Much Ado about Sentencing: The Influence of Apprendi, Blakely, and Booker in the U.S. Courts of Appeals*

By Hurwitz, Mark S. | Justice System Journal, January 1, 2006 | Go to article overview

Much Ado about Sentencing: The Influence of Apprendi, Blakely, and Booker in the U.S. Courts of Appeals*


Hurwitz, Mark S., Justice System Journal


In a line of cases commencing with Apprendi v. New Jersey (2000), the Supreme Court has held the Constitution commands that juries must decide factual issues that lead to sentencing determinations by judges. When the Apprendi logic was extended to Blakely v. Washington (2004) regarding state sentencing guidelines, the mandatory sentencing scheme in the federal Sentencing Guidelines seemed threatened. Indeed, the Supreme Court continued this line of thinking in United States v. Booker (2005), when it held the mandatory nature of the federal Sentencing Guidelines unconstitutional. I analyze the influence of these Supreme Court decisions by showing how the courts of appeals handled these new directives in sentencing, particularly during the short time between Blakely and Booker when the state of the law in federal courts was in flux. My purpose is to decipher how the federal courts handled this area of the law while it remained open and subject to dissimilar interpretations. Accordingly, I traverse the federal courts' rationale for sentencing from Apprendi to Booker, concentrating in detail on the short time frame between Blakely and Booker.

For many years, federal court judges enjoyed considerable discretion in their sentencing decisions, as sentences were largely based on an indeterminate system. The consequence was a great disparity of sentences even for those convicted of similar crimes. In response to a system that, for myriad reasons, seemed troubled if not broken, Congress passed the Sentencing Reform Act of 1984. Among other things, this law created a commission empowered to devise sentencing guidelines for the federal system. The commission thereafter promulgated the federal Sentencing Guidelines (hereafter, Sentencing Guidelines), which encompassed a more determinate sentencing scheme the Sentencing Reform Act made binding on federal judges. In this largely determinate system that became effective on November 1, 1987, judges were required to follow the Sentencing Guidelines, though the Guidelines permitted discretion to depart from them when the presiding judge found aggravating or mitigating factors present.

When the constitutionality of this commission was initially challenged, in Mistretta v. United States (1989), the Supreme Court held that creation of the commission that designed the Sentencing Guidelines did not violate any separation-ofpowers notions. Consequently, the Sentencing Guidelines were deemed constitutional. The Guidelines thus provided the mechanism by which federal judges handled sentencing for over a decade. Indeed, after Mistretta, the authority of the Sentencing Guidelines hardly seemed in doubt.

Then, however, the Supreme Court decided Apprendi v. New Jersey (2000), which set into motion a number of cases holding to a line of reasoning that called into question the mandatory nature of sentencing guidelines in both federal and state courts, particularly when these determinate-sentencing schemes permitted judges to depart from the guidelines based on aggravating factors. Apprendi provided that facts increasing sentencing determinations must be made by juries, not judges. The Court next applied this so-called Apprendi rule a few years later in Blakely v. Washington (2004), holding that a state's determinative-sentencing structure was constitutionally unsound. Finally, in United States v. Booker (2005), the Court directly addressed the federal Sentencing Guidelines and held that they similarly ran afoul of the Apprendi rule when judges, not juries, employed the Sentencing Guidelines to increase sentences.

In this Legal Note, I analyze the Apprendi rule as it applies to the federal sentencing scheme. I am especially concerned with how the federal courts of appeals handled sentencing in the wake of Apprendi and Blakely, before the Court's determination in Booker neutered the mandatory nature of the Sentencing Guidelines. To do so, I first discuss these three cases to illustrate their potential impact on sentencing.

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