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January 12, 2005 - (US Web)

U.S. Sentencing Guidelines Made Advisory by Court

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Blakely News Archive

Jan. 12 (Bloomberg) -- The U.S. Supreme Court declared the federal criminal sentencing guidelines advisory in a decision that gives judges more discretion and may bolster the rights of convicted drug traffickers and corporate-fraud defendants.

The justices, ruling 5-4 in two drug cases, said the guidelines unconstitutionally force judges to increase the range of possible sentences based on their own factual findings, rather than those of a jury. Today's decision said that practice violates the constitutional right to a jury trial.

By a separate 5-4 majority, the court said the guidelines will no longer be mandatory on federal judges and instead will be "effectively advisory.''

The ruling may give new leverage to former Enron Corp. Chairman Kenneth Lay, Adelphia Communications Corp. founder John Rigas, former Dynegy executive Jamie Olis and other corporate- fraud defendants. The guidelines direct judges to lengthen sentences for fraud cases when an especially large amount of money was involved or the defendant played a leadership role.

"It probably will create additional leverage for defense counsel in negotiating agreements,'' said B. Todd Jones, a former U.S. attorney in Minnesota. "They know they have two bites at the apple now'' -- with prosecutors and judges.

The ruling also will affect thousands of drug cases. Judges typically base federal drug sentences in part on the quantity and type of drugs involved. The guidelines govern 64,000 criminal cases a year.

Congress Next

The ruling may spur a congressional effort to redraft the guidelines, which were designed to ensure sentencing uniformity.

"Ours, of course, is not the last word,'' Breyer wrote. "The ball now lies in Congress's court.''

The ruling extends a June 2004 decision, Blakely v. Washington, which cut back a similar sentencing guideline system in Washington state.

The same five-justice majority from the Blakely decision declared the federal guidelines invalid today. That group consists of Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg and David H. Souter.

Ginsburg joined a separate majority -- with Chief Justice William H. Rehnquist and Justices Stephen G. Breyer, Anthony M. Kennedy and Sandra Day O'Connor -- in the part of the opinion declaring the guidelines advisory.

Stevens, dissenting from that part of the decision, said he would have left the guidelines in place and instead required prosecutors to go to a jury with any factor that might require a sentence increase.

Federal prosecutors had already begun to follow that practice. The 65-page indictment of Lay and fellow Enron defendants Jeffrey Skilling and Richard Causey, for example, lists a dozen factors that could lead to longer sentences.


The Blakely decision led to disarray in federal courts around the country, as judges struggled to determine whether -- and, if so, how -- the ruling applied to the national sentencing system. Some judges delayed imposing sentences until the Supreme Court weighed in; others issued alternative sentences.

The Justice Department contended the Blakely ruling didn't apply at the federal level, saying the guidelines were simply a means used by judges to channel their sentencing discretion.

The federal guidelines grew out of a congressional effort to eliminate sentencing disparities and standardize the punishment for similar crimes committed by similar offenders. In 1984 Congress set up the U.S. Sentencing Commission, an agency in the judicial branch of government that issues binding guidelines on federal judges.

Under the rules, a convicted defendant's crime serves as a starting point, putting him in a range of permissible sentences. Judges then increase the prison term by a specified period if, for example, a gun was fired during the crime.

Other factors, such as acceptance of responsibility for the offense, may lead to a sentence reduction.

Drug Cases

The two cases resolved today raised similar issues. In one, a Wisconsin jury convicted Freddie J. Booker of possessing and distributing crack cocaine. The jury concluded that Booker had 92.5 grams of crack, an amount that would mean a maximum prison term of 21 years and 10 months.

During sentencing, the trial judge found that Booker had distributed an additional 566 grams and had obstructed justice. The effect was to increase the permissible sentence to a range of 30 years to life. The judge sentenced him to 30 years.

In the other case, a Maine federal judge concluded he could sentence Ducan Fanfan to no more than 6 1/2 years, based on a jury's conclusion that he conspired to distribute cocaine powder.

Prosecutors, saying the case also involved trafficking in crack, sought to put Fanfan in a sentencing range of at least 15 years and eight months. The trial judge said the Blakely ruling barred imposition of the longer sentence.

The cases are U.S. v. Booker, 04-104, and U.S. v. Fanfan, 04- 105.

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