Monday, January 17th, 2005

United States v. Booker, No. 04-104 (U.S. Sup. Ct. Jan. 12, 2005): A Day-After Analysis

I. The Holding:

1. Stevens for a 5-justice majority: The rule of Apprendi and Blakely – that the maximum sentence a judge may impose is the maximum sentence authorized on the basis of facts reflected in the jury verdict or admitted by the defendant – applies to the Sentencing Guidelines.

A. That is, Booker holds that the top of the Guideline range, as determined solely by facts found by the jury or admitted by the defendant at a guilty plea, constitutes the “statutory maximum” for Apprendi-Blakely purposes.

B. Thus, a judge may not impose a sentence higher than the top of this range based on facts that s/he alone has found.

2. Breyer for an entirely different 5-justice majority: The remedy for the Blakely violation in Booker’s case is simply to strike / excise two statutory provisions – 18 U.S.C. § 3553(b) and 18 U.S.C. § 3742(e). All else allegedly remains …

A. § 3553(b) stated that “the court shall impose a sentence of the kind, and within the range [established by the Sentencing Guidelines], … unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result” in a different sentence. That is, § 3553(b) was the statutory provision making the Guidelines binding on district judges.

B. § 3742(e) described how and by what standard of review an appellate court was to evaluate a sentencing appeal.

II. The Result (for Sentencing Courts):

1. The Guidelines are no longer binding, and only advisory. As the Breyer majority states, “So modified, the Federal Sentencing Act . . . makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U.S.C. § 3553(a)(4), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a).” Breyer Op. at 2.

2. § 3553(a) is now King / Queen: It directs what a sentencing court should do and consider in determining and imposing an appropriate sentence.

3. “Parsimony command”: § 3553(a) discusses numerous “factors to be considered in imposing sentence,” listed below, but prefaces everything with the”The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”

4. The seven categories of factors a court must consider, under § 3553(a), are:

1. “The nature and circumstances of the offense and the history and characteristics of the offender,” id. (a)(1);

2. The need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and “provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” id. (a)(2);

3. “The kinds of sentences available,” id. (a)(3);

4. The kinds of sentence and the sentencing range established by the Sentencing Commission via the Sentencing Guidelines, id. (a)(4);

5. Any pertinent policy statements issued by the Sentencing Commission, id. (a)(5);

6. The need to avoid unwarranted sentence disparities among similarly situated defendants, (a)(6); and

7. The need to provide restitution, (a)(7).

5. After Booker, a sentencing court need only “consider” the applicable Guideline range, and any policy statements in the Guidelines, as one of several factors relevant to the ultimate sentencing decision. Under § 3553(a), the Guidelines are listed only as factors 4 & 5.

A. Breyer Op. at 17: So excised, “[t]he Act [] requires judges to consider the Guidelines ‘sentencing range . . .’, the pertinent Sentencing Commission policy statements, the need to avoid unwarranted sentencing disparities, [and] the need to provide restitution to victims. [It also] requires judges to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed educational or vocational training and medical care.”

B. See also Breyer Op. at 21: “The district courts, while not bound to apply the Guidelines, must consult the Guidelines and take them into account when sentencing.”

C. The dissenting opinions also comment on what the Breyer majority now requires of sentencing courts, and indeed spell out the post-Booker sentencing world much more thoroughly than Breyer’s majority opinion (assuming we can take the dissent’s characterization of Breyer’s majority opinion at face value …):

i. Stevens dissent at 30: “[J]udges must still consider the sentencing range contained in the Guidelines, but that range is now nothing more than a suggestion that may or may not be persuasive to a judge when weighed against the numerous other considerations listed in 18 U.S.C.A. § 3553(a).” (Emphasis in original).

ii. Scalia dissent at 3: “[T]he plain effect of the remedial majority’s decision . . . [is that] district judges will no longer be told they ‘shall impose a sentence . . . within the range’ established by the Guidelines. § 3553(b)(1). Instead, under § 3553(a), they will need only to ‘consider’ that range as one of many factors, including ‘the need for the sentence . . . to provide just punishment . . . , afford adequate deterrence . . . , and to protect the public . . .”

iii. Scalia dissent at 3, continued: Crucially, § 3553(a) “provides no order of priority among all those factors, but since the three just mentioned are the fundamental criteria governing penology, the statute – absent the mandate of § 3553(b)(1) – authorizes the judge to apply his own perceptions of just punishment, deterrence, and protection of the public even when these differ from the perceptions of the Commission members who drew up the Guidelines.”(emphases added).

iv. Scalia dissent at 4, continued: “[T]he sentencing judge, after considering the recited factors (including the Guidelines), has full discretion, as full as he possessed before the Act was passed, to sentence anywhere within the statutory length. If the majority thought otherwise – if it thought the Guidelines not only had to be ‘considered’ (as the amputated statute requires) but had generally to be followed – its opinion would surely say so.” See also id. at 4 n.4 (although “the Guidelines represent what the Sentencing Commission ‘finds to be better sentencing practices,’ . . . the Commission’s view of what is ‘better’ is no longer authoritative, and district judges are free to disagree – as are appellate judges.”).

