[ Stevens ]
[ Breyer ]
[ Stevens ]
[ Scalia ]
[ Thomas ]
[ Breyer ]
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE SEVENTH CIRCUIT
ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THE
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
[January 12, 2005]
Justice Scalia, dissenting in part.
I join the portions of the opinion of the Court that are delivered by Justice Stevens. I also join Justice Stevenss dissent, with the exception of Part III1 and footnote 17. I write separately mainly to add some comments regarding the change that the remedial majoritys handiwork has wrought (or perhapswho can tell?has not wrought) upon appellate review of federal sentencing.
The remedial majority takes as the North Star of its analysis the fact that Congress enacted a judge-based sentencing system. Ante, at 22 (opinion of Breyer, J.). That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read Congress reaffirms judge-based sentencing rather than Congress prescribes standardized sentences. Justice Breyers opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity.2 Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformitythat Congress was so attached to having judges determine real conduct on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. See ante, at 1011, 22. The majoritys remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing.
That is the plain effect of the remedial majoritys decision to excise 18 U.S.C. A. §3553(b)(1) (Supp. 2004). See ante, at 16. District judges will no longer be told they shall impose a sentence within the range established by the Guidelines. §3553(b)(1). Instead, under §3553(a), they will need only to consider that range as one of many factors, including the need for the sentence to provide just punishment for the offense, §3553(a)(2)(A) (main ed.), to afford adequate deterrence to criminal conduct, §3553(a)(2)(B), and to protect the public from the further crimes of the defendant, §3553(a)(2)(C). The statute provides no order of priority among all those factors, but since the three just mentioned are the fundamental criteria governing penology, the statuteabsent the mandate of §3553(b)(1)authorizes the judge to apply his own perceptions of just punishment, deterrence, and protection of the public even when these differ from the perceptions of the Commission members who drew up the Guidelines. Since the Guidelines are not binding, in order to comply with the (oddly) surviving requirement that the court set forth the specific reason for the imposition of a sentence different from that described in the Guidelines, §3553(c)(2), the sentencing judge need only state that this court does not believe that the punishment set forth in the Guidelines is appropriate for this sort of offense.3 That is to say, district courts have discretion to sentence anywhere within the ranges authorized by statutemuch as they were generally able to do before the Guidelines came into being. To be sure, factor (6) is the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, §3553(a)(2)(6) (main ed.), but this would require a judge to adhere to the Guidelines only if all other judges had to adhere to the Guidelines (which they certainly do not, as the Court holds today) or if all other judges could at least be expected to adhere to the Guidelines (which they certainly cannot, given the notorious unpopularity of the Guidelines with many district judges). Thus, logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines), has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range. If the majority thought otherwiseif it thought the Guidelines not only had to be considered (as the amputated statute requires) but had generally to be followedits opinion would surely say so.4
As frustrating as this conclusion is to the Acts purpose of uniform sentencing, it at least establishes a clear and comprehensible regimeessentially the regime that existed before the Act became effective. That clarity is eliminated, however, by the remedial majoritys surgery on 18 U.S.C. A. §3742 (main ed. and Supp. 2004), the provision governing appellate review of sentences. Even the most casual reading of this section discloses that its purposeits only purposeis to enable courts of appeals to enforce conformity with the Guidelines. All of the provisions of that section that impose a review obligation beyond what existed under prior law5 are related to the district judges obligations under the Guidelines. If the Guidelines are no longer binding, one would think that the provision designed to ensure compliance with them would, in its totality, be inoperative. The Court holds otherwise. Like a black-robed Alexander cutting the Gordian knot, it simply severs the purpose of the review provisions from their text, holding that only subsection (e), which sets forth the determinations that the court of appeals must make, is inoperative, whereas all the rest of §3742 subsistsincluding, mirabile dictu, subsection (f), entitled Decision and disposition, which tracks the determinations required by the severed subsection (e) and specifies what disposition each of those determinations is to produce. This is rather like deleting the ingredients portion of a recipe and telling the cook to proceed with the preparation portion.6
Until today, appellate review of
sentencing discretion has been limited to instances prescribed
by statute. Before the Guidelines, federal appellate courts
had little experience reviewing sentences for anything but
legal error. [W]ell-established doctrine, this
Court said, bars [appellate] review of the exercise of
sentencing discretion. Dorszynski v. United
States, 418 U.S.
