Michelle Reiss Drab, Constitutional Law: Fact or Factor: The Supreme Court Eliminates Sentencing Factors and the Federal Sentencing Guidelines

57 Fla. L. Rev. 987 (2005) | | | |

TEXT :: A jury convicted Respondent Booker of possession with intent to distribute at least fifty grams of cocaine, an offense carrying a sentence of 210 to 262 months in prison according to the Federal Sentencing Guidelines (the “Guidelines”). At a later sentencing hearing, the judge found by a preponderance of the evidence that Respondent Booker possessed an additional 566 grams of cocaine and was guilty of obstructing justice, warranting a sentence of 360 months to life according to the Guidelines. Booker appealed the thirty year sentence imposed by the judge. Relying on Blakely v. Washington, the Court of Appeals for the Seventh Circuit reversed and remanded, holding that the sentence violated the Sixth Amendment.

Respondent Fanfan was convicted by a jury of possession with intent to distribute 500 or more grams of cocaine, an offense carrying a sentence of up to seventy-eight months in prison. At the sentencing hearing, the judge found additional facts that mandated a sentence of 188 to 235 months according to the Guidelines. However, relying on Blakely, the judge refused to impose the longer sentence and sentenced Respondent Fanfan solely according to the jury verdict.


Petitioner filed a notice of appeal in the First Circuit in Respondent Fanfan’s case and petitioned for writ of certiorari in both cases. The Supreme Court granted both petitions and, in a two-part decision affirming its holding in Apprendi v. New Jersey, HELD, 1) Any fact (other than a prior conviction) that is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt; and 2) The provisions of the Sentencing Reform Act making the Guidelines mandatory are incompatible with the above holding and must be severed and excised.

The Sixth Amendment affords every “‘criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.’” While such elements indisputably warrant proof beyond a reasonable doubt, other aspects of the offense-characterized as sentencing factors-may, and sometimes must, be determined by a judge based upon a preponderance of the evidence. Over many cases and several decades, the Supreme Court has wrestled with the constitutional distinction between a sentencing factor and an element of a crime.

The Court confronted this issue in McMillan v. Pennsylvania, where a judge’s finding that the defendant had visibly possessed a firearm, based on a preponderance of the evidence, raised the minimum sentence to five years in prison. The case implicated Pennsylvania’s Mandatory Minimum Sentencing Act. Although the sentencing judge found the Act unconstitutional and refused to apply it, the Pennsylvania Supreme Court disagreed and remanded. The United States Supreme Court, in a five to four decision, affirmed the Pennsylvania Supreme Court. Relying on Patterson v. New York, the Court reasoned that the State need not prove every fact influencing the severity of punishment beyond a reasonable doubt. Instead, the Court emphasized the Legislature’s intent that visible possession be a sentencing factor and not an element of the crime. While recognizing there would be constitutional limits to the State’s power to define the elements of a crime, the Court did not attempt to define those limits. With its decision, the Court established only that any impact on punishment, especially by a factor that had always been considered to bear on punishment, would not make that factor an element.

The Court faced this issue again in Almendarez-Torres v. United States. In Almendarez-Torres, the defendant, a deported alien, was convicted of returning to the United States without permission, warranting a maximum prison sentence of two years. At a later sentencing hearing, the judge found, based on the defendant’s admission, that his initial deportation was pursuant to three prior aggravated felony convictions. This finding increased the maximum sentence from two to twenty years. The defendant appealed, arguing that his prior convictions were elements of the crime and should have been charged in the indictment. Again in a split decision, the Supreme Court disagreed with the defendant and affirmed his conviction. The Court concluded that its precedents stood only for the “proposition that sometimes the Constitution does require (though sometimes it does not require) the State to treat a sentencing factor as an element.” In this case, the Court reasoned that recidivism was a typical sentencing factor and that Congress intended it as such in the statute at issue. Thus, although the finding of recidivism raised the defendant’s maximum sentence, the Court concluded that the Constitution did not require recidivism be deemed an element of the offense.

Finally, in Apprendi v. New Jersey, the Court established a specific test to distinguish an element of a crime from a sentencing factor. The state “hate crime” statute at issue authorized an increase in the defendant’s maximum punishment based on a finding of “biased purpose” by the judge at sentencing. The Court held the statute unconstitutional and firmly declared that any fact, other than that of a prior conviction, that “increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Court’s holding departed from its holdings in McMillan and Almendarez-Torres and made clear that the determination of a sentencing factor or element of a crime would be based on the impact on punishment, regardless of legislative intent or the factor’s traditional application. The Court described the relevant inquiry as “one not of form, but of effect,” particularly, the effect on punishment.

In the instant case, the Respondents’ sentences were increased following findings of fact made by a judge at a sentencing hearing, but were not raised above the statutory maximum. The sentences remained within the statutory range, but were increased above the maximum that the Guidelines would have imposed on the basis of the jury verdict. because of additional findings made by the judge at the sentencing hearing, the Guidelines mandated a longer sentence.

The instant Court held that Apprendi applied to the Guidelines. The Court reasoned that the Guidelines were mandatory and binding on judges and thus had the practical force and effect of laws. The instant Court focused on the role of the jury as a protection against arbitrary and unreasonable punishments. The Court expressed concern that sentence enhancements had become more serious and had begun to diminish the role of the jury. In an effort to preserve the jury’s role, the Court clarified that the “statutory maximum” referred to in the Apprendi rule was the maximum sentence that could be imposed “‘solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’” Lastly, the instant Court concluded that the provisions making the Guidelines mandatory must be severed and excised; hence the Guidelines would become merely advisory in nature.

The instant Court’s decision effectively eliminates sentencing factors, and at least temporarily resolves the lengthy debate over when a factor becomes an element of the crime. The decision suggests a philosophical departure from McMillan and a retreat from Apprendi, as well as a movement towards a more constitutionally rigorous doctrine

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