Respondents Brief — United States v. Fanfan
Supreme Court brief2004
Ask Donna
What actually matters in this document.
Text
—,
a, } Supreme ( ourt. US
/> PILED
No. 04-105 SEP ¢ 1 2004
i ‘
IN THE
Supreme Court of the Cited States
UNITED STATES OF AMERICA,
Petitioner,
Wa
DUCAN FANFAN,
Respondent.
On Writ of Certiorari Before Judgment
to the United States Court of Appeals
for the First Circuit
BRIEF OF RESPONDENT
CARTER G. PHILLIPS ROSEMARY CURRAN
JEFFREY T. GREEN SCAPICCHIO*
Eric A. SHUMSKY Four Longfellow Place
MICHAEL C. SOULES Suite 3703
ANDREW D. FAUSETT Boston. Massachusetts 02114
MATTHEW J. WARREN (617) 263-7400
SIDLEY AUSTIN BROWN &
Woop LLP BRUCE M. MERRILL
1501 K Street. N.W. BRUCE M. MERRILL. P.A.
Washington, D.C. 20005 225 Commercial Street
(202) 736-8000 Suite 401
Portland. ME 04101
(207) 775-3333
Counsel for Respondent
| Additional counsel listed on inside cover]
September 21, 2004 * Counsel of Record
NT
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001
ROBERT N. HOCHMAN
SIDLEY AUSTIN BROWN &
Woop ter
Bank One Plaza
10 South Dearborn Street
Chicago. IL 60603
(312) 853-7000
~~
\LAR TIN G. WEINBERG
\LarRtin G. WEIABERG P.C.
20 Park Plaza
Boston. \EA 02116
(617)227-3700
Scott D. MARCUS
SIDLEY AUSTIN BROWN &
Woop LLP
555 West Sth Street
40th Floor
Los Angeles. CA 90013
(213) 896-6600
QUESTIONS PRESENTED
1. Whether the Sixth Amendment is violated by the impo-
sition of an enhanced sentence under the United States Sen-
tencing Guidelines based on the sentencing judge's determi-
nation of a fact (other than a prior conviction) that was not
found by the jury or admitted by the defendant.
2. Whether, in a case in which the Guidelines would re-
quire the judge to find a sentence-enhancing fact. the Guide-
lines as a whole would be inapplicable, as a matter of sever-
ability analysis, or instead may be severed or reinterpreted in
a manner consistent with the intent of the enacting Congress.
(i)
TABLE OF CONTENTS
Page
FEF COS GED FREES 8 Wet cccecccensescssssenesesscreccnsensesneseses i
Oy v
SCA CEICS COE CORES Ci ecccesccssesssessssecerssescerssensenecs l
SUMMARY OF ARGUMENT .....cccscsscsssoccccesccccecssecee 2
PEFEIITS ccsrccsesssemmsssseemesenmeen 7
l.
BLAKELY APPLIES TO THE FEDERAL SEN- :
Oe 7
A. The Sixth Amendment Establishes A Defen-
dant’s Right To Insist That Any Fact That In-
creases The Maximum Sentence A Judge Is
Legally Authorized To Impose Be Proved To
A Jury Beyond A Reasonable Doubt.................. c)
B. Even If There Is An Exception To The Sixth
Amendment For Judge-Made Rules That En-
hance Sentences. The Guidelines Are Not
C. Holding The Guidelines Unconstitutional On
Sixth Amendment Grounds Would Not Re-
quire This Court To Overrule Any Cases........... 25
THE GUIDELINES NEED NOT BE STRUCK
DOWN IN THEIR ENTIRETY . 0.000.002... eeeeeeeees 26
A. The Portions Of The Sentencing Reform Act
And The Guidelines That Require Judicial
Factfinding Should Be Severed .......................... 27
1. The Purposes Of The SRA And The Guide-
lines Are Best Served By Mandatory
Guidelines That Incorporate Jury Factfind-
iv
TABLE OF CONTENTS—continued
2. A System Of Jury Factfinding Is Practica-
B. Petitioner's Proposed Solution—To Make The
Sentencing Guidelines Advisory—Directly
Contradicts The Stated Purposes Of Congress
And The Sentencing Commission ......................
Re Be eee Oicacsccscnsesecenccsssnncesnsennannssssnsanssssssenesseaseeeenst
50
v
TABLE OF AUTHORITIES
CASES Page
Addison v. Holly Hill Fruit Prods., Inc., 322 U.S.
Sr IE iticeseniteniesinantatinieintasianieantpaiaanaantatiaieiactesraiealelaaiien 28
Alaska Airlines. Inc. v. Brock, 480 U.S. 678
ITE casienanicinieentnntiensnesonnsmiemeiisnenens 6. 28, 33, 34
Alden v. Maine. 527 U.S. 706 (1999)...........ccccccce0e- 26
Almendarez-Torres v. United States, 523 U.S.
ee 47
Apprendi vy. New Jersey, 530 U.S. 466 (2000)... 9, 10, 40
Blakely v. Washington, 124 S. Ct. 2531 (2004) .... passim
Brecht v. Abrahamson, 507 U.S. 619 (1993).......... 26
Champlin Ref. Co. v. Corp. Comm'n, 286 U.S.
8 ee 28
Edelman v. Jordan, 415 U.S. 651 (1974)............2.. 26
Edwards v. United States, 523 U.S. 511 (1998)...... 25
FPC v. Idaho Power Co., 344 U.S. 17 (1952)........ 28
Feltner v. Columbia Pictures Television. Inc., 523
ly I innrrrceinieeneneniremciegsemmnmaens 31
Field v. Clark. 143 U.S. 649 (1892) .........cccccccccceeeee 33
Harris v. United States, 536 U.S. 545 (2002)......... 10
INS v. Chadha, 462 U.S. 919 (1983).........ccccccee00e 28. 44
INS v. St. Cyr, 533 U.S. 289 (2001) ........cccccececeeeeees 31
Jones v. United States, 526 U.S. 227 (1999)......... passim
Lorillard v. Pons, 434 U.S. 575 (1978).........0cccc0000 31
MD /DC/DE Broadcasters Ass'n v. FCC, 236 F.3d
> eee 30
McKoy v. North Carolina, 494 U.S. 433 (1990)..... 40
Miller v. Florida, 482 U.S. 423 (1987) ...............-. 19,22
Minnesota v. Mille Lacs Band of Chippewa Indi-
re ee 27. 45
Mistretta v. United States, 488 U.S. 361 (1989) ... passim
Monge v. California, 524 U.S. 721 (1998) ............. 35
Mullaney v. Wilber, 421 U.S. 684 (1975) ............... 12
NLRB v. Jones & Laughlin Steel Corp., 301 U.S.
SC ee 28
vi
TABLE OF AUTHORITIES—continued
Page
\. Pipeline Constr. Co. vy. Marathon Pipe Line
Cg Ge ee Br i ccacasnsserettpreenmmmennn 21
People v. Calderon, 885 P.2d 83 (Cal. 1994)......... 37
People v. Reese. 179 N.E. 305 (N.Y. 1932)... 18
In re Permian Basin Area Rate Cases, 390 U.S.
ee iccerirnimretieriniaseatasiaeisiauiasitieremnemtaieaaies 26
Regan v. Time. Inc.. 468 U.S. 641 (1984)....... 27. 28, 3
Richardson v. Marsh, 481 U.S. 200 (1987) ............ 34
Ring v. Arizona, 536 U.S. 584 (2002) .0.....cccc cee passim
Schriro v. Summerlin, 124 §. Ct. 2519 (2004)... 5, 34. 40
State v. Ring. 65 P.3d 915 (Ariz. 2003) ............0..2.. 4]
State v. Tongate. 613 P.2d 121 (Wash. 1980)......... 13
Stinson v. United States. 508 U.S. 36 (1993).....4. 11, 22
Tilton v. Richardson, 403 U.S. 672 (1971) «0.0.0.0... 28
l nited States v. Ameline. 376 F.3d 967 (9th Cir.
+ ERED SET EneNe Ieee nam TD 30. 33. 37. 46
lnited States v. Booker. 375 F.3d 508 (7th Cir.
2004). cert. granted, 73 U.S.L.W. 3073 (U.S.
Aug> 2. 2004) (No. 04-104) oc cceeeeeeee 18. 31. 37
United States v. Buckland, 259 F.3d 1157 (9th
Cir.2001). rev d. 289 F.3d 558 (9th Cir.). cert.
denied. 535 U.S. 1105 (2002) .......ccccccceececseeeeeeees 32
United States v. Buckland, 289 F.3d 558 (9th
Cir.). cert. denied. 535 U.S. 1105 (2002) ............ 32
United States v. Croxford. 324 F. Supp. 2d 1230
TI cersicsneonistiianhbenniesinndeinieaiinbtieadnctinnniabinis 35
United States v. Dinome. 86 F.3d 277 (2d Cir.
Tea schciasbescend celine eedihdeabcibciiienaeidinaaieiiaaihdiiieediatians 37
l nited States v. Dunnigan, 507 U.S. 87 (1993)...... 25
nited States v. Grayson, 438 U.S. 41 (1978)........ 43
United States v. Hammoud. No. 03-4253. 2004
WL 2005622 (4th Cir. Sept. 8. 2004) 0000000000... 14.17
United States v. Harris. No. Cr. 03-354 (UBS).
2004 WL 1853920 (D.N.J. Aug. 18.
ES eee eee veered ee eee 35. 37. 42
vii
TABLE OF AUTHORITIES—continued
Page
United States v. Hasting, 461 U.S. 499 (1983)....... 38
United States v. Jackson, 390 U.S. 570 (1968)..... 36, 37
United States v. Jenkins, 902 F.2d 459 (6th Cir.
ETT ccnesiienapaaaianiaarimasieniamausnsssasitniaaiiamialiieniemats 37
United States vy. Johns, No. 1:03-CR-0250-16,
2004 WL 2053275 (M.D. Pa. Sept. 15, 2004)... 35, 37
United States v. Khan, 325 F. Supp. 2d 218
CTE F< Bie ee rcensescrnssessasercsnsensssessensnssemensssess 30, 37
United States v. Montgomery, 324 F. Supp. 2d
eee 35, 41
United States v. Mueffleman, 327 F. Supp. 2d 79
a, IIR, ZO crccnenestecccssccnsnmenmnesmensnnion 46, 47
United States v. O Daniel, 328 F. Supp. 2d 1168
FY eee 34, 37, 42
United States vy. Outen, 286 F.3d 622 (2d Cir.
ee 32
United States v. Swan, 327 F. Supp. 2d 1068 (D.
DRI, FIO ccsensssescensccsenssnassncsntansesessanamntenmansesess 41
United States v. Watts, 519 U.S. 148 (1997)........... 25
Williams v. New York, 337 U.S. 241 (1949) ........... 18
In re Winship, 397 U.S. 358 (1970) ....cccccccceeeeeeeees 12
Witte v. United States, 515 U.S. 389 (1995)........... 25
CONSTITUTION, STATUTES AND REGULATIONS
FQ 8 OG OD en 21
Prosecutorial Remedies and Tools Against the
Exploitation of Children Today Act of 2003.
Pub. L. No. 108-21, 117 Stat. 650 ......cccccssseee0n 23, 24
Pub. L. No. 104-38, 109 Stat. 334 (1995) oo... 24
$B UGC. 6 BOGE seceeccnceccorsscescnssnscsssnsons 11, 44, 49, 50
RTT TT ee 11,19
a 1, 15, 31
ERE ETE 1
Vili
TABLE OF AUTHORITIES—continued
Page
RE ME
EEN oer en eee D Nees 21
| EN
i es 4]
Wash. Rev. Code § EERE eee na ]2
§ i 12
I i ]2
USSG. $ 1AI.1. hist. | ETC:
gt RR 8 2 RE eie 48
a 32
ERE ERS ee en sanee ree Sn anU err oed 31
I ileal a eh ia ae te 45
I ah ae ied 2
fF BER See creer ia ne eee an eae 2
§ JD1.1(c) note D (2003) ............ccccccccccccees. 2
BB I RE ES MS Se toe er 2
FE ae eee EDR come ey we eRe 2
LEA es Sa, ORE OAD ee a 2
| SEES Rc oe eet net ae ee ae SR 31
RULES
I a . 35
SE TE aI RID 38
LEGISLATIVE HISTORY
D. Cem. TRGB, PGR FP CaO cccvcccccccccccceccccsccnccseseeees 29
S. Rep. No. 98-225 (1983). reprinted in 1984
Cf dk RRR rere rere passim
ix
TABLE OF AUTHORITIES—continued
SCHOLARLY AUTHORITIES Page
Rachel E. Barkow, Recharging the Jury: The
Criminal Jury's Constitutional Role in an Era
of Mandatory Sentencing, 152 U. Pa. L. Rev.
icsesicisiciinsicitasbinisiaiaieniianbiaiaiiiianiioneantbiaiiae 16, 17
Alexander M. Bickel, The Supreme Court, 1960
Term—Foreword: The Passive Virtues, 75
es Bis Ss Se Pecresncitastiitanpntctsimsniiininsiiinness 34
Stephen Breyer. The Federal Sentencing Guide-
lines and the Key Compromises Upon Which
They Rest. 17 Hofstra L. Rev. 1 (1988)............... 29
Steven L. Chanenson,. Hoist with Their Own Pe-
tard?, 17 Fed. Sent. Rep. (forthcoming Oct.
2004). at http://papers.ssrn.com/sol3/papers.
| 23
Gerald W. Heaney. The Reality of Guidelines
Sentencing: No End to Disparity, 28 Am. Crim.
iw SEs HERE GEE isrcanincrciicinineapetidtenininpestnedenineste 17
Robert H. Joost, Viewing the Guidelines as a
_ Product of the Federal Criminal Code Effort, 7
Fed. Sent. Rep. 118 (1994), available at 1994
a> CUP IIE cccsninipansocsnsennssineitsiiinsnsinmsensidtaniicinnonn 17
Nancy J. King & Susan R. Klein, Beyond Blakely.
