Revised - A bit on Booker & Fanfan, and looking back at Mistretta and Apprendi

Yesterday the Solicitor General filed the Reply Brief in Booker & Fanfan, and now the case is ready for oral argument on October 4th, 2004.

The Solicitor General has insisted that Blakely does not apply to the federal sentencing guidelines because they are not statutes, and are therefore different than the legislatively enacted Washington State sentencing guidelines. All briefs for respondents Booker and Fanfan, as well as the amici briefs in support of respondents have done an effective job addressing this issue.

But, quite frankly, trying to decide which way the Supreme Court will go is a bit like reading tea leaves. The Solicitor General's theme seems to be that "statutory maximum" whether for Apprendi purposes or for any other purpose, means the maximum penalty enacted by Congress for the offense, rather than any top of a guidelines' base offense level.

Every federal criminal defense lawyer knows that the Supreme Court upheld the constitutionality of the guidelines in Mistretta v. United States, 488 U.S. 361 (1989). Mistretta, however, dealt with issues of separation of powers, delegation of power, and not the Sixth Amendment right to jury trial. A lot has rained since Mistretta was initially decided, including the composition of the Court, and we have a lot more knowledge as to how the Sentencing Commission and Congress have operated during this period as regards the guidelines. I thought it would be prudent to go back to Mistretta.

In Mistretta you had Justice Blackmun, who delivered the opinion of the Court, in which Chief Justice Rehnquist, and Justices White, Marshall, Stevens, O'Connor, and Kennedy, joined, and Justice Brennan who also joined in all but n. 11. Justice Scalia filed a dissenting opinion, in which he famously referred to the creation of the Sentencing Commission as the creation of a Fourth Branch of Government, "a sort of junior-varsity Congress." Id. at 427.

After reviewing Mistretta, only Justice Scalia's dissent made any sense to me. And his dissent in Mistretta makes it very clear that he will view the federal guidelines as legislative in nature. It is a gem, and I strongly recommend you read it again.

While Mistretta was an 8-1 opinion, 4 of the Justices (Blackmun, Brennan, White and Marshall) out of those 8 are no longer in the Court. In their places we have Justices Thomas, Souter, Ginsburg and Breyer. Of these four, all but Justice Breyer joined in Apprendi, together with Justices Scalia (the sole Mistretta dissenter), and Stevens (who authored the Court's opinion in Apprendi).

In Apprendi, Stevens, J., delivered the opinion of the Court, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Scalia, J., filed a concurring opinion. Thomas, J., filed a concurring opinion, in which Scalia, J., joined as to Parts I and II. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Kennedy and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., joined. In Justice Scalia's concurring opinion in Apprendi you can already see the strong language towards Justice Breyer's views on the matter, as we saw in Blakely.

In Blakely, you have the exact same lineup as in Apprendi. But it is curious that while both Justices O'Connor and Breyer predicted that the Court was in effect dooming the federal sentencing guidelines in Blakely, neither Chief Justice Rehnquist nor Justice Kennedy joined that portion of Justice O'Connor's dissent. Could it be that Justice O'Connor and Breyer finally purchase tickets to Apprendi-land in an effort to save the guidelines by making their voices heard on the severability issue? I seriously doubt it, but wopuld appreciate your expressing your views on this in the comments.

In his opening merits brief, the Solicitor General --very much aware that Justice Scalia's opinion had used 21 U.S.C. §§841(b)(1)(A), (D) as an example in Blakely, slip op. at 15, a non-federal case in which he was also stating that the federal guidelines were not before the Court-- argued that some federal statutes, such as § 841 carried different statutory maximums in the statute itself. This, in my view, is an obvious effort to peel away some of the Justices in the Blakely majority, who joined without any objection or clarification offered to the example provided by Justice Scalia.

Were there Justices in the Blakely majority who did not think the federal guidelines are legislative in nature and that Blakely would not be extended to the federal guidelines? If so, given the dissenters' predictions, and the obvious confusion Blakely's aftermath would cause in the federal criminal justice system, why did they not at least make a clearer distinction? It hardly would suffice to say that they didn't realize it would have such impact, given the dissenters' predictions.

The Solicitor General has a hard row come October 4th, as I think his arguments on the guidelines not being legislative in nature is a rather poor one, at least given what we now know of the manner in which the Sentencing Commission and Congress have operated in regards to the guidelines. As to the Sentencing Commission's placement in the judicial branch, I sauggest you read Justice Scalia's dissent in Mistretta.

The harder question for the Court will be the severability issue, and there may well be a split at that juncture, although I would assume that the Justices would be keenly aware that how they go on this issue would influence Congress' reaction to Booker & Fanfan.

Congress, after all, does not appear to have lost its appetite for mandatory minimums, as seen by the threats made by Rep. Feeney (R-Fla) in his appearance at the Heritage Foundation sponsored discussion on federal sentencing (see posts here and here), or as appears by the bill that Rep. Sensenbrenner (R-Wis) is currently pushing in the House (see post here). It is as if these fellows were not even capable of realizing the impact of the Feeney Amendment and enactment of mandatory minimums may have had on the judiciary's views of the so-called guidelines.

Note: I revised this post to correct a rather serious mistake on my part - having placed Justice Kennedy in the Blakely majority. Sorry for the misinformation. I will expand this post to analyze other cases (and mainly the votes of the various Justices in those cases) spanning the Mistretta to Blakely spectrum.

Trivia: Did you know that Mistretta was argued on October 5th, 1988, almost 16 years earlier to the date than the Booker & Fanfan cases will be argued on October 4th? And did you know that Blakely was decided almost 4 years to the date when Apprendi was decided?