Death by a thousand cases: after Booker, Rita, and Gall, the Guidelines still violate the Sixth Amendment.

• Author: Holman, David C.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. The Sentencing Reform Act B. The Constitutional Problem with Mandatory Guidelines C. "The Booker Mess" D. After Booker II. RITA AND GALL: USING AMBIGUITY To SOLVE CONFUSION A. Rita: Something for Everyone B. Gall: Proportionality Review Prohibited? III. RITA AND GALL APPLIED A. Standards of Review B. Presumption of Reasonableness C. Disparate Sentencing Explanations D. Proportionality Review 1. Pre-Gall Proportionality Review 2. Proportionality Review's Constitutional Problems 3. Proportionality Review After Gall IV. LESS-THAN-ADVISORY GUIDELINES VIOLATE THE SIXTH AMENDMENT V. THE SOLUTION: END SUBSTANTIVE REASONABLENESS REVIEW AND REQUIRE UNIFORM SENTENCING EXPLANATIONS A. Prohibit Substantive Reasonableness Review B. Uniform Procedural Review CONCLUSION INTRODUCTION

Paul Sedore defrauded the Internal Revenue Service. Using names and social security numbers obtained from preparing legitimate tax returns for his friends while incarcerated, Sedore submitted false tax returns and received about $50,000 from the IRS. (1) Indicted by a federal grand jury on four counts, Sedore pled guilty to two of them, conspiracy to defraud the IRS and identity theft. (2) Based only on what Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended a sentence of twelve to eighteen months in prison. (3) But the sentencing judge found, by a preponderance of the evidence, that Sedore used a special skill to facilitate his offense, obstructed justice, and harmed between 50 and 250 victims. (4) Based on those judge-found facts, which the defendant did not admit and which the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months. (5) The court sentenced Sedore to 84 months. (6)

Consider another scenario. A hypothetical judge sentences another criminal, convicted of the same offenses as Sedore, with the same criminal history. This judge sentences this hypothetical criminal to 84 months in prison without finding any additional facts. The court of appeals would likely reverse this hypothetical sentence. Why? Because the judge did not follow the Guidelines, and, hence, the sentence was not "reasonable." This is hardly the "advisory" system that the Supreme Court imagines it is.

In United States v. Booker, (7) the Supreme Court found that the mandatory Guidelines violated the Sixth Amendment right to a jury trial because they necessarily increased the maximum available sentence based on facts found by the judge, not the jury, by a preponderance of the evidence. (8) Under the mandatory Guidelines, judges found extra facts at sentencing, such as acquitted conduct, uncharged conduct, or aggravating or mitigating factors of the crime itself. (9) Those facts, never presented to a jury, mechanically increased the defendant's sentence. (10) Therefore, the mandatory Guidelines violated the right to be tried by a jury.

Booker was supposed to correct this constitutional flaw. Rather than preserve the mandatory Guidelines and require the Government to prove each fact beyond a reasonable doubt to the jury, the Court rendered the Guidelines advisory and instructed the appellate courts to review for "unreasonableness." (11) The meaning and appropriate boundaries of appellate reasonableness review gave rise to "a confusing battle royale over a wide array of modern federal sentencing laws and practices." (12) At the heart of this battle is the tension between constitutional constraints, advisory Guidelines, and the circuits' efforts to impose sentencing uniformity.

Booker's inherent conflicts allowed the circuits to try to resurrect the mandatory Guidelines, prompting the Supreme Court to revisit Booker twice in the last year, in Rita v. United States (13) and Gall v. United States. (14) In those cases, the Court attempted, with little success, to rein in the chief tools that the circuits use to enforce the Guidelines: the presumption of reasonableness and proportionality review. In Rita, the Court allowed circuits to apply a presumption of reasonableness to within-Guidelines sentences and to require from trial courts merely an abrupt, conclusory explanation of within-Guidelines sentences. (15) In Gall, the Court prohibited the most egregious de novo reviews of sentences outside the Guidelines range, but effectively, and unfortunately, permitted proportionality review to continue. (16)

The current system clearly encourages federal district courts to obey the Sentencing Guidelines, and strongly discourages straying from them. Nonetheless, the Court persists in the fiction that the Guidelines are "advisory." Instead of chipping away at reasonableness review term-by-term, the Court should impose a clear, constitutional solution. In order to bring reasonableness review into compliance with the Sixth Amendment, the Court should allow appellate courts to review sentencing decisions only for procedural correctness, and require uniform explanations from the district courts as to whether the sentence falls within or outside the Guidelines range.

