United States v. Booker (No. 04-104) and United States v. Fanfan (No. 04-105)

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LII note: The U.S. Supreme Court has now decided United States v. Booker (No. 04-104) and United States v. Fanfan (No. 04-105).

Oral argument: October 4, 2004
Appealed from: United States Court of Appeals, Seventh Circuit (Booker), United States Court of Appeals, First Circuit (Fanfan)

Criminal procedure, Sixth amendment, federal sentencing guidelines

In these cases, the Supreme Court decides whether the United States Sentencing Guidelines violate the Sixth Amendment in situations where a judge, not a jury, finds a fact that leads to an enhanced sentence. The upcoming decision follows last summer's ruling in Blakely v. Washington, 124 S.Ct 2531 (2004), in which the court held a similar sentencing scheme unconstitutional in the state of Washington. In a footnote in Blakely, the court stated that it had no opinion on the constitutionality of the United States Sentencing Guidelines. The decision caused great confusion among lower federal courts that had to impose sentences in the wake of Blakely. If the Court finds that judges may not impose sentences based upon facts not found by the jury, it will then decide whether the Guidelines are wholly inapplicable in situations where they would require a sentencing judge to find a sentence-enhancing fact. This "severability analysis" will require the court to determine if Congress' intent can be salvaged once the unconstitutional elements are severed from the sentencing scheme.

[Question(s) presented] | [Summary] | [Analysis]

Question(s) presented

1.Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.

2. If the answer to the first question is "yes," the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.



: Respondent Booker was arrested after officers found his duffle bag containing 92.5 grams of crack cocaine. United States v. Booker, 375 F.3d 508, 509 (7th Cir. 2004). Booker later gave a written statement to the police in which he admitted selling an additional 566 grams of crack cocaine. Id. A jury in the United States District Court for the Western District of Wisconsin found Booker guilty of two counts of possessing at least 50 grams of cocaine base with the intent to distribute it, in violation of 21 USC § 841(b)(1)(A)(iii). Id. At sentencing, the judge found by a preponderance of the evidence that Booker had distributed 566 grams in addition to the 92.5 grams that the jury found; the judge also found that Booker had obstructed justice. Id. In the absence the judge's additional findings, Booker would have faced a maximum sentence of 262 months under the United States Sentencing Guidelines ("Guidelines"). Id. at 510. The judge, however, sentenced him to 360 months, based upon the Guidelines' treatment of the additional cocaine and the obstruction of justice. Id. The United States Court of Appeals for the Seventh Circuit affirmed the conviction but overturned the sentence. Id. at 515.

: Narcotics agents arrested Appellant Fanfan when they discovered 1.25 kilograms of cocaine and 281.6 grams of cocaine base in his vehicle. United States v. Fanfan, 2004 WL 1723114 (D.Me.), at *2, cert. granted, 73 USLW 3073 (U.S. Aug. 2, 2004)(No. 04-105). A jury in the District of Maine found that he possessed "500 or more grams" of cocaine with the intent to distribute, in violation of 21 USC § 846. Id. at *2-3. At sentencing, the court determined that Fanfan was the "ring leader of a significant drug conspiracy," which, combined with his criminal history, resulted in a sentence of 188 to 235 months under the Guidelines. Id. at *3. However, four days before the June 28, 2004, sentencing hearing, the United States Supreme Court handed down its decision in Blakely v. Washington, 124 S.Ct 2531 (2004), holding that a Washington state judge could not find an aggravating fact authorizing a higher sentence than the state statutes otherwise permitted. Id. at *3. The Fanfan sentencing judge, worried about the effect Blakely might have on the Federal Sentencing Guidelines, recalculated the Guidelines range only based upon possession of 500 grams and imposed the seventy-eight month maximum of that range. Id. The Court of Appeals has not reviewed the judgment.

