intro-

1 See, eg., Long v. Short Sentences, 20 Wash. L. Rep. 135 (1892);

Chariton T. Lewis, The Indeterminate Sentence, 9 Yale L.J. 17 (1899).

2 See United States Dep’t of Justice, Annual Report of the Attorney

General of the United States 6-7 (1938) (Att'y Gen. Cummings), id. at 6-7

(1989) (Att’y Gen. Murphy); id. at 5-7 (1940) (Att'y Gen. Jackson); id. at 4

(1941) (Att’y Gen. Biddle).

3 See, eg., Shepard v. United States, 257 F.2d 293 (6th Cir. 1958)

(Stewart, J.); Symposium, Appellate Review of Sentences, 32 F.R.D. 249

(1962).

duced a bill that authorized the appointment of a commission

to promulgate sentencing guidelines. See S. 2699, 94th

Cong., Ist Sess. (1975). Bills with similar provisions were

introduced in each of the next three Congresses, see S. 1437,

95th Cong., lst Sess. (1977); S. 1722, 96th Cong., Ist Sess.

(1979); S. 1630, 97th Cong., Ist Sess. (1981), but did not be-

come law because of disagreement over comprehensive

criminal-code reform, which had also been under considera-

tion during the same period. When sentencing reform was

finally uncoupled from criminal-code reform, Congress

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

473, 98 Stat. 1987.

b. As this Court has described it, the Sentencing Re-

form Act was a response to what Congress viewed as

“two ‘unjustififed]’ and ‘shameful’ consequences” of the

indeterminate-sentencing system. Mistretta, 488 U.S. at 366

(quoting Senate Report 38, 65). The first was “the great

variation among sentences imposed by different judges upon

similarly situated offenders.” Jbid. The second was “the un-

certainty as to the time the offender would spend in prison,”

because of the possibility of release on parole before the end

of the term imposed by the judge. /bid.

The Sentencing Reform Act has several components that

further the goals of uniformity and certainty. First, the Act

established the United States Sentencing Commission as an

independent agency in the Judicial Branch, and directed it to

promulgate guidelines to channel the discretion of sen-

tencing judges. 28 U.S.C. 991, 994, and 995(a)(1). The Act

provided instructions to the Commission, including that, as

a starting point in developing guidelines, the Commission

ascertain the average sentences imposed in particular cate-

gories of cases under the old system. 28 U.S.C. 994(m).

Second, the Act made the guidelines binding on district

courts, except when there is an aggravating or mitigating

circumstance not adequately considered by the Commission,

in which case a court is permitted to depart from the appli-

cable guidelines range. 18 U.S.C. 3553(a) and (b). In no

event, however, can a guidelines sentence be outside the

statutory limits set by Congress. 28 U.S.C. 994(a) and (b).

Third, the Act authorized defendants to appeal a sentence

above the guidelines range, the government to appeal a sen-

tence below the guidelines range, and either party to appeal

an incorrect application of the guidelines. 18 U.S.C. 3742(a)

and (b). In reviewing a guidelines sentence, appellate courts

are required to accept the facts found by the sentencing

judge, unless they are clearly erroneous. 18 U.S.C. 3742(d)

(Supp. II 1984) (currently codified as amended at 18 U.S.C.

3742(e)). Finally, the Act abolished parole and required

defendants to serve the entirety of their sentences, minus

any credit for “good time.” 18 U.S.C. 3624(a) and (b).

c. The Guidelines promulgated by the Commission took

effect in 1987, and have been revised continually since. Con-

sistent with Congress’s expectation that they would be

“sufficiently detailed and refined to reflect every important

factor relevant to sentencing for each category of offense and

each category of offender,” Senate Report 169, the Guide-

lines set 258 different sentencing ranges based on the com-

bination of an “offense level” for the crime (ranging from 1

to 43) and a “criminal history category” for the defendant

(ranging from I to VI). See Guidelines Ch. 5 Pt. A (Sen-

tencing Table).

Calculating a defendant’s offense level requires a district

court to take account of various characteristics of the offense

and the offender. A court first determines the applicable

Guideline and a “base offense level” from Chapter Two. See

Guidelines § 1B1.1(a) and (b). It then adds or subtracts

levels based on “specific offense characteristics” in Chapter

Two and makes upward or downward “adjustments” under

Parts A, B, and C of Chapter Three.’ See id. § 1B1.1(b) and

4 Part A provides for an increase based on the status of the victim;

Part B provides for an increase or decrease based on the defendant's role

(c). If there are multiple counts of conviction, this process is

repeated for each count; the counts are then “grouped”

under Part D of Chapter Three and the offense level is

adjusted accordingly. See id. § 1B1.1(d). At this point, and

regardless of the number of counts, the offense level is

decreased under Part E of Chapter Three if the district

court finds that the defendant has accepted responsibility for

his crime. See id. § 1B1.1(e). After calculating the defen-

dant’s criminal history category under Part A of Chapter

Four, the court makes any further adjustments to the

offense level required by Part B of Chapter Four.’ See id.

§ 1B1.1(f). Once the court determines the final offense level

and criminal history category, it consults a Sentencing Table

in the Guidelines manual that sets forth the range of

punishment for the defendant. The court must select a sen-

tence within that range unless it determines that an upward

or downward departure is warranted. See id. § 1B1.1(g)-(i).

In calculating the offense level, the district court is required

at virtually every step to consider all of the defendant’s

“relevant conduct,” as determined by the court, even if it is

not part of the offense of conviction. See id. §§ 1B1.2(a) and

(b), 1B1.3.

2. Constitutional challenges to the Guidelines

a. Two years after they took effect, this Court, with only

a single Justice in dissent, upheld the Guidelines against

multiple constitutional challenges in Mistretta v. United

States, 488 U.S. 361 (1989). The defendant in Mistretta

raised a non-delegation claim and three separation-of-powers

in the offense; and Part C provides for an increase based on obstructive

conduct

» See Guidelines $ 4B1.1 (increase for “career offender”); id. § 4B1.3

(increase where crime was part of pattern of criminal conduct “engaged in

as a livelihood”); id. § 4B1.4(b) (increase for “armed career criminal”): id.

§ 4B1.5(a)(1) and (b)(1) (increase for “repeat and dangerous sex offender

against minors”).

claims, one of which was that, by virtue of the Commission’s

placement in the Judicial Branch, the judiciary had been

given legislative authority. In rejecting that contention, see

id. at 384-397, the Court emphasized the differences between

the functions of Congress and those of the Commission. It

relied, in particular, on the fact that the Guidelines do not

“bind or regulate the primary conduct of the public” or give

the judiciary “the legislative responsibility for establishing

minimum and maximum penalties for every crime,” but

instead “do no more than fetter the discretion of sentencing

judges to do what they have done for generations—impose

sentences within the broad limits established by Congress.”

Id. at 396.

b. In four cases decided in the decade after Mistretta,

this Court rejected other constitutional challenges to the -

Guidelines, approving, in each case, a sentence enhancement

based on facts found by the sentencing judge. In United

States v. Dunnigan, 507 U.S. 87 (1993), the Court unani-

mously held that an increase in the offense level based on the

district court’s finding of trial perjury does not violate a

defendant’s right to testify on his own behalf. In Witte v.

United States, 515 U.S. 389 (1995), the Court held that, when

the district court increases the offense level on the basis of

an uncharged drug transaction, the Double Jeopardy Clause

does not prohibit a subsequent prosecution for that trans-

action. In United States v. Watts, 519 U.S. 148 (1997) (per

curiam), a summary reversal, the Court held that, when

a defendant is found guilty of one drug transaction and

acquitted of another, the Double Jeopardy Clause does not

prevent the district court from increasing the offense level

on the basis of the conduct underlying the acquitted charge,

so long as it has been proved by a preponderance of the

evidence. Finally, in Edwards v. United States, 523 U.S. 511

(1998), the Court unanimously upheld a Guidelines sentence

where the judge had found that the object of a drug con-

spiracy was to distribute both cocaine and cocaine base, even

though the jury had not specified which drug underlay its

verdict. The Court held that the absence of a jury finding on

that issue was legally unproblematic, because the Guidelines

sentences imposed were below the statutory maximum for a

cocaine-only conspiracy.

ec. Two years after its decision in Edwards, the Court

decided Apprendi v. New Jersey, 530 U.S. 466 (2000). The

defendant in Apprendi pleaded guilty to an offense with a

statutory maximum prison term of ten years, unless it was

carried out with a biased purpose, in which case the statu-

tory maximum (under a different statute) was 20 years.

After making a finding of biased purpose, the trial court

imposed a sentence of 12 years. This Court held that the

sentence violated the Due Process Clause and the Sixth

Amendment, because it was inconsistent with the principle

that, other than the fact of a prior conviction, “any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” /d. at 490. Two years lair, the

Court applied Apprendi in Ring v. Arizona, 536 U.S. 584

(2002), which held Arizona’s death-penalty statute unconsti-

tutional insofar as it permitted the sentencing judge, rather

than the jury, to find the aggravating circumstances that

made a defendant found guilty of first-degree murder eli-

gible for the death penalty.

After this Court’s decision in Apprendi, and indeed after

its decision in Ring, every one of the twelve courts of ap-

peals with criminal jurisdiction held that the Sixth Amend-

ment does not require facts that increase a defendant’s

Guidelines offense level to be found by the jury, and that

judicial fact-finding in the application of the Guidelines is

therefore constitutional.° The appellate decisions reasoned

® See, e.g., United States v. Pettigrew, 346 F.3d 1139, 1147 n.18 (D.C.

Cir. 2003); United States v. Casas, 356 F.3d 104, 128 (1st Cir.), cert.

denied, 124 S. Ct. 2405 (2004); United States v. Luciano, 311 F.3d 146, 158

that “the holding in Apprendi applies only when the dis-

puted ‘fact’ enlarges the applicable statutory maximum and

the defendant’s sentence exceeds the original maximum,”

United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001), and

that “the relevant ‘maximum’ under Apprendi is found on

the face of the statute rather than in the Sentencing Guide-

lines,” United States v. Kinter, 235 F.3d 192, 201 (4th Cir.

2000), cert. denied, 582 U.S. 937 (2001). Because the Guide-

lines cap the defendant’s sentence at the maximum provided

by statute for the offenses of conviction, see Guidelines

§ 5G1.1(a), a Guidelines sentence can never exceed the

statutory maximum.

3. The present controversy

a. In Blakely v. Washington, 124 S. Ct. 2531 (2004), this

Court relied on the principle announced in Apprendi, and

applied in Ring, to hold that a sentence imposed under the

Washington Sentencing Reform Act of 1981, Wash. Rev.

Code § 9.94A et seq. (2000), violated the Sixth Amendment,

because the court had found facts that permitted it to exceed

the standard maximum term permitted by the state statu-

tory guidelines system for the offense of conviction. The

Court rejected the State’s contention that the “statutory

maximum” was not the standard guidelines term but the ten-

year maximum for the offense set forth elsewhere in the

State’s statutes, explaining that “the relevant ‘statutory

(2d Cir. 2002), cert. denied, 124 S. Ct. 1185 (2004); United States v.

Parmelee, 319 F.3d 583, 592 (3d Cir. 2003); United States v. Cannady, 283

F.3d 641, 649 & n.7 (4th Cir.), cert. denied, 537 U.S. 936 (2002); United

States v. Floyd, 343 F.3d 363, 372 (5th Cir. 2003), cert. denied, 124 S. Ct.

2190 (2004); United States v. Tarwater, 308 F.3d 494, 517 (6th Cir. 2002);

United States v. Merritt, 361 F.3d 1005, 1015 (7th Cir. 2004), petition for

cert. pending, No. 03-10979 (filed June 18, 2004); United States v. Banks,

340 F.3d 688, 684-685 (8th Cir. 2003); United States v. Ochoa, 311 F.3d

1133, 1134-1136 (9th Cir. 2002); United States v. Mendez-Zamora, 296 F.3d

1013, 1020 (10th Cir.), cert. denied, 5387 U.S. 1063 (2002); United States v.

Ortiz, 318 F.3d 1080, 1039 (11th Cir. 2003).

maximum’ is not the maximum sentence a judge may impose

after finding additional facts, but the maximum he may

impose without any additional findings.” Blakely, 124 S. Ct.

at 2537. The Court “express[ed] no opinion” on whether its

decision applied to the Federal Sentencing Guidelines. Jd. at

2538 n.9.

b. Respondent in United States v. Booker, No. 04-104,

was found guilty after a jury trial of possession of at least 50

grams of cocaine base with the intent to distribute it, in

violation of 21 U.S.C. 841(a)(1) and (b)(1)(A)(iii), and distri-

bution of cocaine base, in violation of 21 U.S.C. 841(a)(1) and

(b\1C). Under 21 U.S.C. 841(b)(1)(A)(iii), the maximum

sentence for the possession offense was life imprisonment.

Booker was sentenced before Blakely was decided. In

calculating respondent’s base offense level under the Guide-

lines, the district court held him responsible for 658.5 grams

of cocaine base. It then increased the offense level based on

a finding that respondent had perjured himself at trial. The

resulting offense level was 38, which, when combined with a

criminal history category of VI (respondent had 23 prior

convictions), yielded a Guidelines range of 360 months to life

imprisonment. The court impused a prison term of 360

months. 04-104 Pet. App. la-2a; Gov’t C.A. Br. 7-12; Sent.

Tr. 7-11; PSR 4 27-49.

Shortly after Blakely was handed down, a divided court of

appeals reversed and remanded for resentencing. 04-104

Pet. App. la-27a. The majority held that Blakely precludes

a sentencing judge from increasing a defendant’s offense

level under the Guidelines on the basis of a fact that was not

found by the jury or admitted by the defendant. Jd. at 2a-

lla. The majority expressed no view on whether, as applied

to Booker, the Guidelines were invalid in their entirety or

only insofar as they permit the sentencing judge to find facts

that increase the offense level. Jd. at lla-l3a. Judge

Easterbrook dissented. He argued, inter alia, that Blakely

does not apply to the Guidelines because they are not

statutes, and that delegating to a commission the authority

to decide which facts justify an increased sentence within the

statutory range is permissible for the same reason that such

a delegation to judges is permissible. /d. at 18a-23a. He also

argued that the Federal Guidelines differ from the

Washington statutes because the Guidelines require “dozens

of findings” that may either raise or lower the sentence, such

that no finding can be said to give the defendant a “legal en-

titlement” to a particular sentence. /d. at 23a-24a.

ce. Respondent in United States v. Fanfan, No. 04-105,

was found guilty after a jury trial of conspiracy to possess

with the intent to distribute and to distribute at least 500

grams of cocaine, in violation of 21 U.S.C. 846, 841(a)(1), and

841(b)(1)(B)(ii). Under 21 U.S.C. 841(b)(1)(B)(ii), the maxi-

mum sentence for those offenses was 40 years of imprison-

ment. Fanfan’s sentencing occurred four days after Blakely

was decided. In calculating his base offense level under the

Guidelines, the district court held him responsible for 2.5

kilograms of cocaine and 281.6 grams of cocaine base. The

court then increased the offense level based on its finding

that respondent was an organizer, leader, manager, or super-

visor in the criminal activity. The resulting offense level was

36, which, when combined with a criminal history category

of I, yielded a Guidelines range of 188 to 235 months of impri-

sonment. PSR 44 1, 19, 24, 27; 04-105 Pet. App. 2a.

