OPINION OF SCALIA, J.
RITA V. UNITED STATES
551 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 06-5754
VICTOR A. RITA, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the fourth circuit
[June 21, 2007]
Justice Scalia, with whom Justice
Thomas joins, concurring in part and concurring in the
judgment.
In
United States v.
Booker,
543 U. S. 220 (2005), five Justices of
this Court, I among them, held that our previous decision in
Blakely v.
Washington,
542 U. S. 296 (2004), applied to
sentences imposed under the Federal Sentencing Guidelines because
those Guidelines were mandatory and binding on judges. See 543 U.
S., at 233–234, 243–244. We thus reaffirmed that “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea
of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.”
Id., at 244.
In response to this constitutional holding, a different majority of
five Justices held that the appropriate remedy was to make the
Guidelines nonmandatory in all cases and to review sentences on
appeal only for reasonableness. See
id., at 258–265. I
disagreed with the Court’s remedial choice, believing instead that
the proper remedy was to maintain the mandatory character of the
Guidelines and simply to require, for that small category of cases
in which a fact was legally essential to the sentence imposed, that
the fact be proved to a jury beyond a reasonable doubt or admitted
by the defendant. See
id., at 272–291 (Stevens, J., joined
by Scalia and Souter, JJ., dissenting in part).
I do not mean to reopen that debate. As a
matter of statutory
stare decisis, I accept
Booker’s remedial holding that district courts are no
longer bound by the Guidelines and that appellate courts should
review the sentences imposed for reasonableness. As should be clear
from our need to decide the case today, however, precisely what
“reasonableness” review entails is not dictated by
Booker.
As I lamented then, “[t]he worst feature of the scheme is that no
one knows—and perhaps no one is meant to know—how advisory
Guidelines and ‘unreasonableness’ review will function in
practice.”
Id., at 311 (Scalia, J., dissenting in
part).
Earlier this Term, the Court intensified its
silence when it declined to flesh out what it had in mind in the
face of an argument that the form of reasonableness review had
constitutional implications. In
Cunningham v.
California, 549 U. S. ___ (2007), Justice Alito defended
the constitutionality of California’s sentencing system in part by
arguing that, even post-
Booker, some federal sentences
will be upheld as reasonable only if the judge makes additional
findings of fact beyond those encompassed by the jury verdict or
guilty plea. 549 U. S., at ___, and n. 11 (slip op., at 13,
and n. 11) (dissenting opinion). The
Cunningham
majority’s response, much like the
Booker remedial
opinion, was cryptic. While the Court did not explain
why
Justice Alito was incorrect, it strongly intimated that his premise
was wrong: that he had erroneously “anticipate[d]” how
“reasonableness review operates in practice.”
Cunningham,
549 U. S., at ___, n. 15 (slip op., at 20,
n. 15)
. Because that question is squarely presented
in this case that was then pending, the Court found it “neither
necessary nor proper … to join issue with Justice Alito on this
matter,” suggesting that all would be revealed in the opinion we
issue today. See
id., at ___, n. 13 (slip op., at 15,
n. 13).
Today has arrived, and the Court has broken
its promise. Nothing in the Court’s opinion explains why, under the
advisory Guidelines scheme, judge-found facts are
never
legally necessary to justify the sentence. By this I mean the Court
has failed to establish that every sentence which will be imposed
under the advisory Guidelines scheme could equally have been
imposed had the judge relied upon no facts other than those found
by the jury or admitted by the defendant. In fact, the Court
implicitly, but quite plainly, acknowledges that this will not be
the case, by treating as a permissible post-
Booker claim
petitioner’s challenge of his within-Guidelines sentence as
substantively excessive. See
ante, at Part IV. Under the
scheme promulgated today, some sentences reversed as excessive will
be legally authorized in later cases only because additional
judge-found facts are present; and, as Justice Alito argued in
Cunningham, some lengthy sentences will be affirmed
(
i.e., held lawful) only because of the presence of
aggravating facts, not found by the jury, that distinguish the case
from the mine-run. The Court does not even attempt to explain how
this is consistent with the Sixth Amendment.
