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January 12, 2005

The FSG are dead, long live the FSG!!

I am trying to come up with a simple take on Booker, and here it is: five Justices (the Apprendi/Blakely five) say the federal sentencing guidelines can no longer operate as mandatory sentencing rules (which is clearly how they were designed and intended to operate), but five Justices (the Apprendi/Blakely dissenters + Justice Ginsburg) have crafted the only possible remedy that would operate in a manner as close to the old system as possible.

Particularly significant, in my view, is Justice Breyer's repeated statement that, even as an advisory system, the Act still "requires judges to consider the Guidelines," Breyer for Court at 16-17, and that "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing."  Id. at 21-22.  Thus, it appears that the FSG must continue to operate as a (shadow?) sentencing system, with presentence reports prepared (and fully litigated?) as in the past, and perhaps even with sentencing judges having to make on the record findings of what the FSG would provide. 

(Indeed, as I read Justice Breyer's opinion for the Court, I think there is an argument that a district judge who fails to make (shadow?) rulings about the applicable guideline range could perhaps be subject to per se reversal.  I also suppose that defendants and prosecutors might still be able to, and actually need to, appeal the (shadow?) guideline rulings because the reasonableness of the impose sentence on appeal would depend on the proper applicable guideline range.)

Also noteworthy, Justice Breyer describes a largely unchanged role for the Sentencing Commission in our new advisory world, since it "remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly."  Id. at 21.  But what if appellate courts start finding various of the USSC guidelines unreasonable?  What good would new guidelines do?  (Indeed, I wonder if (when?) some circuit panels will have ocassion to address the reasonableness of existing provisions prohibiting or greatly restricting the consideration of various potential mitigating offender characteristics like medical conditions and family circumstances.)

To put all this analysis in a much hipper way, I actually think that swing voter Justice Ginsburg must have been listening to The Who in chambers a lot.  It is almost scary how fittingly the lyrics to Won't Get Fooled Again capture the Booker decision:

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again

The change, it had to come
We knew it all along
We were liberated from the fold, that's all
And the world looks just the same
And history ain't changed
'Cause the banners, they are flown in the next war...

Meet the new boss
Same as the old boss

January 12, 2005 at 07:56 PM | Permalink


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As the maximums set forth in the federal statutes now, in the end, control, thereby returning considerable discretion to the trial judge, doesn't it seem that there will be many cases where harsher sentences, relatively immune to second-guessing by appellate courts, will now stand? I don't see this as a huge victory for defendants. While there may be ample litigation over cases currently in the "pipeline," the future for challenges to sentences seems pretty bleak for defendants, IMHO.


Posted by: Mark Kimball | Jan 12, 2005 8:32:22 PM

OK, Justice Breyer notes the SRA still "requires judges to consider the Guidelines." But 3553(a) also says sentencing courts "shall consider . . . the history and characteristics of the defendant" and further says they "shall impose a sentence . . . not greater than necessary" to achieve the traditional objectives of sentencing.

Since these 3553 factors have the same (superior?) force as the advisory guidelines, it might well be that any evolving appellate doctrines holding district courts to their responsibility to consider the largely pro-government guidelines could turn into a potent tool for defendants to make district courts accountable for not giving sufficient weight to these pro-defendant factors.

Maybe the requirement that courts shall consider everything will make all of this a wash.

Posted by: Alex E. | Jan 12, 2005 8:44:09 PM

Doug: Your comment confuses the presently drafted grounds for "downward departure" (such as family circumstances), which are "policy statements," with the provisions of the "guidelines" themselves - there is a critical distinction under the Sentencing Reform Act. Appellate courts will have no occasion to strike down as unreasonable any restriction on downward departure, because the statute that retricts the grounds for sentences below the guidelines (3553(b)) is the statute which has been declared unconstitutional. After Booker, there are no longer any legal restrictions, such as those you reference, on downward "departures". In fact, it is no longer meaningful to speak of "departures" at all, only of sentences within and not within the applicable guidelines. Whether a post-Booker sentence is within the guidelines or not is still important, as it triggers a different application of the reasons requirement (3553(c)), which in turn will affect appellate review (speaking as a criminal defense appellate lawyer).

Posted by: Peter G | Jan 12, 2005 9:57:31 PM

This is good news, keep us - in touch,thank you

Posted by: cynthia gordon | Jan 12, 2005 11:21:47 PM

Peter G.,

Because courts have applied policy statements as binding, I am not sure the distinction you highlight is seen as consequential to most courts. But I agree that the concept of a departure is now perhaps without meaning (it certainly is without clear meaning). I have cleaned up my post to reflect some of your points.

