When -- If Ever -- Can Facts Found By Judges Lengthen Criminal Sentences?
A Key Question Now Facing the Supreme Court

By VIKRAM DAVID AMAR
Tuesday, Sep. 07, 2004

This column is the first in a series by Professor Amar about the Supreme Court's upcoming Term. - Ed.

The first Monday in October -- the traditional and statutory beginning of the Supreme Court's Term - is now less than a month away. That means the time is ripe to begin looking at some of the important matters that will be taken up this Term.

At the last minute, the Court added two cases to its schedule -- United States v. Booker and United States v. Fanfan. Though they were late additions, they will be argued on Monday October 4, the first day of the term.

The reason for the expedited review was to give federal district court judges much-needed guidance as to how to respond to a prior decision -- the Court's blockbuster June 2004 ruling in Blakely v. Washington

Recently, Edward Lazarus wrote for this site about the larger sentencing issues - of both law and policy -- that these cases raise. In this column, I will discuss a narrower issue relating to a single precedent: How, if at all, will Blakely affect the U.S. Sentencing Guidelines, and thus affect how federal district judges sentence defendants?

Blakely: Its Facts and Outcome

In Blakely, a Washington State defendant had pleaded guilty to the offense of second-degree kidnapping involving a firearm. Under Washington's criminal sentencing statute, the sentence for this offense could range between 49 to 53 months.

However, the sentencing judge gave Blakely 90 months - citing another Washington statute that allows a sentence of up to ten years if the judge finds reason to justify an "exceptional sentence." Here, according to the judge, the reason was that the offense had been committed with "deliberate cruelty."

Blakely - upset that the judge had almost doubled his sentence - appealed. And ultimately, the U.S. Supreme Court reversed this sentence, holding that it violated the defendant's jury trial rights under the U.S. Constitution's Sixth Amendment.

The Reasoning of the U.S. Supreme Court's Blakely Ruling

Under the Sixth Amendment, the Court held in Blakely, almost all facts that increase a criminal defendant's possible sentence - that is, that extend it beyond what it could have been absent such facts -- must be presented to a jury, and proven beyond a reasonable doubt. (However, the defendant can waive this right as part of his plea agreement, or otherwise.)

In the Court's view, then, the jury trial right doesn't mean just that a person has the right to present his case to a jury. It means that a person has a right to have a jury - not a judge - make all the fact findings that are required to authorize a longer sentence (unless that person himself formally concedes some or all of those facts.)

In so holding, the Blakely Court reaffirmed and clarified its prior holding in Apprendi v. New Jersey. There, in the Court had said: "Other than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

In Blakely, the Court said - by way of clarification, and in response to Washington's argument that the "statutory maximum" for purposes of Apprendi should be the ten-year sentence authorized by the Washington statute that allowed a judge to impose a term that long if exceptional circumstances exist -- that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Emphasis added.) Note the kind of facts the Court purposely left out: judge-found facts.

Put another way, the Court said, the "relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but [rather] the maximum he may impose without any" such findings. Had the trial court made no factual findings in Blakely, the maximum sentence authorized would have been 53 months. Thus, a sentence higher than that would require submission to the jury.

The Confusion Blakely Created Concerning Federal Sentencing

Arguably, the Blakely decision called into question not only sentencing in Washington State, and by extension, other states, but also federal sentencing. It raised the possibility that all these sentencing systems could - in part or in their entirety - violate the Sixth Amendment's jury trial guarantee.

Currently, federal sentencing is done pursuant to the U.S. Sentencing Guidelines. In the federal Sentencing Reform Act of 1984, Congress established the United States Sentencing Commission, and directed it to promulgate such guidelines, which are binding upon district court judges who issue sentences.

The potential Sixth Amendment problem comes from the fact that operation of the guidelines - as Edward Lazarus explained at greater length in his column - often requires just the type of fact findings that Blakely held are unconstitutional: sentence-lengthening judge-made fact findings.

It's now clear that, as a matter of constitutional law, judges cannot find facts if such findings will lengthen a sentence beyond the maximum it otherwise would be.

But what is that "maximum it would otherwise be," exactly? Is it the Guidelines maximum absent the judge-made fact findings? Or is it the statutory maximum - which is always higher?

(The statutory maximum is always higher or the same, because under the Sentencing Reform Act of 1984, a Guideline can never exceed the statutory upper end for an offense. The Guidelines promulgated by the Commission are supposed to impose upon judges rules to govern sentences that are higher than, or equal to, the statutory minimum, and lower than, or equal to, the statutory maximum.)

These questions brings us to the two cases the Court will hear in October - on the first day of its new Term, Booker and Fanfan.

The First Sentencing Guidelines Case Before the Court: Booker

First, let's consider the Booker case.

Booker was found guilty by a federal jury of possession of at least 50 grams of cocaine base with intent to distribute (as well as of other offenses). At sentencing, the district court sentenced him to 360 months - that is, 30 years - based on several fact findings. One was the finding that Booker possessed at least 658.5 grams of cocaine base. The other was the finding that Booker had perjured himself at trial.

After Booker was sentenced, Blakely was decided. In light of Blakely, Booker now argues that his sentence violates the Sixth Amendment because it was based, in part, on judicial - not jury - fact findings.

