cunningham california argued october decided january petitioner cunningham tried convicted continuous sexual abuse child california determinate sentencing law dsl offense punishable one three precise terms imprisonment lower term sentence years middle term sentence years upper term sentence years dsl obliged trial judge sentence cunningham middle term unless judge found one additional circumstances aggravation rules adopted implement dsl define circumstances aggravation facts justify upper term facts rules provide must established preponderance evidence based sentencing hearing judge found preponderance evidence six aggravating facts including particular vulnerability victim one mitigating fact cunningham record prior criminal conduct concluding aggravators outweighed sole mitigator judge sentenced cunningham upper term years california appeal affirmed state denied review decision published nine days earlier people black cal held dsl survived sixth amendment inspection held dsl placing factfinding within judge province violates defendant right trial jury safeguarded sixth fourteenth amendments pp apprendi new jersey held sixth amendment fact prior conviction exposes defendant sentence excess relevant statutory maximum must found jury judge established beyond reasonable doubt merely preponderance evidence see applied rule apprendi facts subjecting defendant death penalty ring arizona facts permitting sentence excess standard range washington sentencing reform act reform act blakely washington facts triggering sentence range elevation federal sentencing guidelines booker blakely booker bear closely question presented maximum penalty blakely offense washington reform act ten years imprisonment facts beyond reflected jury verdict found trial judge blakely receive sentence standard range months blakely sentenced months three years standard range based judge finding deliberate cruelty applying apprendi held sentence unconstitutional state blakely endeavored distinguish apprendi contending blakely sentence within judge discretion based solely guilty verdict dismissed argument blakely sentenced standard range absent additional fact consequently fact subject sixth amendment guarantee matter blakely sentence though outside standard range within maximum judge imposed sentence outside standard range without finding additional fact top range months years relevant statutory maximum also rejected state arguments apprendi satisfied reform act specify exclusive catalog facts judge might base departure standard range ultimately left decision whether depart judge discretion booker sentenced federal sentencing guidelines facts found jury yielded base guidelines range months imprisonment range judge exceed without undertaking additional factfinding judge making finding boosted booker higher guidelines range held booker sentence impermissible sixth amendment distinction constitutional significance federal sentencing guidelines washington procedures issue blakely mandatory impose binding requirements sentencing judges ibid members agreed however guidelines implicate sixth amendment advisory ibid facing remedial question concluded rendering guidelines advisory came closest congress intended known guidelines vulnerable sixth amendment challenge advisory guidelines system described booker judges longer confined sentencing range dictated guidelines obliged take account range along sentencing goals enumerated sentencing reform act sra place sra provision governing appellate review sentences mandatory guidelines scheme installed reasonableness standard review pp material respects california dsl resembles sentencing systems invalidated blakely booker following reasoning cases middle term prescribed california law upper term relevant statutory maximum aggravating facts authorize upper term found judge need established preponderance evidence dsl violates rule apprendi end matter blakely people black california insisted dsl survives inspection precedents black reasoned given ample discretion afforded trial judges identify aggravating facts warranting upper term sentence dsl represent legislative effort shift proof particular facts elements crime proved jury sentencing factors decided judge cal cautioned blakely however broad discretion decide facts may support enhanced sentence determine whether enhanced sentence warranted particular case shield sentencing system force decisions black also urged dsl cause concern reduced penalties crimes prior indeterminate sentencing scheme system fair defendants dsl requires statutory sentence enhancements distinguished aggravators charged indictment proved jury beyond reasonable doubt black examination short satisfied california sentencing system implicate significantly concerns underlying sixth amendment guarantee decisions however leave room examination asking whether defendant basic right preserved though facts essential punishment reserved determination judge inquiry apprendi rule designed exclude ultimately black relied equation california dsl federal system attempted comparison unavailing booker held federal guidelines incompatible sixth amendment mandatory impose binding requirements sentencing judges remedy constitutional infirmity excised provisions rendered system mandatory leaving guidelines place advisory dsl however resemble advisory system booker view california system judges free exercise discretion select specific sentence within defined range ibid california legislature adopted sentencing triads three fixed sentences ranges cunningham sentencing judge discretion select sentence within range years impose years nothing less nothing unless judge found facts allowing sentence years factfinding elevate sentence years decisions make plain falls within province jury employing standard bailiwick judge determining preponderance evidence lies black attempted rescue dsl judicial factfinding authority typing reasonableness constraint equivalent constraint operative federal system reasonableness however touchstone sixth amendment analysis reasonableness requirement booker anticipated federal system operates