*1 century, nearly Supreme] For half a v. Schempp, [the 83 S.Ct. First Court has extended Amendment J., (Goldberg, protection to multitude of forms of concurring). It seems to me that the ma- making as false defama- “speech,” such jority today does exactly that. statements, lawsuits, filing tory dancing I respectfully dissent. nude, exhibiting drive-in movies with nu- flags, and dity, burning wearing military of Appeals

uniforms.... Courts [T]he that the First concluded Amend- [ ] example,

ment protects, begging, obscenities, erecting

shouting tables on a

sidewalk, refusing to wear a necktie. PAC,

Nixon v. Shrink Missouri Gov’t 377, 411-12, America, UNITED STATES of (2000) (Thomas, J., L.Ed.2d 886 dissent- Plaintiff-Appellee, ing). majority opinion today But the holds that that same First Amendment does not BOOKER, Freddie J. Defendant-

protect posting, in a historical display Appellant. used for purposes, educational a set of played rules that has an undeniable role in No. 03-4225. the formation of this nation’s laws. United States Court of Appeals,

I join majority cannot in finding that Seventh Circuit. the Establishment Clause is so inelastic as “permit[ government to not some ] latitude Argued July 2004. in recognizing and accommodating the cen July Decided 2004*. religion tral in plays society.” role our Allegheny, 492 U.S. at 109 S.Ct. 3086 J.,

(Kennedy, concurring part and dis (citing

senting part) Lynch, 465 U.S. at 1355). In the matter before

us, small, Judge displayed a DeWeese un copy

obtrusive of the Ten Commandments courtroom, part his of a series of depictions

documents and that he uses for express purpose educating commu

nity groups history on the and philosophy It law. unconstitutional

make observations of historical fact. As Goldberg wisely

Justice reminded us more “[njeither

than ago, four govern decades

ment nor this Court can or should ignore significance of the fact that ... many

of our legal, political personal values historically

derive from religious teach

ings.” School Dist. Abington Toumship

* being typescript. printed decision is released in A version will follow. *2 O’Shea,

Timothy M. Elizabeth Altman (Argued), Office of the United States At- Madison, (Ar- WI, torney, Elizabeth Olson Justice, Department of Di- gued), Criminal vision, Section, DC, Washington, Appellate Plaintiff-Appellee. Christopher Kelly (Argued), Kelly T. & Habermehl, Madison, WI, for Defendant- Appellant. POSNER, EASTERBROOK,

Before KANNE, Judges. Circuit POSNER, Judge. Circuit jury guilty A found the defendant with intent to distribute at least possessing base, for which the grams of cocaine prescribes a minimum sentence statute prison and a maximum sen- 841(b)(1)(A)(iii). § tence of life. U.S.C. sentencing, judge pre- found At that the defen- ponderance of the evidence (1) grams distributed 566 over dant had that the grams and above the 92.5 (for the defendant did not to have found of crack contest that was the amount just claimed he hadn’t bag his duffel —he there) justice. had obstructed put it sentencing guidelines, Under the federal finding increased quantity the additional from 32 offense level the defendant’s base (4). 2Dl.l(c)(2), §§ The U.S.S.G. effect, that of the enhance- together with prescribe for ob- ment that the 3C1.1, justice, was struction of U.S.S.G. the defendant place judge The months to life. range range. him to the bottom of sentenced Apprendi Jersey, appeal challenges doubt." v. New the sentence on the ground sentencing guidelines that the vio- (2000).

