Main Content

The Supreme Court today significantly changed the law with regard to sentencing in criminal cases in federal courts. Unfortunately, the Court created significant confusion as to how sentencing is to be done in the future.

Following two recent decisions, one from 2000 ( Apprendi v. New Jersey) and the other from 2004 ( Blakely v. Washington), the Court held that the federal Sentencing Guidelines are no longer mandatory in federal courts in sentencing criminal defendants. The Sentencing Guidelines, which were created under the Sentencing Reform Act of 1984, prescribe the sentences for those convicted of federal crimes.

The cases before the Supreme Court today involved criminal defendants convicted of drug crimes. In one case ( United States v. Booker), the jury found that the defendant possessed with intent to distribute 50 grams of cocaine, but the judge imposed a significantly greater sentence by concluding he possessed more than another 500 grams. In the other case ( United States v. Fanfan), the judge did not impose a longer sentence based on a finding that the defendant had larger quantities of drugs than found by the jury because of the judge's conclusion that the earlier Supreme Court cases precluded such an enhancement. The issue raised by these cases was whether sentences imposed under the Sentencing Guidelines are limited to what the jury found in terms of quantity of drugs or whether the judge could find larger quantifies of drugs and impose longer sentences.

In a fragmented decision, with two separate majority opinions, the Court held that Apprendi and Blakely apply to the Sentencing Guidelines and that the Guidelines are no longer mandatory in federal court. The Court, however, also ruled that the guidelines are advisory. The key question going forward is what this means. Unfortunately, the lack of clarity in the two majority opinions is sure to generate significant confusion.

It appears, though, that the law is now that judges in federal court can impose any sentence within the maximum identified in the relevant federal statute, so long as it is based on the jury's verdict or what the defendant admitted. The Sentencing Guidelines still must be considered, but they are definitely not mandatory.