CUNNINGHAM v. CALIFORNIA
No. 05-6551
Supreme Court of the United States
January 22, 2007
549 U.S. 270
Peter Gold, by appointment of the Court, 547 U. S. 1053, argued the cause and filed briefs for petitioner.
Jeffrey M. Laurence, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Donald E. de Nicola, Deputy Solicitor General, and Stan Helfman, Supervising Deputy Attorney General.*
JUSTICE GINSBURG delivered the opinion of the Court.
California‘s determinate sentencing law (DSL) assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated “upper term” sentence. The facts so found are neither inherent in the jury‘s verdict nor embraced by the defendant‘s plea, and they need only be established by a preponderance of the evidence, not beyond a reasonable doubt. The question presented is whether the DSL, by placing sentence-elevating factfinding within the judge‘s province, violates a defendant‘s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. We hold that it does.
As this Court‘s decisions instruct, the Federal Constitution‘s jury-trial guarantee proscribes a sentencing scheme
I
A
Petitioner John Cunningham was tried and convicted of continuous sexual abuse of a child under the age of 14. Under the DSL, that offense is punishable by imprisonment for a lower term sentence of 6 years, a middle term sentence of 12 years, or an upper term sentence of 16 years.
A panel of the California Court of Appeal affirmed the conviction and sentence; one judge dissented in part, urging that this Court‘s precedent precluded the judge-determined four-year increase in Cunningham‘s sentence. No. A103501 (Apr. 18, 2005), App. 43-48; id., at 48-50 (Jones, J., concurring and dissenting).2 The California Supreme Court denied review. No. S133971 (June 29, 2005), id., at 52. In a reasoned decision published nine days earlier, that court considered the question here presented and held that the DSL survived Sixth Amendment inspection. People v. Black, 35 Cal. 4th 1238, 113 P. 3d 534 (June 20, 2005).
B
Enacted in 1977, the DSL replaced an indeterminate sentencing regime in force in California for some 60 years. See id., at 1246, 113 P. 3d, at 537; Cassou & Taugher, Determinate Sentencing in California: The New Numbers Game, 9 Pac. L. J. 5, 6-22 (1978) (hereinafter Cassou & Taugher). Under
For most offenses, including Cunningham‘s, the DSL regime is implemented in the following manner. The statute defining the offense prescribes three precise terms of imprisonment—a lower, middle, and upper term sentence. E. g.,
The Rules provide a nonexhaustive list of aggravating circumstances, including “[f]acts relating to the crime,” Rule 4.421(a),7 “[f]acts relating to the defendant,” Rule 4.421(b),8 and “[a]ny other facts statutorily declared to be circumstances in aggravation,” Rule 4.421(c). Beyond the enumerated circumstances, “the judge is free to consider any ‘ad-
JUSTICE ALITO maintains, however, that a circumstance in aggravation need not be a fact at all. In his view, a policy judgment, or even a judge‘s “subjective belief” regarding the appropriate sentence, qualifies as an aggravating circumstance. Post, at 307-308 (dissenting opinion) (internal quotation marks omitted). California‘s Rules, however, constantly refer to “facts.” As just noted, the Rules define “circumstances in aggravation” as “facts which justify the imposition of the upper prison term.” Rule 4.405(d) (emphasis added).9 And “circumstances in aggravation,” the Rules unambiguously declare, “shall be established by a preponderance of the evidence,” Rule 4.420(b), a clear factfinding directive to which there is no exception. See People v. Hall, 8 Cal. 4th 950, 957, 883 P. 2d 974, 978 (1994) (“Selection of the upper term is justified only if circumstances in aggravation are established by a preponderance of evidence . . . .” (emphasis added)).
While the Rules list “[g]eneral objectives of sentencing,” Rule 4.410(a), nowhere are these objectives cast as “circumstances in aggravation” that alone authorize an upper term
In line with the Rules, the California Supreme Court has repeatedly referred to circumstances in aggravation as facts. See, e. g., Black, 35 Cal. 4th, at 1256, 113 P. 3d, at 544 (“The Legislature did not identify all of the particular facts that could justify the upper term.” (emphasis added)); People v. Wiley, 9 Cal. 4th 580, 587, 889 P. 2d 541, 545 (1995) (“[T]rial courts are assigned the task of deciding whether to impose an upper or lower term of imprisonment based upon their determination whether there are circumstances in aggravation or mitigation of the crime, a determination that invariably requires numerous factual findings.” (emphasis added and internal quotation marks omitted)).
