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20 Crim. Just. 1 (2005-2006)

handle is hein.journals/cjust20 and id is 1 raw text is: Chair' Reor toMmbr Catherine L. Anderson Booker Opens Pandora's Box of Sentencing Uncertainty hile I was writing for the last issue of Criminal Justice, the Supreme Court was hearing oral argument in United States v. Booker. Now, as I begin writing for this issue, the Court has just issued its much-anticipat- ed and momentous decision in that case, holding that the Federal Sentencing Guidelines run afoul of the Sixth Amendment as con- B oo k strued by the Court in Blakely v. Washington, into q 124 S. Ct. 2531 (2004). (United States v. Booker, near 543 U.S. __, slip op. at 1-2 (Jan. 12, 2005) (Stevens, J., for the decades Court).) The Court also held, in a separate a n d pr majority opinion, that the Sixth Amendment violation is properly remedied by excising the provision of the Sentencing Reform Act that requires the judge to impose a sentence within the Guidelines. (Id., slip op. at 2 (Breyer, J., for the Court).) By invalidating mandatory operation of the Guidelines, the Court's holding calls into question nearly two decades of sentencing policy and proce- dure. It thus appears that the muddle and uncer- tainty foreshadowed by Acting Solicitor General Clement at oral argument may indeed come to pass. As Professor Dershowitz notes: Massive liti- gation probably will follow, with inconsistent results. (Alan Dershowitz, Prima Donnas in Robes, L.A. TIMES, Jan. 17, 2005, at B 11.) The uncertainty is compounded by the dizzy- ing array of opinions and alliances. With six sepa- rate opinions in such an important and influential Hon. Catherine L. Anderson is the chair of the Criminal Justice Section and a district court judge in Minneapolis, Minnesota. e 0 case, the Court's divergence may further erode public faith in the judiciary and in the rule of law. Even more confounding, of the five Justices who held that severability is the proper remedy for the constitutional infirmity of the Guidelines, four do not even ascribe to the Sixth Amendment jurisprudence estab- lished by Apprendi v. New Jersey, 530 U.S. 'r calls 466 (2000), and its progeny. iesti o n The Booker deci- sion leaves in its wake at least two glaring Stwo questions, each likely to be the subject of of policy intensive debate until such time as Congress ced u re. responds or the Court revisits its holding. The first question aris- es from the Court's holding that district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sen- tencing. (Booker, slip op. at 21-22 (Breyer, J., for the Court).) Naturally, that holding raises the ques- tion of just how 'advisory' the Guidelines are. (U.S. v. Wilson, __ F. Supp. 2d __, 2005 WL 78552, at *1 (D. Utah Jan. 13, 2005).) In Justice Scalia's view, logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines), has full discre- tion, as full as what he possessed before the Act was passed, to sentence anywhere within the statu- tory range. (Booker, slip op. at 4 (Scalia, J., dis- senting).) One federal judge had to tackle this question the very next day. He concluded: In all but the most unusual cases, the appropriate sen- tence will be the Guidelines sentence. (Wilson, 2005 WL 78552, at *12.) (Continued on page 22) CRIMINAL JUSTICE m Spring 2005 1

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