No explanation is given because no explanation
is possible. The Court has reintroduced the constitutional defect
that
Booker purported to eliminate. I cannot acquiesce in
this course. If a sentencing system is permissible in which some
sentences cannot lawfully be imposed by a judge unless the judge
finds certain facts by a preponderance of the evidence, then we
should have left in place the compulsory Guidelines that Congress
enacted, instead of imposing this jerry-rigged scheme of our own.
In order to avoid the possibility of a Sixth Amendment violation,
which was the object of the
Booker remedy, district courts
must be able, without finding any facts not embraced in the jury
verdict or guilty plea, to sentence to the maximum of the
statutory range. Because, therefore, appellate courts
cannot reverse within-range sentences for being too high; and
because no one would contend that Congress intended that sentences
be reviewed only for being too low; I would hold that
reasonableness review cannot contain a substantive component at
all. I believe, however, that appellate courts can nevertheless
secure some amount of sentencing uniformity through the procedural
reasonableness review made possible by the
Booker remedial
opinion.
I
A
The Sixth Amendment requires that
“[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”
Booker, 543 U. S., at 244. Two hypotheticals will suffice
to reveal why the notion of excessive sentences within the
statutory range, and the ability of appellate courts to reverse
such sentences, inexorably produces, in violation of the Sixth
Amendment, sentences whose legality is premised on a judge’s
finding some fact (or combination of facts) by a preponderance of
the evidence.
First, consider two brothers with
similar backgrounds and criminal histories who are convicted by a
jury of respectively robbing two banks of an equal amount of money.
Next assume that the district judge finds that one brother, fueled
by racial animus, had targeted the first bank because it was owned
and operated by minorities, whereas the other brother had selected
the second bank simply because its location enabled a quick
getaway. Further assume that the district judge imposes the
statutory maximum upon both brothers, basing those sentences
primarily upon his perception that bank robbery should be punished
much more severely than the Guidelines base level advises, but
explicitly noting that the racially biased decisionmaking of the
first brother further justified his sentence. Now imagine that the
appellate court reverses as excessive only the sentence of the
nonracist brother. Given the dual holdings of the appellate court,
the racist has a valid Sixth Amendment claim that his sentence was
reasonable (and hence lawful) only because of the judicial finding
of his motive in selecting his victim.[
Footnote 1]
Second, consider the common case in which the
district court imposes a sentence
within an advisory
Guidelines range that has been substantially enhanced by certain
judge-found facts. For example, the base offense level for robbery
under the Guidelines is 20, United States Sentencing Commission,
Guidelines Manual §2B3.1(a) (Nov. 2006), which, if the defendant
has a criminal history of I, corresponds to an advisory range of
33–41 months,
id., ch. 5, pt. A, Sentencing Table.
If, however, a judge finds that a firearm was discharged, that a
victim incurred serious bodily injury, and that more than $5
million was stolen, then the base level jumps by 18, §§2B3.1(b)(2),
(3), (7), producing an advisory range of 235–293 months,
id., ch. 5, pt. A, Sentencing Table. When a judge
finds all of those facts to be true and then imposes a
within-Guidelines sentence of 293 months, those judge-found facts,
or some combination of them, are not merely facts that the judge
finds relevant in exercising his discretion; they are the legally
essential predicate for his imposition of the 293-month sentence.
His failure to find them would render the 293-month sentence
unlawful. That is evident because, were the district judge
explicitly to find
none of those facts true and
nevertheless to impose a 293-month sentence (simply because he
thinks robbery merits seven times the sentence that the Guidelines
provide) the sentence would surely be reversed as unreasonably
excessive.
These hypotheticals are stylized ways of
illustrating the basic problem with a system in which district
courts lack full discretion to sentence within the statutory range.
Under such a system, for every given crime there is some maximum
sentence that will be upheld as reasonable based only on the facts
found by the jury or admitted by the defendant.
Every
sentence higher than that is legally authorized only by some
judge-found fact, in violation of the Sixth Amendment. Appellate
courts’ excessiveness review will explicitly or implicitly accept
those judge-found facts as justifying sentences that would
otherwise be unlawful. The only difference between this system and
the pre-
Booker mandatory Guidelines is that the maximum
sentence based on the jury verdict or guilty plea was specified
under the latter but must be established by appellate courts, in
case-by-case fashion, under the former. This is, if anything, an
additional constitutional disease, not a constitutional cure.
