United States v. Booker held that the Federal Sentencing Guidelines ("Guidelines"), as they were applied at the time, violated defendants' Sixth Amendment jury trial rights. Unfortunately, Booker failed to provide the clarity that judges and commentators-not to mention defendants-had hoped for. The Supreme Court produced a tortured 124-page decision with two conflicting majority opinions. The tension between the majority opinions ran so deep that their authors, Justices Stevens and Breyer, each wrote principal dissents in the case. Justice Stevens, in the "substantive majority" opinion (Booker 1), concluded that the Guidelines violated a defendant's Sixth Amendment right to have every fact essential to the imposition of a sentence proven to a jury beyond a reasonable doubt. Stevens proposed a simple solution to the problem: require a jury finding for every fact that increased the Guideline sentence. But this was not the remedy the Court adopted. Instead, Justice Breyer, in the "remedial majority" opinion (Booker I), concluded that the appropriate remedy was to make the Guidelines "advisory." Once advisory, the Guideline facts were no longer essential to the punishment and were therefore beyond the scope of the Constitution's jury trial guarantee. But Justice Breyer was not finished. In order to ensure that judges did not return to the Wild West of pre- Guideline sentencing, Breyer determined that appellate courts would review sentencing decisions to determine whether they were "unreasonable. "
David J. D'Addio,
Sentencing After Booker: The Impact of Appellate Review on Defendants' Rights,
Yale L. & Pol'y Rev.
Available at: https://digitalcommons.law.yale.edu/ylpr/vol24/iss1/6