16 Fed. Sent. Rep. 316 (2004)... 31, 36, 37
Benjamin E. Rosenberg, Criminal Acts and Sen-
tencing Facts: Two Constitutional Limits on
Criminal Sentencing, 23 Seton Hall L. Rev. 459
Kate Stith & José A. Cabranes, Fear of Judging:
-Sentencing Guidelines in the Federal Courts
Kate Stith & Steve Y. Koh, The Politics of Sen-
tencing Reform: The Legislative History of the
Federal Sentencing Guidelines, 28 Wake Forest
is Se SITET ichciichennehiieiiatahittathabiiaaiihdbataiinetiin 24
x
TABLE OF AUTHORITIES—continued
Page
David M. Zlotnick. The War Within the War on
Crime: The Congressional Assault on Judicial
Sentencing Discretion, 37 SMU L. Rev. 211
A chbdeinniclansalgiaiinaeneeieiiaceinaniieniii a ia 24
OTHER AUTHORITIES
DOJ Legal Positions and Policies in Light of
Blakely v. Washington. reprinted in 16 Fed.
SE, SD, Fie CO ctenenierrencesiamsnadeinnmencaineie 42. 46
DOJ Criminal Div... Prosecutors Handbook on
Sentencing Guidelines and Other Provisions of
the Sentencing Reform Act of 1984 (1987).......... 22
Federal Public Defender Letter to U.S. Sent.
Comm'n, reprinied in 16 Fed. Sent. Rep. 361
STATEMENT OF THE CASE
On June 11, 2003, a grand jury sitting in the District of
Maine charged Ducan Fanfan in a one-count indictment with
conspiracy to distribute 500 grams or more of cocaine hydro-
chloride in violation of 21 U.S.C. § 846. Pet. App. 14a.
At trial, the prosecution presented the testimony of Dono-
van Thomas, a cooperating co-defendant.' Thomas testified
that he had purchased cocaine hydrochloride in the past from
Fanfan. Thomas also testified that he had attempted to pur-
chase cocaine hydrochloride and cocaine base (“crack”) from
Fanfan after agreeing to cooperate with the prosecution, eveh
though Judge Hornby earlier had ruled that any conspiracy
would have ended when Thomas began to cooperate. Fanfan
was not charged with this alleged sale. The jury also heard
testimony that Fanfan had been in possession of cocaine hy-
drochloride and cocaine base at the time of his arrest. On
October 9, 2003, the jury returned a guilty verdict on the sin-
gle charge of conspiracy to distribute more than 500 grams of
cocaine hydrochloride. Pet. App. 15a.
A sentencing hearing followed, during which the prosecu-
tion argued that Fanfan should be sentenced for the posses-
sion and sale of crack cocaine that was, pursuant to the
judge’s earlier ruling, outside the scope of the charged con-
spiracy. The prosecution presented testimony regarding co-
caine base, including hearsay evidence that Fanfan had sold
cocaine base to Thomas in the past. Sent. Tr. 23-26. The
prosecution sought a substantial increase in Fanfan’s sentence
on the basis of that evidence.” /d. at 50-52, 55-57.
' Federal agents arrested Thomas after he attempted to collect money
from another cooperating co-defendant. After his arrest, Thomas agreed to
cooperate with the prosecution.
> Under the Controlled Substances Act, “cocaine base” is a different
“substance” from “cocaine,” and offenses involving cocaine base are sub-
ject to significantly different penalties. Compare, e.g. 21 U.S.C.
§ 841(b) 1 Bil), with id § 841(b\ 1) B)iii). The Guidelines, on the
5
Fantan objected that. under this Court’s decision in Blakely
v. Washington, 124 S. Ct. 2531 (2004), if the prosecution
sought the harsher punishment for a cocaine base crime, it
should have charged such a crime in the indictment and
proven it to the jury beyond a reasonable doubt. Pet. App. 5a-
6a. 14a. The judge agreed that Blakely precluded it from in-
creasing Fanfan’s sentence based on any facts other than
those found by the jury. Accordingly. the judge concluded
that no aspect of the sentence could be premised on the alle-
gation that Fanfan had possessed cocaine base: “The jury
verdict does not permit us to reach a conclusion about crack
cocaine. Crack cocaine was not even charged in the indict-
ment.” /d. at 6a. Nor could the sentence be increased for any
amount of cocaine hydrochloride over 500 grams, or on ac-
count of any leadership role that Fanfan allegedly played in
the conspiracy: “The verdict from the jury permits no conclu-
sion as to how much above the 500 grams the conspiracy in-
volved.... [T]he verdict does not permit us any conclusion as
to this defendant's leadership role in the conspiracy.” /d.
The judge declared that “without those jury findings ..., |
may not increase the sentence above the 63 to 78 month range
to the guideline range | found earlier.” Pet. App. 7a.”
SUMMARY OF ARGUMENT
1. “When a judge inflicts punishment that the jury’s verdict
alone does not allow. the jury has not found all the facts
“which the law makes essential to punishment.” and the judge
other hand. draw a dividing line between the particular form of cocaine
base known as crack. and all other forms of cocaine, treating crack much
more harshly. See USSG § 2D1.1(c). note (D) (2003).
* The judge also made alternate findings as if the Guidelines applied.
He found a drug quantity in excess of the 500 grams of cocaine charged in
the indictment. resulting in a hypothetical base offense level of 34 under .
USSG § 2D1.1(c\(3). He then imposed a two-level upward adjustment for
defendant's role under § 3B1.1(c). Finally. he found that Fanfan’s crimi-
nal history category was | under §§ 4A1.1 and 5A. The ultimate hypo-
thetical sentencing range was 188-235 months. Pet. App. 2a.
3
exceeds his proper authority.” Blakely, 124 S. Ct. at 2537,
(quoting | J. Bishop, Criminal Procedure § 87, at 55 (2d ed.
1872)). In this case, controlling rules of law allowed the
judge to impose a prison sentence of no more than 78 months
based on facts found in “the jury's verdict alone.” /d.: Pet.
App. 7a-8a. If. however, the judge were permitted to rely on
his own factual findings, a maximum sentence of 235 months
would have been lawful. /d. at 2a. This four-fold increase in
Fanfan’s sentence would have resulted from a finding of drug
quantities, beyond that found by the jury, that were allegedly
part of the same course of conduct, Sent. Tr. 80, and a further
finding that Fanfan’s role was that of a recruiter, organizer
and leader of criminal activity involving five or more people,
id. at 81-84. However, the judge below correctly understood
that any additional punishment above 78 months would
amount to “punishment that the jury’s verdict alone does not
allow,” Blakely, 124 S. Ct. at 2537, and he therefore imposed
a sentence of 78 months in prison. Sent. Tr. 107-09.
Petitioner claims that because the Guidelines are not “stat-
utes,” there is no Sixth Amendment bar to judicial factfind-
ing, pursuant to the Guidelines, that increases the lawful pun-
ishment the judge may impose. But, as this Court has repeat-
edly noted, for Sixth Amendment purposes “[t]he dispositive
question ... “is one not of form, but of effect."” Ring v. Ari-
zona, 536 U.S. 584, 602 (2002) (quoting Apprendi v. New
Jersey, 530 U.S. 466, 494 (2000)). The “effect” here could
not be more plain: Fanfan’s legally authorized sentence
would increase by 157 months—more than 13 years—solely
on the basis of factual allegations that the prosecution never
pled at the outset of the case and never asked the jury to find.
Indeed, the “effect” here is precisely the same as the “effect”
on the defendants’ sentences in Blakely, Ring and Apprendi,
all of which this Court held violated the Sixth Amendment.
The United States and its amici assert that there is a con-
stitutionally significant difference between the Guidelines
(which they characterize as judge-made rules) and a statutory
4
system that equally constrains the judge's authority to impose
a sentence based solely upon facts found by the jury. But
they offer no reason to support that distinction, other than that
this Court's prior cases—Blakely, Ring, and Apprendi—in-
volved statutory enhancements. They ignore the numerous
occasions on which this Court stated the operative principle
broadly. and did not specifically link it to the fact that those
cases involved statutes. They never tie the purported statu-
tory judge-made distinction to the values the jury right pro-
tects. In short, the statutory/judge-made distinction is unsus-
tainable under any rule that gives the Sixth Amendment jury
right “intelligible content.” Blakely, 124 S. Ct. at 2538.
Even if the statutory/judge-made distinction mattered, and
it does not. the Sixth Amendment nevertheless applies to the
Guidelines. This Court has never understood the Guidelines
to be mere judicial self-guidance. “[T]he [Sentencing] Com-
mission is not a court. does not exercise judicial power, and is
not controlled by or accountable to members of the Judicial
Branch.” Mistretta v. United States, 488 U.S. 361, 393
(1989). Congress has delegated to the Commission “nonad-
judicatory functions.” id. at 388, and as a result the Guide-
lines “are the equivalent of legislative rules adopted by fed-
eral agencies.” Stinson v. United States, 508 U.S. 36, 45
(1993). That these agency-adopted legislative rules do not
violate the non-delegation doctrine, Mistretta, 488 U.S. at
376-80. tells us nothing about whether they violate the Fifth
and Sixth Amendments. Further. changes to the rules con-
cerning the composition of the Commission, and the recently
increased role Congress has taken in shaping the content of
the Guidelines. render entirely untenable any suggestion that
the Guidelines are the equivalent of judicial self-guidance.
Finally. petitioner also claims that applying Blakely to the
Guidelines would require overruling four pre-Apprendi cases.
That is wrong. This is the first time this Court will consider
whether the Sixth Amendment invalidates the Guidelines to
the extent they authorize a judge to impose a sentence greater
5
than he or she would be bound to impose on the exclusive ba-
sis of factual findings made by the jury. In two cases, the
Court concluded that the Guidelines do not violate the Double
Jeopardy Clause. In one other case, the Court held that the
Guidelines do not violate the defendant's right to testify in his
own behalf. And in the last of petitioner's cases, the Court
expressly refused to consider a Sixth Amendment challenge
to the Guidelines. That the Guidelines survived the chal-
lenges reflected in these cases does not foreclose considera-
tion of whether they violate the right to a jury trial. This
Court therefore should resolve the question based on the rule
of the Blakely, Ring, and Apprendi line of cases.
2. Contrary to petitioner's sweeping inseverability argu-
ment, a holding that the Sixth Amendment applies to the
Guidelines would not require that the Guidelines be jettisoned
in their entirety. As an initial matter, petitioner does not actu-
ally advocate inseverability, despite its claims to the contrary:
to render the Guidelines advisory, as petitioner urges, would
itself entail severing numerous statutory and Guidelines pro-
visions. The question, then, is what form of severance best
sustains legislative intent. Congress’s paramount concern in
crafting the Guidelines was to eliminate sentencing disparities
among similarly situated defendants. Preserving both the
mandatory Guidelines system and the substance of all its
sentence-adjusting provisions—while permitting district
courts to adopt procedural changes to the way in which some
of those still-universally applicable provisions are triggered,
Schriro v. Summerlin, 124 §. Ct. 2519, 2523-24 (2004)—is
entirely consistent with Congress's intent.
Given Congress's palpable focus on eliminating sentencing
disparities (and conspicuous silence on the supposed virtues
of judicial factfinding). it defies reason to suggest that a re-
turn to unfettered discretionary sentencing, with all of its wild
variations, is more in keeping with the purpose of the Sen-
tencing Reform Act (“SRA”) than a mandatory Guidelines
system in which sentence-enhancing facts are supported by
6
jury findings. As the advocate of inseverability and “advi-
sory” Guidelines, petitioner bears the burden of proving that
nearly inconceivable set of iegislative preferences. Alaska
Airlines, Inc. v. Brock, 480 U.S. 678. 685 n.7 (1987). This it
cannot do. While petitioner points out that provisions of the
SRA and the Guidelines define procedures for judicial deter-
mination of sentencing facts. it never shows that such provi-
sions were so central to Congress's or the Commission's
overall aims that they would have thrown up their hands and
walked away from the sentencing reform enterprise if forced
to proceed without them.
Petitioner's laundry list of objections to Guidelines sen-
tences supported by jury findings fares no better than its
failed attempt to divine Congress's intent. The suggestion
that jurors are not suited to making the requisite factual find-
ings is refuted by this Court's repeated expressions of confi-
dence in juries’ capabilities. e.g.. Ring. 536 U.S. at 599, and
rendered beside the point by the Constitution's explicit pref-
erence for decisionmaking by jurors rather than judicial in-
quisitors. Blakely. 124 S. Ct. at 2543. Similarly. petitioner's
procedural concerns with juror factfinding fail to account for
district judges’ broad reservoir of experience with bifurcation,
special interrogatories. and other familiar means of channel-
ing juror decisionmaking and safeguarding criminal defen-
dants’ constitutional rights. There is no reason to believe that
such use of judges” inherent power to impose Guidelines
sentences consistent with the Sixth Amendment is inconsis-
tent with judicial experience or jurors’ capabilities. Nor
would it have struck Congress as odd that prosecutors would
prove facts increasing a defendant's sentence to a jury beyond
a reasonable doubt. but that a defendant attempting to demon-
Strate facts in mitigation of his sentence would convince a
judge by a lesser standard. Such “asymmetry” is a familiar
part of our criminal justice system: It provides the defendant
with the tools necessary to defend himself when the powerful
machinery of the state seeks to deprive him of his liberty.
7
Finally, a mandatory Guidelines system based on jury-
found, sentence-enhancing facts presents no separation of
powers or non-delegation concerns. This Court in Mistretta
held that it did not offend the separation of powers for the
Sentencing Commission to issue guidelines mandating pun-
ishment upon a finding of Commission-prescribed facts. Pe-
titioner offers no good reason why the identity of the deci-
sionmaker charged with finding those facts, or the precise
nature of the required burden of proof, would be relevant to
the separation of powers. That this Court has used the word
“element” as rhetorical shorthand for a sentence-enhancing
fact in the context of the Sixth Amendment in no way alters
Mistretta’s account of the Sentencing Commission's work for
purposes of unrelated constitutional provisions.
** **
The Guidelines are unconstitutional to the extent they per-
mit judges to find facts that “*the law makes essential to the
punishment.” Blakely, 124 S. Ct. at 2537. The Guidelines
need not be struck down in their entirety, however, because
severing or reinterpreting them to permit jury factfinding—
rather than rendering them advisory or striking them alto-
gether—would best promote congressional intent. But be-
cause the government failed to indict sentence-enhancing
facts in this case, did not seek to present such facts to a jury,
has failed to request that relief here—and, in fact, concedes
that such relief is unavailable to it, Pet. Br. 68-69—the judg-
ment of the district court should simply be affirmed.
ARGUMENT
I. BLAKELY APPLIES TO THE FEDERAL SEN-
TENCING GUIDELINES.
The Guidelines establish the limits on the lawful range of
punishment a judge may impose on a defendant convicted of
a crime. As this case dramatically illustrates, judicial fact-
finding under the Guidelines permits the judge to impose one
8
sentence based solely upon the facts as found by the jury be-
vond a reasonable doubt. and another, often substantially
greater. sentence based on those facts plus others that the
judge finds to be true by a preponderance of the evidence.