late the Sixth Amendment insofar as In it let the other shoe permit (other drop pointed to find facts than and held over dissents that *3 relating `statutory Apprendi facts to a defendant's criminal his- "the maximum' for tory) purposes judge that determine the defendant's sen- is the maximum sentence a tencing range. challenge may impose solely There is also a on the basis of the facts conviction, judge's jury by to the based on the reflected in the verdict or admitted limiting scope cross-examination, Blakely Washington, the defendant." v. obviously supra, words, but so harmless was that error at 2536. "In other the rele- (if error) `statutory it was an that we will move vant maximum' is not the maxi- immediately sentencing judge may impose to the issue. mum sentence a after finding facts, expedited additional but the maximum We have our decision in an may impose provide guidance without additional effort to some findings. judge punish- judges (and staff), When a inflicts district our own court's jury's who are faced with an avalanche of mo ment that the verdict alone does not allow, jury resentencing light has not found all the facts tions for in the of Blake pun- ly Washington, - -, `which the law makes essential to the ishment,' judge proper and the exceeds his which has authority." (citation omitted). long Id. cast a shadow over the federal sen original; tencing guidelines. "[W]ithout" is italicized in the We cannot of course provide guidance; only have italicized "relevant" to underscore the definitive difference between the maximum sentence Congress that; hope Court and can do our statute, early opinion help speed in the and the maximum sen- is that an will Supreme regards issue to a definitive resolution. tence-what statutory as the "relevant maximum"- Blakely invalidates under the Sixth judge impose making that the can without (which long Amendment had of course findings, beyond his own above and what applicable pro- been held to state criminal found or the defendant admitted ceedings by interpretation an of the Four- or, here, Amendment) as did not contest. teenth a statute of the State Washington that authorized the sentenc- The maximum sentence that the district ing judge impose a sentence above the judge imposed could have in this case range" "standard set forth in the statute (without upward departure), an had he not punishing any ag- the offense if he found any findings concerning quantity made gravating justified factors that such a de- drugs justice, or obstruction of would have parture; pursuant grant to this of authori- months, given been 262 the defendant's ty, judge imposed a sentence of 90 base offense level of U.S.S.G. defendant, months on the which exceeded 2D1.1(c)(4) (32 is the base offense level range the standard of 49 to 53 months for possessed when the defendant at least 50 offense, second-degree kidnapping. his grams grams crack), but less than 150 Supreme already history. The Court had and the defendant's criminal prior 4A1.1(a)-(e), .2(c)(1). True, §~ held that "other than the fact of a U.S.S.G. conviction, any pen imposed by fact that increases the that maximum is the words alty beyond prescribed statute, by for a crime of a federal but guidelines. guidelines maximum must be submitted to Provisions of the jury, proved beyond range" possess- a reasonable establish a "standard (E.D.N.Y. 1, 2004); July at *1 50 WL at least intent to distribute ing with Shamblin, base, provi- F.Supp.2d other United States of cocaine grams aggrava- establish at *8 guidelines WL sions jack (S.D.W.Va. by 30, 2004), if found ting factors June is the pattern The up range.. same dooms the insofar as re- statute, it is Washington that in the that sentences be based on facts quire the fact to believe hard majority in Blake- judge. found by the U.S. promulgated dissenting opinions that as ly, faced with than rather Sentencing Commission much as said that the decision doomed make a difference. The legislature sentencing guidelines, might federal delegated exercising power Commission said, doesn’t; no it it did not that. *4 legislature Congress, and if by to it qualification “based on facts found Supreme what the Court cannot evade by judge” Nothing Blakely is in critical. the Constitution the commands of deems suggests Congress delegate cannot neither, sentencing multistage scheme by a Sentencing authority the the Commission regulatory agency. can a plain, it seems possession with intent to decree guidelines the upholding In its decision grams of distribute 658.5 cocaine base pow- of delegation separation and against by a of at punished shall be sentence least Supreme the challenges, ers statutory minimum though 360 months the “although Congress granted stated that All it cannot only years. 10 do under in discretion substantial the Commission away Blakely is take from the defendant actuality in it guidelines, formulating right quantity to demand that the be hierarchy punishment— a full legislated rather than determined to sub- imprisonment, maximum from near proof beyond and on the basis of judge, imprison- imprisonment, some stantial government ar- reasonable doubt. The ment, stipulated to alternatives —and regularize that all do is char- important offense and offender most gues judges would exercise these the discretion place defendants within acteristics picking “in to a a sentence within and that contrast categories” States, supra, exercising judicial power, range. the Com- Mistretta v. United court’s fully Congress, 395, accountable to If that at 109 S.Ct. 647. mission 488 U.S. any all of all, or amend or which revoke that would be fine. And were indeed either within fit system Guidelines of the sees extent great indeed at 180-day waiting period or ranges its guidelines, with States, v. 488 time.” Mistretta United departures, limits upward and downward. 647, 361, 377, 393-94, 102 109 S.Ct. U.S. sentencing dis- extinguishes than rather (citation omitted). (1989) 714 L.Ed.2d Blakely was not cretion. But the issue authority was the sentencing discretion —it follow, therefore, as It seem to would to find the facts sentencing judge of the dissenting Justices the four shall how that discretion be determine warned, Washington, supra, at Blakely v. so on the basis implemented and (O’Connor, J., id. at do. dissenting); 2548-51 The vices only proof. the civil burden of J., dissenting); and several (Breyer, 2561 they require are thus that ruled, already e.g., judges district findings make sentencing judge to Croxford, F.Supp.2d v. 324 United States (and wrong stan- 1521560, *7, fact to do so under 1230, 1239, 1246, 2004 WL (D.Utah proof), e.g., 18 U.S.C. 7, 2004); dard July *13 United .3(a), 1B1.1, 3553(a)(4), (5); §§ 436, 437, Medas, §§ U.S.S.G. F.Supp.2d 2004 v. 6A1.3(b); States, (4th Edwards United Maples, States v. 501 F.2d 985 Cir. 513-14, 511, 1475, 118 S.Ct. 1974), discretion, failed to exercise (1998); L.Ed.2d 703 United States v. Be information, based the sentence on false 448, (7th Cir.2002); quette, 309 F.3d 450-51 Burke, e.g., Townsend 334 U.S. Jackson, United States v. 300 F.3d 92 L.Ed. 1690 —and (7th Cir.2002); United States v. Guz commanding him to make factfindings and man, (10th 318 F.3d 1197-98 Cir. (within band) base the sentence a narrow 2003); Lopez, States v. United 219 F.3d on them. The latter is Washington’s what (4th Cir.2000), and that did, sentencing guidelines and there is no judge’s largely findings determine the sen thinking basis for would have tence, given upward limits on been differently decided had the identical departures, downward 18 U.S.C. guidelines been promulgated, with the (e), (f); 3553(b), §§ § 5K2.0; U.S.S.G. sentences, identical effect on by the Wash 81, 92, 96, Koon v. ington Sentencing Commission. The (1996); 135 L.Ed.2d Court in Blakely was well aware of the Sherman, United States v. 53 F.3d difference, stating that factfinding by (7th Cir.1995); 788-89 United States v. judges parole boards under indetermi *5 (D.C.Cir. 1043, Lafayette, 337 F.3d nate sentencing regimes permissible are 2003); Cruz, cf. United States v. 317 F.3d because “the facts do not pertain to wheth (7th Cir.2003). 