Federal Sentencing Guidelines for Individuals after Booker:
What Says the Fifth Circuit?

By TERRY W. YATES

In the last year, the United States Supreme Court has issued two significant decisions regarding sentencing guidelines at the state and federal levels. This article describes the history of those decisions and reviews how the Fifth Circuit Court of Appeals has interpreted these decisions.

A How We Got to Booker
On June 24, 2004, the United States Supreme Court issued a 5-4 opinion in Blakely v. Washington, which struck down the Washington State sentencing guideline scheme and appeared to signify the end, or at least the potential reconfiguration, of the Federal Sentencing Guideline procedures regarding the imposition of “maximum sentences” after judicial findings of additional facts.1
Blakely was the third in a line of Supreme Court cases that cast serious doubt on the constitutionality of the federal sentencing guidelines. In the first of these cases, Apprendi v. New Jersey, the Supreme Court struck down a New Jersey sentencing statute that allowed a judge to increase, or “enhance,” a defendant’s sentence based on the judge’s finding that the crime was committed with a biased purpose.2 The holding of Apprendi, based on the Court’s application of the Due Process Clause and the Sixth Amendment’s right to trial by jury, was that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”3 While reserving the question of the impact of its ruling on the federal guidelines, the Court ruled that, “[W]hen the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict,” and therefore must be submitted to the jury.4
Following the decision in Apprendi, the federal sentencing guidelines were again called into question by the holding in Ring v. Arizona.5 In that case, a jury found the defendant guilty of first-degree murder. Under the Arizona law in question, the maximum punishment was life in prison. If the judge found that an aggravating factor was involved, then the death penalty could be applied. However, the Supreme Court struck down the Arizona statute based on its reasoning in Apprendi. The Ring Court opined that if a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact must be found by a jury beyond a reasonable doubt.
In Blakely, the Supreme Court had before it a determinate sentencing scheme much like the one used by the federal sentencing guidelines. Defendant Blakely pleaded guilty to kidnapping, which, standing alone, carried a maximum sentence of 53 months. However, under Washington’s sentencing scheme, a judge could justify an exceptional sentence after setting forth findings of fact and conclusions of law supporting enhancement. The Washington trial judge determined that Blakely had acted with “deliberate cruelty,” and enhanced his sentence to 90 months. Blakely appealed, arguing that this enhancement violated his right to trial by jury as set forth in Apprendi.
The Supreme Court agreed to hear the case. Relying upon Apprendi and Ring, the Court made clear that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. “When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment ... and the judge exceeds his proper authority.”6
Although several Circuits, including the Seventh and Ninth, conceded that Blakely had summarily ended a 20-year run of federal sentencing reform, the Fifth Circuit chose to defer a decision on this issue until the Supreme Court gave a more definite answer. This is because the Blakely ruling was not a direct attack on the Federal Sentencing Guidelines, but rather a decision regarding a similar sentencing procedure implemented in the state of Washington, leaving it open to interpretation by the United States circuit courts.
The Fifth Circuit’s decision in United States v. Piniero outlines its reasoning for the “wait and see” approach. Specifically, the Fifth Circuit relied on a footnote by Justice Scalia, which stated that the federal Guidelines were not before the Supreme Court in Blakely and the Court expressed no opinion on them.7 While acknowledging that the Supreme Court would be the ultimate decision maker on this issue, the Piniero decision made it clear that until the Supreme Court ruled otherwise, the Fifth Circuit would continue to address sentencing questions of this nature in pre-Blakely manner.
The Fifth Circuit acknowledged that Piniero was inconsistent with rulings throughout the country as it announced, “In writing these words we are more aware than usual of the potential transience of our decision.”8 Meanwhile, the district court judges throughout the Fifth Circuit who believed Blakely, or a similar case, was indeed a precursor to sweeping changes in the federal guidelines could not defer sentencing or refuse to take a plea because of the Fifth Circuit’s own decision in U.S. v. Martinez, which holds that the “rule setting forth prerequisites for acceptance of guilty plea [Federal Rule of Criminal Procedure 11] was not designed to discourage acceptance of guilty pleas merely because the trial judge is uneasy or apprehensive over the possibility of subsequent collateral attack.”9 Even though the Supreme Court ultimately ruled on this issue in the Booker decision, those sentences may be in question.