To be clear, I am not suggesting that the
Sixth Amendment prohibits judges from ever finding any facts. We
have repeatedly affirmed the proposition that judges can find facts
that help guide their discretion
within the sentencing
range that is authorized by the facts found by the jury or admitted
by the defendant. See,
e.g., Booker,
supra, at 233;
Apprendi v.
New Jersey,
530 U. S. 466,
481 (2000). But there is a fundamental difference, one underpinning
our entire
Apprendi jurisprudence, between facts that
must be found in order for a sentence to be lawful, and
facts that individual judges
choose to make relevant to
the exercise of their discretion. The former, but not the latter,
must be found by the jury beyond a reasonable doubt in order “to
give intelligible content to the right of jury trial.”
Blakely, 542 U. S., at 305.[
Footnote 2]
I am also not contending that there is a Sixth
Amendment problem with the Court’s affirmation of a presumption of
reasonableness for within-Guidelines sentences. I agree with the
Court that such a presumption never itself makes judge-found facts
legally essential to the sentence imposed, since it has no direct
relevance to whether the sentence would have been
unreasonable in the
absence of any judge-found
facts. See
ante, at 12–15.[
Footnote 3] Nor is my claim that the Sixth Amendment was
violated in this case, for petitioner cannot demonstrate that his
relatively low sentence would have been unreasonable if the
District Court had relied on nothing but jury-found or admitted
facts.
Rather, my position is that there will
inevitably be
some constitutional violations under a
system of substantive reasonableness review, because there will be
some sentences that will be upheld as reasonable only because of
the existence of judge-found facts.
Booker itself reveals
why that reality dooms the construct of reasonableness review
established and applied by today’s opinion.
Booker made
two things quite plain. First, reasonableness is the standard of
review implicitly contained within the Sentencing Reform Act of
1984 (SRA). 543 U. S., at 260–261. Second, Congress wanted a
uniform system of sentencing review, rather than different schemes
depending on whether there were Sixth Amendment problems in
particular cases.
Id., at 265–267. Thus, if the contours
of reasonableness review must be narrowed in
some cases
because of constitutional concerns, then they must be narrowed in
all cases in light of Congress’s desire for a uniform
standard of review. The Justices composing today’s Court were in
total agreement with this principle of statutory interpretation the
day
Booker was decided:
“[W]hen deciding which of two plausible statutory
constructions to adopt, a court must consider the necessary
consequences of its choice. If one of them would raise a multitude
of constitutional problems, the other should prevail—whether or not
those constitutional problems pertain to the particular litigant
before the Court.”
Clark v.
Martinez,
543 U. S. 371, 380–381
(2005) (opinion for the Court by Scalia, J., joined by,
inter
alios, Stevens, Kennedy, Ginsburg, and Breyer, JJ.).
Yet they now adopt substantive reasonableness
review without offering any rebuttal to my charge of patent
constitutional flaw inherent in such review. The one comfort to be
found in the Court’s opinion—though it does not excuse the failure
to apply
Martinez’s interpretive principle—is that it does
not rule out as-applied Sixth Amendment challenges to sentences
that would not have been upheld as reasonable on the facts
encompassed by the jury verdict or guilty plea.
Ante, at
14–15;
ante, at 6 (Stevens, J., joined by Ginsburg, J.,
concurring).[
Footnote 4]
B
Had the Court bothered to frame
objections to the constitutional analysis undertaken above, there
are four conceivable candidates.
1
The most simplistic objection is
that the Sixth Amendment is not violated because the judge-found
facts are made legally necessary by the decision of appellate
courts rather than the decision of Congress. This rebuttal errs
both in premise and in conclusion.
The premise is wrong because,
according to the remedial majority in
Booker, the facts
that excessiveness review renders legally essential are made such
by Congress. Reasonableness is the standard of review
implicitly contained within 18 U. S. C. §3742 (2000
ed. and Supp. IV). See
Booker,
supra, at 260–261.
But the Sixth Amendment would be violated even if appellate courts
really were exercising some type of common-law power to prescribe
the facts legally necessary to support specific sentences. Neither
Apprendi nor any of its progeny suggests that violation of
the Sixth Amendment depends upon what branch of government has made
the prescription. To the contrary,
Booker flatly rejected
the argument that the mandatory Guidelines were constitutional
because it was the Sentencing Commission rather than Congress that
specified the facts essential to punishment. See 543 U. S., at
237–239. And for good reason. The Sixth Amendment is “a reservation
of jury power.”
