543 U.S. 220 (2005), 04-104, United States v. Booker

Docket Nº:Nos. 04-104, 04-105
Citation:543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, 73 U.S.L.W. 4056
Case Date:January 12, 2005
Court:United States Supreme Court

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543 U.S. 220 (2005)

125 S.Ct. 738, 160 L.Ed.2d 621, 73 U.S.L.W. 4056







Nos. 04-104, 04-105

United States Supreme Court

January 12, 2005 [*]

Argued October 4, 2004.



[125 S.Ct. 741] Syllabus [**]

Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker's drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month, sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt. The Seventh Circuit held that this application of the Guidelines conflicted with the Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435, holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the court held that the sentence violated the Sixth Amendment and instructed the District Court either to sentence Booker within the sentencing range supported by the jury's findings or to hold a separate sentencing hearing before a jury. In respondent Fanfan's case, the maximum sentence authorized by the jury verdict under the Guidelines was 78 months in prison. At the sentencing hearing, the District Judge found by a preponderance of the evidence additional facts authorizing a sentence in the 188-to-235-month range, which would have required him to impose a 15- or 16-year sentence instead of the 5 or 6 years authorized by the jury verdict alone. Relying on Blakely's majority opinion, statements in its dissenting opinions, and the Solicitor General's brief in Blakely, the judge concluded that he could not follow the Guidelines and imposed a sentence based solely upon the guilty verdict in the case. The Government filed a notice of appeal in the First Circuit and a petition for certiorari before judgment in this Court.


The judgment of the Court of Appeals in No. 04-104 is affirmed, and the case is remanded. The judgment of the District Court in No. 04-105 is vacated, and the case is remanded.

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No. 04-104, 375 F.3d 508, affirmed and remanded; and No. 04-105, vacated and remanded.

[125 S.Ct. 742] Justice STEVENS delivered the opinion of the Court in part, concluding that the Sixth Amendment as construed in Blakely applies to the Federal Sentencing Guidelines. Pp. 748-756.

(a) In addressing Washington State's determinate sentencing scheme, the Blakely Court found that Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311; Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435; and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556, made clear "that the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S., at 303, 124 S.Ct., at 2537. As Blakely's dissenting opinions recognized, there is no constitutionally significant distinction between the Guidelines and the Washington procedure at issue in that case. This conclusion rests on the premise, common to both systems, that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges. Were the Guidelines merely advisory--recommending, but not requiring, the selection of particular sentences in response to differing sets of facts--their use would not implicate the Sixth Amendment. However, that is not the case. Title 18 U.S.C. § 3553(b) directs that a court "shall impose a sentence of the kind, and within the range" established by the Guidelines, subject to departures in specific, limited cases. Because they are binding on all judges, this Court has consistently held that the Guidelines have the force and effect of laws. Further, the availability of a departure where the judge "finds ... 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 sentence different from that described," § 3553(b)(1), does not avoid the constitutional issue. Departures are unavailable in most cases because the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is legally bound to impose a sentence within the Guidelines range. Booker's case illustrates this point. The jury found him guilty of possessing at least 50 grams of crack cocaine, based on evidence that he had 92.5 grams. Under those facts, the Guidelines required a possible 210-to-262-month sentence. To reach Booker's actual sentence--which was almost 10 years longer--the judge found that he possessed an additional 566 grams of crack. Although the jury never heard any such evidence, the judge found it to be true by a preponderance of the evidence. Thus, as in Blakely, "the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." 542 U.S., at 305, 124 S.Ct., at 2538. Finally, because there were no factors the Sentencing

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Commission failed to adequately consider, the judge was required to impose a sentence within the higher Guidelines range. Pp. 748-752.

(b) The Government's arguments for its position that Blakely's reasoning should not be applied to the Federal Sentencing Guidelines are unpersuasive. The fact that the Guidelines are promulgated by the Sentencing Commission, rather than Congress, is constitutionally irrelevant. The Court has not previously considered the question, but the same Sixth Amendment principles apply to the Sentencing Guidelines. Further, the Court's pre-Apprendi cases considering the Guidelines are inapplicable, as they did not consider the application of Apprendi to the Sentencing Guidelines. Finally, separation of powers concerns are not present here, and were [125 S.Ct. 743] rejected in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714. In Mistretta the Court concluded that even though the Commission performed political rather than adjudicatory functions, Congress did not exceed constitutional limitations in creating the Commission. Id., at 388, 393, 109 S.Ct. 647. That conclusion remains true regardless of whether the facts relevant to sentencing are labeled "sentencing factors" or "elements" of crimes. Pp. 752-756.

Justice BREYER delivered the opinion of the Court in part, concluding that 18 U.S.C. § 3553(b)(1) which makes the Federal Sentencing Guidelines mandatory, is incompatible with today's Sixth Amendment "jury trial" holding and therefore must be severed and excised from the Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends upon the Guidelines' mandatory nature, also must be severed and excised. So modified, the Act makes the Guidelines effectively advisory, requiring a sentencing court to consider Guidelines ranges, see § 3553(a)(4), but permitting it to tailor the sentence in light of other statutory concerns, see § 3553(a). Pp. 757-769.

(a) Answering the remedial question requires a determination of what "Congress would have intended" in light of the Court's constitutional holding. E.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 767, 116 S.Ct. 2374, 135 L.Ed.2d 888. Here, the Court must decide which of two approaches is the more compatible with Congress' intent as embodied in the Act: (1) retaining the Act (and the Guidelines) as written, with today's Sixth Amendment requirement engrafted onto it; or (2) eliminating some of the Act's provisions. Evaluation of the constitutional requirement's consequences in light of the Act's language, history, and basic purposes demonstrates that the requirement is not compatible with the Act as written and that some severance (and excision) is necessary. Congress would likely have preferred the total invalidation of the Act to an Act with the constitutional requirement engrafted onto it, but would likely have preferred the excision of the Act's mandatory language to the invalidation of the entire Act. Pp. 757-759.

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b) Several considerations demonstrate that adding the Court's constitutional requirement onto the Act as currently written would so transform the statutory scheme that Congress likely would not have intended the Act as so modified to stand. First, references to "[t]he court" in § 3553(a)(1)--which requires "[t]he court" when sentencing to consider "the nature and circumstances of the offense and the history and characteristics of the defendant"--and references to "the judge" in the Act's history must be read in context to mean "the judge without the jury," not "the judge working together with the jury." That is made clear by § 3661, which removes typical "jury trial" limitations on "the information" concerning the offender that the sentencing "court ... may receive." Second, Congress' basic statutory goal of diminishing sentencing disparity depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct underlying the crime of conviction. In looking to real conduct, federal sentencing judges have long relied upon a probation officer's presentence report, which is often unavailable...

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