1. The federal Sentencing Guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine.As you can tell, this was not an issue of applying Blakely to the federal sentencing guidelines. It is a district court reconsideration -sort of- of Mistretta, given the impact that -surprise, surprise- the Feeney Amendment has had on the U.S. Sentencing Commission and how that amendment has wreaked havoc on what the Supreme Court envisioned the Sentencing Commission as in Mistretta. Only the discussion on separation of powers is not as between the legislative and judiciary, which Mistretta dealt with, but between the judiciary and the executive branches.
2. The defects are not severable.
3. The federal Sentencing Guidelines will be treated as true guidelines, and not mandates, when imposing sentence in this and all future cases, pending further directions from a higher court or the Congress.
Prior to the Booker & Fanfan oral arguments I started doing some reading on the Supreme Court cases from Mistretta onwards. When I re-read Mistretta, in light of what we now know of the manner in which the U.S. Sentencing Commission has operated, only Justice Scalia's dissent made any sense.
The U.S. Sentencing Commission should be doing double time right now by making the guidelines Sixth Amendment friendly, as well as preparing proposals for Congress. Or does the Sentencing Commission think it should leave that job to the Department of Justice?!