Blakely squarely holds that the Sixth Amendment forecloses
such a system. 124 S. Ct. at 2537-38. Petitioner's efforts to
extract the Guidelines from the clear scope of the Sixth
Amendment depend upon elevating the Guidelines” form over
their effects. and an exaggerated account of the Guidelines as
jucge-made rules.
Petitioner candidly admits that its reading of Blakely is not
compelled. Pet. Br. 19 (“[t}here is language in Blakely that
could be read to suggest a broader rule”): id. at 39 (noting that
Justice O'Connor. writing for all four dissenting Justices, un-
derstood the majority to adopt a broad rule that requires a
waivable right to a jury finding with respect to “*any fact that
increases the upper bound on a judge's sentencing discre-
tion’). And it tacitly acknowledges that the broader reading
is the more natural one. when it takes the extraordinary step
of urging the Court to overrule a decision on which the ink is
barely dry. /d at 39 (asking the Court to “reconsider{] and
reject|]~ Blakely). But Blakely was neither a mistake nor a
shot from the dark. It was a clear reaffirmation of the princi-
ple that first received voice in Jones v. United States, 526
U.S. 227 (1999). was first enforced in Apprendi, and was ap-
plied again in Ring. See Blakely, 124 S. Ct. at 2551 (Breyer,
J.. dissenting) (~[t}he Court makes clear that it means what it
said in Apprendi’). That principle is essential to protect the
core Values of the right to a jury trial. Accordingly, this Court
should adhere to the holding of B/ake/y—that a criminal de-
fendant has the right to insist that every fact which, under the
* Throughout this brief. references to the “jury right.” “facts as found
by the jury.” and “jury factfinding™ are intended to include not only a de-
fendant’s right to have a jury instead of a judge serve as the factfinder, but
also to the higher burden of prouof—bey ond a reasonable doubt instead of
preponderance of the evidence—that applies to jury factfinding.
9
controlling law, authorizes a judge to impose an increased
punishment, must be found by a jury beyond a reasonable
doubt—and apply it to the Guidelines.
A. The Sixth Amendment Establishes A Defendant's
Right To Insist That Any Fact That Increases
The Maximum Sentence A Judge Is Legally
Authorized To Impose Be Proved To A Jury Be-
yond A Reasonable Doubt.
1. Petitioner's principal argument in defense of the Guide-
lines is that this Court has used the phrase “statutory maxi-
mum” to describe the outer limit of a judge’s sentencing
authority. Pet. Br. 15-19, 39 (arguing that application of
Blakely to the Guidelines depends on “*redefin[{ing] “statutory
maximum” to omit the word “statutory”’” (citation omitted)).
To be sure, in Blakely, Ring, and Apprendi, the source of law
that authorized a judge to impose a sentence based on facts
not found by the jury (or admitted by the defendant) was a
statute. Blakely, 124 S. Ct. at 2535 (describing Washington
Sentencing Reform Act); Ring, 536 U.S. at 592-93 (Arizona
first-degree murder statute); Ap, rendi v. New Jersey. 530
U.S. 466, 468-69 (2000) (New Jersey unlawful firearm pos-
session and hate crime statutes). It is, therefore, hardly sur-
prising that the Court at times has described the failing of the
sentences imposed in those cases as exceeding the “statutory
maximum” authorized by the jury’s verdict. Blakely, 124 S.
Ct. at 2537; Apprendi, 530 U.S. at 490; see also Ring, 536
U.S. at 604 (noting that Arizona’s first-degree murder statute
“explicitly cross-references [a] statutory provision” (emphasis
added)). But there is no indication that the use of the word
“statutory” in these cases described the governing principle,
rather than the simple fact that the cases involved statutes.
Indeed, the Sixth Amendment rule is indifferent to the
source of law—statutory or otherwise—that underlies the
judge’s sentencing authority. Simply put, “every defendant
has the right to insist that the prosecutor prove to a jury all
facts legally essential to punishment.” Blakely, 124 S. Ct. at
10
2543. This Court has repeatedly stated the rule in just these
terms. beginning with Jones, the first case to articulate the
relevant principle, 526 U.S. at 223 n.6 ("any fact (other than
prior conviction) that increases the maXimum penalty for a
crime must be charged in an indictment, submitted to a jury.
and proven bevond a reasonable doubt”), and continuing
through Apprendi. Ring and Blakely.” What has always mat-
tered is the judge's authority, however constrained, to impose
a sentence based solely upon the facts found by the jury.
What matters is what “the law” permits, not the source of “the
law”: what matters is the scope of the “judicial power™ to
sentence. not the source of the limitation on that power.
The Guidelines. no less than a statute. constrain a judge's
authority to impose a sentence.° The Guidelines are binding
* Blakely, 124 S. Ct. at 2537 (°[wJhen a judge inflicts punishment that
the jury's verdict alone does not allow. the jury has not found all the facts
‘which the law makes essential to punishment’ and the judge exceeds his
proper authority” (internal citation omitted)): id at 2538 (what matters is
that imposition of the longer sentence on the basis of the jury's factual
findings alone would have resulted in the sentence being “reversed™): id
at 2543 (“every defendant has the rig/v to insist that the prosecutor prove
to a jury all tacts legally essential to the punishment’): Ring, 536 U.S. at
588-89 (characterizing 4pprendi’s holding: “the Sixth Amendment does
not permit a defendant to be “expose[d] ... fo a penalty exceeding the
maximum he would receive if punished according to the facts reflected in
the jury verdict alone”): id at 602 (“[i}f a State makes an increase in a
defendant's authorized punishment contingent on the finding of a fact. that
fact—no matter how the state labels it—must be found by a jury beyond a
reasonable doubt”): 4pprendi, 530 U.S. at 482-83 (discussing the “con-
sistent limitation on judges” discretion to operate within the limits of the
legal penalties provided”): id at 486 (the Constitution is implicated by “a
state scheme that keeps from the jury facts that ‘expos[e] [defendants] to
greater or additional punishment”): see Harris v. United States, 536 U.S.
545. 567 (2002) (Kennedy. J.) (Apprendi means “that those facts setting
the outer limits of a sentence. and of the judicial power to impose it, are
the elements of the crime for purposes of the constitutional analysis” ).
’ For this reason. petitioner misreads this Court's statement in Apprendi
that it is not “*impermissible for judges to exercise discretion——taking into
consideration various factors relating both to offense and offender—in
on sentencing judges. Stinson, 508 U.S. at 42: Mistretia, 488
U.S. at 391. If a judge imposes a sentence in excess of the
Guidelines-determined range, the defendant is entitled to have
an appellate court vacate the sentence. 18 U.S.C. § 3742.’
Because the Guidelines constrain the judge's legal authority
to impose a sentence. and because the Sixth Amendment re-
quires the actual sentence imposed to remain at or below the
maximum amount legally authorized based solely upon the
facts found by the jury, every time a judge enhances a sen-
tence under the Guidelines beyond that permitted by the jury-
found facts, the Sixth Amendment is violated.
2. Petitioner's reading of Blakely as concerning only “stat-
utes” that limit a judge's sentencing authority fails for reasons
beyond the breadth of the language used by this Court in
stating the relevant legal principle. When it comes to deter-
mining the scope of the Sixth Amendment jury right, “[t}he
dispositive question ... ‘is one not of form, but of effect.””
Ring, 536 U.S. at 602 (quoting Apprendi, 530 U.S. at 494);
imposing a judgment within the range provided by statute."” Pet. Br. 16
(quoting Apprendi, 530 U.S. at 481). That passage expressly refers to the
judge’s traditional sentencing discretion and says nothing about a system,
like the Guidelines, that constrains the judge's discretion to move within a
statute's range.
” A group of former federal judges essentially denies that the Guide-
lines are mandatory and claims that, because sentencing judges have
authority under the Guidelines to depart (both upward and downward)
from the sentencing range mandated by the Guidelines, the Guidelines
survive Sixth Amendment scrutiny. See Ad Hoc Group of Former Federal
Judges Br. 6 (“federal judges possess th[e] substantial ability to depart
from a Guideline range”). Petitioner does not advance this argument, and
with good reason, for the argument entirely misses the point of Blakely.
To justify a departure—up or down—a judge must find some fact that the
Guidelines do not otherwise instruct him to consider. 18 U.S.C.
§ 3553(a), (b). But if that fact was not found by the jury, it cannot justify
an upward departure. Blakely, 124 S. Ct. at 2538 n.8 (“Whether the judi-
cially determined facts require a sentence enhancement or merely a//ow it,
the verdict alone does not authorize the sentence.”). Furthermore, this
argument presupposes a level of judicial discretion that, even if it once
existed, certainly does not any longer. See infra at 23-25.
}?
Mullaney v. Wilbur, 421 U.S. 684, 699 (1975) (the jury right
“is concerned with substance rather than ... formalism”). To
accept petitioner's (and the Sentencing Commission's) argu-
ment that statutes are different for Sixth Amendment purposes
would ignore substance in favor of form. What matters is
what the rules constraining judicial power do, not how those
rules are labeled. /n re Winship, 397 U.S. 358. 365-66 (1970)
(“civil labels and good intentions do not themselves obviate
the need for criminal due process safeguards”). And in every
relevant respect. the Guidelines constrain judicial power ex-
actly as did the provisions of the Washington Sentencing Re-
form Act that were held in Blakely to violate the Sixth
Amendment. If anything. the Washington system was more
Sixth Amendment compliant than the Federal Guidelines.
Washington's sentencing system relied on three kinds of
“facts” to produce the sentence in Blakely. The sentencing
court began with the facts that make up the offense of con-
viction—in Blakely. second degree kidnapping, Wash. Rev.
Code § 9A.40.030(1). 124 S. Ct. at 2534. Because that of-
fense is a “Class B” felony. Wash. Rev. Code § 9A.40.
030(3)(a). the maximum prison term was 10 years, id.
§$ 9A4.20.021(1b). The second “fact” related to a “special
verdict” provision that allows the government to require the
jury, if it finds the defendant guilty of the charged offense, to
make a special finding whether a deadly weapon was used in
the commission of the crime. /d. § 9.944.602. Blakely ad-
mitted the elements of both second degree kidnapping and the
deadly weapon (firearm) allegation. 124 S. Ct. at 2534-35.
Under the Washington Guidelines. if the judge had consid-
ered only the facts related to the offense of conviction, and
Blakely ’s criminal history. then Blakely would have received
a sentence of 13 to 17 months. /d. at 2535. Because Blakely
admitted the firearm allegation as well. his sentence more
than doubled under the Guidelines. /d. (noting 36-month
firearm enhancement under Wash. Rev. Code
$ 9.944.310(3)(b)). Blakely had the right to insist that this
13
fact be proved to the jury beyond a reasonable doubt, even
though it was not an element of the offense of conviction.
State v. Tongate, 613 P.2d 121, 122 (Wash. 1980). The Sixth
Amendment was not violated, however, because Blakely ad-
mitted this fact in his plea.
Blakely’s sentence was constitutionally infirm only because
the judge increased his sentence beyond what the Washington
Guidelines authorized based on the facts Blakely admitted.
The judge found that Blakely had acted with “‘deliberate cru-
elty’” in committing the crime, and imposed an “exceptional
sentence” that added 37 months to the sentence otherwise
authorized by the Guidelines. 124 S. Ct. at 2535. Thus, the
Washington system enhanced Blakely’s sentence by 36
months in a way compliant with the Sixth Amendment (the
firearm enhancement) and by 37 months in a way that was
noncompliant (the deliberate cruelty enhancement).
The Federal Guidelines lack the Sixth Amendment-
compliant part of the Washington system, and mimic the non-
compliant part. As petitioner admitted in Blakely, in the fed-
eral system there is one maximum punishment “that would be
permitted under the Guidelines if one could consider only
those facts constituting the elements of a particular offense
(and the defendant's criminal history).” U.S. Br. as Amicus
Curiae at 30, Blakely v. Washington, 124 S. Ct. 2531 (2004)
(No. 02-1632). That is what the sentencing judge considered
here in imposing a sentence of 78 months. Pet. App. 5a-7a.
From the Sixth Amendment perspective, respondent Fanfan’s
sentence is the equivalent of the 13-to-17-month range the
Washington Guidelines produced for Blakely’s charged of-
fense after considering his criminal history. But whereas
Washington began enhancing that sentence in a way consis-
tent with the Sixth Amendment (the firearm enhancement),
all of the federal enhancements here are like Blakely’s unlaw-
ful deliberate cruelty enhancement: the defendant has no right
to insist that the facts authorizing the enhancement be proved
to a jury beyond a reasonable doubt. In Fanfan’s case, up to
14
157 additional months of imprisonment would have been
based exclusively upon judge-found facts. In United States v.
Hammoud, No. 03-4253. 2004 WL 2005622. at *35 (4th Cir.
Sept. 8. 2004) (Motz. J., dissenting). exclusively judge-found
facts enhanced the sentence by /50 years.
To be sure. the Federal Guidelines are more complex than
the Washington Guidelines. Pet. Br. 29-32. The Federal
Guidelines do not. as an initial matter. produce a “standard
range” based upon criminal history and the offense of con-
viction. Instead. they require the judge to consider all **rele-
vant conduct” attendant to the offense (which includes, but is
not limited to. the facts found by the jury). to determine a
“base offense level[].~ /d. at 29-31. As a result. whereas the
offense of conviction in Washington is closely related to the
**standard sentenc|ing] range." under the Federal Guidelines
the offense of conviction is not meaningfully related to any
Guidelines sentencing range. /d. at 31. In addition, a finding
of a particular offense characteristic under the Federal Guide-
lines is not necessarily tied to any particular increase in the
sentence imposed. /d. at 32.
But these differences only serve to conceal the Sixth
Amendment violation, not cure it. The constitutional defect
in the Washington system was plain because the lawful steps
in the sentencing process relied on facts found by the jury or
admitted by the defendant. Washington's system violated the
Sixth Amendment only when it deviated from these lawful
considerations and increased the sentence the judge could im-
pose as the result of judge-found facts. That aspect of the
Washington system. held unconstitutional in Blakely, per-
vades the federal regime. which does not even ask the judge
to perform the lawful first steps of the Washington system.
Commingling jury-found facts with judge-found facts at the
core of the sentence-calculation process. as the Federal
Guidelines do. simply merges into a single step the multiple
steps of the Washington system.