It is unsurprising, then, that State‘s counsel, at oral argument, acknowledged that he knew of no case in which a California trial judge had gone beyond the middle term based not on any fact the judge found, but solely on the basis of a policy judgment or subjective belief. See Tr. of Oral Arg. 49-50.
Notably, the Penal Code permits elevation of a sentence above the upper term based on specified statutory enhancements relating to the defendant‘s criminal history or circumstances of the crime. See, e. g.,
II
This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. While this rule is rooted in longstanding common-law practice, its explicit statement in our decisions is recent. In Jones v. United States, 526 U. S. 227 (1999), we examined the Sixth Amendment‘s historical and doctrinal foundations, and recognized that judicial factfinding operating to increase a defendant‘s otherwise maximum punishment posed a grave constitutional question. Id., at 239-252. While the Court construed the statute at issue to avoid the question, the Jones opinion presaged our decision, some 15 months later, in Apprendi v. New Jersey, 530 U. S. 466 (2000).
Charles Apprendi was convicted of possession of a firearm for an unlawful purpose, a second-degree offense under New Jersey law punishable by five to ten years’ imprisonment. Id., at 468. A separate “hate crime” statute authorized an “extended term” of imprisonment: Ten to twenty years could be imposed if the trial judge found, by a preponderance of the evidence, that “[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity.” Id., at 468-469 (quoting
We have since reaffirmed the rule of Apprendi, applying it to facts subjecting a defendant to the death penalty, Ring, 536 U. S., at 602, 609, facts permitting a sentence in excess of the “standard range” under Washington‘s Sentencing Reform Act, Blakely, 542 U. S., at 304-305, and facts triggering a sentence range elevation under the then-mandatory Federal Sentencing Guidelines, Booker, 543 U. S., at 243-244. Blakely and Booker bear most closely on the question presented in this case.
Ralph Howard Blakely was convicted of second-degree kidnaping with a firearm, a class B felony under Washington law. Blakely, 542 U. S., at 298-299. While the overall statutory maximum for a class B felony was ten years, the State‘s Sentencing Reform Act (Reform Act) added an important qualification: If no facts beyond those reflected in the jury‘s verdict were found by the trial judge, a defendant could not receive a sentence above a “standard range” of 49 to 53 months. Id., at 299-300. The Reform Act permitted but did not require a judge to exceed that standard range if she found “‘substantial and compelling reasons justifying an exceptional sentence.‘” Ibid. (quoting
Applying the rule of Apprendi, this Court held Blakely‘s sentence unconstitutional. The State in Blakely had endeavored to distinguish Apprendi on the ground that “[u]nder the Washington guidelines, an exceptional sentence is within the court‘s discretion as a result of a guilty verdict.” Brief for Respondent in Blakely v. Washington, O. T. 2003, No. 02-1632, p. 15. We rejected that argument. The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment‘s jury-trial guarantee. 542 U. S., at 304-314. It did not matter, we explained, that Blakely‘s sentence, though outside the standard range, was within the 10-year maximum for class B felonies:
“Our precedents make 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.” Id., at 303-304 (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872); emphasis in original).
The State had additionally argued in Blakely that Apprendi‘s rule was satisfied because Washington‘s Reform Act did not specify an exclusive catalog of potential facts on which a judge might base a departure from the standard range. This Court rejected that argument as well. “Whether the judge‘s authority to impose an enhanced sentence depends on finding a specified fact . . . , one of several specified facts . . . , or any aggravating fact (as here),” we observed, “it remains the case that the jury‘s verdict alone does not authorize the sentence.” 542 U. S., at 305 (emphasis in original). Further, we held it irrelevant that the Reform Act ultimately left the decision whether or not to depart to the judge‘s discretion: “Whether the judicially determined facts require a sentence enhancement or merely allow it,” we noted, “the verdict alone does not authorize the sentence.” Ibid., n. 8 (emphasis in original).