763, 766 The finding of er the defendant has a legal right (other facts than the fact of the defen lesser sentence—and that makes all the history) dant’s criminal on bearing the judicial difference insofar as impingement length just of the sentence is what the upon the traditional role 'of the jury is Supreme in Blakely Court has determined concerned.” Blakely v. Washington, su to be of province jury. the pra, (emphasis at 2540 original). in course, Of under almost sentencing It is tempting to think maybe that regime some residual discretion is vested guidelines can by be saved imagining the in sentencing judge; and to the extent Sentencing Commission aas kind of super- that his of discretion exercise is influenced judge who elaborates a code of sentencing case, the facts of the if only the facts principles much as a thoughtful judge, real that may gleaned he concerning the in operating regime of indeterminate character, defendant’s remorse, health, sentencing, might informally do in an ef- on, judicial and so factfinding enters the fort try to make his sentences consis- sentencing process. But there is a differ- tent. But the same reasoning ence would if allowing between a sentencing judge accepted have saved Washington’s range consider a sen- factors may tencing guidelines, unless an informally include facts that he administra- finds—the tive pre-guidelines agency is to regime, be under deemed a more which “once re- sponsible, authoritative, determined that a more [was] a sentence fount [was] within the limitations set legislature. forth in criminal law than a the stat- The four ute under which it imposed, dissenting [was] in appel- Justices Blakely were unable end,” late review at an identify [was] Dorszynski a meaningful v. difference be- States, United 418 U.S. tween Washington S.Ct. sentencing guide- though sen- lines and the federal sentencing guidelines. tences would occasionally be A fifth Scalia, reversed be- Justice —Justice the author cause the district on an relied the majority opinion Blakely in —had impermissible consideration, e.g., United in dissented Mistretta on ground (1997). 139 L.Ed.2d in- 118 S.Ct. were sentencing guidelines federal argues guide- government laws, judicial pronouncements. not deed Amend- States, upheld against were Sixth 488 U.S. lines supra, v. Mistretta United v. challenge in Edwards And Justice ment 413-27, 647. at majority of the at S.Ct. supra, for a 523 U.S. Scalia, speaking now right to the we shall have Court, though replied and if this is Blakely, in- not our length, did sentence whatever dissenting Justices affirm Booker’s suggest that the consis- wrong guidelines’ dependent were view (The not be also sentencing guidelines Blakely. government could tency with federal Watts, sen- Washington from distinguished mentions United “By Instead he said: tencing guidelines. 136 L.Ed.2d not, below, case, judgment curiam), reversing double-jeopardy (per it, ‘finding] deter- would have the State decisions rebuff Supreme other unconstitution- sentencing schemes challenges minate constitutional various deter- not about whether This case is Amendment al.’ not Sixth —but constitutional, only sentencing Pre-Blakely minate lower challenge. decisions way in a implemented rebuffing it can be a Sixth Amend- about how federal courts Amendment.” au- respects Sixth course no challenge longer are of ment No thoritative.) at 2540. Washington, supra, Blakely right. not think it is We do stat- Washington between cites Ed- opinions distinction None sen- schemes of determinate majority opinion ute and other wards. The as the federal tencing, such Guidelines are that “the Federal states dissenting Justices us, on express on which no and we before *6 length, suggested. at them,” Washington, at such supra, dwelled they were 9; n. does not state it matter, then, we original anAs chal- Amendment against a Sixth upheld only in guidelines, though the think that any other case. lenge Edwards in which present one as the cases such see.) the not, When as we’ll (They were jury and right to a they limit defendants’ that it is not resolv- says Supreme Court standard, and thus to the reasonable-doubt issue, confides the issue perforce it ing an to have a Booker right of defendant the first for the federal courts to the lower standard) how (using that jury determine at pass resolution. and possessed he much base cocaine the justice, he obstructed violate whether said footnote could have The Court interpreted by Blake as Amendment Sixth Ed- to whether overrule question the But be certain this. ly. We cannot say It did not not before it. wards was an issue duty to the decide cannot avoid The surprising. That is not that. to us. If our decision presented squarely Sixth not mention the does in Edwards speedily may Supreme wrong, to a right or the constitutional Amendment it. reverse need trial, states “we indeed jury and not, merits of not, do consider and we Supreme of the Court’s mindful We are statutory and constitutional petitioners’ are not courts lower federal ukase that the 1475. at 523 U.S. even claims.” Supreme Court decision to overrule statu- “petitioners’ did a The Court with manifestly inconsistent if it seems make claims would tory and constitutional decision, subsequent unless subsequent argue, possible if it were difference the earlier overruled explicitly decision exceeded imposed sentences Khan, say, that the Co. one. State Oil permit maximum the statutes for Sixth Amendment challenge guide- cocaine,” id. at which lines because there was no Sixth Amend- may mean that their constitutional claims ment challenge guidelines. We are (a mishmash claims under pro- different obligated therefore to make our own con- Constitution, visions of the including how- stitutional determination. Amendment) ever the Sixth did not matter We conclude that right Booker has a because the sentences did not exceed the jury determine the quantity of statutory maximum. This was of course drugs possessed and the facts underly- the understanding before Blakely, but ing the determination that he obstructed “statutory redefined maximum.” justice. judgment must therefore be An assumption a holding. is not reversed case remanded for resen-

