Distinguishing the federal system structurally?

In Koch, Judge Sutton's defense of the federal guidelines for the Sixth Circuit en banc majority (details here) goes to great length to highlight distinctions between the Washington guideline system at issue in Blakely and the federal guideline system. Particularly noteworthy is Judge Sutton's extended efforts to spotlight (and give legal significance to) structural differences in who created these guideline systems, and his emphasis on the US Sentencing Commission's placement in the Judicial Branch.

I find this portion of Koch fascinating because, in my own writings, I have stressed the significance and role of different sentencing lawmaking institutions, see A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking, 11 Stan. L. & Pol'y Rev. 93 (1999), and I have also urged sentencing commissions to take a proactive and leading role in developing sentencing procedures. See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 37 Crim. L. Bull. 627 (2001). But, Judge Sutton's structural defense of the federal system in Koch includes one particular passage that could alone justify a dozen more law review articles. He says:

While it may be true that agencies are no less capable of violating the Sixth Amendment than legislatures, the Guidelines come from the very branch of government that all nine Justices of the Court agree has long exercised considerable discretion over sentencing determinations based on the same kinds of factual determinations that the Guidelines ask federal courts to make. If federal judges, in other words, may consider facts that increase sentences in an indeterminate sentencing regime, is it not permissible for this branch of government collectively to channel the consequences of these facts based on their group experience?

This passage is so interesting because it raises a host of fascinating theoretical and factual issues. Fundamentally, of course, we start with curious questions of how and why the scope and reach of an individual's Sixth Amendment and Due Process rights would turn on the way in which criminal sentencing laws are written and enacted. Then we have to consider whether it has ever been accurate to describe the USSC's work as an effort by the judiciary to "collectively channel ... their group experience" in sentencing.

If the federal sentencing guidelines were written by the Judicial Conference of the US — as Professor Kate Stith and Judge Jose Cabranes have recommended in their wonderful book Fear of Judging (at p. 159) — I would find Judge Sutton's question above deserving of extended attention. But, as evidenced by judicial griping since the federal guidelines became law, I doubt many federal judges would say the USSC has in fact developed sentencing laws that channel their collective experiences.

Moreover, as Steve Chanenson has so astutely noted in his recent article (described here and revised version here), Congress' recent passage of the PROTECT Act has constrained and transformed the USSC to make it more like a "traditional" agency and less like a group of judges making sentencing rules for themselves. Recall that the PROTECT Act changed the requirement that the seven-member USSC have at least 3 judges to now provide that the USSC cannot have more than 3 judges. Some have suggested that this change alone entails that Mistretta, which Judge Sutton emphasizes in Koch, is no longer good law.

In short, whatever we think theoretically of the distinction Judge Sutton spotlights, it is not a distinction that comfortably describes the modern reality of the federal sentencing system. And, of course, Judge Martin's dissent in Koch accuses the majority of emphasizing "a distinction without a difference":

I presume that the majority would agree that were the challenged provisions of the Guidelines enacted by Congress in the first instance, they would be unconstitutional under the rule announced in Blakely. I fail to see how the fact that Congress delegated its authority to the Sentencing Commission to set presumptive sentencing ranges saves the federal scheme from constitutional attack.