Freddie Booker was convicted of possession with intent to distribute crack cocaine and was sentenced under the Federal Sentencing Guidelines. The facts found by Booker‘s jury yielded a base Guidelines range of 210 to 262 months’ imprisonment, a range the judge could not exceed without undertaking additional factfinding. Booker, 543 U. S., at 227, 233-234. The judge did so, finding by a preponderance of the evidence that Booker possessed an amount of drugs in excess of the amount determined by the jury‘s verdict. That finding boosted Booker into a higher Guidelines range. Booker was sentenced at the bottom of the higher range, to 360 months in prison. Id., at 227.
In an opinion written by JUSTICE STEVENS for a five-Member majority, the Court held Booker‘s sentence impermissible under the Sixth Amendment. In the majority‘s
“If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. Indeed, everyone agrees that the constitutional issues presented by [this case] would have been avoided entirely if Congress had omitted from the [federal Sentencing Reform Act] the provisions that make the Guidelines binding on district judges . . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”
“The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.” Ibid. (citations omitted).
In an opinion written by JUSTICE BREYER, also garnering a five-Member majority, the Court faced the remedial question, which turned on an assessment of legislative intent: What alteration would Congress have intended had it known that the Guidelines were vulnerable to a Sixth Amendment challenge? Three choices were apparent: The Court could invalidate in its entirety the Sentencing Reform Act of 1984 (SRA), the law comprehensively delineating the federal sentencing system; or it could preserve the SRA, and the mandatory Guidelines regime the SRA established, by attaching a jury-trial requirement to any fact increasing a defendant‘s base Guidelines range; finally, the Court could render the Guidelines advisory by severing two provisions of the SRA,
Under the system described in JUSTICE BREYER‘s opinion for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the Guidelines. But they would be obliged to “take account of” that range along with the sentencing goals Congress enumerated in the SRA at
“The ball now lies in Congress’ court. The National Legislature is equipped to devise and install, long term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.” Id., at 265.
We turn now to the instant case in light of both parts of the Court‘s Booker opinion, and our earlier decisions in point.
III
Under California‘s DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. See supra, at 277-278. An element of the charged offense, essential to a jury‘s determination of guilt, or admitted in a defendant‘s guilty plea, does not qualify as such a circumstance. See supra, at 278-279. Instead, aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California‘s statutes, not the upper term, is the relevant statutory maximum. 542 U. S., at 303 (“[T]he ‘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.” (emphasis in original)). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, see supra, at 278, the DSL violates Apprendi‘s bright-line rule: Except for a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submit-
or argument, how “reasonableness review,” post-Booker, works. Post, at 310-311. It is neither necessary nor proper now to join issue with JUSTICE ALITO on this matter.
While “[t]hat should be the end of the matter,” Blakely, 542 U. S., at 313, in People v. Black, the California Supreme Court held otherwise. In that court‘s view, the DSL survived examination under our precedent intact. See 35 Cal. 4th, at 1254-1261, 113 P. 3d, at 543-548. The Black court acknowledged that California‘s system appears on surface inspection to be in tension with the rule of Apprendi. But in “operation and effect,” the court said, the DSL “simply authorize[s] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge‘s selection of an appropriate sentence within a statutorily prescribed sentencing range.” 35 Cal. 4th, at 1254, 113 P. 3d, at 543. Therefore, the court concluded, “the upper term is the ‘statutory maximum’ and a trial court‘s imposition of an upper term sentence does not violate a defendant‘s right to a jury trial under the principles set forth in Apprendi, Blakely, and Booker.” Ibid. But see id., at 1270, 113 P. 3d, at 554 (Kennard, J., concurring and dissenting) (“Nothing in the high court‘s majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state‘s sentencing scheme turns on whether, in the words of the majority here, it involves the type of factfinding ‘that traditionally has been performed by a judge.‘” (quoting id., at 1253, 113 P. 3d, at 542)).
The Black court‘s conclusion that the upper term, and not the middle term, qualifies as the relevant statutory maximum, rested on several considerations. First, the court reasoned that, given the ample discretion afforded trial judges to identify aggravating facts warranting an upper term sentence, the DSL
“does not represent a legislative effort to shift the proof of particular facts from elements of a crime (to be proved to a jury) to sentencing factors (to be decided by a judge). . . . Instead, it afforded the sentencing judge”
We cautioned in Blakely, however, that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury‘s verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. 542 U. S., at 305, and n. 8.
