Role of the Federal Sentencing Guidelines in the Wake of U.s. v. Booker and U.s. v. Fanfan - Rosemary T. Cakmis

• Publication year: 2005

The Role of the Federal Sentencing Guidelines in the Wake of United States v. Booker and United States v. Fanfanby Rosemary T. Cakmis^*

I. Introduction

The year 2004 began much like previous years, at least when it came to decisions from the Eleventh Circuit Court of Appeals interpreting the United States Sentencing Guidelines ("U.S.S.G." or "federal sentencing guidelines" or "guidelines"). In less than one year, however, the federal sentencing guidelines and related Eleventh Circuit decisions took on a fascinating new dimension in light of 2004-2005 United States Supreme Court jurisprudence. This jurisprudence culminated with the January 12, 2005 Supreme Court decision in United States v. Booker,¹ which was consolidated with United States v. Fanfan² ("Booker /Fanfan"). Therein, the Supreme Court rejected the Eleventh Circuit's position over the last few years, and the Supreme Court held that the Sixth Amendment right to jury trial, as construed in Apprendi v. New Jersey,³ and Blakely v.Washington,⁴ applies to the federal sentencing guidelines.⁵ According to the Supreme Court, the remedy is to sever and excise the portion of the Sentencing Reform Act of 1984 ("the Act")⁶ that makes the guidelines mandatory, thereby making them merely advisory.⁷

Thus, as of January 12, 2005, the federal sentencing guidelines have become merely one of many factors to be consulted by the federal courts in determining an appropriate sentence to impose instead of having it be the denning factor in sentencing criminal defendants. The significance of the decisions reflecting this revolutionary role of the federal sentencing guidelines makes the 2004 circuit court decisions reviewing the application of the federal sentencing guidelines pale in comparison. Therefore, unlike in previous years, this Article will not review all of the Eleventh Circuit cases from last year that addressed the federal sentencing guidelines.⁸ Rather, this Article will address the recent Supreme Court cases that have redefined the role of the federal sentencing guidelines in sentencing federal criminal defendants, the context in which those Supreme Court cases arose, and the 2004-2005 Eleventh Circuit cases that have applied the teachings of those Supreme Court cases.

ii. background: the role of the federal sentencing Guidelines Before Booker/Fanfan

Before jumping into the post-Booker /Fanfan⁹ role of the federal sentencing guidelines, a brief historical review of the guidelines and thecases that gave rise to Booker /Fanfan is needed to better understand how and why the Supreme Court redefined the role of the federal sentencing guidelines in Booker /Fanfan and put that role in context. For almost a century, until the federal sentencing guidelines went into effect in 1986,¹⁰ federal judges wielded broad discretion under an indeterminate sentencing system, whereby federal judges could impose any sentence upon criminal defendants from probation up to and including the statutory maximum as set forth in the United States Code.¹¹ Sentences within the maximum allowable under the statute of conviction were generally met with "virtually unconditional deference on appeal."¹² Additionally, there was no supervised release; instead, defendants were subject to parole.¹³

The enactment of the federal sentencing guidelines drastically changed the manner in which federal criminal defendants were sentenced. The discretion of federal judges was sharply curtailed because they were required to impose a sentence mandated by the federal sentencing guidelines, which were mandatory and binding.¹⁴ Parole was abolished, and supervised release was established as a transitional period between prison and freedom.¹⁵ The government as well as defendants were given rights to appeal sentences that were imposed in violation of the federal sentencing guidelines.¹⁶

Not long after the federal sentencing guidelines went into effect, the Supreme Court upheld their constitutionality in Mistretta v. United States.¹⁷ In so ruling, the Court rejected claims that Congress delegated excessive legislative power to the United States Sentencing Commission ("the Commission"), thus, violating the separation-of-powers principle, by placing the Commission in the Judicial Branch, requiring federal judges to serve on the Commission and share their authoritywith non-judges, and empowering the President to appoint Commission members and remove them for cause.¹⁸ Justice Scalia dissented because he could "find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws," and because he believed the guidelines have "the force and effect of laws, prescribing the sentences, criminal defendants are to receive."¹⁹