The court concluded that Blakely applies to the Federal

Guidelines, and that respondent therefore could not be sen-

tenced within the applicable range, because the drug

quantity and respondent’s role in the offense had not been

found by the jury. The court instead determined that the

appropriate offense level was 26, the level applicable to

offenses involving 500 grams of cocaine (the amount found by

the jury), which yielded a Guidelines range of 63 to 78

months. The court sentenced respondent to 78 months of

imprisonment. 04-105 Pet. App. 4a-13a, 15a.

The government filed a motion to correct sentence, in

which it argued that the court had committed clear error by

severing the provisions of the Guidelines that it believed

violated Blakely and applying the remaining provisions. The

district court denied the motion. 04-105 Pet. App. 22a-25a.

SUMMARY OF ARGUMENT

I. Blakely does not apply to the Federal Sentencing

Guidelines. Blakely, like its predecessors Apprendi and

Ring, announced a rule barring a judge (absent the defen-

dant’s consent) from finding facts that raise a sentence above

the otherwise-applicable statutory maximum sentence. The

Guidelines do not create statutory maximums. Rather, they

are the product of the Sentencing Commission, a body in the

judicial branch. The Commission is not a legislature and

does not perform legislative functions. The functions that it

does perform are those that have historically been carried

out by sentencing judges: defining the aggravating and

mitigating facts that should be taken into account in setting

a sentence within the statutory range. The Guidelines are

not equivalent to graduated statutory offenses with different

“degrees” of seriousness.

In a series of cases, this Court has consistently recognized

the distinction between facts that increase a defendant’s

offense level under the Guidelines and facts that increase a

statutory maximum, and it has consistently sustained a

judge’s power to find facts that raise the Guidelines sen-

tence. Those cases confirm that the Guidelines do not

establish statutory maximum terms, and their results cannot

be reconciled with a holding that Blakely applies to judicial

factfinding under the Guidelines.

If Blakely is read, however, to establish a broader rule

that extends the Sixth Amendment jury-trial right to facts

that increase the boundaries of a judge’s sentencing discre-

tion under the Guidelines, that aspect of Blakely should be

reconsidered and rejected. Reading Blakely that broadly

would require the overruling of many recent decisions and

would produce a rule for which there is no specific historical

basis. It would also thwart Congress’s considered judgment

about the necessity of establishing a sentencing commission

in the judicial branch to structure judicial sentencing discre-

tion and to eliminate invidious and unwarranted disparities

in sentencing.

Il. If Blakely is held to apply to the Guidelines, the

proper judicial response is to hold that the Guidelines as a

whole are inapplicable in cases in which the Constitution

would override the Guidelines’ requirement that the district

court find a sentence-enhancing fact. Courts would then

exercise sentencing discretion within the congressional mini-

mum and maximum terms, with the Guidelines providing

advisory guidance. The alternative—administering the

Guidelines through a series of jury verdicts on sentence-

enhancing facts—would produce a system radically different

from the one designed by Congress and the Sentencing Com-

mission. Grafting jury-trial procedures onto the Guidelines

would create a hybrid system that would not function in the

manner intended by its creators (and in some cases could

not function at all); would require extensive judicial law-

making to implement; and would undermine a key premise of

Mistretta and raise serious constitutional questions about

whether the Sentencing Commission can effectively define

offense elements that govern the primary conduct of citizens.

Rather than attempting to reconceptualize the Guidelines as

elements of federal crimes and to inject jury factfinding into

a system clearly intended to channel judicial sentencing

discretion, it should be left to Congress (and the Commis-

sion) to reconstruct a sentencing system that constitutionally

achieves the congressional goals.

ARGUMENT

I. BLAKELY DOES NOT APPLY TO THE UNITED

STATES SENTENCING GUIDELINES

Under the Fifth and Sixth Amendments, a defendant has

a right to have a fact found by a jury, based on proof beyond

a reasonable doubt, when the fact increases the statutory

maximum sentence set by the legislature. Such a fact is the

functional equivalent of an element of a greater offense than

the one carrying the otherwise-applicable statutory maxi-

mum. Apprendi v. New Jersey, 530 U.S. 466 (2000); see Ring

v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 124

S. Ct. 2531 (2004). That constitutional rule ensures that the

legislature takes responsibility for deciding what penalties

are, “in the legislature’s judgment, generally proportional to

the crime,” and it thereby provides “structural democratic

constraints” against “potentially harsh legislative action.”

Apprendi, 530 U.S. at 490-491 n.16 (internal quotation marks

omitted). The question in these cases is whether the re-

quirements of Apprendi apply to a fact that raises a defen-

dant’s offense level under the United States Sentencing

Guidelines. The answer is no, because, unlike the statutes at

issue in Apprendi, Ring, and Blakely, the Guidelines do not

set statutory maximum sentences. If, however, the Court

concludes that Blakely established a broader principle that

the jury must now find any fact that raises the upper bound

on a judge’s sentencing discretion, including findings under

the Guidelines, then that aspect of Blakely should be recon-

sidered and rejected.

A. The Requirements Of Apprendi Apply To A Fact That

Increases The Statutory Maximum Sentence

1. In Apprendi, the defendant pleaded guilty to second-

degree possession of a firearm. The New Jersey statute that

defined that offense set a statutory maximum prison term of

ten years, but under a different statute the maximum

sentence was 20 years if the defendant acted with a biased

purpose. The trial court found, by a preponderance of the

evidence, that the defendant had acted with a biased purpose

and imposed a prison term of 12 years. This Court held that

the fact of biased purpose was subject to the Constitution’s

jury-trial and proof-beyond-a-reasonable-doubt guarantees,

and that the 12-year sentence was therefore unconsti-

tutional. |

The basis for the Court’s decision in Apprendi was not

that the judge’s finding of biased purpose increased the

defendant’s sentence, but that it increased the sentence be-

yond the otherwise-applicable statutory maximum, such that

it was the functional equivalent of a different, aggravated

offense. That the decision rested on the narrower ground is

clear from the Court’s statement of its holding: “Other than

the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maxi-

mum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. at 490 (emphasis added). The

basis for the decision is also clear from tiie Court’s reasoning.

The Due Process Clause of the Fourteenth Amendment and

jury-trial provision of the Sixth Amendment precluded the

imposition of a sentence of more than ten years, the Court

said, because those protections “entitle a criminal defendant

to ‘a jury determination that [he] is guilty of every element of

the crime with which he is charged, beyond a reasonable

doubt.’” 530 U.S. at 477 (quoting United States v. Gaudin,

515 U.S. 506, 510 (1995)) (emphasis added). When a fact

results in “an increase beyond the maximum authorized

statutory sentence,” the Court explained, “it is the func-

tional equivalent of an element of a greater offense than the

one covered by the jury’s guilty verdict.” Jd. at 494 n.19

(emphasis added). Indeed, under those circumstances, the

fact “fits squarely within the usual definition of an ‘element’

of the offense.” Ibid. In Apprendi, therefore, the effect of a

finding that the defendant acted with a biased purpose was

“to turn a second-degree offense into a first-degree offense.”

Id. at 494.’

The Court explicitly recognized that the jury-trial and

proof-beyond-a-reasonable-doubt guarantees do not apply to

facts that a judge relies on to increase a sentence to a level

below the statutory maximum. The Court emphasized that

it was not “impermissible for judges to exercise discretion

—taking into consideration various factors relating both to

offense and offender—in imposing a judgment within the

range prescribed by statute,” since, as the Court has “often

noted,” judges “have long exercised discretion of this nature

in imposing sentence within statutory limits in the individ-

ual case.” Apprendi, 530 U.S. at 481 (citing Williams v. New

York, 337 U.S. 241, 246-247 (1949)).

2. In Ring, a jury found the defendant guilty of first-

degree murder. That verdict made him eligible for the death

penalty under Arizona law, but only if the trial court found

at least one of the ten aggravating circumstances enumer-

ated in the statute. The trial court found two such circum-

stances and sentenced the defendant to death. This Court

held the Arizona death-penalty statute unconstitutional

under Apprendi, because it permitted the trial court rather

than the jury to make the finding that increased the statu-

tory maximum sentence from life imprisonment to death.

Noting that “Apprendi’s sentence violated his right to ‘a jury

determination that [he] is guilty of every element of the

crime with which he is charged,’” 536 U.S. at 602 (quoting

Apprendi, 530 U.S. at 477), the Court in Ring held that

“Arizona’s enumerated aggravating factors,” like the “hate

crime” enhancement in Apprendi, “operate as ‘the functional

‘ Apprendi also noted that the ability of a judge to sentence in excess

of the statutory maximum deprived defendants of notice by precluding

their ability “to discern from the statute of indictment what maximum

punishment conviction under that statute could bring.” 530 U.S. at 488

n.10. Accord id. at 485 n.12.

equivalent of an element of a greater offense,” id. at 609

(quoting Apprendi, 530 U.S. at 494 n.19).

3. In Blakely, the defendant pleaded guilty to second-

degree kidnapping involving a firearm. Under Washington's

Sentencing Reform Act, second-degree kidnapping, when

committed by someone with the defendant’s “offender

score,” carries a sentencing range of 13 to 17 months of im-

prisonment, and, by virtue of a 36-month enhancement for

possession o/ a firearm, second-degree kidnapping involving

a firearm carries a sentencing range of 49 to 53 months. 124

S. Ct. at 2535. A sentencing judge could nevertheless impose

a sentence of up to ten years, the maximum set by a different

statute, if he determined that there was a reason for an

“exceptional sentence.” /bid. The trial court found that the

defendant had acted with “deliberate cruelty,” a statutory

basis for an exceptional sentence, and imposed a prison term

of 90 months on the basis of that finding. /d. at 2535-2536.

This Court held that the sentence violated the Sixth Amend-

ment.

The Court began its analysis by stating that the case re-

quired it to apply the rule of Apprendi, and then quoted the

familiar holding of that case: “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be sub-

mitted to a jury, and proved beyond a reasonable doubt.”

Blakely, 124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at

490). After describing how that principle was applied in

Apprendi and Ring, the Court found the principle to be

applicable in Blakely as well, because the sentence exceeded

“the 53-month statutory maximum” based on a finding of

“deliberate cruelty” and the facts supporting that finding

“were neither admitted by [the defendant] nor found by a

jury.” Id. at 2537. Rejecting the State’s contention that the

“statutory maximum” was ten years, the Court explained

that “the ‘statutory maximum’ for Apprendi purposes is the

maximum sentence a judge may impose solely on the basis of

the facts reflected in the jury verdict or admitted by the

defendant.” Jbid. (emphasis omitted). In other words, the

Court said, “the relevant ‘statutory maximum’ is not the

maximum sentence a judge may impose after finding addi-

tional facts, but the maximum he may impose without any

additional findings.” Jbid. (emphasis omitted). The Court

concluded that “(t]he ‘maximum sentence’ is no more 10

years here than it was 20 years in Apprendi (because that is

what the judge could have imposed upon finding a hate

crime) or death in Ring (because that is what the judge could

have imposed upon finding an aggravator).” Jd. at 2538.

Blakely thus applied the rule of Apprendi: that a fact

must be submitted to the jury if it increases the penalty be-

yond the “statutory maximum.” 124 S. Ct. at 2536 (quoting

Apprendi, 530 U.S. at 490). Blakely found that the relevant

“statutory maximum” was not ten years but 53 months

because, as in Apprendi and Ring, “one must start with the

lowest statutory maximum and ask the jury to make findings

that raise the sentence to which the defendant is exposed.”

04-104 Pet. App. 19a (Easterbrook, dissenting). As the Fifth

Circuit has explained, “(t}he sentencing scheme at issue in

Blakely, like that involved in Apprendi, essentially estab-

lished two distinct statutory maximum sentences”; in such a

circumstance, “it makes sense to say that the legislature has

effectively created distinct offenses.” United States v.

Pineiro, 377 F.3d 464, 473 (2004), petition for cert. pending,

No. 04-5263 (filed July 14, 2004). Thus, just as a finding of

biased purpose in Apprendi had the effect of “turn{ing] a

second-degree offense into a first-degree offense,” Apprendi,

530 U.S. at 494, and just as the offense of first-degree

murder in Ring “is properiy understood to be a lesser in-

cluded offense of ‘first-degree murder plus aggravating cir-

cumstance(s),’” Sattazahn v. Pennsylvania, 537 U.S. 101,

112 (2003) (opinion of Scalia, J.), Blakely effectively treated

the Washington legislature as “having established three de-

grees of [the] kidnapping” offense of which the defendant

was convicted, with “the distinction between [the highest

and the intermediate] * * * degree [being] deliberate

cruelty,” 04-104 Pet. App. 22a (Easterbrook, J., dissenting).

There is language in Blakely that could be read to suggest

a broader rule. See 124 S. Ct. at 2537 (“the relevant ‘statu-

tory maximum’ is not the maximum sentence a judge may

impose after finding additional facts [beyond the jury’s

verdict], but the maximum he may impose without any

additional findings”). On such a reading, the case would

establish a rule that the type of sentencing fact that must be

submitted to a jury is not merely one that increases the

otherwise-applicable statutory maximum (as Apprendi held),

but “any fact that increases the upper bound on a judge’s

sentencing discretion.” Jd. at 2546 (O’Connor, J., dissenting).

That is how the opinion was interpreted by the court of

appeals majority in Booker. See 04-104 Pet. App. 10a

(“Blakely redefined ‘statutory maximum’”). But the Court

in Blakely explicitly stated that it was “apply[ing] the rule”

of Apprendi, 124 S. Ct. at 2536, and that rule governs facts

that increase the penalty “beyond the prescribed statutory

maximum.” Ibid. Blakely (like Apprendi) involved a fact

that increased what the Court itself accurately described as

a “statutory maximum,” id. at 2537, i.e., a maximum set by

statute. Because Blakely, like Apprendi, involved multiple

statutory maximum sentences and so necessarily required a

search for “the relevant ‘statutory maximum,’” ibid., any

language in Blakely that suggests a broader rule was not

necessary to the outcome. As Judge Easterbrook observed,

in responding to the claim that “it does not matter” under

Blakely “whether the maximum is statutory,” Blakely “does

not hold that,” and indeed “could not ‘hold’ that,” given that

“it dealt with statutes exclusively.” 04-104 Pet. App. 20a

(dissenting opinion).