The Black court also urged that the DSL is not cause for concern because it reduced the penalties for most crimes over the prior indeterminate sentencing regime. 35 Cal. 4th, at 1256-1258, 113 P. 3d, at 544-545. But see id., at 1271-1272, 113 P. 3d, at 555 (Kennard, J., concurring and dissenting) (“This aspect of our sentencing law does not differ significantly from the Washington sentencing scheme [the high court invalidated in Blakely.]“); supra, at 283-284. Furthermore, California‘s system is not unfair to defendants, for they “cannot reasonably expect a guarantee that the upper term will not be imposed” given judges’ broad discretion to impose an upper term sentence or to keep their punishment at the middle term. 35 Cal. 4th, at 1258-1259, 113 P. 3d, at 545-546. The Black court additionally noted that the DSL requires statutory enhancements (as distinguished from aggravators)—e. g., the use of a firearm or other dangerous weapon, infliction of great bodily injury,
The Black court‘s examination of the DSL, in short, satisfied it that California‘s sentencing system does not implicate
Ultimately, the Black court relied on an equation of California‘s DSL system to the post-Booker federal system. “The level of discretion available to a California judge in selecting which of the three available terms to impose,” the court said, “appears comparable to the level of discretion that the high court has chosen to permit federal judges in post-Booker sentencing.” 35 Cal. 4th, at 1261, 113 P. 3d, at 548. The same equation drives JUSTICE ALITO‘s dissent. See post, at 297 (“The California sentencing law . . . is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in [Booker].“).
The attempted comparison is unavailing. As earlier explained, see supra, at 284-286, this Court in Booker held the Federal Sentencing Guidelines incompatible with the Sixth Amendment because the Guidelines were “mandatory and impose[d] binding requirements on all sentencing judges.” 543 U. S., at 233. “[M]erely advisory provisions,” recommending but not requiring “the selection of particular sen-
California‘s DSL does not resemble the advisory system the Booker Court had in view. Under California‘s system, judges are not free to exercise their “discretion to select a specific sentence within a defined range.” Booker, 543 U. S., at 233. California‘s Legislature has adopted sentencing triads, three fixed sentences with no ranges between them. Cunningham‘s sentencing judge had no discretion to select a sentence within a range of 6 to 16 years. Her instruction was to select 12 years, nothing less and nothing more, unless she found facts allowing the imposition of a sentence of 6 or 16 years. Factfinding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies.
Nevertheless, the Black court attempted to rescue the DSL‘s judicial factfinding authority by typing it simply a reasonableness constraint, equivalent to the constraint operative in the federal system post-Booker. See 35 Cal. 4th, at 1261, 113 P. 3d, at 548 (“Because an aggravating factor under California law may include any factor that the judge reasonably deems relevant, the [DSL‘s] requirement that an upper term sentence be imposed only if an aggravating factor exists is comparable to Booker‘s requirement that a federal judge‘s sentencing decision not be unreasonable.“). Reasonableness, however, is not, as the Black court would have it, the touchstone of Sixth Amendment analysis. The reasonableness requirement Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those
To summarize: Contrary to the Black court‘s holding, our decisions from Apprendi to Booker point to the middle term specified in California‘s statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.16
IV
As to the adjustment of California‘s sentencing system in light of our decision, “[t]he ball . . . lies in [California‘s]
* * *
For the reasons stated, the judgment of the California Court of Appeal is reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The dissenting opinion by JUSTICE ALITO, which I join in full, well explains why the Court continues in a wrong and unfortunate direction in the cases following Apprendi v. New Jersey, 530 U.S. 466 (2000). See, e. g., United States v. Booker, 543 U. S. 220, 326-334 (2005) (BREYER, J., dissenting in part); Blakely v. Washington, 542 U. S. 296, 314-324 (2004) (O‘Connor, J., dissenting); id., at 326-328 (KENNEDY, J., dissenting); see also Apprendi, supra, at 523-554 (O‘Connor, J., dissenting); Jones v. United States, 526 U. S. 227, 264-272 (1999) (KENNEDY, J., dissenting). The discussion in his dissenting opinion is fully sufficient to show why, in my respectful view, the Court‘s analysis and holding are mistaken. It does seem appropriate to add this brief, further comment.
