Making Sense of Booker and Fanfan
Spring 2005

In United States v. Booker and United States v. Fanfan, the Supreme Court concluded that the Federal Sentencing Guidelines violate the Sixth Amendment right to a trial by jury. Citing Apprendi, Ring, and Blakely (see Timeline), the Court began its analysis by stating that “other than the fact of a prior conviction, 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.” 2005 WL 50108, at *7 (quoting Apprendi, 530 U.S. at 490). Consequently, “the statutory maximum … 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.”  (quoting Blakely, 124 S. Ct. at 2537; emphasis in original). Because the Guidelines impose upon judges the obligation to examine evidence and make factual findings that could increase a defendant’s sentence above what would be permitted by the jury’s verdict alone, the Court determined that the Guidelines were unconstitutional.

The Court then announced its unexpected decision to salvage the Guidelines by making them advisory. Explaining this decision, the Court noted that under Williams, a trial judge may constitutionally exercise his or her discretion to select a specific sentence within a defined range. If the Guidelines are advisory, the judge may exercise his or her discretion in this way without violating the Sixth Amendment, because under these circumstances a jury need not find the predicate facts bearing on sentencing. Under the Court’s new regime,“district courts, while not bound to apply the Guidelines, must consult them and take them into account when sentencing.”

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