SUPREME COURT TRANSFORMS USE OF SENTENCE GUIDELINES

WASHINGTON - The Supreme Court on Wednesday transformed federal criminal
sentencing by restoring to judges much of the discretion that Congress took
away 21 years ago when it put sentencing guidelines in place and told
judges to follow them.

The guidelines, intended to make sentences more uniform, should be treated
as merely advisory to cure a constitutional deficiency in the system, the
court held in an unusual two-part decision produced by two coalitions of
justices.

In the first part, five justices declared that the current guidelines
system violated defendants' rights to trial by jury by giving judges the
power to make factual findings that increased sentences beyond the maximum
that the jury's findings alone would support.

That portion of the opinion had been widely anticipated, growing directly
out of a similar conclusion the same five justices - John Paul Stevens,
Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg -
reached last June in invalidating the sentencing guidelines system in the
state of Washington.

The real question hanging over the case, which the court granted on an
expedited basis over the summer and heard in October on the opening day of
its new term, was how the justices would solve the problem.

So it was the second part of the decision - the remedy - that was the
surprise and that will shape the continuing debate over sentencing policy.
With Justice Ginsburg joining the four justices who dissented from the
first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy and
Chief Justice William H. Rehnquist - a separate coalition said the problem
could be fixed if the guidelines were treated as discretionary rather than
mandatory.

From now on, Justice Breyer said, writing for the majority in this portion
of the decision, judges "must consult" the guidelines and "take them into
account" in imposing sentences. But at the end of the day the guidelines
will be advisory only, with sentences to be reviewed on appeal for
"reasonableness." Lawmakers and legal experts predicted Wednesday that the
court's decision would renew the struggle between Congress and the
judiciary for control over sentencing. On Capitol Hill, some members of
Congress made it clear that they were bracing for a fight over how much
discretion federal judges should have.

The decision leaves many unanswered questions and much work for the federal
courts of appeals. It is in the appeals courts that its real meaning will
emerge, as those courts handle sentencing appeals and build a body of law
evaluating the "reasonableness" of sentences.

Thousands of federal defendants who have been sentenced since the decision
in the Washington State case have effectively been in limbo awaiting
clarification of the situation. People whose sentences are still on appeal
will be immediately affected by the ruling.

The guidelines provide judges with a grid with the offense for which the
defendant has been convicted on one axis and the offender's history and
other details on another. The grid gives the judges a range of possible
sentences and the system instructs them to go above that range if they make
certain factual findings. It was this mandatory aspect of the system that
was at issue in the case.

The remedy devised by Justice Breyer's five-member majority had not been
proposed by any party, although the Justice Department suggested a form of
advisory guidelines as a fallback position to its defense of the system's
constitutionality. Christopher A. Wray, an assistant attorney general, said
Wednesday that the department was relieved to see the guidelines remain in
place but concerned that sentencing disparities might increase now that
they were no longer mandatory.

The decision, United States v. Booker, No. 04-104, had its roots in a
series of intensely disputed sentencing rulings that began with Apprendi v.
New Jersey in 2000. In a series of cases, the court has held that given the
Sixth Amendment right to trial by jury, judges cannot impose sentences
beyond the "prescribed statutory maximum" unless the facts supporting such
an increase are found by a jury beyond a reasonable doubt.

Under that analysis, the constitutional cloud over federal criminal
sentencing derived from the mandatory nature of the guidelines, which
instruct judges to consider various facts, like a defendant's leadership
role in a criminal enterprise, and to increase sentences beyond the
guidelines accordingly. The court made it clear in the Washington State
case last June that the top of an ordinary guideline range was the
equivalent of a statutory maximum.

But if judges simply exercise their traditional sentencing discretion,
advised by guidelines but not bound by them, the defendant's Sixth
Amendment right is not implicated, a conclusion on which all nine justices
agreed on Wednesday. In other words, as judges' flexibility grows,
defendants' Sixth Amendment protections shrink.

The dispute on the court was not over that paradoxical proposition, but
rather over how Congress would have chosen to proceed if it had known of
the Sixth Amendment issue when it put the guidelines system in place in the
Sentencing Reform Act of 1984. When the Supreme Court finds a statute
unconstitutional, the court's next step is to see whether there is a
solution consistent with the legislators' original intent.

Dissenting from the remedy portion of the decision, Justice Stevens, with
Justices Souter, Scalia and Thomas, said in effect that the last thing
Congress would have done would be to give judges back the power that the
guidelines were intended to constrain.

Rather, the dissenters said, if the problem was a violation of the right to
trial by jury, the solution also lay with the jury: to require prosecutors
to make indictments more specific and to present to the jury any factor
that would increase a sentence beyond the ordinary range. Justice Stevens
said that in avoiding this solution and instead changing the nature of the
guidelines themselves, it was "clear that the court's creative remedy is an
exercise of legislative, rather than judicial, power," one that "violates
the tradition of judicial restraint."

Justice Breyer insisted, however, that his was the solution that "would
deviate less radically from Congress's intended system." He said that to
make jury findings the basis for sentencing would shift too much power to
prosecutors and "undermine the sentencing statute's basic aim of ensuring
similar sentences for those who have committed similar crimes in similar ways."

Justice Breyer spoke with some authority; as chief counsel of the Senate
Judiciary Committee in the 1970's, he played a leading role in the passage
of the Sentencing Reform Act and later was a member of the United States
Sentencing Commission. He had been on the losing side of the Apprendi
decision and the subsequent rulings.

Though the outcome Wednesday was not one he would have wished - he argued
in dissent from the first part of the decision that guidelines were
different than statutes and that the analysis of the earlier rulings should
not apply - the decision was in some ways a personal triumph. The
Sentencing Commission remains intact and the guidelines are still on the
books, with the presumption that most judges will follow them most of the time.

The mystery in the case was Justice Ginsburg, who joined the Stevens group,
as she consistently has, in applying the Sixth Amendment to the guidelines.
She then provided Justice Breyer with his fifth vote to preserve the
system's architecture. She did not write a separate opinion to explain
herself. The court took considerably longer on the case than had been
expected. Many people thought a decision would be out by Thanksgiving, and
it is possible that Justice Ginsburg's vote, and therefore the outcome, was
in play until late in the process.

The portion of Justice Breyer's opinion that dealt with appeals had the
effect of overturning a 2003 Congressional amendment to the sentencing law
that instructed appeals courts to give no deference to the decisions of
trial judges when reviewing sentences shorter than those called for by the
guidelines. That provision, known as the Feeney Amendment for its sponsor,
Representative Tom Feeney, Republican of Florida, was an expression of
Congressional impatience with the judiciary and in turn angered many
federal judges.

It was not clear Wednesday whether Freddie J. Booker and Ducan Fanfan, the
two defendants in the case before the court, would benefit from the ruling.
Mr. Booker, convicted in Federal District Court in Madison, Wis., of
possessing 50 grams of cocaine base, received an extra 8 years on a 22-year
sentence when the judge found that he had distributed 10 times that amount.

After Mr. Fanfan was found guilty by a jury in Portland, Me., of
distributing 500 grams of cocaine, the judge refused the government's
request to increase the sentence, predicting that the Supreme Court would
soon find the guidelines unconstitutional. Both defendants will now go back
to district court for possible resentencing, with an appeal available to
both sides.