The relevant distinction. under the Sixth Amendment, is
15
between judge-found facts and those the defendant has a right
to insist be proved to a jury. Washington tried to obliterate
that distinction in Blakely by diverting this Court’s attention
away from the legally binding significance of the facts that
the defendant could insist be proved to a jury. To Washing-
ton, that its Sentencing Reform Act prohibited the 90-month
sentence without judge-made findings was irrelevant because
some other law—the Class B felony sentencing provision
capping punishment at 10 years—would have permitted the
judge to impose the longer sentence. Blakely, 124 S. Ct. at
2537. Petitioner tries the same diversion. To petitioner, that
the Guidelines do not allow the judge to impose a 235-month
sentence without judge-made findings is irrelevant because
another source of law—21 U.S.C. § 841(b)(1)(B)—would
permit the judge to impose a longer sentence (40 years).
This Court should reject petitioner's argument just as it re-
jected Washington's. The Federal Guidelines and the Wash-
ington Guidelines function exactly the same; they both do the
same thing. even if one is nominally a “statute” and the other
is not. Each fully constrains the lawful power of the judge to
impose a sentence. Because, as this Court has repeatedly em-
phasized, form is not to be elevated over substance, this Court
should treat the two systems the same. The Sixth Amend-
ment invalidates both to the extent they increase the punish-
ment the judge is legally authorized to impose as the result of
judge-found facts.
3. There is a third reason that the Federal Guidelines
should be treated just-like the Washington Guidelines for
Sixth Amendment purposes: The values protected by the
Sixth Amendment jury right are offended equally by binding
regulatory restraints as they are by statutory restraints.
The jury right is a “fundamental reservation of power in our
constitutional structure ... [so as to] ensure[] the people's ul-
timate control ... in the judiciary.” Blakely, 124 S. Ct. at
2538-39. By requiring a jury to find all facts essential to
authorize punishment of a certain severity, juries “check{]”
16
the power of judges to impose severe sentences by issuing
“what today we would call verdicts of guilty to lesser in-
cluded offenses.” Jones, 526 U.S. at 245 (citing 4 Black-
stone. Commentaries 238-39 (1769)). A jury has a distinct
advantage over judges in dispensing the merciful sense of the
community, and not only because the jury is more representa-
tive of community sentiment. A jury “does not need to give
any reason for an acquittal. and it faces no review by a court
or legislature. It therefore has a greater opportunity than a
judge to check the state|’s] ... punitive laws.” Rachel E.
Barkow. Recharging the Jury: The Criminal Jury's Constitu-
tional Role in an Era of Mandatory Sentencing, 152 U. Pa. L.
Rev. 33. 61 (2003). As demonstrated in Jones by this Court's
exhaustive review of the history of the jury right. any shift
from jury to judge of the power to make findings of fact that
bear upon the judge's authority to impose an increased sen-
tence would have struck the Founding generation as an intru-
sion on a basic bulwark of liberty. Jones. 526 U.S. at 246-48
(“the finding of facts was simply too sacred a jury prerogative
to be trifled with”: quoting 4 Blackstone. Commentaries at
342-44 (warning against “new and arbitrary methods of
trial.”~ not by juries. which are tempting because they appear
“convenient” but ultimately erode the liberty-protecting
function of the jury). and 4 /New Hampshire] Farmer, No. 3,
June 6, 1°88, in The Complete Bill of Rights 477 (N. Cogan
ed. 1997) (same)). The notion that the Commission would be
free to depart from these values when Congress may not does
serious violence to the principles that animate the Sixth
Amendment.
The evil to be avoided is a system in which the prosecutor
triggers the right to punish on the basis of relatively minor
misconduct found by a jury. and then proceeds to a “judicial
inquisition into the [more serious] facts of the crime the State
actually seeks to punish.” Blakely, 124 S. Ct. at 2539. “Ifa
potential penalty might rise from 15 years to life on a nonjury
determination, the jury’s role would correspondingly shrink
17
from the significance usually carried by determinations of
guilt to the relative importance of low-level gatekeeping....”
Jones, 526 U.S. at 243-44. This is exactly the system that the
Guidelines create—as vividly demonstrated by the sentence
in Hammoud, in which jury findings authorized a sentence of
less than five years. and judge-found facts increased that sen-
tence by 150 years. 2004 WL 2005622, at *35 (Motz, J., dis-
senting). As one commentator has observed,
federal criminal defendants are subject to a regime that
(1) defines crimes narrowly, thereby. effectively reducing
the number of facts that a jury must find beyond a rea-
sonable doubt to find the defendant guilty; and
(2) authorizes punishment for those narrowly-defined
crimes based upon factors determined not by the jury
beyond a reasonable doubt, but by the presiding judge
under a lesser burden of proof.
Benjamin E. Rosenberg, Criminal Acts and Sentencing Facts:
Two Constitutional Limits on Criminal Sentencing, 23 Seton
Hall L. Rev. 459, 460 (1993).* Indeed, one study of the
Guidelines “found that half of all sentences had been in-
creased—sometimes doubled or tripled—by uncharged con-
duct.” Barkow, supra, at 94. This is not a system that gives
meaningful weight—much less controlling authority—to the
jury’s factual findings, as mandated by the Sixth Amend-
ment’s fundamental protections.
Nowhere does petitioner or the Sentencing Commission
explain why the Sixth Amendment would approve a non-
statutory system that treats the jury’s findings as a relatively —
* See also Gerald W. Heaney, The Reality of Guidelines Sentencing: No
End to Disparity, 28 Am. Crim. L. Rev. 161, 210-11 (1991) (“[uJnder the
guidelines ... a defendant's ‘relevant conduct’ is the backbone of the sen-
tencing system”); Robert H. Joost, Viewing the Guidelines as a Product of
the Federal Criminal Code Effort, 7 Fed. Sent. Rep. 118 (1994), available
at 1994 WL 780782, at *3 (“The guidelines effectively override the multi-
plicity of criminal statutes by making irrelevant, for sentencing purposes,
the offense for which the defendant was convicted.”).
18
trivial part of the defendant's overall sentence, but at the same
time strike down a statutory system that yielded the same re-
sult. See United States v. Booker, 375 F.3d 508, 512 (7th Cw.
2004) (noting that to accept the government's argument
would “have saved Washington's sentencing guidelines, un-
less an administrative agency is to be deemed a more respon-
sible. a more authoritative. fount of criminal law than a legis-
lature”). Likewise. neither petitioner nor the Sentencing
Commission has explained why a statutory system that al-
lowed a sentence to be increased on the basis of a fact deter-
mined only under the preponderance standard violates the
Sixth Amendment. while a regulatory rule that produces the
same result would not. People v. Reese. 179 N.E. 305, 308
(N.Y. 1932) (Cardozo. J.) ("The genius of our criminal law is
violated when punishment is enhanced in the face of reason-
able doubt as to the facts leading to the enhancement.”).
Whether the system is statutory or non-statutory. the Sixth
Amendment requires this Court to protect the jury’s role, ap-
plying the reasonable doubt standard. to check the power of
the state to impose punishment.
Petitioner and the Sentencing Commission rely heavily on
Mistretta, claiming that the Guidelines do not reflect a shift in
power away from the jury and toward judges because the
Guidelines merely perform the precise function that judges,
not juries. historically performed. Pet. Br. 20-22 (citing Mis-
tretia. 488 U.S. at 391. 395): U.S.S.C. Br. 21-22. To be sure,
in the pre-Guidelines system. judges determined what facts
were relevant to sentencing and how much weight to give
those facts (within the range provided by the statute of con-
viction). Williams v. New York, 337 U.S. 241, 250-51 (1949).
Under the Guidelines regime. petitioner argues, the Sentenc-
ing Commission now makes those determinations instead of
individual judges. but that shift has no effect on the power of
the jury. Pet. Br. 22-23.
The notion that the Guidelines merely “channel judicial
discretion” is indefensible. /d at 22. The Guidelines all but
19
foreclose judicial discretion. Cf. Miller v. Florida, 482 U.S.
423. 434-35 (1987) (rejecting contention that Florida sen-
tencing guidelines “*merely guide and channel’ the sentenc-
ing judge's discretion”). They are mandatory with respect to
both which facts matter for sentencing purposes, and how
much those facts matter. Accordingly, the Guidelines have
created a right to a sentence at or below the Guidelines
maximum based on the facts found by the jury. 18 U.S.C.
§ 3742 (right to appeal and vacate erroneous application of
Guidelines); Kate Stith & José A. Cabranes, Fear of Judging:
Sentencing-Guidelines in the Federal Courts 84 (1998) (“The —
sentencing proceeding itself has been recast from a discre-
tionary into a formal adjudicatory process, in which the court
makes findings of fact that translate into sentencing require-
ments under the Guidelines.”). And that right makes all the
difference for purposes of the Sixth Amendment.
As noted above, the Sixth Amendment is concerned with
maintaining the legal significance of the jury in our criminal
system. If the controlling law gives a defendant the right to a
sentence at or below the level authorized by jury-found facts,
the judge must be constrained to impose only that sentence
and no more. Allowing a judge to add findings that authorize
a greater sentence diminishes the significance of the jury, and
thereby undermines the Sixth Amendment. The Sixth
Amendment permits a system that gives judges broad discre-
tion to impose sentences based upon jury findings on/y if no
controlling rule of law entitles a defendant to a lesser sentence
based on the jury's findings. Because the Guidelines create a
right to a maximum sentence based upon the jury’s findings,
when the Guidelines permit the judge to increase that maxi-
mum based upon his or her own findings, the Guidelines vio-
late the Sixth Amendment.
The Guidelines were designed for laudable purposes: to re-
duce the “great variation among sentences imposed by differ-
ent judges upon similarly situated offenders,” and “the un-
certainty as to the time the offender would spend in prison.”
20
Mistretia, 488 U.S. at 366: see S. Rep. No. 98-225, at 38, 65
(1983). reprinted in 1984 U.S.C.C.A.N. 3182, 3221, 3248.
Petitioner concedes that the Guidelines have not changed
what the jury does during a criminal trial—it evaluates the
evidence to determine whether the facts necessary to support
a conviction are proven beyond a reasonable doubt. But what
has changed. and what implicates the Sixth Amendment, is
the /egal significance of what the jury does. This Court
should restore the controlling legal significance of the jury's
findings—only the jury's findings can increase the maximum
sentence authorized by law.
** & *
Just a few months ago, petitioner recognized that if this
Court adopted Blakely’s argument that the maximum permis-
sible sentence “for purposes of Apprendi is the punishment
that would be imposed without any findings other than the
facts reflected in the jury verdict alone ... [then sJuch a rule
would have profound consequences for the federal Guide-
lines.” U.S. Br. as Amicus Curiae at 25-26, Blakely v.
Washington. Blakely won. This Court adopted precisely the
rule petitioner then opposed. And now petitioner argues that
the very rule that it thought just months ago “would have pro-
found consequences for the Guidelines.” in fact has no conse-
quences at all. Petitioner was right in what it feared in
Blakely: the rule of Apprendi and Blakely renders the Guide-
lines unconstitutional to the extent they permit judicial fact-
finding of sentence-enhancing facts.
B. Even If There Is An Exception To The Sixth
Amendment For Judge-Made Rules That En-
hance Sentences, The Guidelines Are Not Judge-
Made Rules.
For all the reasons stated above, no matter what the source
of law. any rule that increases the sentence a judge is permit-
ted to impose based on facts not proved to a jury or admitted
by the defendant is unconstitutional. But even if this Court
21
were to elevate form over substance and conclude that there is
an exception to the Sixth Amendment for judge-made rules,
the Guidelines would still be unlawful.
1. Petitioner argues that the Sentencing Commission, when
promulgating guidelines, is not “like an agent of the legisla-
ture [but rather] like a vehicle for distilling the collective
practices of sentencing judges as a whole and rationalizing
and harmonizing those practices in light of the defined pur-
poses of sentencing.” Pet. Br. 25-26. Petitioner endorses
Judge Easterbrook’s dissent in Booker, in which he argued
that the Sentencing Commission is doing no more than what
courts might have done over time through the common law
process. /d. at 24 (citing 04-104 Pet. App. 21a (Easterbrook,
J., dissenting)). In short, petitioner seeks an exception to the
Sixth Amendment for judge-made rules that authorize in-
creased sentences based on facts not found by the jury. But
the Guidelines have never been conceived of as judge-made
rules. And it is especially hard now, given Congress's con-
tinuing and substantial role in developing and amending the
Guidelines, to conceive of the Guidelines as would petitioner.
As early as this Court’s first encounter with the Guidelines,
it recognized that the Commission “is not a court and does not
exercise judicial power.” Mistretta, 488 U.S. at 384-85. The
Commission's membership precludes the possibility that it is
exercising the “judicial power of the United States.” U.S.
Const. art. III, § 1. Its members are appointed for a fixed
term, do not serve during good behavior, and can be removed
by the President for good cause. 28 U.S.C. §§ 991(a), 992(a).
These conditions may not be imposed on office-holders exer-
cising the judicial power. N. Pipeline Constr. Co. v. Mara-
thon Pipe Line Co., 458 U.S. 50, 59 (1982). It is true that the
Court recognized that sentencing is a traditionally judicial
function, Mistretta, 488 U.S. at 390-91, but the Court likewise
emphasized that “Congress may delegate to the Judicial
Branch nonadjudicatory functions that do not trench upon the
prerogatives of another Branch,” id. at 388 (emphasis added).
7
If there were any question that the Commission's role in
promulgating the Guidelines was not judicial. it was put to
rest in Stinson: The Guidelines “are the equivalent of legisla-
tive rules adopted by agencies.” 508 U.S. at 45.
Petitioner's view that the Guidelines are judge-made rules
appears newly minted for this case. The United States has
admitted on more than one occasion that the Guidelines are
the equivalent of “legislative” rules. Just last Term, in its
amicus briet in Blakely, the United States observed that “the
Guidelines are binding legislative rules.” U.S. Br. as Amicus
Curiae at 30, Blakely v. Washington. And more than 15 years
ago. the United States acknowledged that this Court's deci-
sion in Miller v. Florida, 482 U.S. 423 (1987)—which held
that the Ex Post Facto Clause should be applied to Florida's
statutory Sentencing Guidelines—would apply to the Federal
Guidelines. DOJ Criminal Div.. Prosecutors Handbook on
Sentencing Guidelines and Other Provisions of the Sentenc-
ing Reform Act of 1984, at 74 (1987). Petitioner now con-
tends that the Ex Post Facto Clause does not apply to judicial
decisionmaking. Pet. Br. 25 (citing Rogers v. Tennessee, 532
U.S. 451. 462 (2001)). which can only mean that the Guide-
lines are “*legislative’~ for purposes of the Ex Post Facto
Clause. /d.