B. A Fact That Increases A Defendant's Offense Level

Under The Sentencing Guidelines Does Not Increase

The Statutory Maximum Sentence

Apprendi applied in Blakely because the Washington Sen-

tencing Reform Act was found to establish “statutory maxi-

mum” sentences. Apprendi does not apply here, because the

Federal Sentencing Guidelines do not establish statutory

maximum sentences.

1. The functions performed by the Sentencing Com-

mission are those that have historically been

performed by sentencing judges

a. The most basic reason that the Sentencing Com-

mission does not set statutory maximum sentences is that

Congress itself establishes such maximum terms, and the

Commission is not a legislature but “an independent com-

mission in the judicial branch,” 28 U.S.C. 991(a), which

formulates the Guidelines in order to channel judicial

discretion in sentencing. Mistretta, 488 U.S. at 395. Indeed,

one of the central reasons that this Court rejected a

separation-of-powers challenge to the Guidelines in Mis-

tretta is that the Commission does “not bind or regulate the

primary conduct of the public,” id. at 396, is not engaged in

“the legislative business of determining what conduct should

be criminalized,” id. at 407, and does not exercise “the legis-

lative responsibility for establishing minimum and maximum

penalties for every crime,” id. at 396. Rather than being

legislative, Mistretta explained, “the Commission’s functions

* * * are clearly attendant to a central element of the

historically acknowledged mission of the Judicial Branch.”

Id. at 391. In particular, the questions assigned to the Com-

mission are “precisely the questions” that were decided by

“the Judicial Branch, as an aggregate,” before the enactment

of the Sentencing Reform Act of 1984: “what sentence”

within the statutory range “is appropriate to what criminal

conduct under what circumstances.” Jd. at 395. The “every-

day business of judges, taken collectively,” was “to evaluate

and weigh the various aims of sentencing and to apply those

aims to * * * individual cases.” Jbid. Mistretta held that

the Commission “does no more than this, albeit basically

through the methodology of sentencing guidelines, rather

than entirely individualized sentencing determinations.”

Ibid.

Mistretta thus confirms that the Sentencing Commission,

which considers and then regularizes the same factors that

courts had always considered in imposirig sentence, exer-

cises functions that have historically been carried out by

sentencing judges, not by Congress. No one would suggest

that facts found by a sentencing judge before the advent of

the Guidelines were subject to the requirements of the Sixth

Amendment. Apprendi explicitly stated that its holding

does not prevent judges from “taking into consideration

various factors relating both to offense and offender” in “im-

posing a [sentence] within the range prescribed by statute,”

530 U.S. at 481 (emphasis omitted), and it explicitly distin-

guished a “factor” of this type from a fact that results in “an

increase beyond the maximum authorized statutory sen-

tence,” such that the fact is “the functional equivalent of an

element of a greater offense,” id. at 494 n.19. Blakely, too,

acknowledged that Apprendi does not prohibit “judicial fact-

finding” when the judge is “rul{ing] on those facts he deems

important to the exercise of his sentencing discretion.” 124

8 This view is consistent with the fact that, in formulating the Guide-

lines, the Commission canvassed prior sentencing practices and attempted

to identify all the factors that judges traditionally used in determining an

appropriate sentence. See United States Sentencing Comm'n, Supple-

mentary Report on the Initial Sentencing Guidelines and Policy State-

ments 16-17 (1987). See also 28 U.S.C. 994(m) (requiring Commission to

“ascertain the average sentences * * * prior to the creation of the

Commission”). In formulating such pre-Guidelines sentences, judges had

considered a “wide variety of factors in addition to evidence bearing on

guilt.” Nichols v. United States, 511 U.S. 738, 747 (1994).

S. Ct. at 2540. Since the Sentencing Commission does

“no more” than what sentencing judges did under the old

regime, Mistretta, 488 U.S. at 395, “the Commission’s act of

establishing sentencing ranges in the Guidelines is categori-

cally different from the legislative act of setting a maximum

penalty in a substantive criminal statute,” United States v.

Kinter, 235 F.3d 192, 201 (4th Cir. 2000), cert. denied, 532

U.S. 937 (2001). And since “Blakely itself * * * tells us

that legislatures may delegate such issues to the judiciary

* * * without offending the [S]ixth [A]mendment,” 04-104

Pet. App. 21a (Easterbrook, J., dissenting), Blakely should

not prevent Congress from delegating the issues to a com-

mission that has taken on an “historically acknowledged

mission of the Judicial Branch,” Mistretta, 488 U.S. at 391.

A conclusion that the Sixth Amendment does not apply to

a delegation of authority to sentencing judges, but does

apply to a delegation to a sentencing commission, would be

particularly anomalous in light of the underlying purpose for

authorizing a commission in the judicial branch to promul-

gate sentencing guidelines. The delegation of discretion to

individual judges to find facts relevant to sentencing re-

sulted in widely disparate and potentially arbitrary sen-

tences for similarly situated defendants. The delegation to

the Sentencing Commission grants no additional factfinding

power to sentencing judges, as opposed to juries, but seeks

only to channel judicial discretion in order to eliminate

unwarranted disparities. As Judge (then Professor) Lynch

has observed,

[iJf it was aceeptable for a judge * * * to decide that the

defendant before him was a Mafia member who com-

mitted the assault on orders of a crime boss, rather than,

as he contended, just an acquaintance of the victim who

acted out of anger, and to allow that fact to influence the

degree of punishment or ‘correction’ required for the

defendant, it is difficult * * * to see why the fact must

be proved beyond a reasonable doubt to a jury once an

institutional mechanism is in place to insist that the few

judges who would not have regarded this fact as relevant

on their own take it into account nevertheless.

Gerard E. Lynch, Towards A Model Penal Code, Second

(Federal?): The Challenge of the Special Part, 2 Buff. Crim.

L. Rev. 297, 321 (1998). Accord United States v. Koch, No.

02-6278, 2004 WL 1899930, at *5 (6th Cir. Aug. 26, 2004) (en

banc) (“If federal judges * * * may consider facts that

increase sentences in an indeterminate sentencing regime, is

it not permissible for this branch of government collectively

to channel the consequences of these facts based on their

group experience?”).

In Blakely, the Court said that the Sixth Amendment

does not apply to facts that a judge “deems important to the

exercise of his sentencing discretion” under a system of

discretionary sentencing because such facts “do not pertain

to whether the defendant has a legal right to a lesser sen-

tence.” 124 S. Ct. at 2540. But the Commission’s systema-

tizing of the general manner in which courts exercise their

sentencing discretion should not produce a radical change in

the way in which the facts bearing on the exercise of

sentencing discretion must be found. Even under a system

of discretionary sentencing, a legislature could have required

all judges in a district to participate in “sentencing councils”

in an effort to regularize their practices.” The legislature

could have further authorized appellate review to ensure

that judges exercised discretion in light of the work of the

councils, and that unjustified departures from a council’s

9 In fact, before the Guidelines, Congress authorized judicial institutes

and councils “to formulate standards and criteria for sentencing.” Mis-

tretta, 488 U.S. at 365 (citing 28 U.S.C. 334). The councils, which could not

establish enforceable norms, were not viewed as a sufficient means to

relieve sentencing disparities. See Symposium, Appellate Review of Sen-

tences, 32 F.R.D. 249, 270 (1962).

suggested sentences, within the wide ranges afforded by

statute, constituted an abuse of discretion. Over time,

through a common-law process, reviewing courts could have

developed a body of precedent that gave rise to legal norms

on how long a sentence should be for particular conduct. Cf.

04-104 Pet. App. 2la (Easterbrook, J., dissenting) (noting

that a district court could have set forth in written opinions,

“as a matter of common law,” the factors on which it would

rely in imposing sentence within the statutory range in

different types of cases, e.g., “10 years unless the burglar

uses a gun; if a gun, then 40 years”). Such a system could be

understood as conferring a “legal right” on a defendant to be

sentenced in accordance with the appellate “guidelines.” But

it could not be maintained that the judiciary’s own creation

of systematic standards for considering sentencing factors

constituted the creation of new elements of offenses. There

is no greater reason to apply the Sixth Amendment to the

present system, under which accumulated judicial wisdom

about the facts that matter at sentencing is collectively

reflected in rules promulgated by a commission in the

judicial branch.

b. There are respects in which Congress’s delegation of

authority to the Sentencing Commission differs from its

delegation to sentencing judges in the pre-Guidelines era.

For one thing, Guidelines promulgated by the Commission

must be submitted to Congress and do not take effect for a

period of 180 days, during which time Congress may

“modifly] or disapprove[]” the proposed guidelines. 28

U.S.C. 994(p). Even after Guidelines have taken effect, Con-

gress can “revoke or amend” them “at any time.” Mistretta,

488 U.S. at 393-394. And Congress has in fact exercised

that authority. It has rejected proposed guidelines; it has

directed the Commission to review and, if appropriate,

1 See Act of Oct. 30, 1995, Pub. L. No. 104-38, § 1, 109 Stat. 334.

amend Guidelines; and it has even enacted Guidelines

amendments itself.”

The delegation to the Sentencing Commission also differs

from a delegation to judges in that the Sentencing Reform

Act provides that, except in the unusual case in which a

departure is justified, a district court “shall impose a sen-

tence of the kind, and within the range,” set by the Guide-

lines. 18 U.S.C. 3553(b). As this Court has observed,

Congress has thereby made the Guidelines “binding on

federal courts.” Stinson v. United States, 508 U.S. 36, 42

(1993).

Finally, the courts of appeals have widely held that the Ex

_ Post Facto Clause applies to changes in the Guidelines. See

United States v. Bell, 991 F.2d 1445, 1447 & n.4 (8th Cir.

1993). Since this Court has made clear that “the Ex Post

Facto Clause does not apply to judicial decisionmaking,”

Rogers v. Tennessee, 532 U.S. 451, 462 (2001) (emphasis

added), that Clause would have no force in regulating

whether a judge in the pre-Guidelines system could impose a

higher sentence on the basis of a fact that he would not have

relied upon at the time of the offense. The application of the

Ex Post Facto Clause to the Guidelines thus suggests that

they are “legislative” for that purpose. Cf. Miller v. Florida,

482 U.S. 423 (1987) (applying Ex Post Facto Clause to

revised state statutory guidelines).

The differences between Congress's delegation of author-

ity to the Sentencing Commission and its earlier delegation

to district courts, however, do not make the Commission

more like an agent of the legislature than like a vehicle for

distilling the collective practices of sentencing judges as a

whole and rationalizing and harmonizing those practices in

'! See 28 U.S.C. 994 note (Provisions for Review, Promulgation, or

Amendment of Federal Sentencing Guidelines).

2 See PROTECT Act, Pub. L. No. 108-21, § 401(b). (g), and (i), 117

Stat. 668-669, 671-673 (2003).

light of the defined purposes of sentencing. Congress is

accountable for the definition of crimes and the maximum

penalties for the prohibited conduct, such that the legislature

remains responsive to “structural democratic constraints” in

fixing the maximum punishment that is proportionate to a

crime. Apprendi, 530 U.S. at 490-491 n.16. Congress con-

tinues to exercise that responsibility by increasing maximum

sentences for crimes it deems particularly serious. The jury-

trial guarantee is not offended by permitting an independent

commission in the Judicial Branch to examine the charac-

teristics that differentiate offenders and to make refine-

ments in where defendants fall on the spectrum of offenders

who violate a particular statute. The jury-trial guarantee

does not mandate that all facts that increase a sentence

within a statutory range must be treated as elements. See

Williams v. New York, 337 U.S. 241 (1949). Rather, the

guarantee applies only to those facts that increase a sentence

above what the legislature has found to be warranted by the

elements specified in the statute.

2. The Sentencing Guidelines bear no resemblance

to a graduated statutory offense with different

“degrees” of seriousness

The principle of Apprendi is that the Constitution’s jury-

trial and proof-beyond-a-reasonable-doubt guarantees apply

to any fact that is “the functional equivalent of an element of

a greater offense than the one covered by the jury's guilty

verdict.” 530 U.S. at 494 n.19. That principle could be said

to apply in Blakely on the premise that the Washington

statutes effectively created statutory offenses whose “de-

gree” depends on the presence or absence of a particular

aggravating fact. The Washington scheme imposed multiple

statutory maximum sentences and required the courts to

identify the “relevant” statutory maximum. The United

States Sentencing Guidelines, however, cannot be under-

stood as creating grades of statutory offenses.

a. Under the Washington Sentencing Reform Act con-

sidered in Blakely, for every crime, there was a particular

sentencing range for the simplest form of an offense of con-

viction combined with the defendant’s criminal history (the

“standard range”); additional prison time could be added to

the standard range based on the presence of one or more of a

limited number of designated aggravating facts (such as use

of a firearm); and the standard range could be increased

further based on the presence of one or more other aggra-

vating facts, which need not be those listed in the statute

(an “exceptional sentence”). See Wash. Rev. Code

§$§ 9.944.125, .310, .350, .360, .370, and .390 (2000). For each

offense in Washington’s Criminal Code, Wash. Rev. Code tit.

9A (2000), therefore, the Washington Sentencing Reform

Act set the penalties for the basic offense and aggravated

forms of the offense. In Blakely, for example, the three

forms of the offense were second-degree kidnapping (punish-

able by 13 to 17 months of imprisonment), second-degree

kidnapping involving a firearm (punishable by 49 to 53

months), and second-degree kidnapping involving a firearm

and deliberate cruelty (punishable by up to ten years).

The Washington scheme thus resembles federal statutes

that set three different maximum penalties for an offense

depending on the presence or absence of certain aggravating

facts. For example, under 18 U.S.C. 111 (as amended by the

Federal Judiciary Protection Act of 2002, Pub. L. No. 107-

273, § 11008(b), 116 Stat. 1818), “simple assault” is punish-

able by a maximum of one year in prison and “all other”

assaults are punishable by a maximum of eight years, unless

the defendant “use{d] a deadly or dangerous weapon” or

“inflict{ed) bodily injury,” in which case the maximum sen-

tence is 20 years. And under 21 U.S.C. 841(b)(1), a cocaine

offense committed by a defendant with no prior felony drug

convictions is punishable by a maximum of 20 years of

imprisonment if it involved an unspecified quantity of drugs;

a maximum of 40 years if it involved a threshold quantity of

drugs (at least 500 grams of cocaine); and a maximum of life

if it involved a higher threshold quantity (at least five kilo-

grams of cocaine). Apprendi indisputably applies to 18

U.S.C. 111," to 21 U.S.C. 841(b)(1)," and to other federal

statutes with three different maximum penalties.” Those

statutes necessarily require the identification of the “rele-

vant” statutory maximum. Certain facts move a defendant

from one statutory offense to another, and those facts must

be considered, for Apprendi purposes, as elements that alter

the statutory maximum sentence. Similar logic can explain

the Court’s application of Apprendi to Washington's Sen-

tencing Reform Act in Blakely. See 04-104 Pet. App. 18a

(Easterbrook, J., dissenting) (Blakely is this Court’s “ana-

log” to Seventh Circuit case applying Apprendi to 21 U.S.C.

