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In a landmark decision involving two separate majority opinions, the U.S. Supreme Court launched a bombshell with United States v. Booker and United States v. Fanfan. The court found that the federal sentencing guidelines violate the Sixth Amendment to the extent they allow judicial-rather than jury-fact-finding to form the basis for sentencing. As a result, the court gutted the guidelines by relegating them to an advisory role and by returning our sentencing system to the way it was nearly 20 years ago when trial judges had unfettered discretion in meting out criminal punishment. The resulting hue and cry carried across the country’s courtrooms, newsrooms and the desks of elected officials. Senator Patrick Leahy, D-Vt., the ranking minority senator on the Senate Judiciary Committee, cautioned Congress to “resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety.” Many federal judges made similar pleas for Congress and the public to give them a chance. Editors at various media outlets joined the parade. Obviously, the manner in which judges interpret Booker will be telling in forecasting the future. Not unexpectedly, the first decision interpreting Booker/ Fanfan was issued by the same federal judge who first interpreted Blakely v. Washington, the Supreme Court’s June 2004 decision that originally muddied the waters of criminal sentencing. In United States v. Wilson, U.S. District Judge Paul Cassell of Utah, in an incredibly diplomatic, yet scholarly opinion, demonstrated he knew he was involved in a high-stakes poker match: “The preferable course today is to faithfully implement the congressional purposes underlying the Sentencing Reform Act by following the Guidelines in all but unusual cases.” Though every federal judge should have thanked Cassell for showing them how to humbly exercise their new-found discretion, less than a week later, Judge Lynn Adelman of the Eastern District of Wisconsin thumbed his nose at the guidelines, saying the “courts must treat the guidelines as just one of a number of sentencing factors.” In United States v. Ranum, Adelman flexed his newfound judicial muscle by imposing a sentence of 12 months and one day rather than adhering to the advisory guideline range of 37 to 46 months. Although unusual circumstances justified a downward departure, it was the court’s brazen emphasis on factors not taken into account in the guidelines that surely will have congressional conservatives sharpening their pencils to bring judges back in line. Even if federal trial judges weren’t their own worst enemy, federal appellate judges will certainly add fuel to the fire as they begin to interpret the Supreme Court’s new “unreasonableness” standard of review. Reasonable minds undoubtedly will differ in divining what is “reasonable.” Justice Antonin Scalia said as much in his Booker/ Fanfan dissent by anticipating a “discordant symphony of different standards varying from court to court and judge to judge.” Although the Department of Justice’s response has been more muted on this issue than one might expect, don’t believe for a minute that it is willing to give the advisory guidelines a chance. It is a good bet that DOJ will begin pushing a legislative proposal known as the “Bowman fix.” This proposal eliminates the high end of existing guideline ranges, and replaces them with the legally prescribed maximum for each crime. Naked power grabs get checked In truth, Booker/ Fanfan is nothing more than a naked power grab by the Supreme Court. No one believes Congress, armed with knowledge of the guidelines’ Sixth Amendment infirmities, would have approved an advisory set of guidelines. Congressional conservatives wasted no time letting the judiciary know that Congress does the legislating. Representative Adam Schiff, D-Calif., a former federal prosecutor sitting on the House Judiciary Committee, predicted that “the professional judiciary haters in the Congress are going to have a lot of grist for the mill.” The bottom line is that the country is in the middle of a major brouhaha between Congress and the judiciary over the heart and soul of the criminal process. In an area of this import, Republican leaders aren’t going to let the judiciary step in and do Congress’ job. Justice Stephen Breyer acknowledged as much in his remedial majority opinion: “Ours, of course, is not the last word: The ball now lies in Congress’ court.” So, instead of putting off the inevitable and wasting precious time doing so, it is time for all concerned to pay their last respects to these infant advisory guidelines, and begin the process of crafting a long-term sentencing system that gives the judiciary the ability to mete out justice fairly while ensuring sentences don’t vary based on which judge presides over a particular case. Bill Mateja, a principal in the Dallas and Washington offices of Fish & Richardson, recently left the Department of Justice after serving as senior counsel to deputy attorneys general Larry Thompson and James Comey, where he oversaw and coordinated the Department of Justice’s sentencing efforts.

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