424, 443 (1974). [O]nce it is determined that a
sentence is within the limitations set forth in the statute
under which it is imposed, appellate review is at an end.
Id., at 431432 (citing cases). When it
established the Guidelines regime, Congress expressly provided
for appellate review of sentences in specified circumstances,
but the Court has been appropriately chary of aggrandizement,
refusing to treat §3742 as a blank check to appellate
courts. Thus, in 1992, the Court recognized that
Congresss grant of limited appellate review
of sentencing decisions
did not alter a court of
appeals traditional deference to a district courts
exercise of its sentencing discretion. Williams
v. United States, 503 U.S. 193, 205
(emphasis added). Notwithstanding §3742, much remained
off-limits to the courts of appeals: The selection of the
appropriate sentence from within the guideline range, as well
as the decision to depart from the range in certain
circumstances, are decisions that are left solely to the
sentencing court. Ibid. (emphasis added).
Similarly, in 1996, the Court took pains to note that the
§3742 power to engage in limited appellate
review of Guidelines departures did not vest
in appellate courts wide-ranging authority over district court
sentencing decisions. Koon v. United
States, 518 U.S.
81, 97. The Court repeated its caution that
Todays remedial opinion does
not even pretend to honor this principle that sentencing
discretion is unreviewable except pursuant to specific
statutory direction. The discussion of appellate review begins
with the declaration that, despite the absence of
§3553(b)(1), the Act continues to provide for appeals from
sentencing decisions (irrespective of whether the trial judge
sentences within or outside the Guidelines range
), ante, at 17 (citing
§§3742(a) and (b)); and the opinion later announces
that the standard of review for all such appeals is
unreasonableness, ante, at 18, 22. This
conflates different and distinct statutory authorizations of
appeal and elides crucial differences in the statutory scope of
review. Section 3742 specifies four different kinds of
setting forth for each the grounds of appeal permitted to the
defendant and the Government (§§3742(a) and (b)), the
manner in which each ground should be considered
(§3742(e)), and the permissible dispositions
(§3742(f)). There is no one-size-fits-all
unreasonableness review. The power to review a
sentence for reasonableness arises only when the sentencing
court has departed from the applicable guideline
range. §3742(f)(2); cf. United States v.
Soltero-Lopez, 11 F.3d 18, 19 (CA1 1993) (Breyer,
C. J.) ([T]he sentencing statutes
defendant] with only a very narrow right of appeal
because the power to set aside a departure that is
The Court claims that a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly. Ante, at 17 (opinion of Breyer, J.). Perhaps so. But we have before us a statute that does explicitly set forth a standard of review. The question is, when the Court has severed that standard of review (contained in §3742(e)), does it make any sense to look for some congressional implication of a different standard of review in the remnants of the statute that the Court has left standing? Only in Wonderland. (This may explain in part why, as Justice Stevenss dissent correctly observes, ante, at 12, none of the numerous persons and organizations filing briefs as parties or amici in these casesall of whom filed this side of the looking-glassproposed, or I think even imagined, the remedial majoritys wonderful disposition.) Unsurprisingly, none of the three cases cited by the Court used the power of implication to fill a gap created by the Courts own removal of an explicit standard.8 The Courts need to create a new, implied standard of reviewhowever linguistically fair, ante, at 19amounts to a confession that it has exceeded its powers. According to the well established standard for severability, the unconstitutional part of a statute may be dropped if what is left is fully operative as a law. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (emphasis added and internal quotation marks omitted). Severance is not possible if the balance of the legislation is incapable of functioning independently. Ibid. The Courts need to supplement the text that remains after severance suggests that it is engaged in redraft[ing] the statute rather than just implementing the valid portions of it. United States v. Treasury Employees, 513 U.S. 454, 479, and n. 26 (1995); see also id., at 502, and n. 8 (Rehnquist, C. J., dissenting); Reno v. American Civil Liberties Union, 521 U.S. 844, 884885 (1997).