841(b)(1)).

b. Unlike the New Jersey statutes at issue in Apprendi,

the Arizona statutes at issue in Ring, and the Washington

statutes at issue in Blakely, the Guidelines do not “divide

crimes into narrow degrees and standard categories,” but

instead “provide a methodology for assessing the seriousness

of different instances of crime, quite separate from the ele-

ments of any particular statutory crime.” United States v.

Emmenegger, No. 04 CR. 334 (GEL), 2004 WL 1752599, at

*16 (S.D.N.Y. Aug. 4, 2004) (Lynch, J.). There are funda-

13 See United States v. Campbell, 259 F.3d 293, 298-299 (4th Cir. 2001);

United States v. McCulligan, 256 F 3d 97, 99-100 (3d Cir. 2001).

4 See United States v. Longoria, 298 F.3d 367, 368 (5th Cir.) (en banc)

(per curiam) (courts of appeals “have unanimously agreed that drug

quantities triggering increased penalties under 21 U.S.C. § 841 are facts

that must be submitted to a jury and charged in an indictment under the

Apprendi rule”), cert. denied, 537 U.S. 1038 (2002).

15 See, e.g., United States v. Williams, 343 F.3d 423, 432-434 (5th Cir.)

(18 U.S.C. 242 (deprivation of rights under color of law)), cert. denied, 124

S. Ct. 966 (2003); United States v. Friedman, 300 F.3d 111, 127 (2d Cir.

2002) (18 U.S.C. 1952 (interstate travel in aid of racketeering)), cert.

denied, 538 U.S. 981 (2003).

mental differences between that methodology and the man-

ner in which the Washington statutes operate.

First, the Washington statutes can be seen as defining

offenses of three grades: one that carries the standard sen-

tence; one that carries the standard sentence increased by

additional time; and one that carries an exceptional sentence.

Under the Guidelines, by contrast, multiple factors, defined

by the Commission, influence the sentence imposed under a

single statutory maximum. Congress has not created alter-

native possible statutory maximum sentences, and there is

thus no need to identify the “relevant” one.

Unlike a traditional statute defining simple and aggra-

vated forms of an offense, the Sentencing Guidelines seek to

“reflect every important factor relevant to sentencing for

each category of offense and each category of offender.”

Senate Report 169. Under the principal drug Guideline, for

example, there are 19 possible base offense levels, five

specific offense characteristics that can increase the offense

level, and two cross-references requiring the application of a

different Guideline. Guidelines § 2D1.1. And under the

principal theft and fraud Guideline, there are 14 separate

specific offense characteristics that can increase the defen-

dant’s offense level. Jd. § 2B1.1(b). There are also a dozen

upward adjustments that could apply in any case—one of

two possible adjustments for victim vulnerability, id.

§ 3A1.1(b); four others relating to the victim, id. §§ 3A1.1(a),

3A1.2, 3A1.3; one relating to terrorism, id. § 3A1.4; one of

three possible adjustments for the defendant’s role in the

offense, id. § 3B1.1; one for abuse of trust or use of a special

skill, id. § 3B1.3; one for use of a minor, id. § 3B1.4; one of

two possible adjustments for use of body armor, id. § 3B1.5;

one for obstruction of justice, id. § 3C1.1; and one for

reckless endangerment during flight, id. § 3C1.2.

In determining whether each of these facts is present in a

particular case, the sentencing judge is required to consider

not merely the offense of conviction but all “relevant

conduct.” Guidelines § 1B1.3(a). That concept imeludes “all

acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the

defendant” that occurred “during the commission of the

offense of conviction, in preparation for that offfense, or in

the course of attempting to avoid detection or responsibility

for that offense.” Jd. § 1B1.3(a)(1)A). In cases involving

jointly undertaken criminal activity, it also includes “all rea-

sonably foreseeable acts and omissions of others” in further-

ance of such activity that occurred in connection with the

offense of conviction. /d. § 1B1.3(a)(1)(B). Amd in cases

where the offense level is determined largely on tthe basis of

some measure of aggregate harm (including fraud and drug

cases), it also includes all acts and omissions that were “part

of the same course of conduct or common scheme or plan as

the offense of conviction.” Jd. § 1B1.3(a)(2).

The myriad of relevant factors and possible sentences

reflects the Guidelines’ purpose of channeling discretion,

rather than creating elements of distinct crimes. In view of

the “complex interactions” among “the dozens of findings

that matter to the Guidelines’ operation in each case,” 04-104

Pet. App. 23a-24a (Easterbrook, J., dissenting),, facts that

increase a defendant’s offense level cannot reasonably be

viewed as the functional equivalent of elements of greater

offenses. It would be particularly difficult to comceptualize

relevant conduct—conduct that, “very roughly speaking,

corresponds to those actions and circumstances tthat courts

typically took into account when sentencing pirior to the

Guidelines’ enactment,” United States v. Wrightt, 873 F.2d

437, 441 (1st Cir. 1989) (Breyer, J.), quoted in Umited States

v. Watts, 519 U.S. 148, 152 (1997) (per curiam)—as an ele-

ment of a greater offense, since relevant conduct. by defini-

tion, falls outside the boundaries of the conduct constituting

the offense. Thus, while it may make sense, when viewing

Washington’s Sentencing Reform Act through a Sixth

Amendment prism, to regard the Act as defining’ three “de-

grees” of every offense in its Criminal Code, it is not

reasonable to think that, for each offense in the United

States Code, there are “a hundred different * * * ‘offenses’

corresponding to the myriad possible permutations of Guide-

lines factors.” Pineiro, 377 F.3d at 473.

Second, under the Washington statutes, the offense of

conviction dictates a particular “seriousness level,” which in

turn (in combination with the defendant's “offender score”)

dictates a “standard sentence range” that can be viewed as

the maximum penalty for the lowest “degree” of the offense

at issue. “No ‘standard’ sentence * * * emerges from

the Guidelines in the same way that it does for the [system]

* * * that Washington's legislature adopted.” Koch, 2004

WL 1899930, at *6. Indeed, the Guidelines “defy any effort

to identify a ‘standard sentencle| range’” for a particular

offense, Emmenegger, 2004 WL 1752599, at *16, because

they do not set a penalty for the offense of conviction. Un-

like the “seriousness level” of the offense of conviction under

the Washington statutes, a defendant's base offense level

under the Guidelines does not correspond to any particular

sentence, because a Guidelines range cannot be determined

until the judge applies specific offense characteristics and

adjustments under Chapter Three (which can either increase

or decrease the offense level); “groups” the counts (in a

multi-count case) and adjusts the offense level accordingly;

reduces the offense level (if appropriate) for acceptance of

responsibility; calculates the defendant's criminal history

category; and then makes any further adjustments under

Chapter Four. See Guidelines § 1B1.1(a)-(g).

Not only is there no corresponding Sentencing Guidelines

range for the offense of conviction, there is frequently no

corresponding base offense level. While the Guideline that

is applicable in a given case depends on the offense of

conviction, Guidelines §§ 1B1.1(a), 1B1.2(a), the applicable

Guideline will often require the sentencing judge to apply

one rather than another of multiple base offense levels, e.g.,

id. § 2A5.2(a), or direct the judge to a different Guideline

entirely, e.g., id., § 2B1.1(c), if a particular fact, taking into

account all relevant conduct, see id. § 1B1.3(a)(i) and (iii), is

found to be present.

Third, under the Guidelines, when the offense level is

increased on the basis of a specific offense characteristic or

adjustment, the resulting offense level, like the base offense

level, does not correspond to any particular sentencing

range. Unlike the Washington statutes, the Guidelines do

not establish an increased “standard sentence range” for a

higher “degree” of the offense at issue, because, before a

Guidelines range can be calculated, there may be reductions

(as well as increases) in the offense level under Chapter Two,

Chapter Three, or both. See, e.g., Guidelines § 2D1.1(b (6)

(“safety valve” in drug case); id. § 3B1.2 (minor or minimal

role); id. § 3E1.1 (acceptance of responsibility). The Guide-

lines are not a system of isolated enhancements that are

individually applied to create higher “degrees” of the offense

of conviction, but an integrated system of enhancements and

reductions that in combination yield a sentencing range for

each defendant. Thus, in contrast to statutory maximum

terms, which are approved by Congress, clear on the face of

a law, and applicable to all defendants sentenced under that

provision, Guidelines maximums are litigated case-by-case

for each defendant, vary considerably depending on the

facts, and are not specifically approved by Congress.

C. This Court Has Consistently Recognized The Distinc-

tion Between A Fact That Increases The Statutory

Maximum And A Fact That Increases A Defendant's

Offense Level Under The Guidelines

In the seven years before Apprendi was decided, this

Court decided four cases involving sentence-enhancing facts

under the Guidelines. While none presented a claim that the

Sixth Amendment precludes sentencing judges from finding

such facts, in each case “the Court addressed a question not

dissimilar to the one presented here,” Koch, 2004 WL

1899930, at *3, and in each case it “affirmed sentences that

would appear to present the very concerns that some now

argue invalidate the Guidelines,” Emmenegger, 2004 WL

1752599, at *11. It did so, moreover, unanimously in two of

the cases; by summary disposition in a third; and “without a

murmur of constitutional qualm” in any. Jbid. In rejecting

challenges to Guidelines sentences, these decisions also did

what the decisions below did not: they “embraced and re-

lied” on “the proposition that the United States Code, and

not the Guidelines, establishes maximum sentences for

offenses,” Pineiro, 377 F.3d at 471, 473, and they treated

facts that mandate a higher sentence under the Guidelines as

the analytical equivalent of facts that might have led to a

higher sentence as a matter of judicial discretion in the pre-

Guidelines era. These decisions have thus “articulated a

particular vision of the interaction between the Guidelines

and the United States Code,” Pineiro, 377 F.3d at 473, and

that vision is fundamentally at odds with the view that

Apprendi or Blakely applies to the Guidelines.

1. In United States v. Dunnigan, 507 U.S. 87 (1993), the

Court unanimously held that, upon a determination by the

sentencing judge that the defendant committed perjury at

trial, “an enhancement of sentence is required” by Section

3C1.1 of the Guidelines. /d. at 98. Rejecting the contention

that such a requirement is “in contravention of the privilege

of an accused to testify in her own behalf,” ibid., the Court

found the case indistinguishable from United States v. Gray-

son, 438 U.S. 41 (1978), a pre-Guidelines case that “upheld a

sentence increase based on an accused’s false testimony at

trial,” Dunnigan, 507 U.S. at 91. In following Grayson, the

Court found it irrelevant that the Guidelines enhancement,

unlike the one at issue in that case, “stems from a con-

gressional mandate rather than from a court's discretionary

judgment.” /d. at 98. The Court also rejected the notion

that “the enhancement is * * * a mere surrogate for a

perjury prosecution,” noting that “[t)he perjuring defen-

dant’s willingness to frustrate judicial proceedings to avoid

criminal liability suggests the need for incapacitation and

retribution is heightened as compared with the defendant

charged with the same crime who allows judicial proceedings

to progress without resorting to perjury.” Jd. at 97-98.

2 In Witte v. United States, 515 U.S. 389 (1995), the

defendant had engaged in two related drug transactions but

was initially prosecuted only for the second. After a guilty

plea, the sentencing judge treated both transactions as rele-

vant conduct in calculating the drug quantity for which the

defendant was responsible under Section 2D1.1 of the Guide-

lines, with the result that his offense level was higher than it

would have been if the first transaction had been excluded.

When the defendant was subsequently prosecuted for the

first transaction, the district court dismissed the indictment

on double-jeopardy grounds.

This Court held that the dismissal was improper. It found

the case to be governed by Williams v. Oklahoma, 358 U.S.

576 (1959), a pre-Guidelines case holding that “use of evi-

dence of related criminal conduct to enhance a defendant's

sentence for a separate crime within the authorized-statu-

tory limits does not constitute punishment for that conduct

within the meaning of the Double Jeopardy Clause.” 515

U.S. at 399. Applying that principle, the Court found no

double-jeopardy violation, because, while including the drugs

from both transactions had increased the Sentencing Guide-

lines range, the range “still [fell] within the scope of the

legislatively authorized penalty,” which was 5 to 40 years.

Ibid. In relying on Williams, the Court rejected the sug-

gestion that “the Sentencing Guidelines somehow change the

constitutional analysis.” Jd. at 401. Noting that “(t}he rele-

vant conduct provisions are designed to channel the sen-

tencing discretion of the district courts and to make manda-

tory the consideration of factors that previously would have

been optional,” the Court concluded that a defendant “has

not been ‘punished’ any more for double jeopardy purposes

when relevant conduct is included in the calculation of his

offense level than when a pre-Guidelines court, in its dis-

cretion, took similar uncharged conduct into account.” /d. at

401-402.

A holding that Apprendi applies to the Guidelines could

not be reconciled with Witte. If the Guidelines offense level

for a defendant found guilty of drug transaction A can be

increased on the basis of drug transaction B only if drug

transaction B is charged in the indictment and found by the

jury based on proof beyond a reasonable doubt, it would

appear that, contrary to Witte’s holding, the government

could not charge drug transaction B as a stand-alone crime in

a subsequent case. That is because drug transaction B would

be the functional equivalent of a lesser included offense of

the “greater offense” of “drug transaction A plus drug trans-

action B,” and the Double Jeopardy Clause prohibits a prose-

cution for a lesser included offense following a prosecution

for the greater offense. See Brown v. Ohio, 432 U.S. 161,

168-169 (1977). Nor is it clear that Witte could be distin-

guished on the ground that, while drug transaction B might

be an element of a greater offense for purposes of the jury-

trial guarantee of the Sixth Amendment, it would not be one

for purposes of the Double Jeopardy Clause of the Fifth

Amendment, because there is arguably “no principled rea-

son” to say that an offense or element under the former

differs from an “offence” or element under the latter. Satta-

zahn v. Pennsylvania, 537 U.S. at 111 (opinion of Scalia, J.).