2. Not only do these concessions make clear that the
Guidelines are not judge-made rules. they also demonstrate
that this Court's holding in Mistretta—that Congress, in cre-
ating the Commission, did not violate the rarely-invoked non-
delegation doctrine, 488 U.S. at 376-80—tells us nothing
about whether Guidelines are judge-made rules that do not
violate the Sixth Amendment. In answering that question,
this Court writes on a clean slate.
As the Court observed in Jones, the Sixth Amendment was
enacted in part in response to Parliamentary efforts to bar the
right to jury trial when “defining new, statutory offenses.”
Jones, 526 U.S. at 245. In considering whether the Guide-
lines are judge-made rules. then. it makes sense to consider
23
whether they serve such a jury-avoiding function—i.e.,
whether they serve to impose congressional judgments about
the severity of punishment that should attach to certain con-
duct while avoiding the burden of proving those facts to a
jury beyond a reasonable doubt.
Congress has always played some role in the formulation of
the Guidelines. In Mistretta, the Court noted that Congress
“legislated a full hierarchy of punishment—from near maxi-
mum imprisonment, to substantial imprisonment, to some im-
prisonment, to alternatives—and stipulated the most impor-
tant offense and offender characteristics to place defendants
within these categories.” 488 U.S. at 377; see 28 U.S.C.
§ 994(c), (d). Congress’s powers of oversight are substantial.
It retains the authority to “revoke or amend” any provision of
the Guidelines “at any time,” Mistretia, 488 U.S. at 393-94,
and for that reason, new Guidelines do not take effect for 180
days so that Congress may review and modify or disapprove
them. 28 U.S.C. § 994(p).
Congress has not let its authority atrophy. See Steven L.
Chanenson, Hoist with Their Own Petard?, 17 Fed. Sent.
Rep. (forthcoming Oct. 2004), at http://papers.ssrn.com/sol3/
papers.cfm?abstractid=586782, draft at 15 (cataloging con-
gressional actions directly affecting content of Guidelines).
Most dramatically, Congress recently drafted Guidelines text.
See Prosecutorial Remedies and Tools Against the Exploita-
tion of Children Today Act of 2003 (“PROTECT Act”), Pub.
L. No. 108-21, § 401(b), (g), (i), 117 Stat. 650, 668, 671-73.
Not surprisingly, each of these amendments further cabined
the judiciary’s sentencing discretion by either restricting a
judge’s authority to grant downward departures and adjust-
ments, id. § 401 (b), (g), 117 Stat. at 668, 671-72, or estab-
lishing a new aggravated offense to increase a defendant's
offense level, id. § 401 (i), 117 Stat. at 672-73. The PRO-
TECT Act further consolidated congressional control over the
Sentencing Commission with its placement of a two-year
moratorium on any amendment that either affects the con-
24
gressionally enacted Guidelines or “adds any new grounds of
downward departure.” /d. § 401(j)(2), 117 Stat. at 673. Fi-
nally. the PROTECT Act signaled Congress's ongoing, direct
control by amending the sentence-reporting requirements to
require judges to include “the reason for any departure from
the otherwise applicable guideline range.” /d. § 401(h), 117
Stat. at 672. Congress has also rejected the Commission's
effort to modify the 100-to-1 ratio of sentencing for crack
compared to powder cocaine. Pub. L. No. 104-38, 109 Stat.
334 (1995).
Even accepting that Congress initially envisioned that the
Guidelines would be controlled by the independent Sentenc-
ing Commission, a body of experts supposedly immune from
the pull of politics. these recent congressional assertions of
control demonstrate that “Congress has abandoned its original
conception of the Sentencing Commission.” David M. Zlot-
nick. The War Within the War on Crime: The Congressional
Assault on Judicial Sentencing Discretion, 57 SMU L. Rev.
211, 232 (2004). There is no longer a meaningful basis for
arguing that the Guidelines reflect purely judicial self-
regulation immune from the political judgments of Congress.
Congress's shift in thinking about the Commission is also
reflected in changes to its structure. Congress never intended
even a majority of members of the Commission, much less all
members, to be federal judges. See Kate Stith & Steve Y.
Koh. The Politics of Sentencing Reform: The Legislative
History of the Federal Sentencing Guidelines, 28 Wake For-
est L. Rev. 223, 254-55 (1993). Still, until recently, it was
possible that the Commission might be made up of a majority
of judges. No more. Recent amendments to the Sentencing
Reform Act have limited judges to no more than three mem-
bers. In fact, what petitioner today justifies as a “judicial
body” exercising traditional judicial power, may, under cur-
rent law, include no judges whatsoever. See 28 U.S.C.
§ 991(a);: PROTECT Act, Pub. L. No. 108-21, § 401(n)(1),
117 Stat. at 675-76.
25
In sum, the Guidelines have never been understood to be a
set of judge-made rules through which the judiciary regulated
itself. And whatever basis there was to imagine the Guide-
lines as such-in the past has vanished in light of Congress's
direct influence over the substance of the Guidelines. Thus,
even were this Court to conclude that there is a Sixth
Amendment exception for judge-made rules that amount to
judicial self-regulation, the Guidelines still could not survive
to the extent they require judicial factfinding of sentence-
enhancing facts.
C. Holding The Guidelines Unconstitutional On
Sixth Amendment Grounds Would Not Require
This Court To Overrule Any Cases.
Finally, petitioner tries to escape Blakely by highlighting
four pre-Apprendi cases whose “*vision,”” it asserts, “is fun-
damentally at odds with the view that Apprendi or Blakely
applies to the Guidelines.” Pet. Br. 33. Petitioner reads far
too much into these cases.
It is sufficient to note that none of these cases considered
whether judicial factfinding under the Guidelines violates the
Sixth Amendment. In fact, these cases hardly even men-
tioned the Sixth Amendment right to a jury trial, much less
considered and ruled upon the scope of that right. United
States v. Dunnigan, 507 U.S. 87 (1993) (enhancement for
perjury does not violate accused’s right to testify on own be-
half); Witte v. United States, 515 U.S. 389 (1995) (Double
Jeopardy Clause does not bar a subsequent prosecution for
conduct that was included as relevant conduct in calculating a
sentence for an earlier prosecution); United States v. Watts,
519 U.S. 148 (1997) (per curiam) (Double Jeopardy Clause
did not prohibit consideration of previously acquitted conduct
in the “relevant conduct” calculation under the Guidelines);
Edwards v. United States, 523 U.S. 511 (1998) (refusing to
consider petitioner's Sixth Amendment challenge to the
Guidelines). It is axiomatic that issues not presented to, or
specifically left unconsidered by, this Court remain open for
26
consideration on their merits and are accorded no stare deci-
sis effect. See A/den v. Maine, 527 U.S. 706, 735-36 (1999)
(“isolated statements in some of our cases suggesting” a cer-
tain constitutional rule “do not decide the question [once
squarely] presented” to the Court): /n re Permian Basin Area
Rate Cases, 390 U.S. 747, 775 (1968) (“this Court does not
decide important questions of law by cursory dicta inserted in
unrelated cases”). This Court has on more than one occasion
considered a question on the assumption that some necessary
predicate proposition of law was true. only later to consider
and reject the predicate. See. e.g.. Brecht v. Abrahamson,
507 U.S. 619. 630-31 (1993): Edelman v. Jordan, 415 U.S.
651. 670-71 (1974). These cases are no different. They
merely reflect the internal logic of the Guidelines. They do
not even inform the question of whether the foundation of that
logic is sound.
** * *
In the end, there is no basis in law or in the constitutional
values embodied in the Sixth Amendment to allow the Fed-
eral Sentencing Guidelines to increase a defendant's lawful
maximum punishment based on judge-found facts. What
Washington could not do by statute. the United States cannot
do by Guideline. No decision of this Court remotely precludes
such a result. and Apprendi, Ring, and Blakely compel it.
ll. THE GUIDELINES NEED NOT BE STRUCK
DOWN IN THEIR ENTIRETY.
Because the Sixth Amendment rule applied in Blakely and
its precursors applies to the Sentencing Guidelines, the
Guidelines are inconstitutional to the extent they provide for
judicial factfinding of sentence-enhancing facts. Accord-
ingly. this Court must determine how the Guidelines may be
severed or reinterpreted in order best to effectuate congres-
sional intent. Petitioner argues that this Court should simply
render the Guidelines advisory. Pet. Br. 67. This proposal
should be rejected. for it would altogether thwart the primary
27
purpose of the Guidelines—to mandate uniformity in sen-
tencing—both by striking the mandatory controls that are es-
sential to uniformity and by causing the creation of two sepa-
rate, parallel sentencing regimes. See infra Section I1.B. In-
stead, the unconstitutional aspects of the Guidelines—those
requiring sentencing increases based solely upon judicial fact-
finding by a preponderance of the evidence—should be sev-
ered. In any future case in which sentence-enhancing facts
have been properly indicted, such sentencing enhancements
could be based on factual findings made by the jury. Here,
however, the government did not plead such facts in its in-
dictment, failed to try those facts before the jury, has not re-
quested the opportunity to do so on remand, and appears to
concede that such relief is unavailable. Accordingly, the ap-
propriate disposition is simply to affirm the judgment.
A. The Portions Of The Sentencing Reform Act And
The Guidelines That Require Judicial Factfind-
ing Should Be Severed.
The Court should sever those portions of the SRA and the
Guidelines that are understood to require judicial factfinding
of sentence-enhancing facts. Such a result best comports with
Congress's stated purposes when it enacted the SRA and the
Guidelines and, as a practical matter, provides the best in-
terim system while Congress and the Sentencing Commission
consider whether legislative responses to this Court’s decision
are warranted.
1. The Purposes Of The SRA And The Guide-
lines Are Best Served By Mandatory Guide-
lines That Incorporate Jury Factfinding.
a. “The inquiry into whether a statute is severable is essen-
tially an inquiry into legislative intent.” Minnesota v. Mille
Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999).
That inquiry operates against a strong presumption in favor of
severability, Regan v. Time, Inc., 468 U.S. 641, 653 (1984)
(plurality); the party urging inseverability must “prove[] “that
28
Congress would have preferred no ... provision at all to the
existing provisions sans the [unconstitutional] provision.”
Alaska Airlines, 480 U.S. at 685 n.7.. Accordingly, “*when-
ever an act of Congress contains unobjectionable provisions
separable from those found to be unconstitutional, it is the
duty of this court to so declare. and to maintain the act in so
far as it is valid.” Regan. 468 U.S. at 652: see also /NS v.
Chadha, 462 U.S. 919, 934 (1983): NLRB v. Jones & Laugh-
lin Steel Corp., 301 U.S. 1. 30 (1937) (“[t}he cardinal princi-
ple of statutory construction is to save and not to destroy”):
Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 234
(1932) (severability is appropriate “[u]nless it is evident that
the legislature would not have enacted those provisions which
are within its power. independently of that which is not’).
Of particular pertinence here. severance is the appropriate
course unless the unconstitutional provision is “essential to
the statutory program as a whole.” Tilton v. Richardson, 403
U.S. 672. 684 (1971) (emphasis added). or “the balance of the
legislation is incapable of functioning independently.” Alaska
Airlines. 480 U.S. at 684 (emphasis added).”
b. Congress enacted the Guidelines with three purposes in
mind:
Congress first sought honesty in sentencing. It sought to
avoid the confusion and implicit deception that arose out
of ... an indeterminate sentence [that] usually [was] sub-
stantial[{ly] reducied] [in most cases by ‘good time’
credits]...
' These basic principles of severability demonstrate why FPC v. Idaho
Power Co. 344. U.S. 17 (1952), and Addison v. Holly Hill Fruit Products,
Inc. 322 U.S. 607 (1944). are inapposite. Pet. Br. 46-47. Those cases
simply stand for the truism that severability does not permit a court to
substitute its judgment for an agency's. Here. there is no substitution of
judgment: the very reason to sever provisions that mandate judicial fact-
finding is to preserve. within the bounds of the Sixth Amendment, the
legislative and regulator, policy behind the Guidelines
‘ 29
Second, Congress sought uniformity in sentencing by
narrowing the wide disparity in sentences imposed for
similar criminal conduct by similar offenders. Third,
Congress sought proportionality in sentencing through a
system that imposes appropriately different sentences for
criminal conduct of differing severity.
USSG § 1A1.1, hist. note 3 (emphasis added); see also S.
Con. Res. No. 108-130 (2004); Stephen Breyer, The Federal
Sentencing Guidelines and the Key Compromises Upon
Which They Rest, 17 Hofstra L. Rev. 1, 4-6 (1988).
The major impetus for the Guidelines’ creation was—as
petitioner and its supporting amici concede—the “crisis” cre-
ated by a sentencing scheme that produced sentencing dis-
parities “terrifying and intolerable for a society that professes
devotion to the rule of law.’” Senators’ Br. 9-10 (quoting M.
Frankel, Criminal Sentences: Law Without Order 5 (1972)):
Pet. Br. 3. The lack of meaningful guideposts for sentencing
judges produced an “astounding” amount of variation in sen-
tences for identical conduct, S. Rep. No. 98-225, at 41, re-
printed in 1984 U.S.C.C.A.N. at 3224, thus creating “great
variation among sentences imposed by different judges upon
similarly” situated offenders,” Mistretta, 488 U.S. at 366. In
short, the scheme was “unfair both to offenders and to the
public.” S. Rep. No. 98-225, at 45, reprinted in 1984
U.S.C.C.A.N. at 3228.
None of the three goals identified in § 1A1.1 is undermined
by jury factfinding beyond a reasonable doubt, because none
of them depends upon the identity of the factfinder or the
burden of persuasion. The goal of honesty in sentencing de-
pends on the abolition of parole, which jury factfinding in no
way affects. And the goals of uniformity and proportionality
are effectuated by having (a) a mandatory system that
(b) “balance[{s] the comparative virtues and vices of broad,
simple categorization and detailed, complex subcategoriza-
tion, and within the constraints established by that balance.
30
minimize[s] the discretionary powers of the sentencing
court.” USSG § 1A1.1 hist. note 3.
A sentence that is based upon jury-determined facts is sub-
ject to the same system of “categorization” and “constraints”
as a sentence based upon judge-determined facts:
The Sentencing Guidelines seek to achieve these Con-
gressional objectives because they contemplate similar
sentences once a given set of facts are found to exist.