Even assuming that the Court ought to be inferring standards of review to stanch the bleeding created by its aggressive severance of §3742(e), its unreasonableness standard is not, as it claims, consistent with the related statutory language or with appellate sentencing practice during the last two decades. Ante, at 18, 19. As already noted, sentences within the Guidelines range have not previously been reviewed for reasonableness. Indeed, the very concept of having a unitary standard of review for all kinds of appeals authorized by §§3742(a) and (b) finds no support in statutory language or established practice of the last two decades. Although a reasonableness standard did appear in §3742(e)(3) until 2003, it never extended beyond review of deliberate departures from the Guidelines range. See 18 U.S.C. § 3742(e)(3) (2000 ed.); see also §§3742(f)(2)(A), (B) (prescribing how to dispose on appeal of a sentence that is outside the applicable guideline range and is unreasonable). According to the statistics cited by the Court, that standard applied to only 16.7% of federal sentencing appeals in 2002, see ante, at 19, but the Court would now have it apply across the board to all sentencing appeals, even to sentences within the applicable guideline range, where there is no legal error or misapplication of the Guidelines.
There can be no doubt that the Courts severability analysis has produced a scheme dramatically different from anything Congress has enacted since 1984. Sentencing courts are told to provide just punishment (among other things), and appellate courts are told to ensure that district judges are not unreasonable. The worst feature of the scheme is that no one knowsand perhaps no one is meant to knowhow advisory Guidelines and unreasonableness review will function in practice. The Courts description of what it anticipates is positively Delphic: These features of the remaining system continue to move sentencing in Congress preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary. We can find no feature of the remaining system that tends to hinder, rather than to further, these basic objectives. Ante, at 22 (citation omitted).
As I have suggested earlier, any system which held it per se unreasonable (and hence reversible) for a sentencing judge to reject the Guidelines is indistinguishable from the mandatory Guidelines system that the Court today holds unconstitutional. But the remedial majoritys gross exaggerations (it says that the practical standard of review it prescribes is already familiar to appellate courts and consistent with appellate sentencing practice during the last two decades, ante, at 18, 19)9 may lead some courts of appeals to concludemay indeed be designed to lead courts of appeals to concludethat little has changed. Bear in mind that one of the most significant features of the remedial majoritys scheme of unreasonableness review is that it requires courts of appeals to evaluate each sentence individually for reasonableness, rather than apply the cookie-cutter standards of the mandatory Guidelines (within the correct Guidelines range, affirm; outside the range without adequate explanation, vacate and remand). A court of appeals faced with this daunting prospect might seek refuge in the familiar and continue (as the remedial majority invites, though the merits majority forbids) the appellate sentencing practice during the last two decades, ante, at 19 (opinion of Breyer, J.). At the other extreme, a court of appeals might handle the new workload by approving virtually any sentence within the statutory range that the sentencing court imposes, so long as the district judge goes through the appropriate formalities, such as expressing his consideration of and disagreement with the Guidelines sentence. What I anticipate will happen is that unreasonableness review will produce a discordant symphony of different standards, varying from court to court and judge to judge, giving the lie to the remedial majoritys sanguine claim that no feature of its avant-garde Guidelines system will ten[d] to hinder the avoidance of excessive sentencing disparities. Ante, at 22.
In Blakely v. Washington, 542 U.S. ___ (2004), the four dissenting Justices accused the Court of ignoring the havoc it is about to wreak on trial courts across the country. Id., at ___ (opinion of OConnor, J.) (slip op., at 12). And that harsh assessment, of course, referred to just a temporary and unavoidable uncertainty, until the Court could get before it a case properly presenting the constitutionality of the mandatory Guidelines. Today, the same Justices wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future. Will appellate review for unreasonableness preserve de facto mandatory Guidelines by discouraging district courts from sentencing outside Guidelines ranges? Will it simply add another layer of unfettered judicial discretion to the sentencing process? Or will it be a mere formality, used by busy appellate judges only to ensure that busy district judges say all the right things when they explain how they have exercised their newly restored discretion? Time may tell, but todays remedial majority will not.