Part I of this Note reviews the history of the Sentencing Guidelines, the legal developments before Booker, Booker's tentative solution, and the lower courts' reaction to Booker. Part II examines the Supreme Court's recent opinions in Rita and Gall and argues that these ambiguous decisions only perpetuated the Guidelines' Sixth Amendment violations. Part III separates and analyzes the three tools that appellate courts use to enforce the Guidelines, namely: the presumption of reasonableness, the double standard of procedural reasonableness, and proportionality review. This Part demonstrates how each tool contributes to the unconstitutionality of the current Guidelines regime. Part IV argues that all three tools together defeat the advisory nature of the Guidelines and violate the Sixth Amendment right to a jury trial. Part V proposes a two-part solution: (1) prohibiting substantive reasonableness review and (2) requiring uniform explanations for sentences both within and outside the Guidelines range. This Part also considers objections to that solution. Uniform, procedural appellate review would end the illusion that the Guidelines are advisory and initiate a constitutional federal sentencing regime.

1. BACKGROUND

   1. The Sentencing Reform Act

      The Sentencing Guidelines began with the 1984 Sentencing Reform Act (SRA), originally conceived to curtail wide disparities in sentences for similar crimes. (17) The SRA established the United States Sentencing Commission and directed the Commission to formulate the Sentencing Guidelines according to the Act's ambiguous (18) directives. (19) The Commission mostly based the Sentencing Guidelines on sentences of federal defendants in 1985. (20) To these existing sentencing practices, the Commission added a level of severity "to correct the fact that current federal sentences often did not accurately reflect the seriousness of the offense." (21)

      The SRA stripped the sentencing judge of most of his discretion. To calculate the correct sentence, the judge would find the relevant facts by a preponderance of the evidence. Those facts mechanically produced an offense level and a criminal history level. The judge consulted a matrix with an axis for offense level and another axis for criminal history. (22) At the intersection of these levels on the matrix, the judge located the corresponding range of months from which he chose a sentence. (23) Despite 18 U.S.C. [section] 3553(a)'s mandate to impose "a sentence sufficient, but not greater than necessary," (24) to fulfill the sentencing purposes that the statute establishes, judges had very little leeway to sentence outside of the Guidelines range. Judges could depart from the range by finding additional aggravating or mitigating factors that the Guidelines listed as grounds for departure. (25) Although these grounds were not exhaustive, the Commission prohibited the use of certain other factors as bases for departure. (26) The judge could depart for other reasons only if the Commission had not "adequately" considered them. (27) Under the mandatory guidelines, district court judges effectively played a procedural role in sentencing.

   2. The Constitutional Problem with Mandatory Guidelines

      Beginning with Apprendi v. New Jersey (28) in 2000, the revival of the Sixth Amendment right to a jury trial threatened the mandatory Guidelines. Some state and federal sentencing laws allowed judges, not juries, to find specific facts regarding the crime, such as the use of a deadly weapon or the amount of drugs possessed. (29) Such laws required judges, if they found any of these facts, to increase or decrease the sentences by statutorily prescribed periods of time. In Apprendi, the Court addressed New Jersey's sentencing laws, which had allowed sentencing judges to find by a preponderance of the evidence that a defendant was motivated by racial bias and enhance his sentence. (30) Such an enhancement violated Apprendi's right to a "jury verdict based on proof beyond a reasonable doubt." (31) The Apprendi Court held, "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." (32) Because many sentencing regimes required judges, rather than juries, to find facts that necessarily increased the mandatory sentencing range, Apprendi created serious doubt about their constitutionality.

   3. "The Booker Mess" (33)

      After Apprendi, both state and federal guidelines laws were of questionable constitutionality. Typically, under a guidelines sentencing system, when a sentencing judge finds a relevant fact, guidelines laws mandate that the sentencing range increase or decrease accordingly. In Blakely v. Washington, (34) the Supreme Court struck down the State of Washington's...