The Supreme Court granted certiorari in an effort to give some guidance to lower courts that had already begun to differently apply the Blakely decision to federal prisoners. For example, in Booker, the Seventh Circuit found that the Federal Sentencing Guidelines violate the Sixth Amendment in certain circumstances. TheTheT Fifth Circuit, on the other hand, concluded that Blakely did not apply to the Guidelines because it felt that to do so would to create a separate "offense" for each possible sentence for a particular crime. United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004). The Second Circuit found itself unable to resolve the issue at all and certified questions to the Supreme Court about the application of Blakely to federal sentences under the Guidelines. United States v. Penaranda, 375 F.3d 238 (2d Cir. 2004).



The Federal Sentencing Guidelines were established by the United States Sentencing Commission, an independent agency within the judicial branch of the federal government. The Commission was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984. One of the purposes of the Guidelines was to provide certainty and fairness in meeting the purposes of sentencing — just punishment, deterrence, incapacitation and rehabilitation — by avoiding sentencing disparity between similarly situated convicted criminals while permitting some judicial flexibility. The Guidelines were designed to achieve this goal by taking into account the seriousness of the offense, the offender's criminal history, and other adjustment factors such as the level of offender participation in the offense, offender knowledge of victim vulnerability, and offender acceptance of responsibility. However, the Sixth Amendment is potentially implicated when judges, rather than juries, make factual determinations which they use as adjustment factors to increase an offender's sentence.

The Blakely decision hangs in the background of both the Booker and Fanfan cases. The June 24, 2004 ruling invalidated Washington's sentencing guidelines because they allowed a sentencing judge to weigh facts not before a jury, in violation of a defendant's Sixth Amendment right to trial by jury. See Blakely v. Washington, 124 S.Ct 2531 (2004). The similarities between Washington's sentencing guidelines and the Federal Sentencing Guidelines threw federal courts into turmoil over the summer, in part because of the uncertain effect that Blakely had on federal prisoners already serving their sentences. Blakely has already prompted convicts to flood the federal courts with motions for new sentences. The Seventh Circuit Court of Appeals expedited its decision in the Booker case "in an effort to provide some guidance to the district judges (and our own court's staff), who are faced with an avalanche of motions for resentencing in the light of Blakely." Booker, 375 F.3d at 510.

The Court's decision in this case may impact how district court judges sentence convicted criminals. If the Court does not extend the Blakely rationale to the Federal Sentencing Guidelines, district court judges will be allowed to make judicial findings in excess of jury findings in order to increase defendants' sentences, as the Booker judge did. On the other hand, if the Court extends the Blakely rationale to the Federal Sentencing Guidelines, district court judges may be required either to sentence defendants based upon jury determinations of criminal offenses, as the Fanfan sentencing judge did, or to use separate sentencing juries to consider additional facts related to enhancing sentences. In addition, an extension to the federal Guidelines could result in a greater deluge of motions than that already seen, and the lower courts may find themselves split once again, this time on the issue of how to handle prisoners sentenced before Booker.


Issue 1: Constitutionality of Sentence Enhancement Based on Judge's Finding of Fact

The Court may likely find that the Federal Sentencing Guidelines violate a defendant's Sixth Amendment right to a jury trial. The actions taken by the sentencing judges in Booker and Fanfan closely parallel the trial court's determination in Blakely. In Blakely, the jury found the defendant guilty of kidnapping his wife. Blakely v. Washington, 124 S.Ct 2531 (2004). Based on this finding, the defendant could have received a statutory maximum sentence of 53 months. Id. at *3. The sentencing judge determined that Blakely committed the kidnapping with deliberate cruelty. Id.. Under the Washington Sentencing Reform Act, the judge sentenced Blakely to 90 months. Id.; § 9.94A.390(h)(iii). The Supreme Court applied the Rule of Apprendi ("Other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.") to find that Blakely's Sixth Amendment right was violated by the judge's additional determination of fact. Apprendi v. New Jersey 530 U.S. 46. In Booker and Fanfan, the defendants similarly received increased sentences based on the judges' determinations of additional facts not found by the juries. United States v. Booker, 375 F.3d 508, 509 (7th Cir. 2004); United States v. Fanfan, 2004 WL 1723114 (D.Me.), at *2, cert. granted, 73 USLW 3073 (U.S. Aug. 2, 2004)(No. 04-105).

