On June 24, 2004, the United States Supreme Court issued an opinion in the case of Blakely v. Washington. In Blakely, the Supreme Court invalidated the state of Washington’s sentencing guidelines. The Court held that it violated the Sixth Amendment to the United States Constitution for Washington judges to use facts to increase a defendant’s sentence (other than the fact of a prior conviction) that had not been admitted by the defendant or proven to a jury. Because the federal sentencing guidelines are similar in structure to the state guidelines invalidated in Blakely, many lawyers, judges and commentators expected the Supreme Court to find the federal sentencing guidelines unconstitutional on the same ground. In the cases of United States v. Booker and the United States v. Fanfan (referred to collectively as United States v. Booker), the Supreme Court did so. In Booker, the Supreme Court then “fixed” the constitutional problem by holding that the federal sentencing guidelines would not violate the Constitution if applied on an advisory, rather than mandatory, basis. After Booker, federal judges must consider the purposes of sentencing and the federal sentencing guidelines in determining a “reasonable” sentence in any given case.
Booker permits a federal judge to impose a sentence outside of the applicable guideline range so long as the sentence is within the range permitted by statute. Whereas federal sentencing guideline ranges are fairly narrow (e.g., 70-87 months), statutory ranges are often quite broad (five to forty years,). Remember that although Booker authorizes sentences below the federal guideline sentencing range, down to the applicable statutory minimum, judges may also impose sentences above the guideline range, up to the maximum allowed by statute. For example, consider a defendant who is charged with a crime that carries a statutory penalty of five to forty years. The applicable federal guideline sentencing range may be 70-87 months. In this example, Booker permits the judge to sentence the defendant to a term of incarceration as low as five years and as high as forty years. As a practical matter though, since Booker, federal judges continue to impose sentences within the applicable guideline range in the majority of cases