Booker/Fanfan: Basic Booker Background

United States v. Booker, United States v. Fanfan : Apprendi/Blakely/Guidelines: Cases argued before the Supreme Court on Oct. 4, 2004.

Players: Everyone. DOJ, the Sentencing Commission, the National Association of Federal Defenders, NACDL, Orrin Hatch, Ted Kennedy, Dianne Feinstein, and several others have submitted briefs.

Facts: Booker: A jury found defendant guilty of possessing with intent to distribute at least 50 grams of cocaine base. 375 F.3d at 509. The sentencing judge made a number of preponderance findings at sentencing and imposed a low end sentence of 360 months. Id. Without these findings, the maximum guideline sentence would have been 252 months. Id. at 510. Writing for the majority, Judge Posner of the Seventh Circuit concluded that "the guidelines . . . violate the Sixth Amendment as interpreted by Blakely." Id. at 513.
Fanfan: The defendant in Fanfan was found guilty after a jury trial of conspiracy to possess with intent to distribute at least 500 grams of cocaine. (Unreported decision; see DOJ brief at 2004 WL 1967056, *11.) With preponderance findings at sentencing, the district court arrived at a guideline range of 188 to 235 months. Id. Because it concluded that Blakely applied to the federal sentencing guidelines, however, the district court concluded it could only sentence the defendant to the "base" offense level, and imposed a sentence of 78 months. Id. The Supreme Court took the decision up directly from the district court – there is no appellate decision.

Questions Presented: (As phrased in the government’s petition): "1. Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. 2. If the answer to the first question is "yes," the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction." 2004 WL 1638204, *1.

(To Be) Held: ? Experts predict a quick decision, well before end of the year. [ed. note:that was wrong, although maybe I meant 2005 . . .] Although it is difficult to imagine how the Court could not find the guidelines violate Blakely, insiders are not so sanguine. Estimates range as low as 60% / 40% that the Court will strike the guidelines. Justice Souter may be the key swing vote.

Of Note: Booker and Fanfan were not the cases of choice for the defense. In a herculean effort, the NACDL Amicus Committee contested the DOJ’s suggestions for the Blakely/USSG test cases and recommended several alternatives. See 2004 WL 1686283. Some experts were not heartened by the Court’s decision to address the DOJ cases. Both Booker and Fanfan resulted in huge sentencing breaks for convicted, large-scale drug dealers; unsympathetic fact patterns.
Potential Congressional "fixes" abound, including a huge array of stacked mandatory minimums. The rumor mill suggests that DOJ is backing away from stacked mandatory minimums as an alternative to the guidelines. Instead, Justice may instead endorse "sentencing juries," confident that defendants will actually prefer not to try unsavory enhancement facts before a jury.

For Further Reading: The leading Blakely source for developments, discussions, and occasionally gossip can be found at Professor Berman’s web page.

Steven Kalar, Senior Litigator ND Cal.