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Ever since the Supreme Court held two years ago that most criminal sentences over the prior 17 years had been imposed in violation of the Sixth Amendment and then dramatically struck down the “mandatory” nature of the federal sentencing guidelines, prosecutors and defense attorneys have debated how to set sentences. Many hoped the Court would eliminate the confusion raised by United States v. Booker with two cases this year. But rather than bringing clarity, the decisions in Cunningham v. California and Rita v. United States have only demonstrated that Booker‘s remedy is on a collision course with Booker‘s constitutional holding. Simply put, the remedy usurps the role of the jury in the same way that the mandatory guidelines did. To quote Justice Antonin Scalia in Rita, “The Court has reintroduced the constitutional defect that Booker purported to eliminate.” It’s only a matter of time before Booker, too, has to be substantially modified. CONSIDER THIS Booker has been on shaky ground from the outset. The decision consists of two 5-4 opinions�one finding the constitutional violation and the other devising a remedy�with only Justice Ruth Bader Ginsburg joining the majority in both. On the constitutional question, the Booker majority held that the federal sentencing guidelines violated defendants’ Sixth Amendment right to a jury trial because the guidelines permitted a judge to enhance a sentence based solely on factors found by the judge and to do so based on a mere preponderance of the evidence. Four of the five justices who believed the guidelines were unconstitutional favored a remedy that left the guidelines in place, but required all sentencing enhancement factors either to be proved to the jury beyond a reasonable doubt (unless the jury trial right was waived) or admitted by the defendant. But because Ginsburg broke from this block when it came to devising a remedy, the remedy was in large part drafted by justices who did not believe there was any constitutional violation that needed remedying. And when two members of the remedial majority — Chief Justice William Rehnquist and Justice Sandra Day O’Connor — later left the Court, there was immediate speculation that the dissenters to the Booker remedy would, sooner or later, gain that one extra vote needed to reconsider the remedy. That would be a good idea. The Booker remedy as it stands requires the guidelines to be considered in an advisory only capacity, along with a host of other factors. Among the serious questions left unanswered are whether a guideline-based sentence should always be presumed appropriate and how courts should weigh traditional sentencing factors, such as family hardships or the offender’s age, when those factors are discouraged under the guidelines. The majority opinion on the constitutional issue explains that Booker was meant — “in a meaningful way” — to guarantee that “the right of jury would still stand between the individual and the power of the government” and emphasizes the “need to preserve Sixth Amendment substance.” But the remedy does neither. Instead, it expands the discretion of the sentencing judge, without affording the jury any increased role whatsoever. As U.S. District Judge William Young of Massachusetts noted in the June 6 decision of United States v. Griffin, “[A]lthough Constitutional Booker was all about juries, circuit decisions in the wake of Remedial Booker have been all about judges . . . . [I]t seems at times as though the Constitutional Booker opinion had never been written.” BE REASONABLE The Booker remedy essentially re-creates the very same constitutional problem that had just been voided under the guidelines by injecting a new standard of review: The remedy opinion requires that the sentence imposed be “reasonable.” Of course, there is no single reasonable sentence for any given defendant. There is a range of reasonableness (although it is now unclear exactly how that range is determined), and that range may go up or down as various aggravating or mitigating facts are proven. Yet these “reasonable” ranges are every bit as mandatory after Booker as the guideline ranges were before Booker. And because the facts used to enhance the reasonable sentencing range are determined by a judge by a preponderance of the evidence — the same way such facts were proven under the previously mandatory guidelines — the Sixth Amendment problem is exactly the same, too. STATE VERSUS FEDERAL While the lower courts are still in the process of figuring out how reasonableness review works in the world of advisory only guidelines, the Supreme Court’s recent decisions in Cunningham and Rita suggest that the very foundation of reasonableness review is already giving way. Although the dispute between the majority and the dissent in Booker focused on the workability of reasonableness review, the more recent decisions suggest that the Court now recognizes there may be a constitutional defect in the Booker remedy itself. In Cunningham, Chief Justice John Roberts Jr. joined the five justices from the Booker constitutional majority to invalidate California’s sentencing scheme. The dissent written by Justice Samuel Alito Jr. complained that the majority decision posed a larger problem because the state sentencing scheme (with low, medium, and high ranges) “is not meaningfully different from the federal scheme upheld in Booker.” The dissent noted that federal criminal statutes generally set out “wide sentencing ranges,” and that “under the post- Booker system, there will be cases — and, in all likelihood, a good many cases — in which the question whether a defendant will be required to serve a greater or lesser sentence depends on whether a court of appeals sustains a finding of fact made by the sentencing judge.” When judges use the federal guidelines, the vast majority of the actually imposed sentence is based on factors found by the judge, not the jury. For example, while a defendant convicted of fraud might receive a sentence as low as 0 to 6 months in prison, a judge’s determination as to the amount of loss caused by the fraud could drive that sentence up to more than 21 years. How can the longer sentence, which is dependent on the judge’s finding, pass constitutional muster? But absent the judge’s finding, how can a range of more than 20 years be “reasonable”? MORE SUBSTANCE The Supreme Court’s decision in Rita confirms that there is this “substantive” component of reasonableness, whereby sentences that are too high or too low will be reversed as “unreasonable” even if all the relevant sentencing factors were considered in a procedurally correct manner. Indeed, the majority in Rita explicitly retained this substantive component to reasonableness, despite calls by Justices Scalia and Clarence Thomas to eliminate it. Significantly, Scalia and Thomas urged the rejection of substantive reasonableness review precisely because they recognize that it resurrects the very Sixth Amendment problem identified in Booker. As Scalia wrote in concurrence, “[T]here will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts. Booker itself reveals why that reality dooms the construct of reasonableness review established by today’s opinion.” Scalia and Thomas expressed disappointment that the Court “strongly intimated” in Cunningham that such constitutional problems would arise and promised in Rita to address the constitutional limitations of reasonableness review, but ultimately dodged the issue. Indeed, the entire criminal justice system — judges, prosecutors, defense attorneys, and defendants themselves — needs the Court to promptly clear up this constitutional confusion. Fortunately, the Court will have a chance to revisit this sentencing issue very soon, on Oct. 2, when it hears arguments in United States v. Gall (concerning the reasonableness of a below-guideline sentence) and Kimbrough v. United States (concerning the reasonableness of higher sentences for crack, rather than powder, cocaine). The Court should take the opportunity to craft a remedy that more appropriately defines and preserves the role of judges and juries — and thereby finish the job it started in Booker.
Abbe David Lowell is a partner and Christopher D. Man is counsel in the D.C. office of McDermott Will & Emery. Lowell, who heads the white-collar criminal practice group in the D.C. office, focuses on trial practice, special investigations, and regulatory enforcement. Man focuses on white-collar criminal litigation, internal investigations, and investigations by Congress and the executive branch.

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