3. In United States v. Watts, 519 U.S. 148 (1997) (per

curiam), the Court summarily reversed two decisions of the

Ninth Circuit on the ground that they conflicted both with

the Sentencing Guidelines and with this Court’s double-

jeopardy holding in Witte. The Court held that a sentencing

judge may treat “conduct of which a defendant has been

acquitted” as relevant conduct in calculating the Guidelines

offense level in a case where the jury returned a partial

acquittal, id. at 154, “so long as that conduct has been proved

by a preponderance of the evidence,” id. at 157. Citing

several of its decisions, including Williams v. New York,

supra, see 519 U.S. at 151-152, the Court observed that it

was “well established” under “the pre-Guidelines sentencing

regime” that “a sentencing judge may take into account facts

introduced at trial relating to other charges, even ones of

which the defendant has been acquitted.” Jd. at 151-152

(quoting United States v. Donelson, 695 F.2d 583, 590 (D.C.

Cir. 1982) (Scalia, J.)). The Court explained that the Guide-

lines “did not alter this aspect of the sentencing court’s dis-

cretion,” because “relevant conduct” under the Guidelines

roughly corresponds to “those actions and circumstances

that courts typically took into account when sentencing prior

to the Guidelines’ enactment.” Jbid. (quoting Witte, 515 U.S.

at 402, in turn quoting Wright, 873 F.2d at 441). Applying

Apprendi to the Guidelines could not be reconciled with

Watts any more than with Witte, because a rule that only

facts found by a jury can be used to increase a defendant’s

offense level is directly contrary to Watts’ holding that an

offense level may be increased on the basis of facts that the

jury affirmatively declined to find.

4. In Edwards v. United States, 523 U.S. 511 (1998), the

defendants were charged with conspiracy to possess, with

the intent to distribute, cocaine and cocaine base. The jury

returned a general verdict of guilty, after being instructed

that it could reach that verdict if it found that either drug

was the object of the conspiracy. In calculating the defen-

dants’ base offense levels, the sentencing judge included

both cocaine and cocaine base, with the result that the

Guidelines sentences were higher than they would have been

if only cocaine had been included. Relying on the drug-con-

spiracy statute (21 U.S.C. 846), the Due Process Clause, and

the Sixth Amendment's jury-trial guarantee, 96-8732 Pet.

Br. 11-46, the defendants argued that, because there was no

special verdict on the type of drug, the judge should have

treated the verdict as a finding that the object of the con-

spiracy was cocaine, which is punished more leniently than

cocaine base.

In a unanimous opinion, this Court disagreed. Even if

the defendants were correct, the Court explained, “it would

make no difference to their case,” because “the Guidelines

instruct a sentencing judge to base a drug-conspiracy of-

fender’s sentence on the offender’s ‘relevant conduct,’”

Edwards, 523 U.S. at 514, and the judge correctly found that

the relevant conduct in that case included both cocaine and

cocaine base. The Court went on to say that “[o]f course” the

defendants’ “statutory and constitutional claims” would

make a difference if “the sentences imposed exceeded the

maximum that the statutes permit for a cocaine-only con-

spiracy,” because “a maximum sentence set by statute

trumps a higher sentence set forth in the Guidelines.” 523

U.S. at 515 (citing Guidelines § 5G1.1). The defendants’

claims did not make a difference in that case because “the

sentences imposed were within the statutory limits appli-

cable to a cocaine-only conspiracy.” IJbid. (citing 21 U.S.C.

841(b)(1)-(3)). Edwards thus places dispositive weight on the

distinction between a statutory maximum sentence and a

Guidelines offense level, and while the opinion did not

address whether a jury must find a fact that increases the

statutory maximum, it squarely held that the sentencing

judge may find facts that increase the Guidelines sentence.

What the Court said in Edwards it said again two years

later in Apprendi. In a footnote near the end of its opinion,

immediately after stating that the Sentencing Guidelines

were not before the Court and that it was therefore ex-

pressing no view on them “beyond what this Court has

already held,” the Court quoted Edwards’ statement that

the result in that case would have been different if “the sen-

tences imposed exceeded the maximum that the statutes

permit for a cocaine-only conspiracy,” because “a maximum

sentence set by statute trumps a higher sentence set forth in

the Guidelines.” Apprendi, 530 U.S. at 497 n.21 (quoting

523 U.S. at 515). Recognizing “the links connecting the

[Sixth [A]mendment, Apprendi, Edwards, statutory maxi-

mums, and the * * * Sentencing Guidelines,” 04-104 Pet.

App. 17a (Easterbrook, J., dissenting), lower courts have

“read Apprendi as intending to leave undisturbed the rule,

described in Edwards, that the sentencing judge may

properly find facts that move the Guidelines range within

the statutory maximum,” Pineiro, 377 F.3d at 472. This

Court could not hold that Apprendi applies to the Guidelines

without disavowing Edwards, as well as Watts, Witte, and

Dunnigan, and saying that the Court has “recently dis-

covered a constitutional principle rendering unconstitutional

all the sentencing practices affirmed in those decisions.”

Emmenegger, 2004 WL 1752599, at *11. Particularly be-

cause the Guidelines fundamentally differ from the Washing-

ton statutes to which Apprendi was held to apply in Blakely,

there is no reason for the Court to take the extraordinary

step of abandoning four precedents that were decided within

the last dozen years.

Indeed, a holding that Apprendi applies to the Guidelines

would undermine one of the central premises of Mistretta

itself. If every fact that enhances the offense level under the

Guidelines truly creates a “greater offense,” then, contrary

to Mistretta’s rationale for upholding the Guidelines against

a separation-of-powers challenge, it would appear that the

Sentencing Commission does “bind [and] regulate the pri-

mary conduct of the public,” 488 U.S. at 396; that it is en-

gaged in the “business of determining what conduct should

be criminalized,” id. at 407; and that it does establish “maxi-

mum penalties for every crime,” id. at 396. See also pp. 63-

66, infra."

" 16 4 decision applying Blakely to the Guidelines would also appear to

invalidate, on its facts, the result in Harris v. United States, 536 U.S. 545

(2002), which upheld an increase in a defendant's mandatory minimum

D. If Blakely Would Require That A Guidelines Range Be

Treated As A Statutory Maximum, That Aspect Of

Blakely Should Be Reconsidered

If Blakely “redefined ‘statutory maximum,’” 04-104 Pet.

App. 10a, to omit the word “statutory,” such that “an ele-

ment of a greater offense,” Apprendi, 530 U.S. at 494 n.19,

now means “any fact that increases the upper bound on a

judge’s sentencing discretion,” Blakely, 124 S. Ct. at 2546

(O'Connor, J., dissenting), then it would be hard to argue

that Blakely does not apply to the Guidelines. If the consti-

tutionally relevant maximum sentence is not the maximum

set by Congress, but is instead “the maximum sentence a

judge may [legally] impose * * * without any additional

findings” beyond “the facts reflected in the jury verdict or

admitted by the defendant,” id. at 2537 (emphasis omitted),

then the Guidelines set maximum sentences. If that is what

the Court held in Blakely, however, that aspect of its holding

is erroneous, and should be reconsidered and rejected.

1. The opinion in Blakely offers no direct historical sup-

port for broadening the definition of an “element” from a fact

that increases the statutory degree of an offense to a fact

that raises the upper limit on the sentencing judge’s discre-

tion below the maximum set by Congress. The opinion says,

for example, that the Court “compiled the relevant authori-

ties in Apprendi,” 124 S. Ct. at 2536, but that case applied

the narrower definition of “element” and adduced no histori-

sentence from five to seven years based on a judge's finding that the

defendant brandished a firearm under 18 U.S.C. 924(c1AMii). As

Justice Thomas pointed out in dissent in Harris, 536 U.S. at 578 & n.4, the

maximum Guidelines sentence for a violation of Section 924(c) is the

“minimum term required by the relevant statute. . .. A sentence above

the minimum term . . . is an upward departure.” /d. at 578 n.4 (quoting

Guidelines § 2K2.4, comment. (n.1) (Nov. 2001)). Given that Guideline, a

finding of brandishing by the court increased the permissible maximum

Guidelines sentence (absent a departure, which would itself have required

additional facts) from five years to seven years of imprisonment.

eal authorities that considered efforts to structure discretion

of a sentencing court within the defined minimum and

maximum terms, as the Sentencing Guidelines do.

Nor does the majority opinion adequately explain how a

broader definition of “element” can be reconciled with the

undisputed principle that the jury-trial guarantee does not

apply to facts that trial judges have historically relied upon

to increase a sentence within the statutorily authorized

range. The opinion does say that such facts are not subject

to the Sixth Amendment because they “do not pertain to

whether the defendant has a legal right to a lesser sentence.”

124 S. Ct. at 2540. But it is not intuitively obvious why that

should matter to a defendant whose sentence within a statu-

tory range is in fact increased by factual findings by a judge

exercising unfettered discretion. While there may be justifi-

cation for treating distinct conduct that must be shown in

order to trigger a distinct and higher statutory maximum as

equivalent to a statutory element, it is not the case that

every fact that limits the discretion of a sentencing judge

satisfies the ordinary definition of “element”—e., a “factual

component(],” Monge v. California, 524 U.S. 721, 737 (1998)

(Sealia, J., dissenting), or “ingredient(],” Apprendi, 530 US.

at 500 (Thomas, J., concurring), of a criminal offense. Cf.

Harris v. United States, 536 U.S. 545 (2002) (facts that limit

judicial discretion by requiring an increased mandatory mini-

mum within the statutory range are not subject to Ap-

prendi). And since structured discretionary sentencing did

not exist at the time the Bill of Rights was adopted, there is

no historical evidence on the question whether a fact of this

type should be considered an “element” for purposes of the

Sixth Amendment.

The notion that any fact that raises the upper bound on a

sentencing judge’s discretion within a statutorily designated

range is an “element,” therefore, is, in the end, little more

than an unsupported assumption. Without a clear textual

command in the Constitution or compelling historical evi-

dence, both of which are decidedly absent here, there is no

warrant for the Court to override a legislative determination

that a judge, rather than a jury, may find the facts that limit

the judge’s discretion to impose a sentence within the statu-

torily authorized range. Cf. Harris v. United States, 536

U.S. at 560 (plurality opinion) (conclusion that fact requiring

imposition of statutory minimum sentence is not element of

offense “might be questioned” if there were “extensive

{contrary} historical evidence,” but “(t]he evidence on this

score * * * is lacking,” because mandatory minimums are

“for the most part the product of the 20th century”).

2. While stare decisis is the “preferred course,” Payne v.

Tennessee, 501 U.S. 808, 827 (1991), this Court has “often

noted” that it is not an “inexorable command,” Agostini v.

Felton, 521 U.S. 203, 235 (1997) (quoting Payne, 501 U.S. at

828)), and if Blakely’s reasoning went beyond its facts, that

aspect of the decision should be reconsidered. Blakely in-

volved a question of constitutional law, and stare decisis is

“at its weakest” when the Court is interpreting the Consti-

tution, Agostini, 521 U.S. at 235, particularly where, as here

the precedent is “both recent and in apparent tension with

other decisions,” Harmelin v. Michigan, 501 U.S. 957, 965

(1991) (opinion of Scalia, J.). Indeed, if Blakely went beyond

Apprendi and requires invalidation of the Guidelines, it is

not merely in “apparent tension,” ibid., but is inconsistent

with decisions treating sentence-enhancing facts under the

Guidelines as the equivalent of facts that sentencing judges

relied upon before the Guidelines were enacted. See Point

1.C, supra. The Court would thus have to choose between

Blakely, on the one hand, and Dunnigan, Witte, Watts, and

Edwards, on the other. The Court in Blakely did not repudi-

ate those well-reasoned precedents and offered no reason for

doing so. If Blakely is limited to cases that involve multiple

statutory maximum sentences and judge-found facts that

move a defendant from one to the other, then those prece-

dents stand. If a choice is necessary, however, it is an

unnecessary line of reasoning in a single case decided last

Term. not the line of cases decided over the last dozen years,

that should give way. |

3. The proper Sixth Amendment test is more receptive

to constitutional judgment about the nature of the particular

sentencing system. Apprendi’s bright-line test guards

against direct legislative erosion of the procedural safe-

guards that must accompany the proof of “elements, in

cases where a legislature has created tiers of maximum sen-

tences distinguished by particular aggravating facts. Sys-

tems like the Federal Sentencing Guidelines, however, do

not pose the threat of direct legislative usurpation and

should not be judged by such a bright-line rule, but instead

should be evaluated by considering the overall nature of the

system in question and the purposes, history, context, and

effects of the particular statute. —

Under that approach, the Guidelines are a constitutional

means of channeling judicial discretion. The Guidelines re-

sponded to a critical problem of unfairness in purely dis-

cretionary sentencing. The Sentencing Reform Act emerged

from years of careful study about the problems with the

discretionary-sentencing regimes that prevailed in the

United States for the majority of the twentieth century.

One of the most serious criticisms of wholly discretionary

sentencing was that it resulted in significant disparities in

the sentences imposed on similarly situated defendants,

including disparities based on race, ethnicity, and gender.

See pp. 3-4, supra.

la tic sentencing (often coupled with parole) re-

presented a valuable reform compared to statutes that do

not allow for individualization of punishment, despite major

differences in the way in which defendants commit their

crimes. The nation’s experience showed that, in sentencing,

“justice generally requires consideration of more than the

particular acts by which the crime was committed and

that there be taken into account the circumstances of the

offense together with the character and propensities of the

offender.” Pennsylvania er rel. Sullivan v. Ashe, 302 U.S.

51, 55 (1937). The Sentencing Guidelines accomplish that

aim, by channeling a court's consideration of a wide variety

of factors that traditionally influenced a sentencing court's

discretion. The Guidelines thus offer a mechanism for mini-

mizing the disparities and discrimination inherent in fully

discretionary sentencing, while providing the proportionality

lacking in determinate sentencing with only one or a few

sentences available for every defendant convicted of a parti-

cular offense. Protection of the constitutional values under-

lying Apprendi does not require the Court to invalidate that

federal system of sentencing reform, which serves vital

interests of fairness and equality in criminal justice and

which the Court has repeatedly sustained against a variety

of constitutional challenges.

Il. IF BLAKELY IS HELD TO APPLY TO THE

GUIDELINES, THE GUIDELINES CANNOT BE

APPLIED AS BINDING SENTENCING RULES IN

CASES WHERE JURY FACTFINDING WOULD BE

REQUIRED

If the Court concludes that the principles of Blakely pre-

clude judges from finding a fact (other than a prior convic-

tion), absent the defendant’s consent, when that fact in-

creases the maximum Guidelines sentence, then the current

system of sentencing under the Guidelines—with judges

determining the facts that both increase and decrease the

Guidelines sentence—cannot be applied. In that event, the

lower courts will be in desperate need of guidance and this

Court must determine what sentencing process should

govern in federal criminal cases. In light of the integrated

sentencing system it envisioned, Congress would not have

intended the Guidelines to be applied as though they created

“elements” of an array of offenses, to be administered in part

by juries and in part by judges, operating under different

standards of proof. Congress addressed perceived! problems

with disparities in judicial sentencing and sought ‘to channel

judges’ discretion; it did not intend to vest juries with unpre-

cedented authority in the sentencing process. Congress

likewise clearly sought to refocus the sentencing process, It

did not intend for the Commission effectively to rewrite the

federal criminal code by adding multiple new ellements to

existing crimes.