Posted by: Doug B. | Jan 13, 2005 12:04:49 AM


My initial reaction to the Breyer remedies portion of the Booker opinion was to take it at face value – i.e., the Sixth Amendment means that the Guidelines as written are no longer legally binding on trial judges. And that could be where we end up, in which case this really is a revolution and the federal judiciary has (at least until Congress says otherwise) seized an unprecedented degree of control over sentencing. But as I’ve reflected on the opinion throughout the day, I’m increasingly convinced that the key to the remedies opinion is the retention of a right of appeal of sentences on a reasonableness standard. If, as Justice Scalia predicts, courts of appeals interpret that standard as nothing more than a requirement that the district court judge (a) jump through the Guidelines’ procedural hoops to arrive at a “guideline range” and (b) thereafter provide a facially rational explanation of whatever sentence he actually imposes, giving appropriate verbal nods to the Guidelines and the factors enumerated in the SRA, then we’ve got really, truly advisory guidelines. On the other hand, if reasonableness review not only requires that sentencing judges jump through the Guidelines’ procedural hoops, but also requires substantial justifications for deviating from the results the guidelines “advise,” then very little changed today. Put another way, a reasonableness review with teeth could make the guideline range the presumptively correct sentence, subject to the possibility of a well-explained deviation.

Of course, this reading of Booker seems to fly in the face of Blakely since appellate review that gives presumptive effect to the guidelines makes them, in practical fact, legally enforceable, albeit it probably gives district judges more wiggle room than they had either before or after Feeney. This obviously infuriates Justices Scalia and Stevens, but this result is precisely what Justice Breyer would like to see as a policy matter – the guidelines survive, but judges have more discretion.

The short term problem for the lower courts is that they don’t know what weight to give the guidelines either in the initial sentencing calculus of the sentencing judge or in the subsequent appellate review of the sentence. Some circuits will probably declare that fidelity to Blakely means that the Guidelines are truly advisory and hence legally unenforceable, at least in the sense that no sentence could be overturned for failure to adhere to the sentence range prescribed by the Guidelines. Others may impose a tougher standard of review that places considerable weight on the trial judge’s adherence to the Guidelines, thus maintaining the Guidelines as something very like binding law. For awhile, confusion is likely to reign. In the end (if not preempted by Congress), the Supreme Court itself will have to define what reasonableness review means and how the Guidelines fit in that review. When that day arrives (assuming somewhat unrealistically no changes in the membership of the Court), all Breyer has to do to keep the Guidelines alive is keep Justice Ginsburg’s vote or peel off someone else for a standard of review that makes adherence to the Guidelines a significant factor in the determination of a sentence’s reasonableness.

If that’s where we land, then the Guidelines are dead -- long live the Guidelines. The only thing that will be different from the pre-Blakely world is some as yet undefined enhancement of the degree of permissible judicial discretion in determination of the final sentence.

Of course, the $64,000 question is whether Congress and DOJ will wait to see how it all plays out. Some in Congress will probably reflexively lash out at what they will consider a judicial usurpation of congressional authority. DOJ may want to see how it works, but they may be worried that in the near term individual judges and circuits are going to be all over the lot in their interpretations of Booker and that that chaos will reign absent legislation.

Interesting times....

Posted by: Frank Bowman | Jan 13, 2005 12:16:27 AM

Surprised to see O'Connor join the "advisory" portion of the opinion, especially considering that she refused to do so just three months ago. Her comments at oral argument: "That just seems so contrary to what Congress intended. There's no evidence that they intended the scheme to be advisory." http://www.fpdde.org/blakely/booker.fanfan.transcript.pdf PAGE NUMBER 51.

Posted by: Jonathan Pignoli | Jan 13, 2005 12:54:52 AM

haha, how fitting! you're right, the lyrics are so applicable.
thanks, i needed that!


Posted by: mary | Jan 13, 2005 1:08:50 AM

I've been reading various commentaries all over the web. One thing that has surprised me is that, of what I read so far, no one has mentioned that J Breyer was a commissioner of the US Sentencing Commission at the time the Guidelines were first promulgated. Is this proper to note?