The Court in Edwards was affirming tencing. government If the does not ob- court, decision this reported at 105 ject, F.3d simply sentence Booker (7th Cir.1997), which months, does men to 262 since the choice of that tion the Sixth Amendment or the constitu sentence not require any judicial would right tional jury trial or any other factfinding. But if government wants constitutional issue. That hardly would higher unless, sentence or explained have been oversight part below, on the severable, are not opinion’s Supreme author. The Booker, Court said then unless he strikes a deal with granting it was certiorari in Edwards government, will be entitled to a sen- to resolve a conflict over question tencing hearing at jury which a will have whether “the Sentencing Guidelines re to find proof beyond a reasonable doubt quire the sentencing judge, jury, not the the facts on which a higher sentence would determine both the kind and the amount of premised. be novelty There is no in a the drugs at issue in a drug conspiracy.” separate jury trial with regard the sen- tence, S.Ct. 1475. just None of as there novelty is no in a the other it eases cited for the trial, existence jury bifurcated in which first the conflict mentions the Constitution ei liability then, determines if only if ther. Bounds, United States v. 985 F.2d liability, finds determines damages. *7 (5th 188, Cir.1993); 194-95 United Separate States hearings before a jury on the Pace, (10th v. 981 F.2d 1128-30 Cir. issue of sentence is the in norm capital 1992); Owens, States v. United 904 F.2d cases. (8th Cir.1990).

