UNITED STATES V. BOOKER

Families Against Mandatory Minimums, or FAMM, writes that Booker “shook the foundations of the federal sentencing system,” and characterizes the case as a “huge victory.”

Indeed it was.

Prior to US v. Booker, the U.S. Sentencing Commission imposed mandatory sentencing guidelines on the federal judiciary. As such, defendant after defendant received severe sentences imposed by judges who did not have the authority or discretion to make those sentences more lenient, even if the judge thought leniency was called for under the facts and circumstances. Pre-Booker, a judge’s “hands were tied” when it came to federal sentencing-the judge was required by law to impose a sentence within the range established by the guidelines.

All that changed in 2005, when the Supreme Court decided Booker. (See United States v. Booker, 543 U.S. 220 (2005).)

The Case Against Freddie Joe Booker

After Freddie Joe Booker was arrested, a jury convicted him of possessing with intent to distribute at least 50 grams of cocaine base (“crack”). At trial, the Government proved beyond a reasonable doubt that Booker possessed with intent to distribute between 50 and 100 grams of cocaine base. When it came time for sentencing, however, the judge found, by the “preponderance of the evidence” (a standard of proof much lower than proof beyond a reasonable doubt), that Booker possessed an additional 566 grams of cocaine base. As Justice Stephen Breyer wrote, “the jury heard evidence that the crime had involved 92.5 grams of crack cocaine, and convicted Booker of possessing more than 50 grams. But the judge, at sentencing, found that the crime had involved an additional 566 grams, for a total of 658.5 grams.”

The judge’s finding that Booker possessed an additional 556 grams of cocaine base changed the punishment calculus entirely. Prior to the judge’s finding, Booker faced a maximum guideline sentence of 262 months. But when the 556 grams of cocaine base was added to the guideline calculation, the guidelines required the imposition of a sentence of between 360 months and life. Thus, based on facts the judge found to be true by the “preponderance of the evidence,” Booker was subject to a sentence much higher than the sentenced authorized by the facts found by a jury “beyond a reasonable doubt.”

Our Constitutional Right to a Jury Trial

The relevant part of the Sixth Amendment, where Booker is concerned, states as follows:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed […] and to be informed of the nature and cause of the accusation […].” (emphasis added).

How the Supreme Court Ruled in Booker

The Court’s holding was two-fold: (1) that the Sixth Amendment requires juries – not judges – to find facts, beyond a reasonable doubt, if those facts increase a defendant’s punishment above the guideline range for the offense of conviction; and (2) because mandatory guidelines were contrary to the Sixth Amendment, the remedy was to make the guidelines advisory.

Booker’s Punishment Violated the Sixth Amendment

The Sixth Amendment guarantees the right to trial by jury. This means the government must prove its case before a jury, not a judge. Yet the judge enhanced Booker’s sentence by nine years based on facts only he – not the jury – determined to be true, which the Court found violated the Sixth Amendment. At bottom, the Court concluded that:

Any fact (other than a prior conviction) which 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. Booker, 543 U.S. at 244.

Federal Sentencing Guidelines Constitutional But Not Mandatory

The most sweeping and controversial aspect of the Booker ruling was the Court’s “excision,” or removal, of the provisions within the guidelines that made them mandatory.

This rendered guideline sentences “advisory.” In other words, guideline sentences are recommendations that judges must consider, but do not have to follow. United States v. Gall, 552 U.S. 38 (2007). It allows judges to impose punishment that truly fits the crime, rather than punishment imposed under mandatory minimums that seem only to promote longer and unnecessarily-harsh prison sentences.

As FAMM writes, “The advisory guidelines produce fairer, more individualized, more humane federal sentences.” This is exactly what makes Booker such an important case for federal defense attorneys and the people they represent.

Ramifications of Booker

So far, this article has primarily addressed Booker as it relates to when a defendant’s sentence can be increased above the guideline sentence established for the offense of conviction. But Booker is equally profound in that, by rendering the guidelines “advisory,” a defendant’s sentence may be decreased below the guideline sentence established for the offense of conviction in appropriate cases. For example, in United States v. Autery, 555 F. 3d. 864 (9 ^th Cir. 2009), the Ninth Circuit Court of Appeals held that a defendant’s sentence of probation was appropriate, even though the guidelines recommended a sentence of 41-51 months of incarceration, based on the defendant’s personal characteristics and history.