Criminal Law

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A New Era in Sentencing
Erwin Chemerinsky, Alston & Bird Professor of Law, Duke Law School, Durham, North Carolina
E-mail: chemerinsky@law.duke.edu

Introduction
Apprendi v New Jersey
Blakely v Washington
Federal Sentencing Guidelines
United States v Booker
United States v Fanfan
Justice’s Opinions in Booker
Conclusion


Introduction
The Supreme Court’s decision in United States v Booker, (January 12, 2005), 125 S Ct ___ significantly changed the law with regard to sentencing in criminal cases in federal courts. Unfortunately, the Court left much confusion as to how sentencing is to be done in the future. While the Court held that the Constitution requires that the United States Sentencing Guidelines be advisory rather than mandatory, it did not explain what this means for sentencing procedures.

The Supreme Court’s decision in Booker involved the application of two recent rulings to the federal Sentencing Guidelines.

Apprendi v New Jersey
In Apprendi v New Jersey, (2000) 530 US 466, the Court held that any factor, other than a prior conviction, that leads to a sentence greater than the statutory maximum must be proven to the jury beyond a reasonable doubt. Apprendi pled guilty to firing a gun into a home owned by an African-American family. The sentence for this offense under New Jersey law was five to ten years in prison. The judge, however, found by a preponderance of the evidence that the crime was "hate motivated" and under a New Jersey hate crime law imposed a 12-year sentence. The Supreme Court held that the Sixth Amendment was violated by the enhanced sentence unless the jury found, beyond a reasonable doubt, that the crime was hate motivated.

Blakely v Washington
The Court extended Apprendi last June in Blakely v Washington, (2004) 124 S Ct 2531. Blakely was convicted by a jury in Washington state court of kidnapping his estranged wife. The sentence for this offense under the Washington sentencing guidelines was 54 months in prison. The judge, found at sentencing that the crime was committed with "deliberate cruelty" and imposed a higher sentence of 90 months in prison. The Supreme Court, in a 5-4 decision, ruled that the jury, not the judge, had to find deliberate cruelty. The Court held that any factor, other than a prior conviction, that leads to a sentence greater than that which would be imposed based on the jury’s verdict or what the defendant has admitted, must be proven to the jury beyond a reasonable doubt.

Federal Sentencing Guidelines
The obvious issue after Apprendi and Blakely was how these decisions apply to the federal Sentencing Guidelines. The Sentencing Reform Act of 1984 was intended to reduce judicial discretion by basing punishments on Sentencing Guidelines promulgated by the United States Sentencing Commission. On August 2, 2004, the Court granted review in two cases, with an expedited briefing and argument schedule, to consider the constitutionality of the federal Sentencing Guidelines.

United States v Booker
In United States v Booker, the defendant was charged with possessing at least 50 grams of cocaine base with the intent to distribute. The jury heard evidence that the defendant had 92.5 grams in a duffel bag and convicted him of violating 28 USC §841(a)(1). Under federal law, the mandatory minimum sentence for this offense is 10 years in prison and the maximum sentence is life in prison. Under the federal Sentencing Guidelines, the district judge had to select a base sentence between 210 and 262 months in prison. At the sentencing hearing, the judge heard further evidence and concluded that the defendant possessed an additional 566 grams of cocaine base and had obstructed justice. As a result, Booker was sentenced to 30 years in prison, rather than the 21-year sentence based on the jury’s verdict. The United States Court of Appeals for the Seventh Circuit declared this sentence unconstitutional because the judge and not the jury had found the requisite facts to support a 30-year sentence.

United States v Fanfan
The companion case before the Supreme Court, United States v Fanfan, involved a criminal defendant who was charged with possessing at least 500 grams of cocaine with the intent to distribute. The jury convicted and answered affirmatively the question whether the defendant had more than 500 grams of cocaine with the intent to distribute. Based on the Sentencing Guidelines, this determination would have led to a sentence of five to six years in prison. The judge, however, held a sentencing hearing and found that the defendant was the organizer of criminal activity and was responsible for possessing 2.5 kilograms of cocaine powder and 261.1 grams of crack cocaine. Under the Sentencing Guidelines, the defendant’s sentence would be 16 years. The judge, however, did not impose this sentence because the jury had not found the facts necessary to justify the longer term of imprisonment.