Without the perjury and drug quantity findings, Booker points out, the Guidelines sentence would have been much lower, inasmuch as perjury and the drug quantity increased the defendant's offense level under the Guidelines. Thus, in Booker's view, the judge's findings lengthened his sentence.

Interestingly, however, these findings didn't lengthen Booker's sentence beyond the statutory maximum: Life imprisonment. So if the Guidelines did not exist, a judge could have given Booker life without any further fact findings at all.

The Second Sentencing Guidelines Case Before the Court: Fanfan

Now let's consider the Fanfan case - which the Court will hear the same day. Unlike Booker, Fanfan was a post-Blakely case.

A jury found Fanfan guilty of conspiracy to possess with the intent to distribute and to distribute at least 500 grams of cocaine. Given the verdict, under the Guidelines, and without any further findings, the judge would be directed to impose a sentence in the range of 53-78 months.

At sentencing, though, the judge found that Fanfan possessed 2.5 kilos of cocaine and 281.6 grams of cocaine base, and that Fanfan was an "organizer, leader, manager or supervisor in the criminal activity." Given these findings, the Guidelines directed the judge to choose a sentence from a higher range: a range of between 188 to 235 months.

Nonetheless, the district court chose a 78-month sentence -- believing that, in light of Blakely, a higher sentence based on the court's own findings might well be held unconstitutional. But the government asked for a sentence correction.

Among other things, the government argued that if the Guidelines were unconstitutional under Blakely, the remedy shouldn't be to choose a sentence within the lower 53-78 months Guidelines range. Instead, the remedy should be to junk the Guidelines altogether, and allow the judge to pick any sentence up to the 40-year statutory maximum.

Ironically, this argument, if accepted by the judge, could itself end up lengthening Fanfan's sentence. So for Fanfan, a great deal is at stake. His current sentence is 6 ½ years. If the government had its way, he could end up serving 40 years if the judge so chose.

The Key Question: What Is the Maximum Beyond Which Judge Findings Can't Go?

The federal government (as well as some "friends of the Court" supporting the federal government) has now filed its brief on the merits in the Supreme Court in these cases. The main argument advanced by the Solicitor General is that the federal sentencing guidelines, unlike the schemes struck down in Apprendi and Blakely, do not create statutory maximum sentences from which judges can depart if they find special facts. Instead, the sentencing guidelines that impose maximum sentences on district court judges are judicial limitations on what a sentencing judge could otherwise do, not legislative statutory ceilings.

As the federal government points out, the language used in Apprendi and Blakely sets out a rule that focuses on legislative ceilings: a sentencing judge is barred from finding facts that could raise a sentence beyond the otherwise applicable statutory maximum sentence. In both Apprendi and Blakely, it was a legislative statute that limited the upper end of the sentence that would have applied absent the judicial fact-finding.

By contrast, in the federal realm, all the sentences provided for under the guidelines are beneath the statutory maximum; to the extent that a district judge is bound - in the absence of certain facts found - to sentence beneath the statutory maximum, that binding constraint comes not from the legislative statute, but rather from the sentencing guidelines, which are themselves created by a judicial body - the United States Sentencing Commission -- not the legislative branch.

Whether the SG's Distinction Works Depends on What Is At the Heart of Blakely and Apprendi

The Solicitor General is certainly correct that some prior rulings of the Supreme Court, like Mistretta v. United States, have characterized, albeit in a separation-of-powers setting rather than a Sixth Amendment setting, the United States Sentencing Commission - the body that makes the federal sentencing guidelines - as an entity within the judicial department, not a legislative body. (Putting some pressure on this characterization is the fact that the Guidelines themselves, after they are proposed by the Commission, do not take effect for 180 days, during which time Congress may modify or disapprove any of them.)

But even assuming the Solicitor General is correct in his "judicial rather than legislative ceilings" description, the real question is whether this characterization should matter under the reasoning of Blakely. In other words, is the language in Blakely -- about judicial factfinding that circumvents "statutory" maximum sentences that otherwise would be applicable -- really crucial? Or instead, is the real lesson of Blakely that judges should not be able to usurp the jury's role in finding facts on which a sentence openly turns?

If the latter, then it should not make a difference whether the sentence depends on the factual findings because a statute says so, or rather because a judicial regulation says so. The important thing, under this second reading, is that some open and public policy says the presence or absence of these facts is crucial, and when it does, we want a jury to weigh in. (And under the federal sentencing guidelines, the limits on a judge's ability to exceed the guideline are real, and are based on a policy sense about what a fair sentence for given misconduct is.)

To put the point slightly differently, the more Blakely is about the relationship between the jury and the judge, rather than about the relationship between the judiciary and the legislature, the less important the word "statutory" should be in the Blakely formulation.

To answer that question, though, we need to tease out what the Court in Apprendi and Blakely is really trying to accomplish. It is that question I shall take up in a subsequent column, where I will also assess the federal government's other argument that if Blakely does call into question judicial factfinding under the sentencing guidelines (and if Blakely is not reconsidered and overruled), then the guidelines as a whole should be thrown out, and no aspect of them should be binding on federal district courts (even as they might provide some helpful, but non-binding, guidance.)


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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