What Booker Says … or Doesn’t Say
Earlier this year, the United States Supreme Court addressed the open question regarding the constitutionality of federal sentencing guidelines containing provisions for judicial fact-finding in calculating sentences. In United States v. Booker, the Supreme Court struck down this provision. That decision ultimately resulted from a compromise between the “Sixth Amendment wing” of the Court, led by Justices John Paul Stevens and Antonin Scalia, and the “judge-based sentencing” wing led by Justice Stephen Breyer and Chief Justice William Rehnquist, with two 5-4 plurality opinions of the Court and Justice Ruth Bader Ginsburg as the deciding vote in both.10
The Booker decision began by concluding that the Federal Sentencing Guidelines violated the Sixth Amendment right to trial by a jury. Citing Apprendi, Ring, and Blakely, the Supreme Court analyzed that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”11 The Court then applied this logic to the holding in Blakely, which reasoned that a statutory maximum sentence is a sentence a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant.12 The Court deemed the guidelines unconstitutional because they impose upon judges an obligation to examine evidence and make factual findings that could increase a sentence beyond that permitted by the jury’s verdict. This result was anticipated, but what the Court further decided was an unexpected twist on this guidelines issue.
The Court proceeded to rescue the Federal Sentencing Guidelines by allowing federal judges to apply them in an advisory manner in selecting individualized sentences within a defined range. In ruling the guidelines advisory, the Court eradicated two provisions of the Sentencing Reform Act (SRA): section 3553(b)(1), which makes the Guidelines mandatory in all cases, and section 3742(e), which sets forth standards of review on appeal. With the guidelines serving an “advisory” role, judges are allowed to exercise discretion without violating the Sixth Amendment because a jury need not find sentencing facts.
The Court also directed that judges consider the guidelines in crafting a “reasonable” sentence. However, after invalidating the SRA’s appellate standard of review, the Court only “inferred” a brand-new appellate standard of “reasonableness,” but did not offer the lower courts any guidance about how to apply it. This leaves open the likelihood that in some cases the guidelines’ range will constitute a “reasonable” sentence. This concern alone presents the next big question in this line of cases: How will circuit courts address the meaning of the Court’s “reasonableness” standard for appellate review?
In theory, the Booker decision should have opened the floodgates for attorneys in the Fifth Circuit through the filing of appeals and writs for affected defendants. However, the Seventh Circuit has already held that Booker does not apply retroactively to cases that became final prior to its release on January 12, 2005.13 The Second and Eleventh Circuits issued similar opinions stating that the Supreme Court has not expressly held Booker retroactively applicable to cases on collateral review. In the Fifth Circuit, the Northern District of Texas has followed suit, finding that Booker is applicable only to cases on direct review.14 Although no court has applied Blakely retroactively, and Booker itself indicates that this is not an issue for collateral review, it remains to be seen how far back the circuit courts or the Supreme Court will grant leeway in allowing collateral review of cases affected by Booker and its progeny.

Endnotes
1. ___ U.S. ___, 124 S.Ct. 2531, 159 L. Ed. 2d 403 (2004). 2. 530 U.S. 466 (2000). 3. Id. at 490. 4. Id. at 494 n.19. 5. 536 U.S. 584 (2002). 6. Blakely, 124 S.Ct. at 2537. 7. 377 F.3d 464, 473 (5th Cir.), petition for cert. filed (U.S. July 14, 2004). 8. Piniero, 377 F.3d at 473. 9. 486 F.2d 15, 20 (1973). 10. ___ U.S. ___, 125 S.Ct. 738, ___ L. Ed. 2d ___ (2005). 11. Id. at 746, quoting Apprendi, 530 U.S. at 490. 12. Id at 749, citing Blakely, 124 S.Ct. at 2537. 13. McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005). 14. King v. Jeter, No. Civ. A. 4:04-CV-0600-D, 2005 WL 195446, at *1 (N.D. Tex. Jan. 27, 2005).

Terry W. Yates is a trial lawyer, board certified in criminal law by the Texas Board of Legal Specialization and the National Board of Trial Advocacy. He and his firm have a nationwide trial practice and can be contacted at www.yateslawoffices.com

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