Death by a Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still Violate the Sixth Amendment
Holman, David C., William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. The Sentencing Reform Act B. The Constitutional Problem with Mandatory Guidelines C. "The Booker Mess" D. After Booker II. RITA AND GALL: USING AMBIGUITY To SOLVE CONFUSION A. Rita: Something for Everyone B. Gall: Proportionality Review Prohibited? III. RITA AND GALL APPLIED A. Standards of Review B. Presumption of Reasonableness C. Disparate Sentencing Explanations D. Proportionality Review 1. Pre-Gall Proportionality Review 2. Proportionality Review's Constitutional Problems 3. Proportionality Review After Gall IV. LESS-THAN-ADVISORY GUIDELINES VIOLATE THE SIXTH AMENDMENT V. THE SOLUTION: END SUBSTANTIVE REASONABLENESS REVIEW AND REQUIRE UNIFORM SENTENCING EXPLANATIONS A. Prohibit Substantive Reasonableness Review B. Uniform Procedural Review CONCLUSION
Paul Sedore defrauded the Internal Revenue Service. Using names and social security numbers obtained from preparing legitimate tax returns for his friends while incarcerated, Sedore submitted false tax returns and received about $50,000 from the IRS. (1) Indicted by a federal grand jury on four counts, Sedore pled guilty to two of them, conspiracy to defraud the IRS and identity theft. (2) Based only on what Sedore admitted in his guilty plea and his criminal history, the Federal Sentencing Guidelines would have recommended a sentence of twelve to eighteen months in prison. (3) But the sentencing judge found, by a preponderance of the evidence, that Sedore used a special skill to facilitate his offense, obstructed justice, and harmed between 50 and 250 victims. (4) Based on those judge-found facts, which the defendant did not admit and which the jury did not find beyond a reasonable doubt, the Guidelines advised a range of 84 to 105 months. (5) The court sentenced Sedore to 84 months. (6)
Consider another scenario. A hypothetical judge sentences another criminal, convicted of the same offenses as Sedore, with the same criminal history. This judge sentences this hypothetical criminal to 84 months in prison without finding any additional facts. The court of appeals would likely reverse this hypothetical sentence. Why? Because the judge did not follow the Guidelines, and, hence, the sentence was not "reasonable." This is hardly the "advisory" system that the Supreme Court imagines it is.
In United States v. Booker, (7) the Supreme Court found that the mandatory Guidelines violated the Sixth Amendment right to a jury trial because they necessarily increased the maximum available sentence based on facts found by the judge, not the jury, by a preponderance of the evidence. (8) Under the mandatory Guidelines, judges found extra facts at sentencing, such as acquitted conduct, uncharged conduct, or aggravating or mitigating factors of the crime itself. (9) Those facts, never presented to a jury, mechanically increased the defendant's sentence. (10) Therefore, the mandatory Guidelines violated the right to be tried by a jury.
Booker was supposed to correct this constitutional flaw. Rather than preserve the mandatory Guidelines and require the Government to prove each fact beyond a reasonable doubt to the jury, the Court rendered the Guidelines advisory and instructed the appellate courts to review for "unreasonableness." (11) The meaning and appropriate boundaries of appellate reasonableness review gave rise to "a confusing battle royale over a wide array of modern federal sentencing laws and practices." (12) At the heart of this battle is the tension between constitutional constraints, advisory Guidelines, and the circuits' efforts to impose sentencing uniformity.
Booker's inherent conflicts allowed the circuits to try to resurrect the mandatory Guidelines, prompting the Supreme Court to revisit Booker twice in the last year, in Rita v. …