The Sentencing Commission, as well, would! not have

intended that a truncated and one-sided versiion of the

current Sentencing Guidelines, which would result from

overlaying Blakely methods of charging and proof, should

govern federal sentencing. The procedural que:stions that

would have to be resolved to operate such a system are

daunting, and there is no source of legislative gruidance to

answer them. Equally important, treating the ‘Sentencing

Commission’s work product as “elements” raises difficult

constitutional questions about the role of the Cormmission in

defining crimes. ao

For those reasons, in any case in which the Constitution

prohibits the judicial factfinding procedures thait C ongress

and the Commission contemplated for implementing the

Guidelines, the Guidelines as a whole become inapplicable.

In such cases, a judge would have to impose sentence within

the statutory maximum and minimum terms, treating the

Guidelines as advisory. That approach wonuld leave Congress

free to reconstruct a sentencing systerm to achieve its goals

in a manner consistent with constituticnal requirements.

A. Severability Analysis Turnss On The Intent Of The

Legislature And The Commission, And On Whether

The Severed Provisions Are Operable As A Law

1. “The inquiry into wmether a statute is severable is

essentially an inquiry intco legislative intent.” Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191

(1999). The governing yprinciple is that “fujniess it is evident

that the Legislature would not have enacted those pro-

visions which are within its power, independently of that

which is not, the invalid part may be dropped if what is left is

fully operative as a law.” Alaska Airlines v. Brock, 480 U.S.

678, 684 (1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108

(1976) (per curiam)).

The inquiry into legislative intent does not turn solely on

whether a severed statute can be said to achieve Congress's

purposes in enacting the law. Because “severance is based

on the assumption that Congress would have intended the

result,” Tuan Anh Nguyen v. INS, 583 U.S. 58, 72 (2001), the

“relevant inquiry in evaluating severability is whether the

statute will function in a manner consistent with the intent

of Congress” after the unconstitutional provision has been

severed, Alaska Airlines, 480 U.S. at 685. See, eg., Mille

Lacs Band, 526 U.S. at 191 (declining to sever invalid portion

of Executive Order because order “embodied a single co-

herent policy”). Thus, Congress's means of achieving parti-

cular goals, as well as its ultimate ends, must be considered.

In addition, what is left after the offending provision is

severed must be “fully operative as a law.” Alaska Airlines,

480 U.S. at 684. Even when a statute contains a severability

clause, a court “cannot rewrite a statute and give it an effect

altogether different from that sought by the measure viewed

as a whole.” Railroad Ret. Bd. v. Alton R.R., 295 U.S. 330,

362 (1935). If a statute cannot be made operative without

judicial rewriting, severance is impossible, because “Con-

gress could not have intended a constitutionally flawed pro-

vision to be severed from the remainder of the statute if the

balance of the legislation is incapable of functioning indepen-

dently.” Alaska Airlines, 480 U.S. at 684.

2. Application of Blakely to the Guidelines would invali-

date not only certain provisions of a statute (the Sentencing

Reform Act), but also certain provisions of a regulatory

scheme (the Sentencing Guidelines) promulgated by the

United States Sentencing Commission. Accordingly, the

severability analysis must take into account the intent of the

Sentencing Commission as well as Congress's. That is so for

two reasons.

First, although the Sentencing Reform Act itself imposed

certain requirements on the content and structure of what

became the Sentencing Guidelines, Congress also clearly

intended that the guidelines produced by the Sentencing

Commission—not some substantially different set of rules—

should govern criminal sentencing. For that reason, if the

Court concludes that the Sentencing Commission would not

have promulgated the system it did had it known of the

impermissibility of judicial factfinding—that is, if the Com-

mission would not have produced the current Guidelines

with an overlay of jury factfinding—then creating such a

system through severability analysis would thwart Con-

gress’s intent that sentencing be in accordance with a system

of the Commission's design.

Second, settled principles governing administrative sever-

ability support the conclusion that the intent of the Sen-

tencing Commission, as well as that of Congress, is impor-

tant. In K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988),

this Court held that a portion of a regulation promulgated by

the Secretary of the Treasury was inconsistent with the

governing statute. The Court then reached the severability

question, concluding that “(t]he design of the regulation is

such that the [invalidated subsection] is severable.” Jd. at

294. The Court explained that severability turns not merely

on whether the statute could operate without the severed

provision (“t]he severance and invalidation of this sub-

section will not impair the function of the statute as a

whole.” ibid.), but also on whether the Secretary would have

promulgated the regulation without the severed provision

(“there is no indication that the regulation would not have

been passed but for its inclusion,” ibid.). Earlier cases also

declined to sever individual portions of a regulatory scheme

where the effect would be to substitute the Court's judg-

ment on matters of policy for the agency's. See Federal

Power Comm'n v. Idaho Power Co., 344 U.S. 17, 20 (1952).

As the Court explained in Addison v. Holly Hill Fruit

Products, Inc., 322 U.S. 607, 618-619 (1944), “[i}t would be

the sheerest guesswork to believe that elimination of an

important factor in the Administrator’s equation would have

left his equation unaffected even if he did not here insist

upon its importance.”

B. Congress Would Not Have Intended The Guidelines

System To Be Administered With A Requirement Of

Jury Findings For Sentence-Enhancing Facts

1. The Sentencing Reform Act makes clear that the

Guidelines should be applied at sentencing by the court, not

the jury. Congress was responding to a perceived problem

with judicial sentencing. The Sentencing Commission was

authorized to “promulgate and distribute to all courts of the

United States * * * guidelines, as described in this section

for use of a sentencing court in determining the sentence to

be imposed in a criminal case.” 28 U.S.C. 994(a)(1) (emphasis

added ). Congress further instructed the Commission to con-

sider, in formulating the Guidelines, the extent to which

various factors were relevant to “an appropriate sentence”

and to “take them into account,” insofar as they are relevant

including: “the circumstances under which the offense was

committed which mitigate or aggravate the seriousness of

the offense,” “the nature and degree of the harm caused by

the offense,” and the defendant’s “role in the offense.” 28

U.S.C. 994(¢\(2) and (3) (emphasis added), 994(d)(9). Con-

gress necessarily anticipated that, to the extent that the

Commission found such facts relevant, the “sentencing

court” (28 U.S.C. 994(a)(1))}—not the jury—would make the

factual findings on the issues that determine a sentence

under the Guidelines.

The provisions governing appeal similarly establish that

Congress deliberately provided for guidelines that would be

applied based on factfinding by the sentencing court, not a

jury. Congress provided that courts of appeals “shall give

due regard to the opportunity of the district court to judge

the credibility of the witnesses, and shall accept the findings

of fact of the district court unless they are clearly erroneous

and * * * shall give due deference to the district courts

application of the guidelines to the facts.” 18 U.S.C.

3742(e)(4) (emphasis added). Those standards are plainly

directed to the review of determinations by sentencing

courts; the statute makes no provision for review of jury

verdicts. Indeed, Congress provided for equal rights of

appeal for the government and the defendant, 18 U.S.C.

3742(a) and (b), even though government appeals of adverse

jury findings at a criminal trial are ordinarily precluded by

the Double Jeopardy Clause. United States v. Martin Linen

Supply Co., 430 U.S. 564 (1977).

The legislative history also leaves no doubt that Congress

intended judges to find the facts that underlay the appli-

cation of the Guidelines. 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.” Senate Report 65 (emphasis added).

See also id. at 52 (“the bill requires the judge, before

imposing sentence, to consider the history and characteris-

ties of the offender, the nature and circumstances of the

offense, and the purposes of sentencing”) (emphasis added),

id. at 75 (“the 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,

7 The “due regard” and “clear error” clauses were part of the original

Sentencing Reform Act. Koon v. United States, 518 U.S. 81, 97 (1996).

The “due deference” clause was added in 1988. Anti-Drug Abuse Act of

1988, Pub. L. No. 100-690, Tit. VII, Subtit. C, § 7103(a)(7), 102 Stat. 4417.

and whether there were any particular aggravating or

mitigating circumstances surrounding the offense”) (empha-

sis added). The Report nowhere discusses the manifold

procedural complications that would have arisen if juries

were to decide sentencing issues that had traditionally been

resolved by judges.

The Sentencing Commission heeded Congress's directive

and designed the Guidelines for application by judges at

sentencing, not by juries at trial. The Guidelines Manual

“directs the court, once it has determined the applicable

{offense conduct] guideline * * * to determine any appli-

cable specific offense characteristics * * * and any

other applicable sentencing factor.” Guidelines § 1B1.2, com-

ment. (n.2). See also id. § 1B1.2(b) (provision clearly directed

to courts (not juries) to “[djetermine” facts relevant to

application of the Guidelines). The Guidelines also indicate.

that the court shall resolve disputed facts based on any

reliable evidence, without regard to its admissibility at trial,

id. § GA1.3(a), and under a preponderance of the evidence

standard, id. § 6A1.3, comment. It is thus clear that Con-

gress conceived and the Commission implemented the

Guidelines as a means of controlling judicial discretion, not

as a means of converting traditional sentencing factors into

elements to be found by juries.

2. Severing the requirement of judicial application of the

Guidelines for sentence-enhancing facts and substituting a

requirement of jury finding of such facts would severely

distort the operation of the Guidelines. It would also se-

verely compromise Congress’s fundamental goals of elimi-

nating unwarranted disparities among similarly situated

defendants and ensuring the proportionality of the sentence

to the crime. See 28 U.S.C. 991(b)(1)(B), 994(m); Senate Re-

port 52, 61. And it would defeat the Sentencing Commis-

sion’s methodology for achieving those same goals and en-

suring an appropriate sentence for each defendant.

—

a. Severing judicial factfinding on sentence-enhancing

facts would be inconsistent with the structure of the Guide-

lines as a cohesive whole. The Guidelines system embodies

a “single, coherent policy” in which each of the important

features—including application by judges, not juries—

“performs an integral function.” Mille Lacs Band, 526 U.S.

at 191-192. The provision for judicial factfinding under the

Guidelines is “so interwoven” with the other substantive and

procedural provisions that it “can not be separated.” Hill v.

Wallace, 259 U.S. 44, 70 (1922).

(i). Congress intended that the Guidelines should account

for both mitigating and aggravating factors in determining

each defendant's sentence. 28 U.S.C. 994(¢)(2). To that end,

the Commission promulgated a detailed and calibrated sys-

tem of guidelines, taking into account a great many factors to

channel a sentencing court’s decision-making. The applica-

tion of any given Guidelines provision (enhancement or re-

duction) has its intended effect on a sentence only when

combined with a conclusion that other Guidelines enhance-

ments and reductions do or do not apply in the individual

case. See pp. 29-32, supra. Thus, the Commission recog-

nized that, for the Guidelines to work as intended, they must

be applied as a cohesive whole. See Guidelines § 1B1.11(b)(2)

(“The Guidelines Manual in effect on a particular date shall

be applied in its entirety.”).

The Sentencing Commission clearly did not set base

offense levels or fashion adjustments to those levels to

account for an asymmetrical factfinding regime, under which

enhancements would be applicable if a jury found them pre-

sent beyond a reasonable doubt, while reductions would be

applicable if the court found them present by a prepon-

derance of the evidence. Altering the system by requiring a

different factfinder—and a different standard of proof—for

sentence enhancements would fundamentally distort the

system.

(i). If the Commission had understood that the govern-

ment would have the burden of establishing a particular

enhancing fact beyond a reasonable doubt, it might have

modified the substance of the enhancement to account for

the increased burden and difficulty of establishing that fact.

For example, intent, purpose, or other mental-state require-

ments to establish various enhancements might have been

reduced or modified.” Or the Commission might have in-

creased base offense levels for particular guidelines across

the board and allowed the defendant, for specified reasons,

to seek mitigation of the Guidelines range, in a proceeding

before a judge in which the defendant bore the burden of

proof. Congress might have taken similar action if it had

desired to stiffen sentences for certain crimes. Countless

provisions of the Guidelines thus might have been crafted

differently, in order to account for the asymmetrical diffi-

culty that the government would encounter in meeting its

burden of proof, and the increased administrative costs of

affording a jury trial.

This Court made a similar point in Patterson v. New York,

432 U.S. 197 (1977). In that case, the Court noted that “in

revising its criminal code, New York provided the affirma-

tive defense of extreme emotional disturbance, a substan-

tially expanded version of the older heat-of-passion concept;

but it was willing to do so only if the facts making out the

defense were established by the defendant with sufficient

certainty.” /d. at 207. “The State,” the Court noted, “was

itself unwilling to undertake to establish the absence of those

facts beyond a reasonable doubt, perhaps fearing that proof

would be too difficult and that too many persons deserving

treatment as murderers would escape that punishment.”

Ibid. Under the Sentencing Guidelines, the burdens placed

on the government to obtain a particular sentence were

® See Guidelines $$ 2B1.1(b)(5), 2B1.5(b\4), 2C1.1(c), 2Q1.6(a)(3),

281.1(b) 1), 281.3(b\ 1), 2T1.9(b)(2).

fashioned in light of the understanding that the government

would have to meet a preponderance standard, in a showing

to a judge unconstrained by formal rules of evidence. See

Sentencing Guidelines § 6A1.3 & comment. (“The Com-

mission believes that use of a preponderance of the evidence

standard is appropriate to meet due process requirements

and policy concerns in resolving disputes regarding applica-

tion of the guidelines to the facts of a case.”). It is not

knowable what alterations the Commission might have made

to the Guidelines to account for the risk that a jury-trial

right and a burden of proof beyond a reasonable doubt on

facts that increase a sentence would result in potentially

inadequate sentences.

The existing fraud Guidelines provisions provide an

example. A defendant convicted of fraud is subject to a base

offense level of 6 or 7, see Guidelines § 2B1.1(a), which trans-

lates into a sentencing range of 0-6 months of imprisonment

at a low criminal history category. That level corresponds to

the smallest-scale frauds, which result in a loss of $5000 or

less. The base offense level then is enhanced up to 30 levels

for the amount of fraud if that amount is more than $5000.