In my view the Apprendi line of cases remains incorrect. Yet there may be a principled rationale permitting those cases to control within the central sphere of their concern, while reducing the collateral, widespread harm to the criminal justice system and the corrections process now resulting from the Court‘s wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries. The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not. California attempted to make this initial distinction. Compare
California, as the Court notes, experimented earlier with an indeterminate sentencing system. Ante, at 276-277. The State reposed vast power and discretion in a nonjudicial agency to set a release date for convicted felons. That sys-
As dissenting opinions have suggested before, the Constitution ought not to be interpreted to strike down all aspects of sentencing systems that grant judicial discretion with some legislative direction and control. Judges and legislators must have the capacity to develop consistent standards, standards that individual juries empaneled for only a short time cannot elaborate in any permanent way. See, e. g., Blakely, 542 U. S., at 314 (opinion of O‘Connor, J.); id., at 326-327 (opinion of KENNEDY, J.) (explaining that “[s]entencing guidelines are a prime example of [the] collaborative process” between courts and legislatures). Judges and sentencing officials have a broad view and long-term commitment to correctional systems. Juries do not. Judicial officers and corrections professionals, under the guidance and control of the legislature, should be encouraged to participate in an ongoing manner to improve the various sentencing schemes in our country.
This system of guided discretion would be permitted to a large extent if the Court confined the Apprendi rule to sentencing enhancements based on the nature of the offense. These would include, for example, the fact that a weapon was used; violence was employed; a stated amount of drugs or other contraband was involved; or the crime was motivated by the victim‘s race, gender, or other status protected by statute. Juries could consider these matters without serious disruption because these factors often are part of the statutory definition of an aggravated crime in any event and
On the other hand, judicial determination is appropriate with regard to factors exhibited by the defendant. These would include, for example, prior convictions; cooperation or noncooperation with law enforcement; remorse or the lack of it; or other aspects of the defendant‘s history bearing upon his background and contribution to the community. This is so even if the relevant facts were to be found by the judge by a preponderance of the evidence. These are facts that should be taken into account at sentencing but have little if any significance for whether the defendant committed the crime. See Berman & Bibas, Making Sentencing Sensible, 4 Ohio St. J. Crim. L. 37, 55-57 (2006).
The line between offense and offender would not always be clear, but in most instances the nature of the offense is defined in a manner that ensures the problem of categories would not be difficult. Apprendi suffers from a similar line-drawing problem between facts that must be considered by the jury and other considerations that a judge can take into account. The main part of the Apprendi holding could be retained with far less systemic disruption. It is to be regretted that the Court‘s decision today appears to foreclose consideration of this approach or other reasonable efforts to develop systems of guided discretion within the general constraint that Apprendi imposes.
JUSTICE ALITO, with whom JUSTICE KENNEDY and JUSTICE BREYER join, dissenting.