411 Of course this will not if work the facts And, finally, petitioners the in Edwards that government the seek would to estab- did argue that the sentencing guide- lish in the sentencing hearing are elements lines are They unconstitutional. did not of a offense, statutory they would then say that the guidelines establish a sentenc- have to be alleged indictment, in the and to ing structure that violates the Sixth re-indict at this stage present would Amendment. The most that can be dug double-jeopardy issue. can hardly We at- briefs, out of their so far as bears on tempt to resolve such issues on ap- this issue, is that were urging peal; parties the have not briefed or ar- interpretation that would avoid a gued Sixth them. It would be doubly premature Amendment issue. The Court did not them, to address in light of the recent opine guidelines’ on the consistency with announcement the Department of Jus- the amendment because consistency tice that it believes that if Blakely appli- was not challenged. It did not rebuff a cable to the guidelines, system” the “entire

515 in Blake- interpreted as Amendment “Depart fall.” Sixth “must guidelines the of (2) in where there are no en- in cases ly; and Policies Positions Legal mental is, findings Memo no factual Washington,” Blakely v. hancements —that Light of from increasing Prosecutors the sentence —there judge to All Federal the randum Attorney applying in Deputy General violation Comey, is' no constitutional James 2004). (July are p. guidelines the unless guidelines the United of (3) aspect right; do not may entirety; be we Department invalid in their The to be guidelines, that we believe guidelines severability of of the decide the unconstitutional, requirement namely the for consideration on is an issue and so that certain judge make by the an issue should it be made remand the premise severable, as operate (4) shall findings that guidelines if the parties; on them not, and that make the sentence if sentencing jury; of can use a judge evi of preponderance of the the basis any sentence between he can choose from the sub dence, severable may not be making in the latter life and years and That guidelines. of the provisions stantive on the free to draw he is determination intent. Minne question legislative ais as he sees for recommendations guidelines Indi Chippewa Lacs Band v. Mille sota fit; prudence, the as a matter of ans, nonguidelines in event select should (1999). practical effect L.Ed.2d sentence. alternative persuasion burden of just upping argue does not government Because be to reduce will sentencing hearings challenge Sixth Amendment Booker’s might sentence, Congress average by not forfeited be- guidelines was sentenc indeterminate a return to prefer court, need not ing the district made In that (within statutory ranges).. ing of the doctrine of application consider the would be invalid event Olano, error, e.g., plain course, infor entirety, except, their would continue judges that some mation challenges inspired L.Ed.2d severability is But weight to. great give Blakely decision. by the has not been briefed issue another argued to us. and RemaNded. Reversed if the substantive might It seem are not severable portions EASTERBROOK, Judge, Circuit judge find that the requirement from dissenting. sentence, a 262- relevant to the facts do illegal. We be sentence would month that, after colleagues hold My *8 fall, the If think so. — 2531, U.S. —, 124 S.Ct. Washington, guide- was before the judge free as he (2004), application judicial 403 159 L.Ed.2d any fix sentence promulgated lines were violates Sentencing Guidelines range and statutory range, within jury under the right to trial defendant’s remember, life. Booker, years 10 for disagree I with sixth amendment. quite guidelines is fall of the Since and substan procedural on holding both for outcome, prudent it would be possible for wrong forum This is the grounds. tive to select fail-back event conclusion; power and whatever such sentence. exercised set should not be may possess of federal component a central naught at The application To summarize: practice. criminal in this case violated 516 ” Supreme

Procedure first. The Court Blakely ‘statutory redefined maximum.’ so, alone is entitled declare one of its deci 375 F.3d 514. Maybe but so it is if just sions if why defunct. Even later decisions a reason Edwards is on its last away foundation, wash legs. the earlier one’s It does not imply that we are enti- power put still the tled to it in coup administer the de a coffin while it is still See, gráee belongs superiors. breathing. to our e.g., Khan, 3, 20, State Oil Co. v. 522 U.S. 118 opera Just as go stars often on singing 275, (1997); L.Ed.2d Rodri shot, stabbed, being after poisoned, so Expr guez Quijas de v. Shearson/American e judicial opinions often survive what could Inc., ss, 490 U.S. 109 S.Ct. be fatal blows. Think of Lemon v. Kurtz 1917, (1989). 104 L.Ed.2d 526 The alter man, 192, 1463, U.S. 93 S.Ct. native is likely bedlam—which is the con (1973), L.Ed.2d 151 which is incompatible sequence today’s A decision. court of decisions, with later has disparaged been appeals replace cannot the Guidelines with by Justices, most sitting yet has not been else; something the list of non-exclusive overruled. Closer to the mark is Almen options at majority’s opinion the end of the States, darez-Torres v. United 523 U.S. formula, is our home-brewed other 118 S.Ct. 140 L.Ed.2d 350 courts are bound to favor different recipes (1998), decided one month before Edwards as 900 judges district and circuit fumble and, it, like in tension with Apprendi v. Supreme solutions. The Court alone Jersey, New 120 S.Ct. judgment. make definitive (2000), on which Blakely rests. Almendarez-Torres ju holds that