See id. § 2B1.1(b)(1). That level can be further enhanced for

numerous factors such as the targeting of a particularly

vulnerable group of victims, see id. § 3A1.1(b), and it can also

be reduced for other factors such as acceptance of responsi-

bility, see id. § 3E1.1. If enhancing factors had to be found

by juries beyond a reasonable doubt, the Sentencing Com-

mission may well! have chosen to account for the increased

difficulty of proving enhancements by setting the base

offense level to accord with the average—not the smallest-

scale—offense, or the Commission may have otherwise re-

structured and reweighed the various enhancing and reduc-

ing factors so that the ultimate sentence is proportionate to

the crime.

(iii). The distorting effects of superimposing a partial

system of jury factfinding on the existing Guidelines are

vividly illustrated by any pending cases in which the

defendant awaits sentencing and cannot, for double-jeopardy

or other reasons, be subject toa new sentencing hearing.

Fraud defendants in that situation who are in a low criminal

history category—from the small-time scam artist to the

multimillion dollar swindler—would all likely be subject to a

sentencing range of 0-6 months’ imprisonment, despite the

substantial differences in their offenses. But neither Con-

gress nor the Sentencing Commission ever contemplated

that all fraud defendants would be treated alike or that the

most culpable offenders would be treated so leniently. See

United States v. Einstman, No. 04-CR. 97 (CM), 2004 WL

1576622, at *6 (S.D.N.Y. July 14, 2004) (“{I]t seems evident

* * * that Congress would never have countenanced a

Guidelines system in which all first-time offenders who

pled guilty to the elements of wire, mail or bank fraud, and

nothing more, were limited to a sentence of 0-6 months

* * * without regard to the amount of the fraud, its

sophistication, or the role played by the defendant in the

conspiracy.”).

(iv). In the rare instance where an enhanced burden of

proof and jury trial right were desired, the Guidelines

specifically provide for them. In providing for a hate-crime

enhancement, the Guidelines require that “the finder of fact

at trial or, in the case of a plea of guilty * * * , the court at

sentencing” make a determination on the issue of biased

selection of the victim “beyond a reasonable doubt.” Guide-

lines § 3A1.1(a). The provision was promulgated in response

to a congressional directive that specified that the facts were

to be determined by “the finder of fact at trial” under the

increased burden of proof. See Violent Crime Control and

Law Enforcement Act of 1994, Pub. L. No. 103-322, Tit.

XXVIII, § 280003, 108 Stat. 2096. The substance of the hate-

crime provision was thus deliberately framed in light of an

intention that the government would bear the burden of

proof at a jury trial. The same cannot be said of the vast

majority of Guidelines provisions, whose drafters assumed

that normal rules of sentencing procedure applied, i.e.,

resolution by the judge, under the preponderance standard,

without formal evidentiary rules.

b. Severing judicial factfinding on sentence-enhancing

facts would make the resulting system unfeasibly complez.

Typically, juries are called upon to make a limited number of

focused factual determinations on the elements of an offense

in order to decide whether a defendant is guilty. The sudden

addition of numerous Guidelines enhancements to the list of

facts that juries must decide could dramatically complicate -

the task of instructing juries and obtaining valid verdicts. A

bank robbery case, for example, could require

a jury to determine factors regarding the nature of the

offense [under Guidelines § 2B3.1] such as (1) the nature

of the institution robbed; (2) the presence of, brandishing

of, or other use of, a firearm; (3) the making [of] a death

threat; (4) the presence of ordinary, serious, or perma-

nent or life threatening bodily injury; (5) any abduction;

(6) any physical restraint; (7) the taking of a firearm[;] (8)

the taking of drugs; and (9) and the value of property

taken|.]

United States v. Croxford, 324 F. Supp. 2d 1230, 1254 (D. -

Utah 2004). Additional adjustments under Chapter 3 of the

Guidelines that would have to go to the jury might include

the defendant’s role in the offense; abuse of a position of

trust; use of a special skill; use of a minor; terroristic motiva-

tion; or obstruction of justice. [bid.

The inevitable result of requiring a jury to make so many

determinations, many of them of great complexity, would be,

in some cases, jury confusion and a decrease in the accuracy

of jury factfinding. That in turn would lead to a decrease in

sentencing uniformity and in proportionality between the

seriousness of the crime and the length of sentence imposed.

Both the decrease in uniformity and the decrease in propor-

tionality would be directly contrary to Congress’s intent that

the Guidelines would avoid unwarranted disparities and

ensure just punishment. See p. 49, supra.

Those consequences would also be contrary to the Sen-

tencing Commission’s intent in promulgating its detailed and

nuanced set of Guidelines. When the Commission first

formulated the Guidelines, it recognized that it was able to

craft a relatively complex set of sentencing factors in the

Guidelines because judges, rather than juries, were to

administer the system:

In determining guilt or innocence, a jury often is pre-

sented with many complex factual issues, but ultimately

a relatively small number of factual elements may suffice

to support conviction. Sentencing, on the other hand, can

require attention to many more discrete factual issues.

These receive increased emphasis in a guideline system.

A fact-finding process for sentencing decisions that has

all the attributes of a formal trial could consume many

times the resources devoted to the resolution of guilt or

innocence. Ultimately, such an approach would render

the sentencing process completely unworkable.

United States Sentencing Commission, Supplementary Re-

port on the Initial Sentencing Guidelines and Policy State-

ments ch. 6, at 45 (June 18, 1987) (emphasis added). While

the Commission endeavored “to focus on a relatively man-

ageable number of frequently-occurring factors and to avoid

an effort to attribute specific sentencing weight to every

conceivable nuance,” id. at 46, and believed that “(t]he sen-

tencing factors also tend to be those that are closely tied to

elements of the offense (e.g., nature of injury, amount of

loss), thus ensuring that evidence relating to them will be

adduced in the event of a trial,” id. at 46 n.78, litigation of

factual issues surrounding the Sentencing Guidelines is in

fact often a complicated task involving many facts that are

not resolved in adjudicating the elements of the offense.

c. Severing judicial factfinding on sentence-enhancing

facts would make some provisions of the Guidelines difficult

or impossible to apply. Many provisions of great importance

under the Guidelines could not be implemented if enhancing

factors had to be charged in an indictment and submitted to

a jury. Sentencing courts have traditionally relied on facts

at sentencing that became known only at trial or later, and

Congress clearly intended that the courts could continue to

use that practice under the Guidelines. Yet that practice

would become impossible if enhancing factors had to be

charged in an indictment and then proved to a jury. For

example, the Guidelines enhancement for obstruction of

justice under Section 3C1.1 can be based on a defendant's

false testimony at trial. See Dunnigan, 507 U.S. at 95-96.

Because the government cannot know at the time of indict-

ment whether the defendant will lie on the stand, that

enhancement would be impossible to apply. Other enhancing

facts may emerge at trial or when a presentence report is

prepared; those, too, would have to be omitted from the

sentencing calculation, even though they may shed impor-

tant light on a given offense or offender. And upward de-

partures not specified in the Guidelines would presumably

be entirely unavailable. See Guidelines § 5K2.0. Where the

Commission had not specified an upward departure ground

in advance of the defendant’s conduct, it is doubtful that due

process would allow specification of that fact at a later time

to serve as a basis for increasing a defendant’s maximum

sentence.

The “relevant conduct” rules would also create a quagmire

for judge, jury, and defendant alike. See pp. 29-30, supra.

As a former Commissioner and General Counsel of the Sen-

tencing Commission have stated, relevant conduct is the

“cornerstone” of the Guidelines.” “Yet relevant conduct can-

19 William W. Wilkins, Jr. & John R. Steer, Relevant Conduct: The

Cornerstone of the Federal Sentencing Guidelines, 41 S.C. L. Rev. 495

not be reconceptualized as an element of an offense. In-

structing a jury on these matters would itself present enor-

mous difficulties. See Guidelines § 1B1.3, comment. (eight-

page application commentary). But more fundamentally, in-

jecting the relevant-conduct rules into a criminal trial would

take the trial far afield of where it belongs—focused, that is,

on whether the defendant committed the crime with which

he was charged. See Williams, 337 U.S. at 246-247 (rules of

evidence aim to prevent time-consuming and confusing trial

on collateral issues, and to prevent factfinder from “being

influenced to convict for [the charged] offense by evidence

that the defendant had habitually engaged in other mis-

conduct”). The effect would be to convert virtually every

federal crime into a “conspiracy” or “scheme” offense. Much

evidence might become admissible that would be extremely

prejudicial to a defendant. See Monge, 524 U.S. at 729.

There is no indication that Congress (or the Commission)

intended such a far-reaching transformation of federal crimi-

nal trials.

d. Severing judicial factfinding on sentence-enhancing

facts would convert the Guidelines system into a charge-

offense system. As the Commission explained when it first

promulgated the Guidelines, “[o]ne of the most important

questions for the Commission to decide was whether to base

sentences upon the actual conduct in which the defendant

engaged regardless of the charges for which he was indicted

or convicted (‘real offense’ sentencing), or upon the conduct

that constitutes the elements of the offense with which the

defendant was charged and of which he was convicted

(‘charge offense’ sentencing).” Guidelines § 1A1.1 note Pt. A,

4(a). The Commission noted that the pre-Guidelines practice

was “a real offense system,” because “[t]he sentencing court

(1990); see also Stephen Breyer, The Federal Sentencing Guidelines and

the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 8-12

(1990). ;

(and the parole commission) take account of the conduct in

which the defendant actually engaged.” Jbid. The Com-

mission also explained that a serious drawback of a real-

offense system is its complexity, while a serious drawback of

a charge-offense system “is its potential to turn over to the

prosecutor the power to determine the sentence,” by, for

example, altering the number of counts charged. /bid.

The Commission in the end adopted a hybrid-system that

begins its calculation with the charged offense, but which

“has a number of real offense elements.” Guidelines § 1A1.1

note Pt. A, 4(a). Among those are numerous specific offense

characteristics that go beyond the charged conduct. Pro-

minent examples include drug quantity in narcotics cases

and loss in fraud cases. Jd. §§ 2D1.1, 2B1.1. Equally pro-

minent are Chapter Three adjustments for factors such as

victim-related aggravators, role in the offense, obstruction of

justice, and multi-count adjustments. Guidelines Ch. 3, Pts.

A, B, C, and D. Over time, the Commission has added more

“real offense” components to the Guidelines.”

Replacing the court’s traditional role as factfinder at

sentencing with a requirement that juries find sentence-

enhancing facts would convert the system into a virtually

pure charge-offense system, thereby fundamentally altering

the balance struck by the Commission. Any sentence-

enhancing fact that was constitutionally required to be

proved to a jury would first have to be charged in an indict-

ment or (with the defendant’s consent) an information. See

United States v. Cotton, 5385 U.S. 625, 627 (2002) (stating,

after quoting the rule in Apprendi, that “[iJn federal

prosecutions, such facts must also be charged in the indict-

ment”). A wholesale charge-offense system would render

courts incapable of ensuring that similar conduct by de-

20 See Julie R. O’Sullivan, In Defense of the U.S. Sentencing Guide-

lines’ Modified Real-Offense System, 91 Nw. U. L. Rev. 1342, 1354-1361

(1997).

fendants received consistent treatment at sentencing, be-

cause courts would have no control over what real-offense

“elements” were charged. There is no basis for concluding

that the Commission would have structured the Guidelines

in the same fashion had it realized that its efforts compre-

hensively to instill real-offense components into the Guide-

lines were doon ed.

3. Taking i ito consideration the integrated structure of

the Guideline: as a set of balanced downward and upward

adjustments; he complexity that would be foisted on the

system in the trial of at least some cases if Guidelines factors

were treated as elements; the abridged application of many

Guidelines provisions under an indictment and jury-trial

regime; and the transformation of the system into virtually a

pure charge-offense system, there is ample reason to

conclude that Congress and the Commission did not intend

for the system to function in such a manner. While a

determinate sentencing system is not incompatible with

Blakely, 124 S. Ct. at 2540, the current Guidelines system

was not designed to operate under Blakely’s constraints.

Overlaying Blakely’s requirements on the Guidelines would

produce sentences that no policymaker intended or believed

appropriate.

C. Administering Jury Factfinding Under The Guidelines

Would Require Procedural Innovation Far Greater

Than Is Permissible

The Sentencing Reform Act and the Sentencing Guide-

lines provide no guidance about how to administer the

system if defendants have a right to a jury determination of

sentence-enhancing factors. Because there is no provision in

the applicable statutes, guidelines, or rules that addresses

the numerous procedural issues that would have to be re-

solved, the statute does not “function[] independently” and

would not be “fully operative as a law,” Alaska Airlines, 480

U.S. at 684, without the existing procedures for judicial

determination of the facts.

Under the current system, the Guidelines are to be

provided “for the use of a sentencing court in determining

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

994(a\(1). Generally, a defendant is not sentenced until after

the preparation of a presentence report, which develops the

facts and calculates the applicable Guidelines range. Fed. R.

Crim. P. 32(c) and (d). If the parties have made objections,

“fat sentencing the court * * * must—for any disputed

portion of the presentence report or other controverted

matter—rule on the dispute” if it will affect or be considered

in sentencing. Fed. R. Crim. P. 32(iX3)B). If Blakely

applies to the Guidelines, those procedures will be uncon-

stitutional for resolution of contested sentencing-enhancing

facts, and there is no statutory, guidelines, or rule-based

system to put in their place. In theory, courts could fill the

resulting gap by instituting a court-designed system of

jury findings on sentence-enhancing facts under the beyond-

a-reasonable-doubt standard, to be supplemented by judicial

findings on facts that reduce the sentence under the prepon-

derance standard. But that system would require a court

not merely to sever an unconstitutional provision, but to

“amend the act,” Hill v. Wallace, 259 U.S. at 71, a course

that the Court has previously declined to undertake.

In United States v. Jackson, 390 U.S. 570, 576-579 (1968),

the Court considered a provision of the Federal Kidnapping

Act that authorized a sentence of death only when the jury

so recommended. /d. at 571-572. The Court held that the

provision unconstitutionally burdened the defendant’s right

to have a trial and to seek a jury. /d. at 581-582. The

government proposed that the statute could be rescued from

constitutional infirmity by reading it to authorize “by

implication” the “convening [of a] special jury * * * for the

sole purpose of deciding whether [the defendant} should be

61 .

put to death” in a case in which the defendant had pleaded

guilty or waived jury trial. Jd. at 576-577.

Noting that there was not “the slightest indication that

Congress contemplated any such scheme,” the Court re-

jected the government’s proposal. Jackson, 390 U.S. at 578.

The Court explained that “it would hardly be the province of

the courts to fashion [such] a remedy” and that “{aJny

attempt to do so would be fraught with the gravest

difficulties.” Jd. at 579. Among the difficult questions that

courts would have to resolve would be:

If a special jury were convened to recommend a sen-

tence, how would the penalty hearing proceed? What

would each side be required to show? What standard of

proof would govern? To what extent would conventional

rules of evidence be abrogated? What privileges would

the accused enjoy?