Justice’s Opinions in Booker
In a quite unusual decision, the Court issued two separate majority opinions: one decided that the current approach to applying the Sentencing Guidelines was unconstitutional and the other prescribed the remedy for this problem. Justice Stevens, joined by Justices Scalia, Souter, Thomas, and Ginsburg, held that Apprendi and Booker apply to the federal Sentencing Guidelines. Justice Stevens’ opinion stressed that the Sentencing Guidelines required the judge to impose a sentence greater than that which would be based on the jury’s verdict. The Court held that this conflicts with Blakely’s holding that any factor which leads to a sentence greater than that which would imposed based on the jury’s verdict must be proven to the jury beyond a reasonable doubt.

However, on the issue of the appropriate remedy for the constitutional violation, Justice Breyer wrote for the Court, joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg. In other words, Justice Ginsburg joined the four dissenters to Justice Stevens’ opinion ­ the dissenters in Apprendi and Blakely ­ on the question of the appropriate remedy.

Justice Breyer’s opinion for the Court concluded that the appropriate remedy was to make the federal Sentencing Guidelines advisory rather than mandatory. Justice Breyer stated that the mandatory nature of the Guidelines rendered them unconstitutional. Justice Breyer’s opinion expressly disagreed with the dissent’s view that the jury should find the requisite facts for greater sentences under the Guidelines. Justice Breyer explained that there was no basis for the Court interjecting the jury into the sentencing system created by Congress under the Sentencing Reform Act. Rather, the Court concluded that it would be more consistent with legislative intent for the Sentencing Guidelines to remain in place, but be advisory only. The Court stressed that federal courts of appeals should review sentences to determine whether they are reasonable.

Going forward, the key question will be what it means, in practice, for the Guidelines to be advisory. Unfortunately, Justice Breyer’s opinion offers little guidance here.

Conclusion
First, sentences under the advisory Guidelines must be consistent with Apprendi and Blakely. The Court did not overrule these decisions; on the contrary, it reaffirmed them in Justice Stevens’ majority opinion. Therefore, any factor (other than a prior conviction) that leads to a sentence greater than the statutory maximum, or based on what the jury found or the defendant admitted, must be proven to the jury beyond a reasonable doubt. But there is uncertainty over what this will mean in practice. For example, if a defendant is acquitted on some counts in the indictment, can those offenses be used to enhance the sentence? Blakely would seem to prohibit this practice because the sentence would be inconsistent with the jury’s verdict. However, the Court did not overrule, but indeed cited approvingly to United States v Watts, (1997) 519 US 148 (per curium), which held that a judge could rely for sentencing purposes upon a fact that the jury found unproved.

Second, it appears that the facts which lead to greater sentences under the Sentencing Guidelines need not be proven to the jury so long as the sentence is within the statutory maximum. Therefore, prosecutors now have the option of reverting to the pre-Apprendi practice of no longer charging specific amounts of drugs or details of a fraud and proving those to the jury, unless they need to do so to trigger different statutory maximums for the drug offenses.

Third, the Court’s decision likely has no effect on federal statutes imposing mandatory minimum sentences. Three years ago, in Harris v United States, (2002) 536 US 545, the Court concluded that Apprendi does not apply to mandatory minimum sentences. Nothing in Booker overrules this, though there is a tension between Justice Breyer’s opinion objecting to the mandatory nature of the Sentencing Guidelines and the Court’s earlier ruling that Apprendi does not apply to mandatory minimum sentences.

Fourth, appellate review of sentences will determine whether they are "reasonable." However, the Court gave very little guidance regarding the criteria that should determine reasonableness.

At the very least, Booker means that federal judges will have more discretion in sentencing which could lead to greater disparity in length of sentences. The next move may be for Congress to revise federal law and keep the Guidelines mandatory, but give the jury the responsibility for finding facts that lead to longer sentences under the Guidelines. One thing that can be said with certainty is that United States v Booker is not the last word on the Constitution and criminal sentencing.

 

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