Although the sentences in Booker and Fanfan were based on the Federal Sentencing Guidelines, which were promulgated by a regulatory agency, instead of a legislature, like the one that enacted the guidelines at issue in Blakely, the Court is not likely to treat the Guidelines differently. The Seventh Circuit Court of Appeals stated that if a state legislature "cannot evade what the Supreme Court deems the commands of the Constitution by a multistage sentencing scheme, neither, it seems plain, can a regulatory agency." United States v. Booker, 375 F.3d 508, 510 (7th Cir. 2004). The Court may conclude that a regulatory agency, created by and fully accountable to Congress, is more likely to withstand scrutiny. However, the Court will likely find that the primary concern is whether a defendant's right to a jury trial under the Sixth Amendment is violated and it will not focus on which body violates such a right. Moreover, the Blakely dissenters agreed that the Federal Guidelines could not be distinguished from Washington's guidelines. The majority, however, was careful to only consider the specific issue before the Court.

On the other hand, there is also a probability that the Supreme Court will distinguish the Washington statute in Blakely from the United States Sentencing Guidelines and find that the Guidelines do not violate the Sixth Amendment. As the government argued in its amicus brief, the Court could find that the Federal Guidelines are only regularizing the discretion that judges would exercise in choosing a sentence within a statutory range. Mistretta v. United States, 109 S.Ct. 647 (1989). Unlike the Washington statute, the Federal Sentencing Guidelines could be seen as only prescribing a base offense level, which is adjusted up or down by specific offense characteristics related to the way in which the offense was carried out. As Judge Easterbrook mentioned in his dissent, "there is a difference between something that is functionally equivalent to a statute (from the perspective of a criminal defendant) from an actual statute", thus distinguishing the Federal Guidelines from the invalidated Washington statute. Booker 375 F.3d at 519.

The Supreme Court may also base its ruling on the fact that the Guidelines are promulgated by the Sentencing Commission, as opposed to a legislature, which enacted the Washington statute. Although the majority opinion in Booker underplayed this aspect and did not find significance in the distinction, the Supreme Court could find that concerns regarding maximum and minimum sentencing rules arise only when the legislature itself dictates the facts that control a defendant's increased exposure to punishment, thereby effectively creating enhanced crimes. In this view, the Guidelines do not establish minimum and maximum penalties.

In a substantive perspective, unlike the Federal Sentencing guidelines, the Washington Statute established three degrees of kidnapping; the distinction between second and third degree was deliberate cruelty. Blakely 124 S.Ct.2537. Washington courts could not cut the jury out of the process and let the judge have discretion to find the sentencing enhancing fact. Id. This understanding of the Sixth Amendment is inapposite to sentencing if there is only one degree of an offense, or if the defendant has been convicted of the highest degree. Booker was convicted of cocaine distribution in the first degree and the jury's verdict authorized life imprisonment. Booker 375 F.3d 508. Therefore, the court could rule that regulations and guidelines that affect sentencing after the degree of an offense has been fixed by the jury do not transgress the limits set by the Sixth Amendment. In fact, the Supreme Court even stated that the legislature may delegate such issues to the judiciary and parole boards without offending the Sixth Amendment. Blakely, 124 S.Ct. at 2540-41. Furthermore, Apprendi and Blakely are irrelevant if the jury's findings authorize life imprisonment as they did in Booker. Because the Sentencing Guidelines are restrained by the maximum provided by statute \, the Supreme Court could rule that the Guidelines never lead to the imposition of a sentence on a particular count that exceeds the statutory maximum.

The Court could decide that the only finding indispensable to Booker's sentence is the one specified in the statute: did he distribute more than 50 grams of cocaine base? The jury found that he did, and, therefore, it is quite possible that the judge had discretion to sentence the defendant within the statutory range of ten years to life. As Judge Easterbrook stated in his dissent, "exactly what sentence the defendant should receive depends on complex interaction among drug quantity, gun use, violence, role in the offense, cooperation, obstruction of justice, criminal history and other factors, none of which is in the same sense as a statutory threshold." Booker 375 F.3d at 519; See U.S.S.G. § 2D1.1 Therefore, the Supreme Court may conclude that the defendant is not entitled to a certain sentence based only on the finding of a specific amount of cocaine.