Ibid. The Court explained that “{iJt is one thing to fill a

minor gap in a statute,” but “quite another thing to create

from whole cloth a complex and completely novel procedure

and to thrust it upon unwilling defendants for the sole

purpose of rescuing a statute from a charge of unconsti-

tutionality.” Jd. at 580.

Replacing the statutory gap in the Guidelines system with

a novel system of jury trials for sentence-enhancing facts

would be fraught with the same grave difficulties as in

Jackson. Indeed, it would require judicial legislation on a far

greater scale than the approach rejected in Jackson, because

the Guidelines apply in every federal criminal prosecution.

Without any guidance from Congress, courts would have to

determine how sentencing factors are to be alleged in an

indictment; whether trials would have to be bifurcated into

21 Federal Rule of Criminal Procedure 7(c)(1) states that the indict-

ment “must be a plain, concise, and definite written statement of the

essential facts constituting the offense charged.” It does not make any

guilt and sentencing phases;~ whether the Rules of Evi-

dence would apply at the new proceedings, notwithstanding

Congress’s intent that they not apply at sentencing”

whether a defendant could plead guilty to the underlying

offense while reserving a right to a jury on sentence-en-

hancing facts, and whether, if so, the defendant could still be

eligible for acceptance-of-responsibility credit under Guide-

lines § 3E1.1; whether and what kind of discovery would be

permitted on sentence-enhancing facts;* whether the

government or the defendant would be entitled to lesser-

included-offense instructions if a jury could rationally find

the defendant guilty of the charged crime, yet reject a

sentence-enhancing fact; and whether a jury’s inability to

provision for charging Sentencing Guidelines factors, and does not indicate

whether they must (or must not) be charged in a particular count.

2 Current federal law provides for bifurcation only in capital cases.

See 18 U.S.C. 3593(b).

2 See 18 U.S.C. 3661 (“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.”); Fed. R. Evid.

1101(d)(3) (Federal Rules of Evidence not applicable in sentencing

proceedings).

24 Federal Rule of Criminal Procedure 16(a\1)(F iii) authorizes dis-

covery when an item is, inter alia, “material to preparing the defense or

the government intends to use the item in its case-in-chief at trial.” In

United States v. Armstrong, 517 U.S. 456, 462 (1996), the Court construed

the term “defense” in a predecessor discovery provision (Rule 16(a)(1(C))

to encompass only material that supports “ ‘shield’ claims, which refute the

Government’s arguments that the defendant committed the crime

charged.”

2% Federal Rule of Criminal Procedure 31(c)(1) provides that “[a)

defendant may be found guilty of * * * an offense necessarily included in

the offense charged.” Under Schmuck v. United States, 489 U.S. 705, 716

& n.8 (1989), a defendant is entitled to a lesser-included-offense instruction

if “the elements of the lesser offense are a subset of the elements of the

charged offense” and the trial evidence would permit a rational jury “to

agree on a sentence-enhancing fact would require retrial on

the entire case, on all sentence-enhancing facts, or just on

the single fact on-which agreement was not reached.

Severing the requirement that judges, not juries, apply the

Guidelines would require courts to make the legal and policy

decisions necessary to resolve all of those questions. There

is no indication that Congress delegated that role to the

courts. It is one thing to recharacterize a single factor that

increases a statutory maximum and treat it as an element of

the crime. It is quite another to take an entire system

expressly designed to channel sentencing discretion and

treat it as if Congress was attempting to rewrite the

criminal code. Accordingly, if Biakely invalidates judicial

factfinding on sentence-enhancing facts, it cannot be said

that the Sentencing Guidelines would continue to “function{]

independently.” Alaska Airlines, 480 U.S. at 684.

D. The Conversion Of The Sentencing Guidelines Into

“Elements” Would Raise Serious Constitutional Ques-

tions

To treat Guidelines factors as permissibly raising maxi-

mum penalties within the meaning of Apprendi is to equate

those factors, for constitutional purposes, with elements of a

criminal offense. Apprendi, 530 U.S. at 494 n.19. Severing

the Sentencing Reform Act so as to treat Guidelines factors

as “elements” would not only ignore Congress’s intent to

reform judicial sentencing, rather than to rewrite the

criminal code, it would also raise serious constitutional prob-

lems. It is a “cardinal principle” of this Court’s juris-

prudence that “where an otherwise acceptable construction

of a statute would raise serious constitutional problems, the

Court will construe the statute to avoid such problems

unless such construction is plainly contrary to the intent of

Congress.” Edward J. DeBartolo Corp. v. Florida Gulf

find the defendant guilty of the lesser offense, yet acquit him of the

greater.”

Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988).

1. A critical premise of this Court’s decision upholding

the Sentencing Reform Act in Mistretta v. United States, 488

U.S. 361 (1989), was that “[aJlthough the Guidelines are

intended to have substantive effects on public behavior (as

do the rules of procedure), they do not bind or regulate the

primary conduct of the public or vest in the Judicial Branch

the legislative responsibility for establishing minimum and

maximum penalties for every crime.” Jd. at 396. The Court

instead understood that the Guidelines “do no more than

fetter the discretion of sentencing judges to do what they

have done for generations—impose sentences within the

broad limits established by Congress.” /bid.

That understanding would be called into question if some

enhancing factors set forth in the Guidelines had to “be

charged in an indictment, submitted to a jury, and proven

beyond a reasonable doubt.” Apprendi, 530 U.S. at 476

(quoting Jones v. United States, 526 U.S. 227, 243 n.6 (1999)).

In that event, those enhancing facts would be “functional(ly]

equivalent” to elements of offenses. Jd. at 494 n.19.

Contrary to Mistretta’s premise that Guidelines adjustments

merely “fetter the discretion of sentencing judges,” such

Guidelines factors could be seen to “establish{) * * *

maximum penalties for every crime,” 488 U.S. at 396, and

directly affect primary conduct, Blakely, 124 S. Ct. at 2540;

Apprendi, 530 U.S. at 476.

Mistretta upheld the constitutionality of locating the

Sentencing Commission in the Judicial Branch, and of

authorizing the participation of federal judges, because of —

the “unique context of sentencing,” 488 U.S. at 395, in which

there has been a “consistent responsibility of federal judges

to pronounce sentence within the statutory range estab-

lished by Congress,” id. at 391 (emphasis added). In contrast

to the longstanding judicial role in sentencing, however, the

definition of crimes, and the establishment of statutory maxi-

mum terms for offenses, has never been the domain of

federal judges. Early on, it was established that federal

judges lacked the authority to define common law crimes.

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

Rather, “[(t}he legislative authority of the Union must first

make an act a crime, offix a punishment to it, and declare the

Court that shall have jurisdiction of the offence.” Ibid. See

Staples v. United States, 511 U.S. 600, 604 (1994) (definitions

of criminal offenses entrusted to the legislature, “parti-

cularly in the case of federal crimes, which are solely

creatures of statute”). Accordingly, it would be a significant

constitutional step beyond Mistretta to hold that federal

judges may participate in a commission empowered to enact

supplementary elements of basic and enhanced offenses that

will govern the primary conduct of citizens.

2. There is no indication that Congress intended to take

that step. For more than a decade before enacting the

Sentencing Reform Act, Congress extensively considered

comprehensive criminal-code reform, which would have

rationalized the disparate provisions of federal criminal law,

but the legislation ultimately failed to pass.” Instead,

Congress enacted the Sentencing Reform Act in order to

establish a sentencing system—which would operate within

the congressionally defined maximums in the United States

Code, see, e.g., 28 U.S.C. 994(b)(1), and which would take into

account not just the elements of an offense set by Congress,

but the manifold factors that had traditionally informed a

judge’s sentencing discretion. See, e.g., 28 U.S.C. 994(m)

(directing Commission to canvass prior sentencing practice

26 Since 1971, the House and Senate Judiciary Committees had been

considering legislation to recodify, reclassify, and streamline the patch-

work of federal criminal statutes that had proliferated over the years. See

Nat’l Comm'n on Reform of Federal Criminal Laws, Final Report (1971).

This effort to codify federal criminal law was abandoned in the early 1980s.

Robert H. Joost, Viewing the Sentencing Guidelines as a Product of the

Federal Criminal Code Effort, 7 Fed. Sent. Rep. 118 (1994).

in various categories of cases); 28 U.S.C. 994(r) (requiring

Commission to “recommend to the Congress that it raise or

lower the grade, or otherwise modify the maximum penal-

ties, of those offenses for which such an adjustment appears

appropriate”) (emphasis added). Congress did not view the

Commission’s task as creating a new breed of criminal

offenses or altering existing statutory maximums.

8. Particularly in light of that history, the Sentencing

Reform Act should not be construed or severed so as to

raise constitutional concerns about the role of the Sentencing

Commission. Congress’s intent in authorizing the promulga-

tion of guidelines was for the Commission to guide the

process by which judges have always imposed sentences and

thereby produce a more rational, uniform, and proportionate

sentencing system. Mistretta, 488 U.S. at 395-396. Its intent

was not for the Commission to redefine the maximum sen-

tences to be imposed for federal crimes and create separate

elements for aggravated versions of such crimes. Nor is it

clear that such a task could constitutionally be entrusted to a

body in the Judicial Branch. The need to avoid the creation

of constitutional doubt provides a strong reason not to

overlay a system of jury factfinding on the Guidelines.

E. The Appropriate Remedy Would Be To Hold The

Guidelines As A Whole Inapplicable In A Case In

Which The Guidelines Would Require The Court To

Find A Sentence-Enhancing Fact

1. If the Court accepts the claim that Blakely prohibits

judicial factfinding that increases the Guidelines sentence,

the Guidelines must rise or fall as a whole. For the reasons

given above, any unconstitutional requirement of judicial

factfinding under the Guidelines cannot properly be severed

from the remaining sentencing system created by Congress

and the Commission. Accordingly, a holding that Blakely

applies to the Guidelines would require the conclusion that

the system contemplated by Congress and created by the

Commission would be inapplicable in a case in which the

Guidelines would require the sentencing court to find a

sentence-enhancing fact. The consequence of such a holding

would be that the maximum sentence authorized by the jury

verdict or guilty plea would be the maximum that Congress

established for the offense of conviction. The sentencing

court would have discretion to impose a sentence within the

statutory minimum and maximum terms.

In such sentencings, the Guidelines would remain as

advisory factors for the court to consider. Any constitutional

infirmity in judicial factfinding that mandates an increase in

a Guidelines sentence would not invalidate 18 U.S.C. 3553(a).

That provision defines the purposes of sentencing and re-

quires a judge to impose a sentence “sufficient, but not

greater than necessary,” to comply with those statutory

purposes. 18 U.S.C. 3553(a). Section 3553(a) also requires

the court to consider a variety of factors, including “the

nature and circumstances of the offense and the history and

characteristics of the defendant”; the need for the sentence

to achieve retribution, deterrence, incapacitation, and, for

non-prison sentences, rehabilitation; and the “kinds of sen-

tence[s] and the sentencing range established” by the Sen-

tencing Commission, as well as the Commission’s policy

statements. 18 U.S.C. 3553(a)(1), (2), (4), and (5). A sen-

tencing court is also required to consider “the need to avoid

unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar

conduct.” 18 U.S.C. 3553(a)(6). And a sentencing court is

required to recognize that “imprisonment is not an appro-

priate means of promoting correction and rehabilitation.” 18

U.S.C. 3582(a). Neither the advisory use of the Guidelines,

nor the other limitations on judicial discretion described

above, would run afoul of Blakely.

2. It is true that “the major premise of the sentencing

guidelines” was “the need to avoid unwarranted sentencing

disparity,” Senate Report 78; see id. at 52, and that Congress

included Section 3553(b), making the Guidelines mandatory,

- because it concluded that voluntary guidelines had a “poor

record” of “reducing sentencing disparities” in the States

that had experimented with them, id. at 79; see Mistretta,

488 U.S. at 367. But a court performing severability analysis

cannot simply seek to achieve Congress’s ultimate purposes

regardless of how much judicial lawmaking is required.

Rather, the question is whether the severed statute would

“operate in a manner consistent with the intent” of Con-

gress. Alaska Airlines, 480 U.S. at 685. As discussed above,

the “manner” in which the Guidelines would operate if

subjected to the requirements of Blakely would not be in

accordance with the intent of Congress.

Introducing jury factfinding for Guidelines enhancements,

moreover, could actually produce unwarranted disparities.

Quite apart from the variation in results that could be ex-

pected from different juries across the country, a jury

verdict in favor of a defendant would be immune from appeal

by the government, even if grossly out of line with the facts.

Martin Linen Supply Co., supra. And a jury verdict in

favor of the government would presumably be subject to

review only under the deferential standard of Jackson v.

Virginia, 443 U.S. 307, 319 (1979). In rejecting a double-

jeopardy attack on government appeals from sentences, this

Court noted that the authority for such appeals “should lead

to a greater degree of consistency in sentencing.” United

States v. DiFrancesco, 449 U.S. 117, 143 (1980). That added

consistency would be lost in a considerable number of cases

if the Guidelines were made subject to a judicially created

requirement that juries must find sentence-enhancing facts.

3. If the Court were to hold that the Guidelines remain

binding and applicable subject to a Blakely-required overlay

of jury factfinding on facts leading to sentence enhance-

ments, defendants in cases like these could receive a sen-

tencing windfall. A holding that the Guidelines remained

binding but that enhancing facts had to be charged in an

indictment and found by the jury would leave the sentencing

court unable to take into account all relevant factors at

sentencing. For example, regardless of the sentences that

are appropriate for their particular crimes and regardless

of the life imprisonment and 40-year maximum sentences

that Congress established by statute for their respective

offenses, Booker could be sentenced to no more than 262

months of imprisonment and Fanfan could be sentenced to

no more than 78 months of imprisonment. See pp. 10-11,

supra. That result cannot be squared with Congress’s or the

Commission’s intent. But if the Court were to hold that

Blakely applies to the Guidelines and then hold that the

constitutional flaw in the Guidelines invalidates the system

as a whole in a case such as this, then the district court on

remand would impose the sentence, within statutory limits,

that is appropriate to the defendant’s crime in light of the

defined purposes of sentencing and the need to avoid

unwarranted disparities, treating the Guidelines as advisory.

CONCLUSION

The Court should hold that Blakely does not apply to the

Federal Sentencing Guidelines. If the Court concludes that

Blakely does apply, it should hold that the Guidelines as a

whole are inapplicable to respondents’ cases, and should

remand for the district courts to exercise sentencing discre-

tion within the congressional minimum and maximum terms,

treating the Guidelines as advisory.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

DAN HIMMELFARB

Assistants to the Solicitor

General

NINA GOODMAN

ELIZABETH A. OLSON

Attorneys

SEPTEMBER 2004

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.