Blakely, 542 U. S., at 308. It makes no
difference whether it is a legislature, a Sentencing Commission, or
an appellate court that usurps the jury’s prerogative. Were it
otherwise, this Court could prescribe that the only reasonable
sentences are those consistent with the same mandatory Guidelines
that
Booker invalidated. And the California Supreme Court
could effectively reverse our decision in
Cunningham
simply by setting aside as unreasonable any trial-court sentence
that does not conform to pre-
Cunningham California
law.
2
The next objection minimizes the
extent to which excessiveness review makes judge-found facts
legally essential to punishment. If appellate courts will uphold,
based only on the facts found by the jury, a district court’s
decision to impose all but the lengthiest sentences, then the
number of sentences that are legally dependent on judge-found facts
will be quite small. Thus, the argument goes, there is no reason to
prohibit substantive reasonableness review altogether: Absent a
claim that such review creates a constitutional problem in a given
case, why prohibit it? I have already explained why this line of
defense is inconsistent with established principles of statutory
interpretation. See
supra, at 7–9. But even on its own
terms, the defense is inconsistent with
Booker because
reasonableness review is an improper and inadequate remedial scheme
unless it ensures that judge-found facts are
never legally
necessary to justify the sentence imposed under the advisory
Guidelines.
The mandatory Guidelines system
that was invalidated in
Booker had the same attribute of
producing unconstitutional results in only a small proportion of
cases. Because of guilty pleas and Guidelines ranges that did not
depend on judge-found facts, the overwhelming majority of sentences
imposed under the pre-
Booker federal system were perfectly
in accord with the Sixth Amendment. See
Booker, 543 U. S.,
at 248;
id., at 275–277 (Stevens, J., dissenting in part).
Booker nevertheless excised key statutory provisions
governing federal sentencing,
in order to eliminate
constitutional violations entirely. If our conjured-up system
does not accomplish that goal, then by what right have we
supplanted the congressionally enacted mandatory Guidelines?
If it is true that some sentences under
today’s Court-prescribed system will still violate the Sixth
Amendment, nonetheless allowing the system to go forward will
produce chaos. Most cases do not resemble my stylized
hypotheticals, and ordinarily defendants and judges will be unable
to figure out, based on a comparison of the facts in their case
with the facts of all of the previously decided appellate cases,
whether the sentence imposed would have been upheld as reasonable
based only on the facts supporting the jury verdict or guilty plea.
That will not stop defendants from making the argument, however,
and the Court certainly has not foreclosed them from trying. See
supra, at 8–9, and n. 4. Judges will have in theory
two options: create complicated charts and databases, based on
appellate precedents, to ascertain what facts are legally essential
to justify what sentences; or turn a deaf ear to these claims,
though knowing full well that some of them are justified. I bet on
the latter.[
Footnote 5] Things
were better under the mandatory Guidelines system, where every
judge could readily identify when the Sixth Amendment was being
violated, and could rule accordingly.
3
Proponents of substantive
reasonableness review could next argue that actual sentencing
involves the consideration of dozens of different facts in order to
make an individualized determination about each defendant. In the
real world, they would contend, it is difficult, if not impossible,
to determine whether any given fact was legally essential to the
punishment imposed. But identifying the particular fatal fact is
not necessary to identifying a constitutional violation. In the
second hypothetical given above, for example, it is not possible to
say which single fact, or which combination of facts, sufficed to
bring the sentence within the bounds of the “reasonable.” But it
is possible to say (indeed, it
must be said) that
some judge-found fact or combination of facts had that
effect—and that suffices to establish a Sixth Amendment
violation.
“Whether the judge’s authority to impose an
enhanced sentence depends on finding a specified fact …, one of
several specified facts . . ., or
any aggravating fact …,
it remains the case that the jury’s verdict alone does not
authorize the sentence. The judge acquires that authority only upon
finding some additional fact.”
Blakely,
supra, at
305.
4
The last conceivable defense of
the Guidelines-light would be to wrap them in the mantle of history
and tradition.