In do, they my order to reach the result ries need not be asked to determine a colleagues must conclude that Edwards v. defendant’s history criminal pur even for poses of recidivist statutes use convic 140 L.Ed.2d was wrongly tions to increase the maximum sentence. decided. portfolio Our as intermediate Justices, Four dissenting in Almendarez- judges in a system hierarchical does not Torres, made the arguments that were to include the authority to make such decla carry day two later in Apprendi, rations. True enough, Edwards does not joined when Thomas, were Justice contain phrase “sixth amendment.” who had been But Almendarez-Torres an argument on the sixth based majority. 248-71, See 523 U.S. at amendment was to the Court: de made (Scalia, J., joined S.Ct. 1219 by Stevens, that, fendants insisted if the Guidelines JJ., Souter & Ginsburg, dissenting). Jus statutes were read as the United tice Thomas wrote that he now considers did, and the Justices themselves wrongly Almendarez-Torres decided. Ap that would deprive right them of their prendi, 518-21, 530 U.S. at S.Ct. 2348 trial. Court’s Ed (Thomas, J., concurring). might One think wards acknowledged that constitutional doomed, Almendarez-Torres but it has not contentions had been advanced. Edwards overruled, been and Blakely repeats a for held that a judge may nonetheless ascer mula that carves out recidivist enhance tain standard) (using preponderance ments. We routinely apply Almendarez- type involved, amount of drugs *9 Torres, saying that its fate rests with the and impose a based on that sentence con Supreme Court alone. Edwards should clusion, as long as the sentence does not receive the same treatment. exceed the statutory maximum. Accord ing my colleagues: “This was of course support To view Edwards no the understanding Blakely, before but longer authoritative, is majority

518 (§ 841(b)(1)(C)); distribution of more than validity of Washington’s system by giv- (or base) grams grams 500 5 of cocaine ing this definition of “statutory maximum”: years raises the maximum to 40 words, In other the relevant “statutory (§ 841(b)(1)(B)®, (iii)); distribution of maximum” is not the maximum sentence (or kilograms more grams than 5 judge may impose finding after addi- base) cocaine raises the maxi- facts, tional but the maximum may (§ (iii)). 841(b)(1)(A)®, mum to life In impose any without findings. additional Nance, United States v. 236 F.3d 824- When a judge punishment inflicts (7th Cir.2000), we held that the thresh- the jury’s verdict allow, alone does not (500 olds grams kilograms) must be jury has not found all the facts charged in the indictment and established “which the law essential makes beyond a reasonable jury’s doubt to the punishment,” ... and judge exceeds (if satisfaction the defendant does not his proper authority. jury waive trial or admit the quantities). 124 S.Ct. at 2537 (emphasis in original). I years. Otherwise the maximum is 20 Once do not see here the startling consequences the trier of fact has determined that the my colleagues find. says This exactly distributed at grams defendant least 500 what held in Nance: one must start kilograms, the sixth amendment has with the lowest statutory maximum and been satisfied choosing a sentence be- ask the to make findings that raise low the statutory limit is the sentence to which the defendant is alone, preponderance on the of the evi- exposed. See, Indiana, dence. e.g., Talbott Blakely arose from a designate need to (7th Cir.2000). F.3d 869-70 one of two statutes as the “statutory maxi- Blakely is the Supreme analog Court’s mum”. Washington called its statutes to Nance. provides Just as a maxi- “sentencing guidelines,” but names do not mum of life imprisonment for distributing change Nonetheless, facts. the reading only cocaine if defendant distributed my colleagues give to this passage is that (or least kilograms grams of cocaine it does not matter whether the maximum base) the maximum is 20 or 40 —otherwise statutory; any rule, legal source Washington a 10- establishes —so (statute, regulation, guideline) that affects year maximum sentence for second-degree must go sentence to jury. Certainly kidnapping, but (according to a" second that; does not hold it could not statute) only if the defendant acted with given “hold” that that it dealt with statutes “deliberate cruelty” the maxi- —otherwise exclusively. Attributing mum years. is 3 Washington contended view does not matter whether a “statutory relevant -maximum” given rule appears in a statute makes hash years; was 10 equivalent arguing this of “statutory Why maximum.” did the that the “statutory maximum” in feder- all deploy Justices that phrase in Apprendi al cocaine prosecutions is life. The Court (and and repeat it in Blakely quite a few disagreed and held that the relevant “stat- decisions)? other Just get a chuckle at utory maximum” is the argu- lowest all expense other who judges took them ably pertinent statutory caps, unless the seriously and thought “statutory max- jury, makes finding raises the imum” might have something to do with limit. Why statutes? “statutory write maxi- According my colleagues, Blakely mum” you if mean “all circumstances that goes beyond what necessary was decide go into ascertaining the proper sentence”? *11 “statutory phrase in the “Statutory” better, major- today’s Blakely one

