In United States v. Booker, the Supreme Court held that the mandatory federal sentencing guidelines violated a defendant’s Sixth Amendment right to trial by jury. As a remedy, the Court excised the statutory provision, 18 U.S.C. § 3553(b), requiring the district court to impose a sentence within the guideline range, thereby rendering the guidelines effectively advisory. Under Booker‘s advisory guideline regime, district courts must still calculate and consider the guidelines, but are free to impose a reasonable sentence above or below the range based on the other sentencing factors set forth in 18 U.S.C. § 3553(a).
So, sentencing is now a two-step process. (In some circuits, it’s three steps, but let that pass.) The court must first calculate the guideline range, just as it did before Booker, and then at step two determine an appropriate sentence in light of all the statutory factors.
But guideline calculations can be quite complex. The Guidelines Manual approaches 600 pages, and studies have shown that, depending on who is doing the calculating, the same set of facts can produce divergent guideline ranges. (See Professor O’Hear’s article, “The Myth of Uniformity,” 17 Fed. Sent. Rep. 249, for more on this.) Must the court, post-Booker, still resolve all disputed guideline issues, even though it has settled on an appropriate sentence under the statutory factors? Last week, in United States v. Sanner, the Seventh Circuit addressed this question.
Sanner involved two consolidated appeals that had nothing to do with each other aside from this: the judges in both cases struggled with difficult guideline issues, but ultimately imposed sentence based on the § 3553(a) factors. The defendants appealed, challenging the courts’ guideline determinations and their sentences. The Seventh Circuit affirmed, stating: “It is hard to see . . . why a district judge should bother with a possibly controversial adjustment which will have no — or little — effect on the sentence.” With or without the challenged guideline enhancements, “the judge could have considered the § 3553(a) factors and imposed the same sentence.”
Two points on this decision. First, it provides an illustration of how the Booker remedy solved the Sixth Amendment problem with the guidelines. The Sixth Amendment, as construed in Apprendi v. New Jersey and extended to the federal sentencing guidelines in Booker, requires that any fact (other than a prior conviction) necessary to the legality of the sentence be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt, rather than being found by a judge based on a preponderance standard. On the other hand, facts that a judge merely chooses to make relevant to her sentencing determination are not subject to the Sixth Amendment. In Sanner, the judges were able to impose the same sentences under § 3553(a); their findings of fact under the disputed guideline provisions were not necessary to the legality of the sentences.
Second, while Sanner grants district courts permission to skip to the chase in some cases, it should not be viewed as an invitation to avoid hard work. The court concluded that in order for the rule to apply the “judge must make clear that the sentence is based . . . on the § 3553(a) factors.” In other words, the result might be different if a district judge accepts without analysis one side’s guideline calculation over the other’s, particularly if the difference between the two is great, then imposes a within-range sentence accompanied by a rote statement that the sentence is based on § 3553(a). (One of the sentences in Sanner was above the range, and it would seem that sentences outside the range are more likely to be “genuinely” based on § 3553(a).) Sanner is a common-sense solution to the problem of complex, but advisory, guidelines. However, Sanner‘s rule should be accompanied by meaningful procedural review to ensure that courts are actually basing the sentence on § 3553(a), not simply imposing guideline sentences dressed up in statutory clothes.