In U.S. v. Booker, No. 04-194 (Jan. 12, 2005), the Supreme Court held that the Sixth Amendment as construed in Blakely applied to the Federal Sentencing Guidelines. In order to reconcile this constitutional holding with the Guidelines scheme, the Court held that two provisions were severed and excised: the provision that makes the Guidelines mandatory, 18 U.S.C. § 3553(b)(1), and the provision governing appellate review of sentences, including de novo review of departures from the applicable Guideline range. Consequently, the Guidelines are no longer binding on sentencing courts. In addition, on appeal, sentences are reviewable for "unreasonableness."
The Court found no basis for not applying the Blakely rule to the Guidelines. The Court noted that the limited availability of departures indicated that the Guidelines mandated sentences in most cases. Mandated sentence enhancements based on facts not authorized by a jury's verdict run afoul of Blakely.
Turning from the applicability of Blakely to the issue of what impact Blakely had on the Sentencing Reform Act, the Court found that Congress would not have wanted to engraft a Sixth Amendment constitutional requirement on the Guidelines. Further, Congress would have preferred excission of mandatory language to the invalidation of the entire Act. The Court emphasized that Congress sought to punish "real conduct," and to do so uniformly. Consequently, Congress would not have wanted to limit punishment to conduct found at trial, but, instead, would have wanted sentencing courts to take account of facts discovered after trial. Further, Congress would not have wanted sentencing to depend on a prosecutor's choice of facts alleged in the indictment, but would have wanted sentencing courts to take account of all relevant facts comprising the "real conduct."
The Court therefore invalidated only parts of the Sentencing Reform Act. The Court severed § 3553(b)(1), which had required courts to impose a sentence within the Guideline range. The Court also severed § 3742(e), which provided, inter alia, for de novo review on appeal of guideline departure decisions. Thus, severed, the Act requires judges to take account of the Guidelines together with other sentencing goals reflected in the Sentencing Reform Act, 18 U.S.C. § 3553(a)(1)-(7). Further, in place of the appeal standards provided in § 3742(e), sentences will be reviewed for "unreasonableness."
The Court noted that its decision must be applied to all cases on direct review. The Court pointed out that not every pending appeal will lead to a new sentencing hearing, either because the challenge to the sentence would not satisfy "plain error" review if the issue was not raised below, or because a sentence may survive harmless-error review. [Note: Any pending appeal which challenged a district court's denial of a downward departure would appear to be eligible for Booker-reversal, because the district court likely denied the departure in part based on the (now-mistaken) view that departures were foreclosed because the Sentencing Commission had adequately taken all relevant factors into account. Also eligible for Booker-reversal, it appears, are all cases in which a defendant challenged the mandatory character of a Guideline enhancement, or, more generally, the validity of the Guidelines].
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Thursday, January 13, 2005
Tuesday, January 11, 2005
In Whitfield v. U.S., No. 03-1293 (Jan. 11, 2005), the Supreme Court held that proof of a conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) does not require proof of an overt act in furtherance of the conspiracy. The Court noted its rule of statutory construction for conspiracy statutes, which provides that a conspiracy statute will not be interpreted to make an overt act an element of the offense unless the statute expressly provides such a requirement. The money laundering statute at issue, like the drug conspiracy statute in U.S. v. Shabani, 513 U.S. 10 (1994), did not contain an express overt act element. Hence, no overt act element would be required to prove the offense. The Court rejected the argument that § 1956(h) did not create a separate offense, but merely increased the penalties for a traditional 18 U.S.C. § 371 conspiracy to money launder – an offense which did contain an overt act element. The Court found that the plain language of § 1956(h) showed that it established an offense. Moreover, the legislative history was consistent with this interpretation. Finally, the Court rejected an argument based on the venue provision of the law, finding that by allowing venue to lie in any district in which an overt act was committed in furtherance of the conspiracy Congress did not make an overt act an element of the offense.