Going inept an short-hand. is not maximum” constitutional a matter of as ity says that the sixth Blakely hold that and Apprendi be- any difference cannot be there law to the all ele allocates amendment rules: sources and other statutes tween offense, statutory all plus the ments of the fact that that the believe “it hard to is that enough like elements that are details by the U.S. promulgated are not be phraseology should differences by than a rather Sentencing Commission rights. the defendant’s allowed to affect The make a difference. legislature can thresh quantity Example: the delegated exercising power is Commission 841 are not “elements” olds legislature if a and by Congress, offense, Bjorkman, see Supreme Court the what cannot evade (7th Cir.2001), a low because 270 F.3d 482 of the Constitution deems the commands distrib acquittal; not lead to does quantity neither, sentencing scheme multistage by a is a criminal quantity uting detectable agency.” regulatory plain, it seems much as if works offense. But the statute proposition the For vital F.3d at 511. degrees of multiple enacted Congress had to a functionally equivalent anything between as the distinctions a crime. Just (from of a criminal perspective statute first-degree murder manslaughter and statute, defendant) as a treated must be must be .(such aforethought) as malice Phrases such nothing. majority cites— satisfaction, so the dis jury’s proved poor substitutes plain” “it as seems aggravated simple tinctions and between in- text or authority in the Constitution’s Blakely be shown. distribution must history. terpretive established Washington having treated is refuted majority’s proposition The the distinc kidnapping: degrees of three legisla- itself, tells us which third-degree kid and tion between second- judi- to the such issues may delegate tures Having cruelty. was deliberate napping offending boards without ciary parole statute in its this distinction embedded consid- The Court the sixth amendment. held, could books, Washington the Court be a constitu- there would ered whether This process. jury out' of not cut the sentenc- open-ended problem with tional has amendment of the sixth understanding any person allowing ing, such as statute if there is with nothing to do (the sentenced burglary to be Court’s convicted of an only degree offense one Blakely, up to 40. years 40-year maxi any term of with a burglary example left If the law 2540-41. con mum), has been or if defendant said, judiciary, court has degree. Booker highest decision victed if the problem no even “cocaine distribution there would be convicted of been (as a matter of verdict jury’s applied degree” and sentencing judge the first law) hap “10 unless What imprisonment. the rule authorizes life common then 40 to the sixth gun, if a unrelated gun; after that is burglar pens uses Ap- rule of why in a statute This algorithm amendment. years.” Put statutes, confined prendi amendment commits and the sixth statutory minimum burglar was do not affect why question whether jury the States, 536 sentences, judi- Harris v. United in a armed; algorithm see put the same L.Ed.2d 524 al- sixth amendment and the cial why regulations make the decision. lows anof “degree” sentencing after affect but as an not as “evasion” saw this jury do not fixed has been offense of the Constitution. application natural *12 transgress the limits set the sixth only finding that is indis- amendment, why (capital punishment and pensable to Booker’s sentence is the one aside) Apprendi specified by and are irrelevant statute: did he distribute jury’s if the more than impris- verdict authorizes life grams cocaine base? The Smith, jury found beyond onment. See United reasonable doubt that (7th Cir.2000). he had. Where in resulting F.3d 554 statutory range of 10 to life the actual sen- Think of the indeterminate sentence: tence falls on depends complex interac- zero-to-life with release in the discretion of tions among drug use, quantity, gun vio- parole officials. The federal Parole Com- lence, (was role in the offense defendant eventually developed mission a set of re- just courier?), mastermind or cooper- lease designed to ensure consis- ation, justice, obstruction of criminal histo- tent treatment of See offenders. ry, factors, and other none of which is a Addonizio, States v. S.Ct. qua sine non in the same sense as the (1979). Parole-re- statutory thresholds. See U.S.S.G. lease might say something like: (21 § 2D1.1 pages long just a starting “Hold bank in prison years; robbers for 10 point; chapters provide later many adjust- 20; hold armed bank robbers for hold ments). No answer to question “what armed bank robbers who discharge their was the total quantity?” gives any defen- (or weapons 30; or hostages take add dant a legal entitlement particular subtract) time from presumptive these sentence. quantities Lower drugs numbers reflect the size of the heist.” be counterbalanced a longer criminal my If colleagues right, are then such a history or a more senior in the of- role system violates the sixth amendment. Yet fense, or the judge may that up- decide the Justices do not think a problem, this departure ward is appropriate. Even if parole and other forms of executive clem- Blakely’s definition regulations reaches ency don’t degree affect the of the offense adopted by a body such as the Sentencing and therefore do not jury’s undercut Commission, it requires (or an step extra role. See Blakely, 124 S.Ct. at 2540. If three) jury make must parole regulations valid, why are not the dozens of findings that matter federal Sentencing How Guidelines? could operation Guidelines’ in each case. commissioners, but not be judges, "free to Apprendi and Blakely hold that apply regulations that on depend how sixth amendment juries commits to all much distributed, cocaine the defendant statutory sentencing Perhaps thresholds. whether pulled gun on the teller? the Court eventually will hold that some or Once the jury has the degree determined all of the additional determinations that (and the statutory consequences) of the affect sentences under the federal Sen- offense, judges both and executive officials tencing Guidelines also are the province of constitutionally may part take in determin- jurors. But Blakely does take ing how much of maximum step, nor does its intellectual framework the defendant serves in prison. support it—and Edwards holds One point other about the federal sen- current structure is provided valid tencing guidelines: Given the matrix-like juries make all decisions jack system nature of the possibility of maximum I sentences. would treat Blake- departure, § see 18 3553(b); U.S.C. ly as holding-that, when there multiple 5K2.0; U.S.S.G. Koon v. United statutory caps, the “statutory' maximum” is U.S: 135 L.Ed.2d the lowest one and the must deter- in- statutory thresholds whether mine To satisfied. been ranges have