III. The Result (for Appellate Courts):

1 The Breyer majority excises the different standards of review found in § 3742(e), and replaces it with a unitary standard of “reasonableness.” See Breyer Op. at 22 (“The courts of appeals review sentencing decisions for unreasonableness.”).

2. Breyer opaquely tells appellate courts to “determine whether the sentence is unreasonable with regard to § 3553(a). § 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. These factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.” Breyer Op. at 19.

3 When a sentence will be considered “unreasonable” on appellate review is anyone’s guess. However, Scalia in his dissent points out that, whatever reasonableness may ultimately mean in this context, it cannot mean that a sentence that deviates from the Guidelines range will be deemed unreasonable. As he puts it, “[A]ny system which held it per se unreasonable (and hence reversible) for a sentencing judge to reject the Guidelines is indistinguishable from the mandatory Guidelines system that the Court today holds unconstitutional.” Scalia Dissent at 10.

IV. The Almendarez-Torres Exception to the Apprendi-Blakely Rule?

1 No explicit discussion, but Stevens’s majority opinion closes with the oft-repeated description of the Apprendi rule, which includes the Almendarez-Torres exception. See Stevens Op. at 20 (“[W]e reaffirm our holding in Apprendi: Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”).

2 Practically, however, since Guidelines are now only advisory, this issue doesn’t really matter much anymore.

V. Mandatory Minimums?

1 No mention of Harris in Booker, though McMillan is cited in Stevens’ opinion as an example of the recent trend – turned back by the Apprendi / Blakely line of cases – of “increasing possible sentencing ranges” based on judge-found facts. Stevens Op. at 11.

2 But see Stevens’s dissent at 8-9, seeming to authorize a Bowman-type fix (which relies on viability of Harris and the minimum-vs-maximum distinction).

VI. Some Quick Thoughts on Post-Booker Sentencing Proceedings:

1 What if a district judge slavishly follows the Guidelines in imposing sentence? (See, e.g., Judge Cassell’s recent opinion in United States v. Wilson, Docket No. 2:03-CR-00882 (D. Utah Jan. 13, 2005)).

A. There’s an argument that if a judge follows the now advisory Guidelines too closely, the Guidelines become de facto “statutory maxima” under the Blakely rule, and thus prohibited.

i. As Stevens noted in his majority opinion, the fact that downward departures are potentially available do not save the Guidelines from being “mandatory” and thus infirmity under the Blakely rule. Stevens Op. at 9-10.

ii. Thus, an argument can be made that an interpretation of the Guidelines, post-Booker, as creating a presumptively correct sentence subject to deviation only in the “exceptional” case has the same Sixth Amendment problem.

B. In any event, nothing in Booker justifies giving the Guidelines range a “presumptive” correctness.

i. Breyer’s Opinion only states that the sentencing court should “consider” and “consult” the Guidelines. It does not say that the Guidelines are a starting point, benchmark, etc.

ii. Scalia’s Dissent correctly notes that under § 3553(a), the provision that now governs federal sentencing, there is ” no order of priority among all those factors” listed.

2 Since Guidelines are only advisory, there should be no bar to using any factors prohibited (or discouraged) by the Guidelines in arguing for a lower sentence.

A The various factors listed in Section 5H of the Guidelines are all now potentially relevant to sentencing: E.g., age, education & vocational skills, emotional & mental condition, military / civic / charitable service, and lack of guidance as a youth.

B Also, factors that previously warranted a lower sentence only if present to an “exceptional” degree – e.g., family circumstances – no longer need to meet the “exceptional” standard to warrant a lower sentence.

C Any other factors you can think of can potentially be relevant: E.g., surrender of a suppression motion, economic costs of incarceration, and “collateral” costs already borne by your client (e.g., deportation, loss of livelihood, etc.).

3 Relatedly, there’s an argument to be made that the resulting sentence should be lower than the Guidelines sentence because the Sentencing Commission, in coming up with the applicable Guidelines sentence, specifically excluded all the factors recited above, which are now relevant.

A. Also, as pointed out in Scalia’s dissent, the sentences called for by the Guidelines are the product of a policy decision by the Sentencing Commission to create sentences “‘significantly more severe than past practice’ for the ‘most frequently sentenced offenses in the federal courts.’” Scalia Dissent at 3, quoting Sentencing Commission’s recent report (“Fifteen Years of Guidelines Sentencing (2004)).

B And “[i]f those policy decisions are no longer mandatory, the sentence judge is free to disagree with them.” Id.

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