BLAKELY Vs. WASHINGTON, 542 U.S. (2004)

Three years post- Thomas, the Supreme Court, Justice Scalia delivered the opinion of the Supreme Court, which "appl[ied] the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000). '…, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' …. These principles have been acknowledged by courts an treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U.S., at 476-483, 489-490, n. 15; id., at 501-518 (Thomas, J., concurring), and need not repeat them here." 524 U.S., at __(slip op., at 5-6).

The Blakely Court held "that the '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. …. In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' …, and the judge exceeds his proper authority." 542 U.S., at ___(slip op., at 7).

The Blakely Court held that "[t]his case is not about whether determinate sentencing is constitutional, only about how it can be implemented in a way that respects the Sixth Amendment. … First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. … Of course indeterminate schemes involve judicial factfinding, in that a judge … may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence-and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. … In a system that punishes burglary with a 10-year sentence, with another 30 added for use of a gun, the burglar who enters a home unarmed is entitled to no more than a 10-year sentence-and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury." 542 U.S., at___(slip op., at 12-13).

It is a long standing precedent in all courts, that a jury can only return a verdict on the elements that are explicitly cited in the indictment. For the verdict to be based on any element more or any element less is plain constructive amendment to the indictment and violates the process described in the Fifth Amendment.

Blakely, describes how this process is violated even further under the subclauses of the Sixth Amendment that, "[a]ny evaluation of Apprendi's 'fairness'
to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, see 21 U.S.C. §§ 841 (b) (1) (A), (D), based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong. We can conceive of no measure of fairness that would find more fault in the utterly speculative bargaining effects JUSTICE BREYER identifies than in the regime he champions. Suffice it to say that, if such a measure exists, it is not the one the Framers left us with. … the Sixth Amendment was not written for the benefit of those who choose to forgo its protection. It guarantees the right to jury trial." 542 U.S., at___(slip op., at 15-17).

Justice O'Connor dissenting, proclaimed,"[u}nder the majority's approach, any fact that increase the upper bound on a judge's sentencing discretion is an element of the offense. …, all must now be charged in an indictment and submitted to a jury, In re Winship, 937 U.S. 358 (1970), …

The Guidelines have the force of law, see Stinson v. United States, 508 U.S. 36 (1993); and Congress has unfettered control to reject or accept any particular guideline, Mistretta, 488 U.S., at 393-394.

What I have feared most has now come to past: over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy. Apprendi, 530 U.S., at 549-559 (O'Connor, J., dissenting); …" 542 U.S., at ___(slip op., at 5-6, 12) (O'Connor, J., dissenting).

Justice Breyer, said: "[T]he Court makes clear that it means what it said in Apprendi v. New Jersey, 530 U.S. 466 (2000). In its view, the Sixth Amendment says that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury," Ante, at 5 (quoting Apprendi, supra, at 490). "[P]rescribed statutory maximum" means the penalty that the relevant statute authorizes 'solely on the basis of the facts reflected in jury verdict,' Ante, at 7 … Thus, a jury must find, not only the facts that make up the crime of which the offender is charged, but also all (punishment-increasing) facts about the way in which the offender carried out that crime." 542 U.S., at ___(slip op., at 1) (Breyer, J., dissenting).

The Blakely opinion sent the Federal Sentencing Guidelines into a tailspin. The lower courts scrambled to make sense of the Blakely opinion and what, if any, ramifications it had for the Federal Sentencing Guidelines. Numerous, lower courts were asking the Supreme Court to answer the Federal Guidelines question in response to Blakely. The First, Second, and Seventh Circuits sent cases to the Supreme Court to be certed and, the courts asked the Supreme Court to come back early to render a decision.