UNITED STATES Vs. BOOKER, 543 U.S. (2005)

On January 12, 2005, the Supreme Court in United States v. Booker 543 U.S.__(2005), answered in the affirmative the question of whether its holding in Blakely v. Washington, 542 U.S.___(2004), applied to the Federal Sentencing Guidelines bases on the sentencing judge's determination of a fact … that was not found by the jury or admitted the defendant." 543 U.S., at___(slip op., at I) (Breyer, J.)(Part II).

In an opinion by Justice Stevens the Court held: "It has been settled throughout our history that the Constitution protects every criminal defendant 'against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.' In re Winship, 397 U.S. 358, 364 (1970). It is equally clear that the 'Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.' United States v. Gaudin, 515 U.S. 506, 511 (1995)." 543 U.S., at___(slip op., at 5) (Stevens, J.) (Part I).

Part I of Booker, explicitly relied on the Court's opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), which considered New Jersey's hate crime enhancement to second-degree possession of a firearm for an unlawful purpose. Concluding that the New Jersey court could not label the hate crime a " 'sentencing enhancement' rather than a separate criminal act … [That] [m]erely using the label 'sentence enhancement' to describe the latter did not provide a principled basis for treating the two crimes differently. Id., at 476." 543 U.S., at___(slip op., at 6).

Part I of Booker, also relied on the Court's opinion in Ring v. Arizona, 536 U.S.584 (2002), which considered Arizona's death penalty based on aggravating factors found by the trial judge. Concluding "that it was impermissible for 'the trial judge, sitting alone' to determine the presence or absence of the aggravating factors required by Arizona law for the imposition of the death penalty. Id., 588-589. …[The] opinion made it clear that ultimately, …., 'the characterization of a fact or circumstance as an 'element' or a 'sentencing factor' is not determinative of the question 'who decides,' judge or jury,' id., at 605." 543 U.S., at___(slip op., at 6-7).

Part I of Booker, explicitly relied on the Court's opinion in Blakely v. Washington, 542 U.S.___ (2004), which "dealt with a determinate sentencing scheme similar to the Federal Sentencing Guidelines. …. For reasons explained in Jones, Apprendi, and Ring, the requirements of the Sixth Amendment were clear. The application of Washington's sentencing scheme violated the defendant's right to have the jury find the existence of "any particular fact" that the law makes essential to his punishment. 542 U.S. at___(slip op., at 5). That right is implicated whenever a judge seeks to impose a sentence that is not solely based on 'facts reflected in the jury verdict or admitted by the defendant.' Id., at___(slip op., at 7). … Our precedents, we explained, make clear '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. Ibid. (slip op., at 7) … The determination that the defendant acted with deliberate cruelty, like the determination in Apprendi that the defendant acted with racial malice, increased the sentence that the defendant could have otherwise received. Since this fact was found by a judge using the preponderance of the evidence standard, the sentence violated Blakely's Sixth Amendment rights," 543 U.S., at___(slip op., at 7-8).

The effect of the increasing emphasis on facts that enhanced sentencing ranges, however, was to increase the judge's power and diminish that of the jury. It became the judge, not the jury, that determined the upper limits of sentencing, and the facts determined were not required to be raised before trial or proved by more than a preponderance.

As the enhancements became greater, the jury's finding of the underlying crime became less significant. And the enhancements became very serious indeed. See, e.g., Jones, 526 U.S., at 330 (judge's finding increased the maximum sentence from 15 to 25 years); respondent Booker (from 262 months to a life sentence); respondent Fanfan (from 78 months to 235 months); … Rodriguez, 73 F. 3d. 161, 162-163 … (from approximately 54 months to a life sentence); …Hammoud, 381 F.3d 316, 361-362 … (actual sentence increased from 57 months to 155 years).

….[T]he Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superceded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism, but the need to preserve Sixth Amendment substance." 543 U.S., at___(slip op., at 11-12).

WE NOW TURN TO THE QUESTION OF WHICH PORTIONS OF THE SENTENCING STATUTE WE MUST SEVER AND EXCISE AS INCONSISTENT WITH THE COURT'S CONSTITUTIONAL REQUIREMENT. … (SEE UNDERWOOD I, 932 F. 2nd at 1055 "where 18 U.S.C. § 374, 2(e) was upheld against him.")