Latest Drug War News

GoodShop: You Shop...We Give!

Shop online at and a percentage of each purchase will be donated to our cause! More than 600 top stores are participating!

The Internet Our Website

Global and National Events Calendar

Bottoms Up: Guide to Grassroots Activism

Prisons and Poisons

November Coalition Projects

Get on the Soapbox! with Soap for Change

November Coalition: We Have Issues!

November Coalition Local Scenes

November Coalition Multimedia Archive

The Razor Wire
Bring Back Federal Parole!
November Coalition: Our House

Stories from Behind The WALL

November Coalition: Nora's Blog

January 12, 2005 - Blakely Analysis

Booker Fanfan: The New Sentencing Reality

By David Beneman, Maine CJA Resource Counsel

Return to
Blakely News Archive

You have seen the headlines, "Court Finds Sentencing Guidelines Unconstitutional". Don't reach for the champagne quite yet. For many of our clients, today's ruling just deepens the uncertainty of federal sentencing law. The majority decision is in two parts with two different authors and two different majorities. Justice Ginsburg is the swing vote.

For the full text of today's U.S. v. Booker Decision, Click Here (PDF Format)


Part 1. The Federal Sentencing Guidelines are unconstitutional. They are mandatory under 18 USC 3553(b), hence they create a "statutory maximum" for the purposes of Apprendi. The facts applied to the Guidelines must be those found by a jury beyond a reasonable doubt to be constitutionally sound. The reasoning of Blakely is equally applicable to the Federal Sentencing Guidelines. So finds a majority in part 1 of this opinion authored by Justice Stevens and joined in by the balance of the "Blakely Team", namely Scalia, Souter, Thomas and Ginsburg.

Part 2. The remedy. After review of a number of potential approaches, a different majority, led by Justice Breyer, decides the Guidelines are severable. The unconstitutional flaw is fixed by invalidating only those portions of the statute that makes them mandatory. Slicing with a razor thin knife, Breyer "excises" 18 USC § 3553(b)(1) and 3742(e) (the mandatory language) and declares the Guidelines alive and well but "advisory". Courts are to continue to take the Guidelines into account under 18 USC § 3553(a)(4) (factors to be considered in imposing a sentence) BUT are NOT REQUIRED to sentence within the guideline range. Breyer, joined by Rehnquist, O'Connor, Kennedy and Ginsburg.

New standard of review for sentencing appeals. On future appeals, the issue will be "reasonableness" or "unreasonableness" of the sentence looking at the criteria of 18 USC 3553 (informed by the knowledge the Congress really wanted the Guidelines to be mandatory but since they can't be judges are essentially urged to follow them anyway). This rule is to be applied to all cases presently pending on direct review, using a "plain error" standard and considering the "harmless error" doctrine. As to the actual cases, both resulted in the sentences being vacated and remanded to the district court for resentencing applying the new rules.

There are cross dissents by the minority group as to each part.

Between the lines:

On part 1, the majority makes clear that this is solely a 6th Amendment right to a jury trial issue. Mistretta remains good law; there is no separation of powers issue, and the distinction between "sentencing factors" and "elements" of a crime are distinctions without a difference under a mandatory Guideline scheme. So we have 5 of 9 saying the Guidelines are unconstitutional and gone. We begin to rejoice until we see that Ginsburg, by switching sides in part 2, creates if not a hollow victory, one which is not of the level hoped for. The "Blakley Team" minus Ginsburg argue for a system in which the government includes in the charging instrument and takes to the jury the various sentencing allegations. For those of you who have been working in Districts that have post-Blakely been using such a system you will know that while not perfect, it opened a new world of plea bargaining, plea agreements with agreed to findings, and charging instruments devoid of enhancements effectively precluding the sentencing court from going beyond the guideline range agreed to by a defendant. But in other districts prosecutors where including every possible enhancement in the charge instrument and defendant's were faced with admitting all allegations or going to trial over the sentencing enhancements, apparently the exact "6th Amendment" jury involvement 4 members of the Court urge.

In part 2, a seemingly gleeful Justice Breyer looks at the law of severability and the "will of Congress". He decides (and finds 4 others to agree with him), that the Guideline system can and should be saved. By removing the mandatory nature of the Guidelines we will be as close as legally possible to what Congress seeks. Breyer's choice of language and examples do not bode well for the wholesale rejection of "advisory Guidelines" by the District Court bench. A few choice examples (citations omitted) show us that Breyer and the majority are pushing for the sentencing judges (and the appeals court's that review them) to essentially ignore part 1 of the decision; while the Guidelines may not be mandatory, they are pretty darn close:

Congress' basic statutory goal-a system that diminishes sentencing disparity-depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction.Federal judges have long relied upon a presentence report, prepared by a probation officer, for information (often unavailable until after the trial) relevant to the manner in which the convicted offender committed the crime of conviction.

Congress' basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity. That uniformity does not consist simply of similar sentences for those convicted of violations of the same statute-a uniformity consistent with the dissenters' remedial approach. It consists, more importantly, of similar relationships between sentences and real conduct, relationships that Congress' sentencing statutes helped to advance and that JUSTICE STEVENS' approach would undermine. In significant part, it is the weakening of this real conduct / uniformity-in-sentencing relationship, and not any "inexplicabl[e]" concerns for the "manner of achieving uniform sentences," that leads us to conclude that Congress would have preferred no mandatory system to the system the dissenters envisage.

Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing, i.e., to increase the likelihood that offenders who engage in similar real conduct would receive similar sentences. The statutes reasonably assume that their efforts to move the trial-based sentencing process in the direction of greater sentencing uniformity would have a similar positive impact upon plea-bargained sentences, for plea bargaining takes place in the shadow of (i.e., with an eye towards the hypothetical result of) a potential trial. That, too, is why Congress, understanding the realities of plea bargaining, authorized the Commission to promulgate policy statements that would assist sentencing judges in determining whether to reject a plea agreement after reading about the defendant's real conduct in a presentence report (and giving the offender an opportunity to challenge the report). This system has not worked perfectly; judges have often simply accepted an agreed-upon account of the conduct at issue. But compared to pre-existing law, the statutes try to move the system in the right direction, i.e., toward greater sentencing uniformity.

Because plea bargaining inevitably reflects estimates of what would happen at trial, plea bargaining too under such a system [dissent's suggestion] would move in the wrong direction. That is to say, in a sentencing system modified by the Court's constitutional requirement, plea bargaining would likely lead to sentences that gave greater weight, not to real conduct, but rather to the skill of counsel, the policies of the prosecutor, the caseload, and other factors that vary from place to place, defendant to defendant, and crime to crime. Compared to pre-Guidelines plea bargaining, plea bargaining of this kind would necessarily move federal sentencing in the direction of diminished, not increased, uniformity in sentencing.

Such a system would have particularly troubling consequences with respect to prosecutorial power. Until now, sentencing factors have come before the judge in the presentence report. But in a sentencing system with the Court's constitutional requirement engrafted onto it, any factor that a prosecutor chose not to charge at the plea negotiation would be placed beyond the reach of the judge entirely. prosecutors would thus exercise a power the Sentencing Act vested in judges: the power to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment.

Congress would not have enacted sentencing statutes that make it more difficult to adjust sentences upward than to adjust them downward.


What have we really won?

1. The guidelines are advisory so with solid advocacy, fair judges and maybe some helpful facts, we should be able to avoid the real injustice of some guideline applications without having to go through the "downward departure" dance. Goodbye Protect Act (at least for now).

2. Potentially we may have increased plea bargaining room.

3. Client's can again admit to the statutory elements without automatically conceding all the Guideline enhancements.

4. We have a new "unreasonableness" standard of review on appeal. potentially all sentences become reviewable, even when within the applicable (but advisory) Guideline range. Of course the cynic in me expects the circuits to hold that a sentence within the advisory guideline range is per se "reasonable".

What have we lost?

1. The government will not have to plead or prove to a jury beyond a reasonable doubt sentencing enhancers.

2. We are back to preponderance and hearsay based findings in the PSR and with the court. Acquitted counts again return to be potentially included in the "advisory" Guideline range.

3. On appeal sentences can be "reasonable" despite being beyond the guideline range or based on a faulty guideline finding. "So, the court was off in the relevant conduct calculation; under the totality of the circumstances the sentence is not "unreasonable". Affirmed. Only 15 years and could have been 20. [The cynic in me returns, call it the Phoenix Syndrome].

4. Our "last best chance" to get rid of the guidelines. But we must be careful what we wish for. Perhaps this advisory system will be enough to both satisfy Congress and give judges increased flexibility in the right cases.

What to do now?

1. This is a major opinion. It is long, 126 pages. It will take some reading and re-reading. Needs time to digest.

2. Listen to the trial court and see what the judge's take is on this. Do they feel they have new flexibility? Are they open to sentencing outside the Guideline range?

3. Keep an eye on Congress. The current situation could be short lived. As Justice Breyer points out, "Ours, of course, is not the last word: The ball now lies in Congress' court."

4. For cases indicted with sentencing allegations, move to strike as they are once again surplusage.

5. For new cases you will need to still do the full Guideline analysis, but think about if you have sentencing arguments that are now available without the pesky "downward departure" standard.

6. For cases post-plea, pre-sentencing look at the terms of the plea agreement, if any. Have you "waived" Blakely issues? Does this mean you are under a mandatory Guideline system or just that the terms of the agreement still apply? Is the Court is now free to sentence outside the Guidelines, despite the plea agreement?

7. For those in jail it currently appears that IF the case is still on direct appeal, sentencing issues can be raised and the plain error standard will allow some but not all to be considered. Consider what you or the client seek. The Guidelines also served as a cap on many sentences. Post-Blakley, many defendant's did well. Mr. Fanfan is going to be re-sentenced and it looks like his time will increase dramatically. If the government has not appealed or cross appealed, clients should realize that there is a solid risk of an increased sentence if for example the court excluded some enhancements under Blakely. Those enhancements could return on re-sentencing.

8. Finally, I do not read this opinion as opening the door for 2255s that are beyond the one year time frame. I am sure this will be a controversial issue, but my read of the opinion does not result in the "opening of the floodgates". I am sure there will be various takes on the decision and provide you with my thoughts as a starting point. It is snowing up a storm outside so I am heading home. Good luck to all of us.

David Beneman
Maine CJA Resource Counsel
Levenson Vickerson & Beneman
PO Box 465
Portland, ME 04112
phone:207-775-5200 ext. 104
fax: 207-772-1829

Working to end drug war injustice

Meet the People Behind The U.S. Sentencing Guidelines

Questions or problems? Contact