The California sentencing law that the Court strikes down today is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in United States v. Booker, 543 U. S. 220 (2005). Both sentencing schemes grant trial judges considerable discretion in sentencing; both subject the exercise of that
I
In Apprendi v. New Jersey, 530 U. S. 466 (2000), and the cases that have followed in its wake, the Court has held that under certain circumstances a criminal defendant possesses the Sixth Amendment right to have a jury find facts that result in an increased sentence. The Court, however, has never suggested that all factual findings that affect a defendant‘s sentence must be made by a jury. On the contrary, in Apprendi and later cases, the Court has consistently stated that when a trial court makes a fully discretionary sentencing decision (such as a sentencing decision under the pre-Sentencing Reform Act of 1984 federal sentencing system), the Sixth Amendment permits the court to base the sentence on its own factual findings. See id., at 481; Blakely v. Washington, 542 U. S. 296, 305 (2004); Booker, supra, at 233; see also Harris v. United States, 536 U. S. 545, 558 (2002) (plurality opinion).1
“If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. . . . For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.” Booker, supra, at 233.2
In a similar vein, the remedial portion of the Court‘s opinion in Booker, written by JUSTICE BREYER, held that the Sixth Amendment permits a system of advisory guidelines with reasonableness review.3 JUSTICE BREYER‘s opinion
Under the post-Booker federal sentencing system, “[t]he district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” Id., at 264. In addition, sentencing courts must take account of the general sentencing goals set forth by Congress, including avoiding unwarranted sentencing disparities, providing restitution to victims, reflecting the seriousness of the offense, promoting respect for the law, providing just punishment, affording adequate deterrence, protecting the public, and effectively providing the defendant with needed educational or vocational training and medical care. See id., at 260 (citing
It is significant that Booker, while rendering the Guidelines advisory, did not reinstitute the pre-Guidelines federal sentencing system, under which “well-established doctrine bar[red] review of the exercise of sentencing discretion” within the broad sentencing ranges imposed by the criminal statutes. Dorszynski v. United States, 418 U. S. 424, 443 (1974). Rather, Booker conditioned a district court‘s sentencing discretion on appellate review for “reasonable-
Although the Booker Court did not spell out in detail how sentencing judges are to proceed under the new advisory Guidelines regime, it seems clear that this regime permits—and, indeed, requires—sentencing judges to make factual findings and to base their sentences on those findings. The federal criminal statutes generally set out wide sentencing ranges, and thus in each case a sentencing judge must use some criteria in selecting the sentence to be imposed. In doing this, federal judges have generally made and relied upon factual determinations about the nature of the offense and the offender—and it is impossible to imagine how federal judges could reasonably carry out their sentencing responsibilities without making such factual determinations.
Under the mandatory Federal Sentencing Guidelines regime, these factual determinations were relatively formal and precise. (For example, a trial judge under that regime might have found based on a post-trial proceeding that a drug offense involved six kilograms of cocaine or that the loss caused by a mail fraud offense was $2.5 million.) By contrast, under the pre-Sentencing Reform Act federal system, the factual determinations were often relatively informal and imprecise. (A trial judge might have concluded from the presentence report that an offense involved “a large quantity of drugs” or that a mail fraud scheme caused “a great loss.“) Under both systems, however, the judges made factual determinations about the nature of the offense and the offender and determined the sentence accordingly. And as the Courts of Appeals have unanimously concluded, the post-Booker federal sentencing regime also permits trial judges to make such factual findings and to rely on those
Under the post-Booker system, if a defendant believes that his or her sentence was based on an erroneous factual determination, it seems clear that the defendant may challenge that finding on appeal. As noted, the post-Booker system permits a defendant to obtain appellate review of the reasonableness of a sentence, and a sentence that the sentencing court justifies solely on the basis of an erroneous finding of fact can hardly be regarded as reasonable. Thus, under the post-Booker system, there will be cases—and, in all likelihood, a good many cases—in which the question whether a defendant will be required to serve a greater or lesser sentence depends on whether a court of appeals sustains a finding of fact made by the sentencing judge.
A simple example illustrates this point. Suppose that a defendant is found guilty of 10 counts of mail fraud in that the defendant made 10 mailings in furtherance of a scheme to defraud. See
Suppose, alternatively, that the sentencing court finds that the mail fraud scheme caused a loss of $1 million and that the victims were elderly people of limited means, and suppose that the court, based on these findings, imposes a sentence of 10 years of imprisonment. If the defendant challenges the sentence on appeal on the ground that these findings are erroneous, the question whether the defendant will be required to serve 10 years or some lesser sentence may well depend on the validity of the district court‘s findings of fact.
Booker, then, approved a sentencing system that (1) requires a sentencing judge to “consult” and “take into account” legislatively defined sentencing factors and guidelines; (2) subjects a sentencing judge‘s exercise of sentencing discretion to appellate review for “reasonableness“; and (3) requires sentencing judges to make factual findings in order to support the exercise of this discretion.
II
The California sentencing law that the Court strikes down today is not meaningfully different from the federal scheme upheld in Booker.
As an initial matter, the California law gives a judge at least as much sentencing discretion as does the post-Booker federal scheme. California‘s system of sentencing triads and separate “enhancements”5 was enacted to achieve sentences “in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.”