Although severance would change how those facts are
determined. and by whom, severance would have no ef-
fect on the Congressional goal of achieving consistency
of sentences in cases that involve similar offense con-
duct.
United States vy. Ameline. 376 F.3d 967, 981-82 (9th Cir.
2004). Jury factfinding permits the Guidelines to function
“sensibly.” \7D DC DE Broadcasters Ass'n v. FCC, 236 F.3d
13. 22 (D.C. Cir. 2001). and satisfies the primary legislative
intent. Ameline. 376 F.3d at 981-82: United States v. Khan,
325 F. Supp. 2d 218. 224 (E.D.N.Y. 2004) (Weinstein. J.).'°
A waivable right to jury factfinding is the only approach
that upholds the predominant purpose of the SRA and the
Guidelines—namely. to eliminate unwarranted disparities in
sentencing. Striking the Guidelines as a whole would neces-
sarily return the criminal justice system to a world of disuni-
formity and sentencing disparity. And. as discussed below,
see infra Section II.B.. rendering the Guidelines purely advi-
sory. as Petitioner proposes. would return the sentencing pro-
cess to a status quo ante that Congress deemed intolerable.
Basing Guidelines sentencing on facts found by a jury is,
furthermore. perfectly consistent with the Sixth Amendment.
As Blakely recognized. the question “is not about whether
” For this same reason, petitioner's argument that the SRA was enacted
to resolve problems occasioned by “judicial sentencing,” Pet. Br. 47, is
largely beside the point: that fact in no way compels the conclusion that
the resulting procedure must itself encompass judicial factfinding.
31
determinate sentencing is constitutional, only about how it
can be implemented in a way that respects the Sixth Amend-
ment.” 124 S. Ct. at 2540. All that the Sixth Amendment
forecloses is “tak[ing] away from the defendant the right to
demand that the [sentence-enhancing fact] be determined by
the jury rather than by the judge, and on the basis of proof
beyond a reasonable doubt.” Booker, 375 F.3d at 511. On
this understanding, “much of what Congress was trying to
accomplish in the Sentencing Reform Act of 1984 is un-
touched by Blakely.” Nancy J. King & Susan R. Klein, Be-
yond Blakely, 16 Fed. Sent. Rep. 316, 319 (2004). Only those
portions of the Guidelines that “require the sentencing judge
to make findings of fact (and to do so under the wrong stan-
dard of proof)” would run afoul of the Sixth Amendment.
Booker, 375 F.3d at 511. For that reason, the Guidelines can
easily be squared with the Sixth Amendment in this manner.''
'' Alternatively, this Court could simply interpret the relevant provi-
sions of the SRA and the Guidelines to require jury factfinding of sen-
tence-enhancing facts unless the defendant waives the right. Petitioner
points to USSG §§ 1B1.2 and 6A1.3, and 28 U.S.C. § 994 as mandating
judicial factfinding. Pet. Br. 49. But these provisions simply state that
“the court” or the “sentencing court” shall make certain determinations.
In some contexts, of course, the term “the court” means “the judge.”
However, “the word ‘court’ .... has a broad[] meaning, which includes
both judge and jury.” Feltner v. Columbia Pictures Television, Inc., 523
U.S. 340, 356 (1998) (Scalia, J., concurring in judgment ); see also Loril-
lard v. Pons, 434 U.S. 575, 583 (1978) (statutory provision authorizing
“the court” to grant relief interpreted to create a right to jury trial). To be
sure, judges have understood the SRA and the Guidelines to authorize
judicial factfinding. But the question has never been squarely presented to
this Court, and the vague language in § 994 must now be interpreted in
light of the constitutional constraints imposed by the Sixth Amendment.
So long as the jury-right reading is **fairly possible,” Feliner, 340 U.S. at
358-59 (Scalia, J.), the rule encouraging courts to provide a saving con-
struction to a statute counsels in its favor. /NS v. St. Cyr, 533 U.S. 289,
300 n.12 (2001) ("every reasonable construction must be resorted to, in
order to save a Statute from unconstitutionality™’”).
This is precisely how the courts of appeals treated the statute criminal-
izing drug possession, 21 U.S.C. § 841, following Apprendi. Before Ap-
32
c. Jury factfinding is fully consistent with the notion that
the Guidelines should be applied as a single. unitary system.
It is of course true that the Guidelines apply in their entirety
to any given defendant. See USSG § 1B1.11(b)(2) ("The
Guidelines Manual in effect on a particular date shall be ap-
plied in its entirety.”). Provisions from one version of the
Manual are not to be applied selectively with provisions from
another version. /d And the sentencing of any given defen-
dant must be conducted on the basis of “an interlocking sys-
tem of calculations and adjustments that are part of a single
sentencing equation.” Senators’ Br. 21: see also Pet. Br. 5|0—
namely. all of the adjustments. both upward and downward.
that are encompassed in the Guidelines. USSG § 1BI.1.
Nothing about jury factfinding would change these aspects of
the Guidelines system. for the sentence in every case would
still “account for both mitigating and aggravating factors in
determining each defendant's sentence.” Pet. Br. 50.
Petitioner and its amici. however. seek to extrapolate these
basic provisions into a more general principle that everything
about the Guidelines is a single “cohesive whole.” E£.g.. Pet.
Br. 50: Senators’ Br. 21. They assert that any change in the
current regime caused by jury factfinding runs counter to this
principle of cohesiveness. Leaving aside for the moment that
petitioner's own proposed solution is-itself a form of sever-
ance. see infra at 44-45.'° this argument fails because it is
nothing more than a backdoor attempt to read an inseverabil-
prendi. the courts read that statute to permit judicial factfinding of drug
guantity. / nited States \. Buckland. 289 F.3d $58. 564 n.2 (9th Cir.)
(listing cases). cert’ denied. 835 U.S. 1108 (2002): United States v. Buck-
lund. 289 F.3d 1157. 1164-65 (9th Cir. 2001) (tracing legislative history ).
rev d. 289 F.3d SS8 (9th Cir. 2002) (en banc). After Apprendi, however.
ever) court of appeals concluded that the prudent solution was simply to
reinterpret the statute to permit jury factfinding. nited States v. Outen.
286 F.3d 622. 634 (2d Cir. 2002) (listing cases).
’ The government wields the cohesiveness argument selectively. In its
own brief. the government concedes that the unconstitutional portions of
the SRA can be severed. Pet. Br. 67
33
ity provision into the SRA and the Guidelines where none
exists. “In the absence of a severability clause, however,
Congress’ silence is just that—silence—and does not raise a
presumption against severability.” Alaska Airlines, 480 U.S.
at 686. To the contrary, “the presumption is in favor of sev-
erability.” Regan, 468 U.S. at 653. And where, as here, the
severed statute would continue to “function in a manner con-
sistent with the intent of Congress,”'’ Alaska Airlines, 480
U.S. at 685 (emphasis omitted), severability is the rule.
Nowhere does petitioner explain why the situation here is
different: it does not explain why Congress's supposed pref-
erence for judicial factfinding is so essential to the Guidelines
that “*the whole act will fall.” Field v. Clark, 143 U.S. 649,
696 (1892). Nor does it explain how the use of juries to de-
termine sentence-enhancing facts would undermine the
Guidelines’ goals of honesty, uniformity, and proportionality
in sentencing.
On the contrary, jury factfinding is a familiar, workable
system that would better effectuate Congress's goal of uni-
formity than a wholly advisory set of Guidelines. It would,
moreover, establish an equilibrium point that would enable
effective and sensible sentencing procedures in the present, to
which Congress and the Commission could react, if needed,
’ Petitioner turns this phrase on its head, suggesting that severance is
foreclosed if it would somehow change the mechanics of the statute. Pet.
Br. 68. The phrase means just the opposite:
[ T}he test for severability is not, as the government seems to suggest.
whether the statute will function identically to the way it operated be-
fore the objectionable provisions were severed. If this actually were
the test for severance, severance would never be appropriate. Rather,
the test is “whether the statute will function in a manner consistent
with the intent of Congress.” 4/aska Airlines, Inc v. Brock, 480 U.S.
678, 685.
Ameline, 376 F.3d at 982. In Alaska Airlines itselt, the Court held that the
invalidation of a legislative veto provision in a statute was severable be-
cause the remaining provisions in the statute could nonetheless “stand on
their own,” 480 U.S. at 689, despite procedural changes that would result.
34
in the future. See Blakely, 124 S. Ct. at 2550-51 (Kennedy.
J.. concurring) (encouraging “collaborative process” between
courts and Congress): see also Alexander M. Bickel. The Su-
preme Court, 1960 Term— Foreword: The Passive Virtues,
75 Harv. L. Rev. 40, 50 (1961) (recognizing the need for the
Court to engage in “Socratic dialogue” with other institu-
tions).
2. A System Of Jury Factfinding Is Practicable.
There is nothing unworkable about a system of jury fact-
finding. The Guidelines. severed in the fashion urged here,
“will function in a manner consistent with the intent of Con-
gress.” dlaska Airlines, 480 U.S. at 685.
a. As an initial matter, this Court has long rejected the no-
tion that factfinding is too “complex.” Pet. Br. 54. 55, for ju-
ries to handle. “Our Constitution and the common-law tradi-
tions it entrenches ... do not admit the contention that facts
are better discovered by judicial inquisition than by adversar-
ial testing before a jury.” Blakely, 124 S. Ct. at 2543: Sum-
merlin, 124 8. Ct. at 2525 (noting “common-law authorities
|that] praise[e] the jury's factfinding ability”); United States
\. O Daniel, 328 F. Supp. 2d 1168. 1182 (N.D. Okla. 2004)
(“There is nothing in this Court's experience with juries that
would suggest that a jury cannot make very sophisticated
sentencing decisions with proper guidance and instruction by
the Court.”). It is for these same reasons that juries are pre-
sumed to follow their instructions faithfully and accurately.
See Richardson v. Marsh, 481 U.S. 200, 206-07 (1987) (col-
lecting cases).
Both current and historical practice confirm the constitu-
tional. democratic understanding that juries are fully equipped
to handle complicated factfinding. Juries must determine
whether aggra\ ating circumstances exist sufficient to impose
a death sentence. Ring. 536 U.S. at 609. Simply put, “[nJo
federal sentencing is as complex as a capital sentencing
hearing. where juries deal with fact-finding beyond a reason-
35
able doubt routinely and in accordance with constitutional
requirements.” Federal Public Defender Letter to U.S. Sent.
Comm'n, reprinted in 16 Fed. Sent. Rep. 361, 361 (2004)."*
Indeed, juries since Apprendi have engaged in factfinding
for the purpose of sentencing. Jury factfinding was instituted
in the State of Kansas after Apprendi, and has proven a suc-
cess. Blakely, 124 S. Ct. at 2541; Br. of Kansas Appellate
Defender Office as Amicus Curiae in Support of Pet’r at 7,
Blakely vy. Washington, available at 2003 WL 22970598
(“[a]fter Apprendi and Gould, both the standard sentencing
ranges found in the KSGA and the legislative intent to pro-
mote uniformity and standardize sentences, while allowing
for exceptional cases, remain intact”). In federal courts after
Apprendi, juries have been charged with finding facts trig-
gering the complex graduated sentencing scheme for drug of-
fenses. United States v. Montgomery, 324 F. Supp. 2d 1266,
1272 (D. Utah. 2004). And since Blakely, some courts have
already begun to present sentencing facts to the jury, with no
apparent difficulty. E.g.. United States v. Harris, No. Cr. 03-
354 (JBS), 2004 WL 1853920, at *10-*11 (D.N.J. Aug. 18,
2004); see also United States v. Johns, No. 1:03-CR-0250-16,
2004 WL 2053275, at *13-*14 (M.D. Pa. Sept. 15, 2004).'°
'* Petitioner's concern that jury factfinding will result in prejudice to
defendants, Pet. Br. 57, is misplaced. First, the right to jury factfinding is
waivable, which means that any defendant who believes he or she will be
prejudiced may forego jury factfinding. Further, any unduly prejudicial
evidence appropriate for sentencing can always be withheld from the jury
until a separate sentencing phase. as is done in capital cases. Monge v.
California, 524 U.S. 721, 739 n.1 (1998) (Scalia, J.. dissenting), see Fed.
R. Crim. P. 14(a) (authorizing severance “or ... any other relief that jus-
tice requires” to prevent prejudice).
'* Petitioner presents a laundry list of guidelines factors, taken from
United States v. Croxford, 324 F. Supp. 2d 1230 (D. Utah 2004), to argue
that jury factfinding is too complex. Pet. Br. 54. Even a cursory review
of those nine facts, however, reveals those most of them would likely be
presented to the jury in the course of the trial anyway —for instance, what
type of bank was robbed, or whether a gun was used. See also Harris,
2004 WL 1853920, at *8 (recognizing, in a case at trial when Blakely was
36
As an historical matter. too. juries have long had a role in
rendering verdicts on both factual and legal matters that affect
sentencing. As the Court noted in Ring:
“(T]he jury's role in finding facts that would determine
a homicide defendant's eligibility for capital punishment
was particularly well established. Throughout its his-
tory. the jury determined which homicide defendants
would be subject to capital punishment by making fac-
tual determinations. many of which related to difficult
assessments of the defendant's state of mind. By the
time the Bill of Rights was adopted. the jury's right to
make these determinations was unquestioned.”
536 U.S. at 599 (quoting Walton v. Arizona, 497 U.S. 639.
710-11 (1990) (Stevens. J.. dissenting )).
These examples. both present and past. demonstrate that the
Guidelines are compatible with jury factfinding. King &
Klein. supra. at 319. To be sure. the necessity of submitting a
greater volume of facts to jurors would lead to some greater
complexity than simply asking them to determine whether a
defendant is guilty of a narrowly-defined crime. Rosenberg.
supra. at 460. But in light-of the jury system's proven ability
to handle such factfinding. it would be extraordinary to pre-
sume that this process is so unworkable as to overcome the
heavy presumption in favor of severability.
b. Nothing about a rule requiring jury factfinding would
require. aS petitioner asserts. “*a complex and completely
novel procedure.” Pet. Br. 61 (quoting United States v.
Jackson. 390 U.S. 570, 580 (1968)).'° As a threshold matter,
decided. that the indictment had already charged a factual basis for five
out of six sentence-enhancing factors).