I respectfully dissent.
1. Part III of Justice Stevenss
dissent relies in large part on legislative history. I agree
with his assertion that [t]he text of the law that
actually passed Congress
should be more than sufficient
to demonstrate Congress unmistakable commitment to a
binding Guidelines system. Ante, at 25. I would
not resort to committee reports and statements by various
individuals, none of which constitutes ac-
tion taken or interpretations adopted by Congress. One determines what Congress would have done by examining what it did. Legal
Services Corporation v. Velazquez, 531 U.S. 533, 560 (2001) (Scalia, J., dissenting).
2. See, e.g., ante, at 3 (noting that Congress intended the Guidelines system to achieve increased uniformity of sentencing); ante, at 7 (referring to diminish[ing] sentencing disparity as Congress basic statutory goal); ante, at 12 (Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing); ante, at 24 (referring to Congress basic objective of promoting uniformity in sentencing); see also United States Sentencing Commission, Fifteen Years of Guidelines Sentencing xvi (Nov. 2004) (Sentencing reform has had its greatest impact controlling disparity arising from the source at which the guidelines themselves were targetedjudicial discretion); id., at 140 ([T]he guidelines have succeeded at the job they were principally designed to do: reduce unwarranted disparity arising from differences among judges).
3. Although the Guidelines took pre-existing sentencing practices into account, they are the product of policy decisions by the Sentencing Commissionincluding, for instance, decisions to call for sentences significantly more severe than past practice for the most frequently sentenced offenses in the federal courts. Id., at 47. If those policy decisions are no longer mandatory, the sentencing judge is free to disagree with them.
4. The closest the remedial majority dares come to an assertion that the Guidelines must be followed is the carefully crafted statement that [t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing. Ante, at 2122. The remedial majority also notes that the Guidelines represent what the Sentencing Commission finds to be better sentencing practices. Ante, at 20. True enough, but the Commissions view of what is better is no longer authoritative, and district judges are free to disagreeas are appellate judges.
5. Paragraph (e)(1) requires a court of appeals to determine whether a sentence was imposed in violation of law. 18 U.S.C. A. §3742 (main ed.). Courts of appeals had of course always done this.
6. In the face of this immense reality, it is almost captious to point out that some of the text of the preserved subsection (f) plainly assumes the binding nature of the Guidelinesfor example, the reference to a sentence imposed as a result of an incorrect application of the sentencing guidelines, §3742(f)(1) (Supp. 2004), and the reference to a departure based on an impermissible factor, §3742(f)(2). Moreover, subsection (f)(1) requires the appellate court to remand for further sentencing proceedings any case in which the sentence was imposed as a result of an incorrect application of the sentencing guidelines. It is incomprehensible how or why this instruction can be combined with an obligation upon the appellate court to conduct its own independent evaluation of the reasonableness of a sentence.
7. The four kinds of appeal arise when, respectively, (1) the sentence is imposed in violation of law, §§3742(a)(1), (b)(1), (e)(1), (f)(1) (main ed. and Supp. 2004); (2) the sentence is imposed as a result of an incorrect application of the sentencing guidelines, §§3742(a)(2), (b)(2), (e)(2), (f)(1); (3) the sentence is either above or below the applicable guideline range, §§3742(a)(3), (b)(3), (e)(3), (f)(2); and (4) no guideline is applicable and the sentence is plainly unreasonable, §§3742(a)(4), (b)(4), (e)(4), (f)(2).
8. Pierce v. Underwood, 487 U.S. 552, 558560 (1988), Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403405 (1990), and Koon v. United States, 518 U.S. 81, 99 (1996).
9. Deciding whether a departure from a mandatory sentence (for a reason not taken into account in the Guidelines) is unreasonable (as §3742(e)(3) required), or whether a sentence imposed for one of the rare offenses not covered by the Guidelinesthough surrounded by mandatory sentences for related and analogous offensesis plainly unreasonable (as §3742(e)(4) required), differs toto caelo from determining, in the absence of any mandatory scheme, that a particular sentence is unreasonable.