In exercising its sentencing discretion, a California court can look to any of the 16 specific aggravating circumstances, see
In short, under California law, the “‘circumstances’ the sentencing judge may look to in aggravation or in mitigation of the crime include . . . ‘practically everything which has a legitimate bearing’ on the matter in issue.” People v. Guevara, 88 Cal. App. 3d 86, 93, 151 Cal. Rptr. 511, 516 (1979); see also
The California scheme—like the federal “advisory Guidelines“—does require that this discretion be exercised reasonably. Indeed, the California Supreme Court, authoritatively construing the California statute,8 has explained that
Moreover, the California system, like the post-Booker federal regime, recognizes that a sentencing judge must have the ability to look at all the relevant facts—even those outside the trial record and jury verdict—in exercising his or
III
Despite these similarities between the California system and the “advisory Guidelines” scheme approved in Booker, the Court nevertheless holds that the California regime runs afoul of the Sixth Amendment. The Court reasons as follows: (1) California requires that some aggravating fact, apart from the elements of the offense found by the jury, must support an upper term sentence; (2) Blakely defined the “statutory maximum” to be “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,” 542 U. S., at 303 (emphasis in original); and therefore (3) the California regime violates ”Apprendi‘s bright-line rule,” id. at 308, that “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,” Apprendi, 530 U. S., at 490.
This argument is flawed. For one thing, it is not at all clear that a California court must find some case-specific, adjudicative “fact” (as opposed to identifying a relevant policy consideration) before imposing an upper term sentence. What a California sentencing court must find is a “circumstanc[e] in aggravation,”
California courts are thus empowered to take into account the full panoply of factual and policy considerations that have traditionally been considered by judges operating under fully discretionary sentencing regimes—the constitutionality of which the Court has repeatedly reaffirmed. California law
In short, the requirement that a California court find some “circumstanc[e] in aggravation” before imposing an upper term sentence is not the same as a requirement that it find an aggravating fact. And if a California sentencing court need not find a fact beyond those “reflected in the jury verdict or admitted by the defendant,” Blakely, supra, at 303 (emphasis deleted), then Apprendi‘s “bright-line rule” plainly does not apply.10
But even if the California law did require that a sentencing court find some aggravating “fact” before imposing an upper term sentence, that would not make this case constitutionally indistinguishable from Booker. As previously explained, the “advisory Guidelines,” bounded by reasonableness review, effectively (albeit less explicitly) impose the same requirement on federal judges. Booker‘s reasonableness review necessarily supposes that some sentences will be unreasonable in the absence of additional facts justifying them. (Recall the prior hypothetical case in which it was posited that the district court imposed a sentence of 200 years of imprisonment for mail fraud without citing a single aggravating fact about the offense or the offender.) Thus, although the post-Booker Guidelines are labeled “advisory,” reasonableness review imposes a very real constraint on a judge‘s ability to sentence across the full statutory range without finding some aggravating fact.11
The Court relies heavily on Blakely‘s admonition 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.” 542 U. S., at 303 (emphasis in original). But the Court fails to recognize how this statement must be understood in the wake of Booker.
For each statutory offense, there must be a sentence that represents the least onerous sentence that can be regarded as reasonable in light of the bare statutory elements found by the jury. To return to our prior example of a mail fraud offense, there must be some sentence that represents the least onerous sentence that would be appropriate in a case in which the statutory elements of mail fraud are satisfied but in which the offense and the offender are as little deserving of punishment as can be imagined. (Whether this sentence is the statutory minimum (probation, see
Booker‘s reasonableness review necessarily anticipates that the imposition of sentences above this level may be conditioned upon findings of fact made by a judge and not by the jury. Booker held that a system of “advisory Guidelines” with reasonableness review is consistent with the Sixth Amendment, and the same analysis should govern California‘s “requirement that the decision to impose the upper term be reasonable.” Black, 35 Cal. 4th, at 1255, 113 P. 3d, at 544 (emphasis in original). That the California requirement is explicit, while the federal aggravating factor requirement is (at least for now) implicit, should not be constitutionally dispositive.
Unless the Court is prepared to overrule the remedial decision in Booker, the California sentencing scheme at issue in this case should be held to be consistent with the Sixth Amendment. I would therefore affirm the decision of the California Court of Appeal.