United States v. Jackson. 390 U.S. $70 (1968). which refused to in-
terpret the Federal Kidnaping Act to require sentencing juries is inappo-
site. The Court was concerned that capital sentences were involved, id at
580. which they are not here. It was concerned that the sentencing juries
would be “thrust ... upon unwilling defendants” for the purpose of pitting
them to death. id: there is no such risk here for defendants. But perhaps
37
such an objection was no obstacle to this Court’s rulings in
Apprendi, Ring and Blakely, all of which required some
amount of procedural adjustment.
But more fundamentally, “district court judges are well ex-
perienced in implementing” the supposedly “novel” and
“complex” procedures about which petitioner warns.
O Daniel, 328 F. Supp. 2d at 1181. Familiar devices of bi-
furcated trials or special jury interrogatories plainly are avail-
able. /d. at 1182 (“in most cases, requiring the jury to find
each fact ... beyond a reasonable doubt is neither novel nor
onerous”; recognizing courts’ experience with jury inter-
rogatories and bifurcated trials); accord Booker, 375 F.3d at
514 (finding “no novelty” in separate trials or hearings before
a jury on sentencing issues); Ameline, 376 F.3d at 983 (ap-
proving sentencing juries); Ahan, 325 F. Supp. 2d at 224
(“Experience with juries suggests that use of a jury in sen-
tencing, even after a plea of guilty or in a second phase of a
trial on the merits, is feasible.”); Harris, 2004 WL 1853920
(describing post-Blakely jury factfinding); Johns, 2004 WL
2053275, at *13-*14 (same); King & Klein, supra, at 319
n.68 (“[a]fter Apprendi, judges had no trouble submitting
drug types and quantities to juries, despite no new legislation
permitting this”).'”
most critical of all, as petitioner itself recognizes, Pet. Br. 61, that case
would have required the courts to determine what rules of evidence would
apply, what each side would have to show, and what standard of proof
would apply, for capital punishment to be imposed, 390 U.S. at 578-79.
Here, by contrast, it is clear that the Guidelines would provide the proof
requirements, and the Due Process Clause, the standard of proof.
'’ Courts routinely make use of such devices. For example, federal
courts bifurcate criminal RICO trials, see, e.g, United States v. Dinome,
86 F.3d 277, 278 (2d Cir. 1996); United States v. Jenkins, 902 F.2d 459,
461 (6th Cir. 1990), notwithstanding the lack of any express authority
under the Federal Rules of Criminal Procedure to do so. Likewise, the
California state courts’ general authority to control the conduct of a trial,
Cal. Penal Code § 1044, authorizes them to bifurcate proceedings when a
defendant's prior offenses are at issue, see People v. Calderon, 885 P.2d
38
For these same reasons, petitioner is mistaken to assert that
jury factfinding would amount to “substitut{ing] the Court's
judgment on matters of policy for the agency's.” Pet. Br. 46-
47. The vequirement that factual findings necessary to en-
hance criminal sentences be made by a jury is not a “policy”
decision by this Court, but a requirement of the Sixth
Amendment. And basing Guidelines calculations on jury
findings falls well within the federal courts’ inherent powers.
See United States v. Hasting. 461 U.S. 499, 505 (1983)
(“*[G]uided by considerations of justice.” ... and in the exer-
cise of supervisory powers. federal courts may. within limits,
formulate procedural rules not specifically required by the
Constitution or the Congress.”). The question before this
Court is not one of “policy” but of practicality: whether there
is a method of severing the statute that leaves it faithful to
legislative intent. That is precisely what jury factfinding
would accomplish.
c. Petitioner objects that there would be “serious constitu-
tional problems” with requiring juries to make the findings
necessary to support a Guidelines sentence in excess of a
sentence based only on the facts of conviction. Pet. Br. 63.
Specifically. it contends such a system would effectively treat
the pronouncements by the Commission as “elements” of of-
fenses. /d. at 64-65. Petitioner thus urges this Court to reject
the remedial option that does the least violence to the Guide-
lines—maintaining the Guidelines structure while granting
defendants the waivable right to insist that a jury find all the
facts that authorize an increased sentence under the Guide-
lines—in order to avoid the supposedly substantial nondele-
gation question. /d. at 66.
Jury factfinding is not constitutionally doubtful. The non-
delegation doctrine is not concerned with whether a fact is
effectively an “element” for Fifth and Sixth Amendment pur-
poses. In all respects material to the nondelegation question.
83. 87-88 (Cal. 1994). See also Fed. R. Crim. P. 32.2 (permitting bifurca-
tion of criminal forfeiture trials).
— a
39
the jury factfinding option is exactly the same as the Guide-
lines system upheld against a nondelegation attack in Mis-
tretta. There, the Court acknowledged that the SRA dele-
gated to the Commission the authority to determine facts that
should be considered in calculating a sentence, and how much
weight those facts merit at sentencing. 488 U.S. at 377 (“the
Commission enjoys considerable discretion in formulating
guidelines”). The same remains true if those sentence-
relevant facts are found by a jury. As Mistretia further ac-
knowledged, the Guidelines bound a sentencing judge to im-
pose a sentence within the range produced by the Guidelines
based on the relevant facts found to be true. /d. at 367 (“the
Sentencing Commission’s guidelines [are] binding on the
courts”). The same is true of a Guidelines sentence based on
jury factfinding. The only difference between jury factfind-
ing and the Guidelines system upheld against a separation-of-
powers challenge in Mistretta is who—judge or jury—deter-
mines whether any alleged fact is true in a particular case, and
what standard—reasonable doubt or preponderance of the
evidence—the factfinder must employ. Mistretta did not
even mention, much less turn upon, who the factfinder is, and
what standard must be satisfied, when it rejected the nondele-
gation challenge. /d. at 371-79. These procedural questions
have nothing to do with the nondelegation doctrine.
Petitioner’s constitutional doubt argument is, therefore, ex-
ceedingly peculiar. The supposedly “doubtful” question that
should be avoided is one that this Court answered definitively
15 years ago; namely, that Congress constitutionally could
delegate to the Commission the identification of sentence-
enhancing facts. Only by overruling Mistretta would jury
factfinding fall under the nondelegation doctrine. Never has
this Court applied the doctrine of constitutional avoidance,
which requires a “grave and doubtful constitutional ques-
tion{],” Jones, 526 U.S. at 239, to a situation where the sup-
posed constitutional infirmity vanishes if this Court simply
adheres to its prior precedent.
40
In the end. this case is about the procedural requirements of
the Sixth Amendment. Cf. Summerlin, 124 8S. Ct. at 2523
(“Rules that allocate decisionmaking authority in this fashion
are prototypical procedural rules. a conclusion we have
reached in numerous other contexts.”). Those requirements
apply regardless of how this Court resolved the nondelegation
question in \fistretta. Whether Congress must define which
facts authorize a judge to impose an increased sentence. or
whether Congress can delegate that task to a Commission,
does not matter here. Either way. the defendant has a right to
insist that those facts be proved to a jury beyond a reasonable
doubt.
d. Petitioner and its amici contend that jury factfinding
would invite “asymmetry” into the sentencing process. The
premise of this argument is that. in a world of jury factfind-
ing. it would be easier for a defendant to have his sentence
reduced than tor the prosecutor to have it enhanced, Pet. Br.
50: Senators’ Br. 22. and the implication is that this would
somehow distort the system. From the presumption of inno-
cence to the right to a jury trial to the requirement of proof
bevond a reasonable doubt. however. our Constitution pro-
vides the criminal defendant with unique protections—meant
to provide him a fair opportunity to withstand the awesome
prosecutorial power of the state—that the state does not share.
This understanding of the Constitution’s protections for
criminal defendants has led this Couri “often [to] recognize |”
the “distinction ... between facts in aggravation of punishment
and facts in mitigation.” Apprendi, 530 U.S. at 491 n.16. As
the Court has explained. “|cJore concerns animating the jury
and burden-of-proof requirements are ... absent” from a
scheme in which a defendant may not receive punishment
greater than that authorized by a jury’s verdict beyond a rea-
sonable doubt. but may have his sentence reduced by proving
a mitigating factor to a judge by a preponderance of the evi-
dence. /d: see also MeKoy vy. North Carolina, 494 U.S. 433,
3 (1990) (“reject{ing] the State's contention that requiring
4)
[juror] unanimity on mitigating circumstances is constitu-
tional because the State also requires unanimity on aggravat-
ing circumstances”). Given this longstanding distinction, it is
not surprising that there is nothing in the Guidelines, the
SRA, or the legislative history of the SRA to suggest that
Congress embraced “symmetry” between sentence-enhancing
and sentence-reducing facts, or that Congress would jettison
the Guidelines in foto to promote such symmetry.
Indeed, assuming (as is necessary for purposes of the sever-
ability argument) that the Sixth Amendment as interpreted in
Blakely applies to the Guidelines, there is every reason to
think that Congress would nor favor this kind of “symmetry.”
Because Blakely requires that all sentence-enhancing factors
be presented to a jury and proved beyond a reasonable doubt.
“symmetry” would require that all mitigating factors likewjse
be presented to a jury, and proved Ay the defendant beyond a
reasonable doubt. It would be truly novel for defendants to
be put to such a heavy burden to disprove the basis for their
sentences. As this intuition would predict, in the wake of this
Court's decision in Ring, the Arizona legislature instituted
jury factfinding for both aggravating and mitigating factors in
capital cases, but imposed different standards of proof—prooft
beyond a reasonable doubt for aggravating factors, but pre-
ponderance of the evidence for mitigators. State v. Ring, 65
P.3d 915, 926 (Ariz. 2003); Ariz. Rev. Stat. § 13-703.B, -.C."*
Nor does any notion of unfairness aid petitioner's cquse. “{T}he con-
cept of ‘unfairness to the government’ [as a reason to hold the Guidelines
inseverable] lacks any foundation in either law or history.” nited States”
v. Swan, 327 F. Supp. 2d 1068, 1072 (D. Neb. 2004). “The protections
mandated by the Sixth Amendment are for the benefit of the individual,
not the government. Reliance on ‘unfaimess to the government’ as a ra-
tionale is akin to the assertion that it is not fair to require the government
to prove every element of its case.” /d.; Mlontgomery, 324 F. Supp. 2d at
1272. “Thus, the government is no more disadvantaged in applying
Blakely to the federal sentencing guidelines than it has been in apply ing
Apprendi to the guidelines.” /d.; Swan, 327 F. Supp. 2d at 1072-73.
42
¢. Petitioner's remaining complaints about jury factfinding
are likewise insufficient to overcome the presumption of sev-
erability. Surely some number of pending cases will be af-
fected by the severance of the Guidelines. Cases in which
sentencing has occurred. or in which trial has been completed
but sentencing has not. may face constitutional obstacles to
reindictment or resentencing. Pet. Br. 68-69.'" But sever-
ability analysis does not rest on whether short-term disloca-
tions will result from severance: the proper inquiry is whether
the resulting statutory or regulatory scheme comports with the
intent of the enacting Congress. Furthermore. the effects that
petitioner fears may not be so great. Courts can and already
have used various techniques to minimize these problems.
Eg. Harris, 2004 WL 1853920, at *10-*11: O Daniel. 328
F. Supp. 2d at 1176-83. And prudent prosecutors could have
prevented these problems by indicting and proving to a jury
all sentence-enhancing facts after Apprendi—a fact that is
tacit In petitioner's decision to do so after Blakely. See DOJ
Legal Positions and Policies in Light of Blakely v. Washing-
ton (“Comey Memo”), reprinted in 16 Fed. Sent. Rep. 357.
3358 (2004) (“Prosecutors should immediately begin to in-
clude in indictments all readily provable Guidelines upward
In this case. indeed. to subject Fanfan to additional jury factfinding in
order to increase his sentence beyond that supported by the first jury's
verdict would likely violate the Indictment Clause. the Double Jeopardy
Clause. and or the ex post facto component of the Due Process Clause.
Perhaps for those reasons. petitioner has. conspicuously, not sought that
remedy. and seems to concede that it is unavailable. Pet. Br. 68-69 (argu-
ing that if jury factfinding is required then “Fanfan could be sentenced to
no more than 78 months of imprisonment”). Accordingly. if this Court
determines that the Guidelines are unconstitutional at least in part and
concludes that the Guidelines should be severed or reinterpreted to pro-
vide for jury factfinding. it should therefore simply affirm Fanfan’s sén-
tence. In any event. the Court should not remand the case for jury fact-
finding in order to increase his sentence. Any remand proceedings should
permit Fanfan to argue that petitioner has waived its right to conduct fur-
ther proceedings against him and that any such proceedings would be un-
constitutional.
43
adjustment or upward departure factors.... [I]t is prudent for
the government to protect against the possibility that such al-
legations in indictments will be held necessary.”).
Petitioner's concern that it will be more difficult to obtain
enhancements for obstruction of justice, Pet. Br. 56, is of even
lesser concern. In many cases, it will be enough for the judge
to deal with obstruction by increasing a sentence within the
Guidelines range (as is permissible, see United States v.
Grayson, 438 U.S. 41, 50-51 (1978)). If the prosecutor be-
lieves this remedy to be insufficient, then the requirement that
such enhancements be proved to the jury would simply mean.
as a practical matter. that such conduct would be dealt with in
contempt proceedings, or charged as a separate offense in a
separate proceeding. Blakely, 124 8. Ct. at 2539 n.11. Sucha
result is fully consonant with Sixth Amendment values.
The notion implicit in these arguments—that any change in
the sentencing system necessitates the wholesale abandon-
ment of the Guidelines—ftundamentally misunderstands the
role of this Court, of Congress and of the Commission. The
discussion of severability necessarily presumes that the Court
has determined that the Guidelines are, at least in some appli-
cations, unconstitutional. Accordingly, there can be no ques-
tion but that the sentencing system will undergo change.
Whether this Court severs the Guidelines in a manner that ef-
fectuates jury factfinding (as respondents urge): renders the
Guidelines advisory (as petitioner would have): or jettisons
the Guidelines altogether (as would be the functional result of
petitioner's requested relief), the system will look different
than it did when Congress enacted it. The important question,
then, is which result best implements Congress's purposes,
and which result leaves the sentencing regime in a state that
permits ongoing observation and dialogue, and that can fa-
cilitate any needed future changes. See id. at 2551 (Kennedy,
J., dissenting) (noting the need to continue “the dynamic and
fruitful dialogue ... that has marked sentencing reform”). To
render the Guidelines advisory because of, for instance, some
44
perceived asymmetry—and thereby to abandon their primary _
purpose—is to prevent any such dialogue. This case is not
the end of sentencing reform. If the implementation of jury
factfinding does in fact lead to asymmetry. and if that result is
perceived to be problematic. then either Congress or the
Commission can respond.”