Posted by: Sholom Simon | Jan 13, 2005 8:14:14 AM

In regard to the attention the district courts will have to pay to the Guidelines, I think that in each case, the sentencing judge will have to recite, "In imposing this sentence, I have considered the factors outlined in § 3553(e) and the range suggested by the Sentencing Guidelines," or words to that effect. Whatever is sufficient to make clear that the judge has mulled over the Guideline sentence. I think that will be sufficient in the Sixth Circuit to save the judgment from being vacated and remanded for resentencing. It poses a similar situation to the pre-Blakely days when the defendant would move for a downward departure, the sentencing judge, if deciding not to depart, would have to clearly indicate, "I realize I have the authority to downward depart, but I do not think it is warranted." Something to indicate that the judge was aware that the Guidelines would authorize a departure. If the sentencing court did not invoke that talisman, then the Circuit would vacate the sentence and remand the case for the district to consider the grounds for departing for the Guidelines range. So, saying the magic words is still going to be important.

Posted by: Pat Smith - law clerk | Jan 13, 2005 9:07:07 AM

"Some circuits will probably declare that fidelity to Blakely means that the Guidelines are truly advisory and hence legally unenforceable, at least in the sense that no sentence could be overturned for failure to adhere to the sentence range prescribed by the Guidelines."--Frank Bowman

I disagree. I think that most circuits will require sentencing judges to follow the guidelines in ordinary cases, on the theory that the statutory duty to "consult" and "take into account" the guidelines can only be fulfilled "reasonably" by following them absent a case-specific reason not to. District courts will not be able to say, "I consulted the guidelines, and took them into account, but I disagree with them, so I'm not going to follow them." On the contrary, they will only be able to impose sentences outside the guideline range when: a) the facts of a particular case put it outside the "heartland" of cases covered by the guideline--ie, the departure standard, albeit with a more deferential standard of review; and b) when following the guidelines would create an actual Apprendi problem.

While some will argue that "take into account" should not mean "follow in most cases," the fact is that at least 8 of 9 justices (with only the arguable exception of Ginsburg) believe the guidelines should be followed when they don't raise an actual Apprendi problem. Granted, Scalia's dissent characterizes the Breyer opinion as granting unbridled discretion, but that's just Scalia being Scalia, on the same order of his argument that Lawrence v. Texas requires incest and polygamy. Remember, Apprendi is not an attack on mandatory sentencing, it is an attack on judicial factfinding that raises the mandatory sentencing range. As Justice Stevens pointed out, the mandatory provision of the guidelines is obviously constitutional.

If I am right, then the truly unsettled issue is a fairly narrow one. As I mentioned above, I imagine no circuit will *require* district courts to create an Apprendi problem by imposing a fact-based enhancement that increases a sentence beyond its original guideline range. But what happens when they choose to do so? If guideline ranges are presumptively mandatory, does Blakely prohibit judges from imposing sentences beyond that range based on judicial factfinding? Assuming no changes on the court or congressional intervention, that is the question that Judge Ginsburg will have to answer.

Posted by: AF-law student | Jan 13, 2005 1:54:13 PM

If guidelines are advisory only and sentences lower or higher within statutory (not guideline)limits possible and legal if reasonable then is the Apprendi requirement of either admision by defendant or jury verdict/finding beyond a reasonable doubt eliminated? Do we have topless guidelines? Note Fanfan's sentence not in violation of the Sixth Amendment was vacated and he is subject to resentencing.
Defense attorney

Posted by: John Moeller | Jan 16, 2005 6:58:04 PM

I know a man in Indianapolis who was arrested for looking at the wrong kind of pornography on the internet, by Customs agents. Ultimately he signed a "plea agreement" to do 3 years (he was told that that was the result of a reduced sentence). He leaves for prison next month. What he did may or may not be reprehensible, but what has happened to him is an outrage. He was sentenced under the so-called "guidelines" and was induced, in his plea agreement, to sign away any rights he MIGHT have to any new hearing or re-sentencing, IF and WHEN current methodology in application of the guidelines were declared unconstitutional. This plea agreement was done in December, as if the federal prosecutor in Indiana knew that the Supreme Court decisions were imminent, and it was urgent to get this guy to jail, for as long as possible.

His lawyer tells him he hasn't any recourse. Can this be right?

Charles Campbell, student

Posted by: Charles Campbell | Jan 17, 2005 11:06:23 AM

who cares


Posted by: shane | Jan 31, 2005 5:53:15 PM

NO NO you’re doing wrong!It’s ‘Slinging crack rock “OR” you gotta wicked jump shot’

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