Sorting through non-severability concerns

The Solicitor General's brief in Booker and Fanfan does a fine job establishing that neither Congress nor the US Sentencing Commission expected or intended the federal guidelines to incorporate the sort of jury fact-finding that Blakely now suggests is constitutionally required. However, by ducking nearly all the tough severability issues (as explained here), the SG's brief fails to confront or even acknowledge the many potential problems that its non-severability argument presents.

Indeed, the more I think through the issue, the more I am concerned that adoption of the SG's non-severability claims will create far more chaos and uncertainty (and also perhaps more lenient sentences) than a severability ruling. Though I may need a series of posts to explain my concerns, let me try here to start spotlighting some of these issues:

1. What happens in cases without Blakely factors? As noted before, the SG brief ducks the question of whether, if Blakely applies to the federal guidelines, the guidelines can and should still apply in federal sentencing cases that do not raise any "Blakely factors." If the Supreme Court does not speak to this issue, lower courts will be at sea — and likely will make contradictory rulings — about the applicability of the guidelines in "Blakely-free" cases. Moreover, if the guidelines are still to apply in cases without Blakely factors, might we start seeing defendants claiming that their cases involve Blakely factors in order to try to escape the guidelines' strictures (e.g., might Martha Stewart claim that her case really does involve a Blakely factor so she can argue now for a lower sentence under the government's non-severability theory)?

2. How can and should sentencing with advisory guidelines proceed? The SG says that, if and when the guidelines "fall as a whole," then the guidelines "would remain as advisory factors for the court to consider." SG Brief at 66-67. But, practically speaking, how would sentencing proceed in federal courts with the guidelines wholly and only advisory?

In such a guideline-advisory world, would probation officers still create presentence reports (PSR) with guideline calculations or should sentencing courts relieve probation officers of this responsibility? Or, perhaps more critically, could a court to aid its discretionary sentencing decision order a probation officer to investigate a broad range of issues — e.g., drug dependency, lack of guidance as a youth — that are not generally pertinent in guidelines sentencing?

And assuming PSRs still contained guideline calculations (which seems critical if the guidelines are to be advisory), would prosecutors and defense attorneys be able to contest, either factually or legally, aspects of the PSR's guideline determinations? Would and should a probation officer and a sentencing judge consider common downward departure arguments — e.g., extraordinary family circumstances, aberrant behavior — in the context of the established departure jurisprudence, or should judges just be completely free to consider these factors as they see fit?

3. What happens to appellate review? Even if the Supreme Court determines that appellate review continues despite the guidelines being non-severable, how will appellate review proceed in cases in which the guidelines are only advisory? The SRA's appellate review provision, 18 USC 3742, does provide for "plainly unreasonable" review when "there is no sentencing guideline." But what will that mean in a world with advisory guidelines? Would a defendant be able to raise claims about a PSR's guideline determinations if a non-guidelines sentence was based on "advisory" guideline calculations in the PSR? Can the defendant base appellate claims on the other provisions of the SRA that the government (at SG brief p. 67) claims are still operative —including the requirement of 18 USC 3553(a) that a judge "impose a sentence sufficient, but not greater than necessary, to comply with the purposes" of punishment specified in the SRA (emphasis added)?

Because the SG's brief does not even begin to grapple with these questions, I wonder if the government has completely thought through all the consequences of a (partial or total) ruling on non-severability. I am quite worried that an excessive concern that a few defendants "could receive a sentencing windfall," SG brief at 68, has led the SG to advocate a position on non-severability that might actually create many, many more problems than it solves. In addition, as I will explain in a subsequent post, I actually think there is a much bigger risk that more defendants "could receive a sentencing windfall" if the guidelines are declared non-severable than if they are declared severable.