“[W]hen a practice not expressly prohibited by the
text of the Bill of Rights bears the endorsement of a long
tradition of open, widespread, and unchallenged use that dates back
to the beginning of the Republic, we have no proper basis for
striking it down. Such a venerable and accepted tradition is not to
be laid on the examining table and scrutinized for its conformity
to some abstract principle of [constitutional] adjudication devised
by this Court. To the contrary, such traditions are themselves the
stuff out of which the Court’s principles are to be formed.”
Rutan v.
Republican Party of Ill.,
497 U. S. 62, 95–96
(1990) (Scalia, J., dissenting) (footnote omitted).
This consideration has no application here. In the
federal system, prior to the SRA, substantive appellate review of a
district court’s sentencing discretion essentially did not exist.
See,
e.g., Dorszynski v.
United States,
418 U. S. 424,
431 (1974) (noting “the general proposition that once it is
determined that a sentence is within the limitations set forth in
the statute under which it is imposed, appellate review is at an
end”);
id., at 443 (“[W]ell-established doctrine bars
review of the exercise of sentencing discretion”). As for state
appellate review of sentences, as late as 1962, at least 39 States
did not permit appellate courts to modify sentences imposed within
the statutory limits. See Appellate Review of Sentences, A
Symposium at the Judicial Conference of the United States Court of
Appeals for the Second Circuit, 32 F. R. D. 249, 260
(1962). It would be an exaggeration to say that history reflects an
established understanding that appellate review of excessive
sentences conflicts with the Sixth Amendment. But it would also be
an exaggeration to say that the historical pedigree of substantive
appellate review of sentencing is so strong and clear as to
overcome the basic principle underlying the jury-trial right
applied by this Court in
Apprendi,
Blakely,
Booker, and
Cunningham.
C
A final defense of substantive
reasonableness review would be to invoke the intent of Congress or
of the
Booker remedial opinion. As for congressional
intent:
Of course Congress intended that judge-found facts
be legally essential to the punishment imposed; that was the whole
reason the mandatory Guidelines violated the Sixth Amendment. If we
are now to indulge a newfound respect for unconstitutional
congressional intent, we should reimpose the mandatory Guidelines
system. The quasi-Guidelines system the Court creates today manages
to contravene
both congressional intent
and the
Sixth Amendment.
As for the “intent” of the Booker
remedial opinion: That opinion purported to be divining
congressional intent
in light of what the Sixth Amendment
compelled. See 543 U. S., at 263–265. Absent some explanation
of why substantive reasonableness review does not cause judge-found
facts to justify greater punishment than the jury’s verdict or the
defendant’s guilty plea would sustain, I fail to understand how
such review could possibly have been intended by all five Justices
who composed the
Booker remedial majority. After all, at
least one of them did not intend “to override
Blakely, and
to render academic the entire first part of
Booker
itself,” and has confirmed that “[t]here would have been no
majority in
Booker for the revision of
Blakely
essayed in [Justice Alito’s
Cunningham] dissent.”
Cunningham, 549 U. S., at ___, n. 15 (slip op., at
20, n. 15) (opinion for the Court by Ginsburg, J.).
II
Abandoning substantive
reasonableness review does not require a return to the pre-SRA
regime that the
Booker remedial opinion sought to avoid.
See 543 U. S., at 263–265. As I said at the outset, I believe it is
possible to give some effect to the
Booker remedial
opinion and the purposes that it sought to serve while still
avoiding the constitutional defect identified in the
Booker merits opinion. Specifically, I would limit
reasonableness review to the sentencing
procedures
mandated by statute.
A
A central feature of the
Booker remedial opinion was its conclusion that the SRA
was not completely inseverable. See
id., at 258–265. As a
result, the Sentencing Commission “remains in place, writing
Guidelines, collecting information about actual district court
sentencing decisions, undertaking research, and revising the
Guidelines accordingly.”
Id., at 264. Likewise, sentencing
courts remain obligated to consider the various factors delineated
in 18 U. S. C. §3553(a) (2000 ed., Supp. IV), including the
now-advisory Guidelines range. 543 U. S., at 259–260. And they are
still instructed by that subsection to “impose a sentence
sufficient, but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of [that] subsection.”
