Sentencing Guidelines

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In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The rule of Apprendi upended the use of binding sentencing guidelines in state and federal courts. In Blakely v. Washington, decided in 2004, the defendant pleaded guilty to an offense (second degree kidnapping involving domestic violence and use of a firearm) with a statutory maximum sentence of ten years in prison based on the applicable felony class.1 The state sentencing guidelines restricted the sentence to a “standard range” of forty-nine to fifty-three months, unless the trial judge found the presence of an aggravating factor that justified an “exceptional sentence” above the standard range.2 The trial judge did find an aggravating factor (deliberate cruelty) and imposed a sentence of ninety months—thirty-seven months above the upper limit of the “standard range” but thirty months below the ten-year maximum linked to the felony class.3 The Supreme Court held that the imposition of the sentence violated the Sixth Amendment,4 stating “[t]he 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.” 5 The ten-year offense maximum did not matter for Sixth Amendment purposes because the binding guidelines directed the judge to impose a sentence within the much lower “standard range” absent an aggravating factor.6 The “standard range,” therefore, constituted the maximum sentence authorized “without any additional findings” ; the fact that a judge instead of a jury made the additional finding necessary to permit a sentence above this range violated the right to jury trial.7

The year after Blakely, the Supreme Court applied Apprendi to federal sentencing law in the 2005 case United States v. Booker.8 Since 1987, federal statute had required (with limited exception) federal district courts to impose sentences within narrow ranges calculated under the Sentencing Guidelines of the United States Sentencing Commission.9 Booker produced two separate majority opinions: one majority struck down a sentence imposed under the mandatory federal guidelines as unconstitutional, but a different majority (which shared only one member, Justice Ruth Bader Ginsburg, with the first majority) set the remedy and path forward.10 The first majority determined that the federal guidelines, like the state guidelines at issue in Blakely, violated the Sixth Amendment because they premised increases in the maximum authorized sentence upon judicial factfinding.11 One of the defendants in Booker, for instance, saw his sentencing range for a narcotics violation under the federal guidelines increase significantly (from 210–262 months to 360 months’ life imprisonment) due to two factual findings made by the trial judge during the sentencing proceedings.12 The trial court ultimately imposed a sentence of 360 months.13 Applying Apprendi and Blakely, the first Booker majority held that the “need to preserve Sixth Amendment substance” and the “ancient guarantee” of the jury trial right required invalidation of that sentence.14

While the first Booker majority’s holding followed ineluctably from Blakely,15 the second majority’s formulation of a remedy broke newer ground. It transformed the federal guidelines from mandatory to advisory in nature by severing and excising two provisions of the federal sentencing statute that required federal courts to follow the guidelines, but leaving the rest of the statute and the guidelines program it created intact.16 In their advisory form, the guidelines no longer violated the jury trial right because, rather than requiring the court to impose a particular sentence based upon a judge-found fact, they now simply offered recommendations as to how judges should “exercise [their] broad discretion in imposing a sentence within a statutory range.” 17 As modified, federal sentencing law would now “require[ ] a sentencing court to consider guidelines [sentencing] ranges, but . . . permit[ ] the court to tailor the sentence in light of other statutory concerns as well . . . .” 18 Further, the sentences imposed by district courts would be subject to appellate review only for “unreasonableness,” rather than de novo review for compliance with the guidelines.19 The second majority reasoned that this remedy effectuated Congress’s goal of instilling uniformity in federal sentencing better than the primary alternative remedy, which would have retained the mandatory nature of the guidelines but barred sentencing courts from increasing a sentence based on a judge-found fact.20

After Booker, the Court struck down another determinate sentencing scheme in Cunningham v. California because, much like the guidelines schemes at issue in Blakely and Booker, the California sentencing law at issue authorized the trial court to depart upwards from a standard sentencing threshold if the court found one or more “circumstances in aggravation.” 21 The defendant’s offense in that case triggered a standard sentence or “middle term” of twelve years, but the trial court departed upwards and sentenced the defendant to the “upper term” of sixteen years after finding the presence of six aggravating factors.22 The Supreme Court held this sentencing procedure unconstitutional under a straightforward application of Apprendi.23

1: 542 U.S. 296, 298–99 (2004). The offense was a “class B felony,” which under state law was punishable by a prison term not to exceed ten years. Id. at 299.
2: Id. at 299.
3: Id. at 299–300.
4: Id. at 305.
5: Id. at 303.
6: Id.
7: Id. at 303–04 (emphasis in original).
8: 543 U.S. 220 (2005).
9: See Kimbrough v. United States, 552 U.S. 85, 96 n.7 (2007) ( “Congress created the Sentencing Commission and charged it with promulgating the Guidelines in the Sentencing Reform Act of 1984, but the first version of the Guidelines did not become operative until November 1987.” ) (citations omitted); Mistretta v. United States, 488 U.S. 361, 367 (1989) (explaining that the Sentencing Reform Act made the “guidelines binding on the courts, although [the Act] preserve[d] for the judge the discretion to depart from the guideline applicable to a particular case if the judge f[ound] an aggravating or mitigating factor present that the Commission did not adequately consider when formulating guidelines.” ). The Blakely majority avoided comment on the constitutionality of the federal guidelines, 542 U.S. at 305 n.9 ( “The Federal Guidelines are not before us, and we express no opinion on them.” ), but dissenters pointed out that the Court’s reasoning almost certainly rendered them unconstitutional. Id. at 325 (O’Connor, J., dissenting) (noting lack of relevant distinction between Washington and federal guidelines).
10: Booker, 543 U.S. at 226–27.
11: Id. at 223.
12: Id. at 227, 235. The findings concerned that amount of illegal narcotics that the defendant actually possessed and the defendant’s obstruction of justice. Id. at 227.
13: Id. at 227.
14: Id. at 237. The first Booker majority reiterated the rule of Apprendi as follows: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at 244.
15: Id. at 233.
16: Id. at 245.
17: Id. at 233.
18: Id. (citations omitted).
19: Id. at 260–61.
20: Id. at 246, 253 ( “Congress’s basic goal in passing the Sentencing Act was to move the sentencing system in the direction of increased uniformity.” ).
21: Cunningham v. California, 549 U.S. 270, 279 (2007) ( “California’s DSL [Determinate Sentencing Law], and the Rules governing its application, direct the sentencing court to start with [a] middle term [of imprisonment], and to move from that term only when the court itself finds and places on the record facts—whether related to the offense or the offender—beyond the elements of the charged offense.” ).
22: Id. at 275–76.
23: Id. at 288 ( “Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi's bright-line rule . . . .” ) (citation omitted).