Daniel Ryan Koslosky, Constitutional Law: Predictability As Fairness And The Possible Return To Federal Indeterminate Sentencing

57 Fla. L. Rev. 999 (2005) | | | |

TEXT :: Respondent was convicted by a jury of possession with intent to distribute at least fifty grams of crack cocaine. During postconviction sentencing, the district court judge found, by a preponderance of evidence, that Respondent possessed an additional 566 grams of crack cocaine and obstructed justice. Pursuant to the applicable United States Sentencing Guidelines (Federal Guidelines), the judge increased Respondent’s sentence to a minimum of thirty years imprisonment. Respondent challenged the district court’s application of the Federal Guidelines on the grounds that it violated his Sixth Amendment right to a trial by jury. The Court of Appeals for the Seventh Circuit reversed the sentence, holding that the district court’s application of the Federal Guidelines violated the Sixth Amendment. The Supreme Court granted certiorari, and in affirming the court of appeals in a dual opinion, HELD that the Sixth Amendment requires that all facts necessary to support a sentence greater than the relevant statutory maximum of the Federal Guidelines be found by a jury, and that the Federal Guidelines are to become advisory because their mandatory nature is incompatible with the constitution’s jury trial guarantee.

The Federal Guidelines were enacted to remedy the sentencing disparities of the federal indeterminate sentencing system. Congress adopted the Federal Guidelines, which established determinate sentencing ranges for various categories of criminal offenses. The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” However, beginning with McMillan v. Pennsylvania, state and federal courts have traditionally confined the federal constitution’s jury trial guarantee to only the finding of facts constituting elements of the crime and not to sentencing factors.


In McMillan, the Supreme Court considered whether a Pennsylvania sentencing guideline requiring the trial judge to find sentencing factors, by a preponderance of the evidence, violated petitioners’ Sixth Amendment right to a trial by jury. The guideline in question prescribed that any person convicted of an enumerated felony was subject to a minimum term of incarceration if the sentencing judge found that the felon used a firearm while committing the crime.

The Supreme Court held that the Sixth Amendment required that only elements included in the legislative definition of the offense be proven beyond a reasonable doubt. Moreover, as a matter of federalism, the Court stated that postconviction factors used to ascertain the appropriate term of incarceration are beyond the scope of the Sixth Amendment. Accordingly, the McMillan Court held that due process is not offended when a sentencing judge utilized a fact not found by a jury beyond a reasonable doubt to sentence a defendant.

The Supreme Court in Almendarez-Torres v. United States affirmed the Sixth Amendment framework articulated in McMillan, holding that a criminal indictment does not need to include facts pertaining only to sentencing. Petitioner had entered a guilty plea for illegally re-entering the United States after a previous deportation. Without advance notice, petitioner’s sentence was increased beyond what the facts contained in the indictment authorized. The Almendarez-Torres Court held that a criminal indictment is required to contain only those facts relevant to the legislatively defined offense, and therefore the increased sentence was appropriate.

In a dissenting opinion, Justice Scalia asserted that the majority’s holding was inconsistent with common-law tradition. Justice Scalia further noted that it would be unfair to deny a criminal defendant a jury determination on a fact which stood to enhance his sentence.

The differing Sixth Amendment implications corresponding to offense elements and to sentencing factors was significantly eroded by the Court in Apprendi v. New Jersey. At issue in Apprendi was a New Jersey statute that authorized an enhanced sentence for possession of a firearm if it was found that the defendant intended to intimidate a particular minority. In invalidating the statute, the Court concluded that a jury must find, beyond a reasonable doubt, any fact that would enhance a sentence beyond the relevant statutory maximum.

The Apprendi Court stated that the nature of the jury and evidentiary standards under the common law is such as to require that the Sixth Amendment apply to contemporary postconviction sentencing proceedings. The Court held that as a matter of fairness, a common law indictment contains all pertinent circumstances relating to the crime, thereby allowing a defendant to better calculate the punishment sought. The Apprendi Court preserved McMillan only to the extent that a sentence does not exceed the statutory maximum authorized by the jury verdict. The Court, as a matter of precedence, retained the distinction between a sentencing factor and an offense element.

In a separate concurring opinion, Justice Thomas adhered to the common law requirement that a criminal indictment must contain all facts necessary to impose the sentence sought by the state. Justice Thomas asserted that McMillan was actually a break from the law’s traditional understanding of the nature of the jury. Thus, according to Justice Thomas, Apprendi could be seen as a return to the original meaning of the jury trial guarantee. Justice Thomas’s concurring opinion also noted that the distinction between a sentencing factor and an offense element is irrelevant; the dispositive question is how the fact enters into the sentence.

In a dissenting opinion, Justice O’Connor adhered to traditional Sixth Amendment jurisprudence as articulated in McMillan. Justice Breyer, in a separate dissenting opinion, agreed and found the majority’s common law analysis unconvincing, further asserting that the jury trial guarantee is not applicable to judicial postconviction factfinding. Justice Breyer contended that, as a matter of pragmatism, the plethora of potential sentencing factors may overwhelm a jury, thus leaving judicial postconviction factfinding as the best alternative.

The instant Court adopted the Apprendi rationale by holding that the Sixth Amendment requires that any fact which increases the maximum authorized sentence under the Federal Guidelines must be found by a jury. In the first part of the dual opinion, Justice Stevens espoused Apprendi’s common-law analysis by reiterating that a trial by jury is an enshrined tenet of American jurisprudence. Accordingly, the instant Court concluded that the jury trial guarantee applies to sentencing made pursuant to the Federal Guidelines because of their mandatory nature.

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