creased attribute Blakely is to into more

read holding, its something beyond other holdings the real to overthrow

decisions. will discombobulate

Today’s decision I trust docket.

whole criminal-law something to will superiors

our this. Soon.

about RICCARDO,

Anthony Plaintiff-

Appellee, Defendant-Appellant. RAUSCH,

Larry

No. 02-1961. Appeals,

United States Circuit.

Seventh 22, 2003.

Argued Oct. 27, 2004. Feb.

Decided July 2004.

Amended notes trumps higher a sentence set statute Blakely cited opinions none of mention if it forth in the Guidelines. without sentence set Why pass would it. Well, Commission, casualty Blakely? of Sentencing (logical) States [United is (Nov. is not a § that Edwards could be Manual 5G1.1 one reason Guidelines 1994)]”). that’s the substantive casualty; logical The other is I discuss later. question 21, at 497 n. 120 S.Ct. 2348. So 530*U.S". Blakely left undecided. question was connecting see the links Justices States, amicus us: “The United tells Edwards, amendment, Apprendi, sixth curiae, It notes differ- urges us to affirm. máximums, statutory and the federal Sen- sentencing Washington’s between ences them, us, It for tencing Guidelines. is Sentencing Guide- the Federal regime and this Blakely that as a result of those differ- whether questions lines but (Other Edwards. casual- linkage scuttles constitutionally significant. See ences majority’s approach are United ties of the as Amicus Curiae States Brief for United Watts, 148, 117 S.Ct. v. 519 U.S. are not Guidelines The Federal 25-30. (1997), 633, L.Ed.2d 554 which holds us, no on express and we before may increase a sentence that a Having n. at 2538 9. S.Ct. them.” of which the based on relevant conduct Guidelines, the views about the disclaimed jury, acquitted defendant been parse Ed- had no occasion Justices Dunnigan, and United States my colleagues I find it odd wards. (1993), 1111, 87, 113 S.Ct. do did not focus on what should whether which holds that to decide Edwards) (cite it did slighting what while higher sentence for defendant receives (declare analysis the federal of do (indeed justice judge may obstructing fish). of a different kettle Guidelines must) independently decide more, did not although the Court What’s perjury the defendant committed whether Blakely, it did so Edivards in attend to Pennsylva- also McMillan v. at trial. See itself, writing: Apprendi 2411, nia, 79, 106 S.Ct. 477 U.S. to a ... treats us principal dissent which distin- L.Ed.2d disquisition on the benefits lengthy my colleagues’ view guished, but which on schemes, and determinate letter.) is a dead the fed- today’s decision on the effect Apprendi estab- Now to substance. Post, at Sentencing Guidelines. eral 2348, lishes, 530 U.S. at The Guide- 2348]. S.Ct. [120 544-552 reiterates, 124 this S.Ct. are, course, not before lines con- prior fact of a rule: “Other than the express no view We therefore Court. viction, penalty any fact that increases subject beyond what this Court on the statuto- beyond prescribed for a crime See, already e.g., held. Edwards has jury, maximum must be submitted ry doubt.” beyond a reasonable proved (opin- L.Ed.2d 703 released, we was Shortly Apprendi after court) J., Breyer, a unanimous ion of for “statutory maximum” means that the held course, petitioners’ (noting “[o]f person statutory criteria make whatever claims constitutional punishment. Consider eligible given for a possi- if it a difference were would make three which establishes 21 Ú.S.Ó. say, that the sentences argue, ble of- cocaine-distribution máximums maximum that the imposed exceeded the fenses; any quantity per- distribution cocaine-only con- for a permit statutes to 20 up sentence maximum mits That because a spiracy.