Significantly, §3553(c) (2000 ed. and Supp. IV) continues to
require that district courts give reasons for their sentencing
decisions, a requirement the requisite detail of which depends on
whether the sentence is: (1) within the advisory Guidelines range;
(2) within an advisory Guidelines range that spans more than 24
months; or (3) outside the advisory Guidelines range. These
explanations, in turn, help the Commission revise the advisory
Guidelines to reflect actual sentencing practices consistent with
the statutory goals. See
Booker, supra, at 264 (citing 28
U. S. C. §994 (2000 ed. and Supp. IV)).
Booker’s retention of
these statutory procedural provisions furthered the congressional
purpose of “iron[ing] out sentencing differences,” 543 U.
S.
, at 263, and “avoid[ing] excessive sentencing
disparities,”
id., at 264. It is important that appellate
courts police their observance.
Booker excised the
provision of the SRA containing the standards for appellate review,
see
id., at 260 (invalidating 18 U. S. C. §3742(e)
(2000 ed. and Supp. IV)), but the remedial majority’s creation of
reasonableness review gave appellate courts the necessary means to
reverse a district court that: appears not to have considered
§3553(a); considers impermissible factors; selects a sentence based
on clearly erroneous facts; or does not comply with §3553(c)’s
requirement for a statement of reasons.[
Footnote 6] In addition to its direct effect on sentencing
uniformity, this procedural review will indirectly produce, over
time, reduction of sentencing disparities. By ensuring that
district courts give reasons for their sentences, and more specific
reasons when they decline to follow the advisory Guidelines range,
see §3553(c)(2) (2000 ed., Supp. IV), appellate courts will enable
the Sentencing Commission to perform its function of revising the
Guidelines to reflect the desirable sentencing practices of the
district courts. See
Booker, supra, at 264 (citing 28 U.
S. C. §994 (2000 ed. and Supp. IV)). And as that occurs,
district courts will have less reason to depart from the
Commission’s recommendations, leading to more sentencing
uniformity.[
Footnote 7]
One possible objection to procedural review
that the
Booker remedial opinion appears not to have
considered is 18 U. S. C. §3742(f) (2000 ed., Supp. IV), which
limits appellate courts to reversing sentences that are imposed “in
violation of law” or “as a result of an incorrect application of
the sentencing guidelines,” §3742(f)(1), or that fall in certain
categories and are either “too high” or “too low,”
§3742(f)(2).[
Footnote 8] But,
as I noted in
Booker, §3742(e) and §3742(f) are
inextricably intertwined: Having excised §3742(e)’s provisions
setting forth the standards for appellate review, it is nonsensical
to continue to apply §3742(f)’s provisions governing the “Decision
and Disposition” of appeals, which clearly track those now-excised
standards. See 543 U. S., at 306–307 (Scalia, J., dissenting in
part). I would hold that §3742(f) is “incapable of functioning
independently” of the provisions excised in
Booker, and is
thus inseverable from them. See
Alaska Airlines, Inc. v.
Brock,
480 U. S. 678, 684 (1987); 2 N.
Singer, Sutherland Statutes and Statutory Construction §44:4,
p. 576 (6th ed. 2001) (“Even where part of an act is
independent and valid, other parts which are not themselves
substantively invalid but have no separate function to perform
independent of the invalid portions of the act are also held
invalid”).
B
Applying procedural review in
this case does not require much further discussion on my part. I
join Part III of the Court’s opinion. See
ante, at
16–20.
* * *
The Court’s decision today leaves
unexplained why the mandatory Guidelines were unconstitutional, but
the Court-created substantive-review system that contains the same
potential for Sixth Amendment violation is not. It is irresponsible
to leave this patent inconsistency hanging in the air, threatening
in the future yet another major revision of Guidelines practices to
which the district courts and courts of appeals will have to
adjust. Procedural review would lay the matter to rest, comporting
with both parts of the
Booker opinion and achieving the
maximum degree of sentencing uniformity on the basis of judge-found
facts that the Constitution permits.
Footnote 1
Of course, it may be that some fact other
than racial animus would also have sufficed to sustain the
increased sentence. But it is undeniable that in the case at hand
the judicial finding of racial animus filled that role. See
Blakely v.
Washington,
542 U. S. 296, 305 (2004).
Footnote 2
For similar reasons, I recognize that the
Sixth Amendment problem with reasonableness review is created only
by the lack of district court discretion to impose
high
sentences, since eliminating discretion to impose
low
sentences is the equivalent of judicially creating mandatory
minimums, which are not a concern of the Sixth Amendment. See
Harris v.