Finally, even if the Blakely definition of "statutory maximum" applies to the Federal Sentencing Guidelines, it requires an extra step to say that the jury must make the dozens of findings that matter to the Guidelines' operation in each case. The Supreme Court explicitly stated that they were not ruling on this issue, and, even if they were to imply this, the current structure is still valid under Edwards v. United States. In Edwards, the Court held that a judge may ascertain (using the preponderance standard) the type and amount of drugs involved and impose a sentence based on that determination as long as the sentence does not exceed the statutory maximum. Edwards v. United States, 523 U.S. 511, 140 (1998).

Issue 2: Severability of enhancement provisions like that in issue from remainder of Federal Sentencing Guidelines.

To resolve the issue of severability, the Court will look to Congress's intent, and may find that the sentencing-enhancing portion cannot be separated from the remainder of the Guidelines. Although Congress intended the Guidelines to prevent sentencing disparities between similarly situated defendants resulting from divergent judicial decision in an indeterminate sentencing system, Koon v. United States, 518 U.S. 81, 92 (1996), the Court may determine that if the Guidelines are allowed to stand without the sentencing-enhancing portion, judges will no longer have the intended discretion. Although eliminating the entire Guidelines may give the judges broader discretion, the statutory minimum and maximum will not allow a judge to egregiously overstep sentencing boundaries. Based on the Court's ruling, judges will face closer scrutiny in sentencing, causing them to more thoroughly apply the facts found by the jury to their sentencing decisions, and thereby eliminating the problem of extreme sentencing disparities. Prohibiting outside facts in sentencing will lead judges to more closely monitor other aspects of the jury trial that could have otherwise led to discrepancies in fact-finding between similarly-situated defendants.

In Booker, the Seventh Circuit Court of Appeals noted that the Blakely majority did not defend the Guidelines when faced with "dissenting opinions that as much as said that the decision doomed the federal sentencing guidelines." United States v. Booker, 375 F.3d 508, 512 (7th Cir. 2004) The Seventh Circuit seemed to imply that the Federal Sentencing Guidelines in its entirety will not survive the same scrutiny applied to the Washington statute. Id. The Seventh Circuit did not say that the sentencing-enhancing portion is doomed, but rather the entire Federal Sentencing Guidelines. Id. The Supreme Court, in considering Congress's intent, may likely find that Congress would rather return to indeterminate sentencing instead of severing the Sentencing Guidelines.


On the other hand, even if the Supreme Court finds that the sentencing-enhancing provisions of the Federal Sentencing Guidelines do violate the Sixth Amendment, federal courts may still utilize the guidance of the Guidelines if the unconstitutional provision is severable. The Court has held that a statutory scheme would not be severable and cannot stand in the face of the unconstitutionality of a particular feature when "it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not. See Buckley v. Valeo, 424 U.S. 1, 108 (1976).

The Court could find that the intent of Congress to sever the unconstitutional portion of the Guidelines is far from evident. Congress intended the Guidelines to meet the important goal of avoiding unwarranted sentencing disparities between similarly situated defendants resulting from divergent judicial decisions in an indeterminate sentencing system. See Koon v. United States, 518 U.S. 81, 92 (1996). It further intended to provide for sentences sufficient to "reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense," "to afford adequate deterrence to criminal conduct" and "to protect the public from further crimes of the defendant." 18 U.S.C. 3553 (a)(2) (A), (B) and (C).

Arguably, to once again give judges full discretion to sentence a defendant within the statutory minimum and maximum would not further Congress's intent to structure sentencing and restrain judicial discretion; that is, severing the Guidelines may give judges more discretion than Congress envisioned. Thus, there is a possibility that the Court will find that Congress would still have enacted the Federal Guidelines without the sentencing-enhancing provisions. The severed Guidelines would still meet the original purpose of thwarting arbitrary sentencing of judges in sentencing stages.


  • Jae-Hyon Ahn
  • Tom Kirchoffer
  • Seth Rudin
  • Irika Sargent