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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.


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
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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