Tcl - Booker and Fanfan: the End of Mandatory Federal Sentencing Guidelines? - Criminal Law Newsletter
| Publication year | 2005 |
| Pages | 79 |
| Citation | Vol. 34 No. 8 Pg. 79 |
2005, August, Pg. 79. TCL - Booker and Fanfan: The End of Mandatory Federal Sentencing Guidelines? - Criminal Law Newsletter
August 2005
Vol. 34, No. 8 [Page 79]
Criminal Law Newsletter
Booker and Fanfan: The End of Mandatory Federal Sentencing Guidelines?
by Thomas L. Kennedy
This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Column Editors:
Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 666-4064, lfrieling@lfrieling.com; and Morris Hoffman, a judge for the Second Judicial District Court, Denver
This month's article was written by Thomas L. Kennedy, a District Court Judge for the Fourth Judicial District in Colorado Springs, who currently presides over both criminal and civil trials - (719) 686-8014, tom.kennedy@judicial.state.co.us.
This article summarizes recent consolidated U.S. Supreme Court cases that addressed the constitutionality of the Federal Sentencing Guidelines. It discusses the unexpected remedy crafted by the Court to maintain the Guidelines as advisory and describes the dissents.
On January 12, 2005, the U.S. Supreme Court issued its latest word in the ongoing conflict between the Sixth Amendment right to a jury trial and what traditionally had been the role of judges in imposing sentences in criminal cases. In the consolidated cases of United States v. Booker and United States v. Fanfan (collectively, "Booker"),1 the Court found that the Sentencing Reform Act ("Act")2 and the United States Sentencing Guidelines3 ("USSG"), which together required the judge to impose an enhanced sentence based on facts found solely by the judge, violated the Sixth Amendment right to a jury trial. In a separate opinion, as a remedy for the constitutional violation, the Court struck down the mandatory provisions of the Act that required the judge to impose an enhanced sentence, while preserving the USSG as advisory.
This article summarizes the two majority opinions and four dissenting opinions.4 It also discusses some of the responses to these opinions by the Tenth Circuit Court of Appeals. The state courts in Colorado do not use sentencing guidelines and, therefore, are not directly impacted by this decision. However, the article briefly touches on the manner in which the Colorado legislature has attempted to address the Sixth Amendment concerns created by Booker and earlier cases.
Background: Sixth Amendment Decisions
Although there have been a number of decisions issued by the U.S. Supreme Court relating to the jury's role in sentencing,5 two recent cases deserve brief mention. In 2000, the Court announced its opinion in Apprendi v. New Jersey.6 The Court struck down New Jersey's hate crime statute, which permitted a judge to impose a sentence in excess of the statutory maximum based on findings made by the judge after trial. The Court held that
any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.7
Four years later, the Court further expanded the scope of Apprendi. In Blakely v. Washington,8 it held 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."9
The state of Washington had a sentencing scheme similar to that used by the federal government. It employed both statutory sentencing ranges set by the legislature and sentencing guidelines that established a standard range absent a finding of extraordinary circumstances.10 Blakely pled guilty to second-degree kidnapping, a Class B felony, for which the Washington legislature had set a maximum sentence of ten years.11 The standard range, however, based on application of the Washington guidelines, was from 49 to 53 months.
At sentencing, the judge found the defendant acted with deliberate cruelty and imposed a sentence of 90 months.12 The U.S. Supreme Court found that sentence violated the defendant's Sixth Amendment right to have a jury determine every fact that increases the defendant's sentence. Justice O'Connor, in her dissent, recognized that there was no meaningful difference between the Washington state sentencing scheme and the federal sentencing system. She predicted that the outcome of the majority opinion would be the end of twenty years of sentencing reform in the federal courts and would result in greater judicial discretion and less uniformity.13 Those were the precise ills that the guidelines were intended to address.
The Booker Case
With that recent history, it should have come as no surprise that the Court's decision in Booker struck down, on Sixth Amendment grounds, the mandatory provisions of the USSG. However, the remedy imposed by a separate majority is considerably more controversial.
Facts in Booker and Fanfan
Booker had been charged with possession with intent to distribute at least 50 grams of crack cocaine. Evidence was presented at trial that he possessed 92.5 grams of cocaine, and the jury found him guilty. The statutory range for that offense is from ten years to life in prison.14 Application of the USSG to the facts found by the jury, and considering Booker's criminal history, would have resulted in a sentencing range of between 210 and 262 months.15
At the sentencing hearing, the judge found by a preponderance of the evidence that Booker actually had possessed an additional 566 grams of cocaine and also had obstructed justice. Pursuant to the USSG, those findings required the judge to impose a sentence of between 360 months and life. The trial court imposed a sentence of 360 months. Relying on Blakely v. Washington,16 the Seventh Circuit Court of Appeals reversed.17 On August 2, 2004, the U.S. Supreme Court granted certiorari.18
In the other case in the consolidated Booker case, Fanfan was charged with conspiracy to distribute and possess at least 500 grams of cocaine.19 The jury found him guilty and specifically found by special interrogatory20 that he had possessed at least 500 grams of cocaine. Based on those findings, the maximum sentence the judge could impose under the USSG was 78 months.
At Fanfan's sentencing hearing, which was held shortly after the Court announced its decision in Blakely,21 the judge made additional findings, by a preponderance of the evidence, that Fanfan possessed an additional 2,500 grams of cocaine powder and an additional 216 grams of crack cocaine. The judge also found that Fanfan was an "organizer, manager or supervisor" of criminal activity.22 These additional findings would have required a sentence of between 188 and 235 months. However, relying on Blakely, the judge refused to impose the enhanced sentence and instead sentenced Fanfan solely on the basis of the facts found by the jury. The government's petition to the U.S. Supreme Court for certiorari was granted,23 bypassing the intermediate appellate court. The Court consolidated the two cases.
Merits Majority
Justice Stevens, writing for the same five-justice majorities that prevailed in Apprendi and Blakely,24 held that both the Seventh Circuit in Booker and the District Court for the District of Maine in Fanfan correctly concluded that "the Sixth Amendment as construed in Blakely does apply to the [Federal] Sentencing Guidelines."25 Justice Stevens noted that if the USSG were merely advisory, rather than mandatory, a defendant's Sixth Amendment rights would not be implicated.26 However, because the USSG are mandatory, "there is no relevant distinction between the sentence imposed pursuant to the Washington statutes in Blakely and the sentences imposed pursuant to the Federal Sentencing Guidelines in these cases."27 As a result, all facts (other than a prior conviction) that result in an increased sentence must be proven to a jury if not admitted by the defendant.28
The government made several arguments in an attempt to distinguish Booker from Blakely. First, the government argued that because the USSG were promulgated by a commission rather than a legislature, the Sixth Amendment was not implicated. Justice Stevens found that argument unpersuasive: "Regardless of whether the legal basis of...
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