United States,
536 U. S. 545, 568–569
(2002). But since reasonableness review should not function as a
one-way ratchet,
United States v.
Booker,
543 U. S. 220, 257–258, 266 (2005), we
must forswear the notion that sentences can be too low in light of
the need to abandon the concept that sentences can be too high.
Footnote 3
For this reason, I do not join Justice
Souter’s dissent. He wishes to give “district courts [assurance]
that the entire sentencing range set by statute is available to
them.”
Post, at 8. That is a proper goal—indeed, an
essential one to prevent the
Booker remedy from
effectively overturning
Apprendi and
Blakely. But
eliminating the presumption of reasonableness will not achieve it.
In those Circuits that
already decline to employ the
presumption, a within-Guidelines sentence has
never been
reversed as substantively excessive, Brief for New York Council of
Defense Lawyers as
Amicus Curiae 5, refuting the belief
that mere elimination of the presumption will destroy the
“gravitational pull,”
post, at 7 (Souter, J., dissenting),
to stay safely within the Guidelines. The only way to assure
district courts that they can deviate from the advisory Guidelines,
and to ensure that judge-found facts are never legally essential to
the sentence, is to prohibit appellate courts from reviewing the
substantive sentencing choices made by district
courts.
Footnote 4
The Court suggests that my reliance on
hypotheticals indicates that its interpretation of reasonableness
will not create a multitude of constitutional problems.
Ante, at 14; see also
ante, at 6 (Stevens, J.,
concurring). Setting aside the question whether the volume of
constitutional violations has any relevance to the application of
Martinez’s interpretive principle, the Court is wrong to
think that the constitutional problem today’s opinion ignores is
hypothetical, merely because I have used hypotheticals to describe
it. It is all too real that advisory Guidelines sentences routinely
change months and years of imprisonment to decades and centuries on
the basis of judge-found facts—as
Booker itself
recognized, see 543 U. S., at 236–237 (citing,
inter alia,
a case in which a defendant’s sentence increased from 57 months to
155 years).
Footnote 5
Perhaps I am too cynical. At least one
conscientious District Judge has decided to shoulder the burden of
ascertaining what the maximum reasonable sentence is in each case
based only on the verdict and appellate precedent, correctly
concluding that this is the
only way to eliminate Sixth
Amendment problems after
Cunningham if
Booker
mandates substantive reasonableness review. See
United
States v.
Griffin, No. 05–10175–WGY, 2007 WL 1620526,
*13–*14 (D. Mass., June 6, 2007) (Young, D. J.) (Sentencing
Memorandum).
Footnote 6
“Substance” and “procedure” are admittedly
chameleon-like terms. See
Sun Oil Co. v.
Wortman,
486 U. S. 717,
726–727 (1988). As the text indicates, my use of the term
“procedure” here includes the limiting of sentencing factors to
permissible ones—as opposed to using permissible factors but
reaching a result that is “substantively” wrong. I therefore
disagree with Justice Stevens that a district court which
discriminates against Yankees fans is acting in a procedurally
“impeccable” way.
Ante, at 6 (concurring opinion).
Footnote 7
Courts must resist, however, the temptation
to make procedural review more stringent because substantive review
is off the table. The judicial role when conducting severability
analysis is limited to determining whether the balance of a statute
that contains an unconstitutional provision is capable “of
functioning independently.”
Alaska Airlines, Inc. v.
Brock,
480 U. S. 678, 684 (1987). Courts have
no power to add provisions that might be desirable now that certain
provisions have been excised. Thus, when engaging in reasonableness
review to determine whether the district court has complied with
the various procedures in §3553, an appellate court cannot subject
the district court to any greater requirements than existed
pre-
Booker.
Footnote 8
I say “possible” because one could claim that
the failure to comply with 18 U. S. C. §3553’s procedural
requirements results in a sentence imposed in violation of law, and
thereby covered by §3742(f)(1). But §3742(f)(1)’s applicability to
such procedural errors is called into question by §3742(f)(2),
which specifically addresses sentences where “the district court
failed to provide the required statement of reasons [mandated by
§3553(c)(2)].” For the reasons specified in the text, however, I
see no need to grapple, post-
Booker, with the proper
interpretation of §3742(f).
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