Later, in Stinson v. United States,²⁰ the Supreme Court reaffirmed that the guidelines had the force of law.²¹ The Court further held that the commentary in the U.S.S.G. manual is also binding and authorita-

III. The Beginnings of the Evolution of the Federal Sentencing Guidelines from Mandatory to Advisory

Although most federal criminal practitioners recognize Blakely v. Washington²³ as the beginning of the evolution of the federal sentencing guidelines, the actual beginnings can be seen in Jones v. United States.²⁴ In that case, the Supreme Court interpreted the federal carjacking statute, 18 U.S.C. Sec. 2119,²⁵ which provides three different maximum penalties depending on proof of various facts.²⁶ Specifically, if it is proved that the defendant committed the basic crime (namely, that the defendant took a motor vehicle that was moved in interstate or foreign commerce from someone by force, violence, or intimidation, with intent to cause death or serious bodily harm), the maximum penalty is fifteen years in prison.²⁷ If serious bodily injury results, the maximum term of imprisonment increases to twenty-five years.²⁸ If death results, any number of years, up to life imprisonment or death, may be imposed.²⁹ The Supreme Court in Jones held that Sec. 2119 defined three distinct offenses, as opposed to a single crime with three maximumpenalties, two of which depended on sentencing factors exempt from the requirements of charge and jury verdict.³⁰

Although the Supreme Court resolved Jones based on statutory interpretation, the Court further justified its decision by invoking the doctrine of constitutional doubt.³¹ The Court stated that if serious bodily injury, which increased the statutory maximum under the car jacking statute, was construed as a sentencing factor, the statute would be open to constitutional doubt.³² The Supreme Court then made the oft-quoted statement in footnote six—which is the basis for the holding in Apprendi v. New Jersey³³ —that:

[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than 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.³⁴

The Supreme Court explained that "[b]ecause our prior cases suggest rather than establish this principle, our concern . . . rises only to the level of doubt, not certainty."³⁵

The next year, however, on June 28, 2000, the Supreme Court took the next step and dealt with the constitutional issue touched upon in footnote six of Jones when the Court decided Apprendi.³⁶ Two of the three counts defendant pleaded guilty to in Apprendi, a state case out of New Jersey, were second-degree offenses for possession of a firearm for an unlawful purpose. The statutory penalty for that second degree crime was five to ten years of imprisonment. A separate state statute (a New Jersey hate crime statute), which was not referred to in the indictment in this case, provided for higher minimum and maximum penalties if the sentencing court made factual findings. After defendant pleaded guilty to the second degree crime, the state court held an evidentiary hearing and found, by a preponderance of the evidence, that the facts necessaryfor imposition of the higher penalties existed. Over defendant's constitutional objection, the state court then sentenced defendant to twelve years of imprisonment.³⁷ On appeal defendant argued, "inter alia, that the Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt."³⁸ The state appellate court affirmed, concluding that the hate crime enhancement was a sentencing factor, not an essential element.³⁹

The United States Supreme Court framed the issue in Apprendi as: "whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from ten to twenty years be made by a jury on the basis of proof beyond a reasonable doubt."⁴⁰ Stating that the answer to this question was foreshadowed by Jones, the Supreme Court held:

Other than the fact of a 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.... "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts [other than prior convictions] that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."⁴¹

Although the Apprendi majority specifically noted (as the majority did in Blakely) that the federal sentencing guidelines were not before the Court, Justice O'Connor, in her dissent in Apprendi,⁴² stated that the principle announced by the majority "thus would apply ... to all determinate-sentencing schemes in which the length of a defendant's sentence within the statutory range turns on specific factual determinations (e.g., the federal...