B. Petitioner’s Proposed Solution—To Make The
Sentencing Guidelines Advisory—Directly Con-
tradicts The Stated Purposes Of Congress And
The Sentencing Commission.
Petitioner contends that judicial factfinding is not severable
from the remainder of the Guidelines because Congress
would not have approved of a scheme that required juries
(rather than judges) to find the existence of facts that are es-
sential to a defendant's sentence. Pet. Br. 47-63. The solu-
tion it proposes is to render the Guidelines voluntary. /d. at
67. This result would return sentencing to the broad discre-
tion that existed prior to the enactment of the SRA. and would
thereby do fatal violence to congressional intent.
1. Before considering the considerable problems with this
proposal. it must first be noted that petitioner's proposal is
itself a form of severance. claims to the contrary notwith-
standing. Although petitioner wraps itself in the mantle of
inseverability. Pet. Br. 66 (“the Guidelines must rise or fall as
a whole”). its own proposal amounts to severing those provi-
sions that make the application of the Guidelines mandatory.
These include not only 18 U.S.C. § 3553(a) (“the court ...
shall consider”). and § 3553(b) (“the court shall impose”)}—
~’ For precisely the same reason. it is not significant that “[cJountless
provisions of the Guidelines ... might have been crafted differently” to
account for jury factfinding. Pet. Br. 51. Such speculation has no bearing
on the severability inquiry. which depends not on whether the severed
Guidelines are identical to those that preceded them, but on whether they
would function as a “workable administrative mechanism.” Chadha, 462
U.S. at 935. And it continues to ignore that Congress and the Commission
both have the power to effectuate such changes in the future.
45
which petitioner does note, Pet. Br. 67—but also hundreds of
provisions throughout the Guidelines that speak in mandatory
terms, including such key provisions as § 1B1.3 (governing
relevant conduct). A simple word search of the Guidelines
Manual reveals 879 instances of the word “shall.” The fact
that many, if not most, of these “shalls” would have to be
severed for petitioner's proposal to take effect makes clear
that severance is indeed what petitioner seeks. Severance in
this fashion would require both scalpel and scythe. With both
parties squarely in the position of advocating some form of
severance, the question is which form of severance is faithful
to the purposes of the enacting Congress. Mille Lacs, 526
U.S. at 191.
2. On that score, it is plain that making the Sentencing
Guidelines voluntary, as petitioner advocates, is directly con-
trary to Congress's primary purpose when it enacted the Sen-
tencing Reform Act. The SRA responds to the “major flaw in
the existing criminal justice system”—the “shameful disparity
in criminal sentences” produced by the “unfettered discre-
tion” of sentencing courts, S. Rep. No. 98-225, at 38, 65, re-
printed in 1984 U.S.C.C.A.N. at 3221, 3248, including dis-
parities that resulted from judicial consideration of race; gen-
der and other illegitimate factors, Senators’ Br. 4, 11. Peti-
tioner concedes, as it must, that Congress specifically in-
tended the Guidelines to be mandatory, precisely to end dis-
uniformity in sentencing. Pet. Br. 67-68. In fact, Congress
rejected a proposed amendment that would have allowed
judges to disregard the Guidelines at their discretion. It did so
“because of the poor record of States” that “experimented
with ‘voluntary’ guidelines.” S. Rep. No. 98-225, at 79, re-
printed in 1984 U.S.C.C.A.N. at 3262. Petitioner never ex-
plains why this Court should choose an option that Congress
specifically rejected (voluntary guidelines) over an option that
Congress never directly addressed (jury factfinding).
Choosing the option Congress expressly rejected makes no
sense. Rendering the Guidelines advisory would institution-
46
alize the problem that Congress sought to eliminate. Peti-
tioner’s suggested resolution of the severability question is,
accordingly. the least restrained possible result, and would
fully thwart congressional intent. Ameline, 376 F.3d at 982
(“were we to hold that Blakely precludes application of the
Guidelines as a whole. we would do far greater violence to
Congress’ intent than if we merely excised the unconstitu-
tional procedural requirements’ ).
Worse. the advisory scheme proposed by petitioner would
lead to even greater disparities than the system that preceded
the enactment of the Guidelines. Petitioner argues. in a re-
vealingly cautious turn of phrase. that under its proposal the
Guidelines “would be inapplicable in a case in which the
Guidelines would require the sentencing court to find a sen-
tence-enhancing fact.” Pet. Br. 66-67 (emphasis added).
Similar guarded phrases appear throughout its brief?! The
unmistakable implication. which petitioner has explicitly em-
braced elsewhere.”* is that the Guidelines remain fully appli-
cable when no sentence-enhancing facts are at issue. This is
an extraordinary proposal. and it would lead to unprecedented
* Eg. Pet. Br. 44 (“in any case in which the Constitution prohibits the
judicial factfinding procedures ... the Guidelines as a whole become in-
applicable” (emphasis added)): id at 69 (“if the Court were to hold that
Blakely ... invalidates the system as a whole in a case such as this”) (em-
phasis added).
*° See United States v. Mueffleman, 327 F. Supp. 2d 79 (D. Mass.
2004):
[I]t is worth noting that the Government advances a selective sever-
ability argument. They claim that the Guidelines are only unconstitu-
tional with respect to cases involving sentence enhancements. The
system can be unseverable with respect to enhancements.... In con-
trast. in cases in which there are no enhancements, the Government
argues the Guidelines apply. The argument makes no sense.
Id. at 95: accord Comey Memo, reprinted in \6 Fed. Sent. Rep. at 358 (if
Blakely applies to the Guidelines, then “in cases where a court ... finds
that there are no applicable upward adjustments under the Guidelines be-
yond the admitted facts or the jury verdict on the elements of the offense.
the Guidelines are constitutional and should be applied”).
47
sentencing disparities. For some defendants (those for whom
no sentence-enhancing facts were at issue), the Guidelines
would apply, and their sentence would be determined by their
base offense level (and possibly certain limited other facts,
such as the fact of a prior conviction, see A/mendarez-Torres
y. United States, 523 U.S. 224, 246 (1998)). For other deten-
dants, the Guidelines would not apply at all, and the sentenc-
ing judge would have full discretion to sentence those defen-
dants within the statutory range, Pet. Br. 67, and to follow or
not to follow the then-advisory Guidelines. Even leaving
aside the constitutional questions that this dual system might
raise.’ this result would amount to institutionalized disuni-
formity far worse than even the well-documented problems of
the pre-Guidelines era.
This system would vest nearly total power in prosecutors to
determine which sentencing regime would apply in a given
case. Such a shift of power to prosecutors to select the appli-
cable sentencing regime would be troubling enough from a
separation-of-powers perspective, but it would be doubly of-
fensive because of the potential for abuse. A prosecutor
blessed with a “hanging” judge could choose to plead sen-
tence-enhancing facts, thereby rendering the Guidelines inap-
plicable and permitting the judge to sentence the defendant to
the full statutory maximum. A prosecutor who drew a judge
with a reputation for leniency could choose not to allege such
facts, in order to guarantee a minimum sentence determined
by the Guidelines base offense level. And, although prose-
cutors probably could predict which judge they would draw
only in some judicial districts, the same result could be ac-
complished by amending indictments to add or drop sentence-
enhancing facts in response to the assigned judge. This
~
Cf Mueffleman, 327 F. Supp. 2d at 96 (“It would be troubling—to
say the least—if judges announced that they were sentencing under an
indeterminate regime, but in fact applied Guideline sentences now wholly
without the procedural protections that 4pprendi and Blakely were begin-
ning to address.”).
48
revolutionary and manipulable system is so far beyond what
Congress could have imagined that it must be rejected.~*
Moreover. such a system would bear no resemblance to any
sy) stem—either pre-Guidelines or Guidelines-era—that Con-
gress could have envisioned. Under the present system. the
Guidelines intermediate between Congress (and the full
Statutory range it enacts) and the judge's otherwise aimost-
limitless discretion. by normalizing sentences within the full
statutory range. In the pre-Guidelines era. parole and good
time credit (despite their flaws) served a similar leveling
function. S. Rep. No. 98-225 at 46, 49-50. reprinted in 1984
U.S.C.C.A.N. at 3229, 3232-33. But petitioner's proposal
would result in no replacement for either mechanism: judges
would simply have full discretion to sentence within the
statutory range. This is a novel system, with unpredictable
results, that Congress would not have intended.
3. In the end, the search for a serious explanation by peti-
tioner of the function or effect of “advisory” Guidelines is
purely quixotic. Although petitioner devotes some 23 pages
to attacking jury factfinding, Pet. Br. 43-66. it begins and
ends its discussion of advisory Guidelines in just over one
~* The fact that petitioner's proposal would mark a return to fully non-
uniform sentencing is a complete answer to its complaint that jury fact-
finding would constitute an impermissible shift from a real-offense to a
charge-offense system. Pet. Br. 57-58. First, any such shift is of relatively
slight importance. See USSG § 1A1.1 hist. note 4(a) (“it is important not
to overstate the differences in practice between a real and a charge offense
system”). Second. this argument shows striking disrespect for the beyond-
a-reasonable-doubt standard of proof. It assumes that the government
should be entitled to punish individuals based on conduct it cannot prove
beyond a reasonable doubt. A jury factfinding system is faithful to a
“real-offense” approach: it just makes the government prove what “really”
happened. And even if sentencing based upon jury factfinding would
mark a partial shift in the direction of charge-offense, the shift would not
be complete. because judges would maintain some discretion to sentence
within the range mandated by the jury-found facts. In any event, any par-
tial shift is surely preferable to the government's wholesale abandonment
of sentencing uniformity .
49
page. id. at 66-67. Perhaps the details are forthcoming on re-
ply. But at this juncture, it appears that advisory Guidelines
are a nullity. Petitioner fails to explain what an “advisory™
rule is. It does not suggest when and how a district court
should take the Commission's “advice.” It does not hint at
the appropriate standard for reviewing a court that rejects this
advice—clear error? abuse of discretion?—or even whether
rejecting the advisory Guidelines would be reviewable.
Tacitly recognizing that boundless discretion in the form of
advisory Guidelines is quite incompatible with Congress's
intent, petitioner suggests that 18 U.S.C. § 3553(a) could take
the place of the Guidelines by steering judicial decisionmak-
ing. Pet. Br. 67. (Section 3553(a) identifies the factors that
courts must consider in sentencing defendants; section
3553(b) specifies that sentencing must be in accordance with
the Guidelines.) As an initial matter, petitioner—which styles
itself a supporter of inseverability—fails to explain why
§ 3553(a) would survive when § 3553(b), which concerns
only the mandatory application of Guidelines sentences,
would have to be struck down to achieve advisory Guidelines.
More importantly, petitioner fails to acknowledge that, in
addition to subsection (b), nearly all of subsection (a) also
relates to Guidelines sentencing. So, for instance, petitioner
claims that subsection (a)(1) simply requires a judge to com-
ply with various “statutory purposes.” Pet. Br. 67. This is not
quite right. Subsection 3553(a)(1) relates specifically to
Guidelines purposes—it was meant to “assist [the sentencing
judge] in assessing how the sentencing guidelines and policy
statements should apply to the defendant.” S. Rep. No. 98-
225, at 75, reprinted in 1984 U.S.C.C.A.N. at 3258. Subsec-
tions (a4) and (a)(5) likewise apply directly to the Guide-
lines—they “require that the sentencing judge consider the
kinds of sentence and the sentencing range applicable to the
category of offense committed by the category of offender
under the sentencing guidelines issued pursuant to 28 U.S.C.
944(a) and under any applicable policy statements issued by
50
the Sentencing Commission.” /d. at 77. reprinted in 1984
U.S.C.C.A.N. at 3260.
But even if a// of § 3353(a) could apply in a world of advi-
sory Guidelines. it would not guide judicial discretion one
whit. Its provisions do nothing more than restate the most
basic penal purposes—*“to reflect the seriousness of the of-
fense. to promote respect for the law. and to provide just
punishment for the offense.” for instance. 18 U.S.C.
§ 3553(ay 2A). Without binding Guidelines, these general
statements are nothing but aphorisms.
In short. petitioner fails to offer any convincing rationale
for rendering the Guidelines advisory. or any explanation
about how such a system would work. This is because it
would not. Advisory Guidelines would utterly frustrate the
goals of Congress. and would create a situation even worse
than the one that led to their creation in the first place.
**# *& *
The Sixth Amendment requires that any sentence-
enhancing fact must be found by a jury beyond a reasonable
doubt. To the extent the SRA and the Guidelines require
judges to find such facts. they are constitutionally infirm.
Accordingly. in order best to effectuate Congress's intent to
end sentencing disparities by means of a mandatory and uni-
form sentencing structure, this Court should sever or reinter-
pret any provisions of the SRA and the Guidelines that are
understood to compel judicial factfinding. Because petitioner
did not seek to amend its defective indictment in this case or
to try sentence-enhancing facts to a jury. has not asked leave
on remand to do so here. and concedes that such relief is un-
available. the judgment and sentence in this case should be
affirmed.
CONCLUSION
For the foregoing reasons. the judgment of the district court
should be affirmed.
CARTER G. PHILLIPS
JEFFREY T. GREEN
Eric A. SHUMSKY
MICHAEL C. SOULES
ANDREW D. FAUSETT
MATTHEW J. WARREN
SIDLEY AUSTIN BROWN &
Woop LLP My
1501 K Street, N.W. ~~
Washington, D.C. 20005
(202) 736-8000
ROBERT N. HOCHMAN
SIDLEY AUSTIN BROWN &
Respectfully submitted,
ROSEMARY CURRAN
SCAPICCHIO*
Four Longfellow Place
Suite 3703
Boston, Massachusetts 02114
(617) 263-7400
BRUCE M. MERRILL
BRUCE M. MERRILL, P.A.
225 Commercial Street
Suite 401
Portland, ME 04101
(207) 775-3333
WOOD LLP Scott D. MARCUS
Bank One Plaza SIDLEY AUSTIN BROWN &
10 South Dearborn Street WOOD LLP
Chicago, IL 60603 555 West Sth Street
(312) 853-7000 >— 40th Floor
Los Angeles, CA 90013
MARTIN G. WEINBERG (213) 896-6600
MARTIN G. WEINBERG P.C.
20 Park Plaza
Boston, MA 02116
(617)227-3700
Counsel for Respondent
September 21, 2004 * Counsel of Record
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.