within constitutional constraints delineated precedent substitute constraints dsl allocates judges sole authority find facts permitting imposition upper term sentence system violates sixth amendment booker remedy federal guidelines short recipe rendering sixth amendment case law toothless elaboration federal reasonableness standard neither necessary proper granted review two cases argued decided later term raising questions trained matter claiborne rita pp adjustment california sentencing system light ruling ball lies california booker several modified systems wake apprendi blakely retain determinate sentencing calling upon jury find fact necessary imposition elevated sentence chosen permit judges genuinely exercise broad discretion within statutory range everyone agrees encounters sixth amendment shoal california may follow paths taken sister otherwise alter system long observes sixth amendment limitations declared decisions pp reversed part remanded ginsburg delivered opinion roberts stevens scalia souter thomas joined kennedy filed dissenting opinion breyer joined alito filed dissenting opinion kennedy breyer joined john cunningham petitioner california writ certiorari appeal california first appellate district january justice ginsburg delivered opinion california determinate sentencing law dsl assigns trial judge jury authority find facts expose defendant elevated upper term sentence facts found neither inherent jury verdict embraced defendant plea need established preponderance evidence beyond reasonable doubt question presented whether dsl placing factfinding within judge province violates defendant right trial jury safeguarded sixth fourteenth amendments hold decisions instruct federal constitution guarantee proscribes sentencing scheme allows judge impose sentence statutory maximum based fact prior conviction found jury admitted defendant apprendi new jersey ring arizona blakely washington booker relevant maximum clarified maximum sentence judge may impose finding additional facts maximum may impose without additional findings blakely emphasis original petitioner case jury verdict alone limited permissible sentence years additional factfinding trial judge however yielded upper term sentence years california appeal affirmed harsher sentence reverse disposition elevation based judicial factfinding denied petitioner right jury trial petitioner john cunningham tried convicted continuous sexual abuse child age dsl offense punishable imprisonment lower term sentence years middle term sentence years upper term sentence years cal penal code ann west hereinafter penal code explained see infra dsl obliged trial judge sentence cunningham middle term unless judge found one additional facts aggravation based sentencing hearing trial judge found preponderance evidence six aggravating circumstances among particular vulnerability cunningham victim cunningham violent conduct indicated serious danger community tr sentencing app mitigation judge found one fact cunningham record prior criminal conduct ibid concluding aggravators outweighed sole mitigator judge sentenced cunningham upper term years panel california appeal affirmed conviction sentence one judge dissented part urging precedent precluded increase cunningham sentence apr app jones concurring part dissenting part california denied review june en banc reasoned decision published nine days earlier considered question presented held dsl survived sixth amendment inspection people black cal june enacted dsl replaced indeterminate sentencing regime force california years see cassou taugher determinate sentencing california new numbers game pac hereinafter cassou taugher prior regime courts imposed prison terms often one year life parole board adult authority determined amount time felon ultimately spend prison black cal roberts cal cassou taugher contrast dsl fixed terms imprisonment offenses eliminated possibility early release parole see penal code et seq west supp witkin epstein california criminal law ed brief respondent dsl california lawmakers aimed promote uniform proportionate punishment penal code black cal offenses including cunningham dsl regime implemented following manner statute defining offense prescribes three precise terms imprisonment lower middle upper term sentence penal code west person convicted continuous sexual abuse child shall punished imprisonment state prison term years see also black cal penal code west supp controls trial judge choice provides shall order imposition middle term unless circumstances aggravation mitigation crime ircumstances aggravation mitigation determined consideration several items trial record probation officer report statements aggravation mitigation submitted parties victim victim family evidence introduced sentencing hearing ibid dsl directed state judicial adopt rules guiding sentencing judge decision whether mpose lower upper prison term penal code west restating council rules provide middle term shall selected unless imposition upper lower term justified circumstances aggravation mitigation rule circumstances aggravation crisply defined judicial council means facts justify imposition upper prison term rule emphasis added facts aggravating offense rules instruct shall established preponderance evidence rule must stated orally record rule rules provide nonexhaustive list aggravating circumstances including acts relating crime rule acts relating defendant rule ny facts statutorily declared circumstances aggravation rule beyond enumerated circumstances judge free consider criteria reasonably related decision made black cal quoting rule fact element crime however shall used impose upper term rule sum california dsl rules governing application direct sentencing start middle term move term finds places record facts whether related offense offender beyond elements charged offense justice alito maintains however circumstance aggravation need fact view policy judgment even judge subjective belief regarding appropriate sentence qualifies aggravating circumstance post dissenting opinion california rules however constantly refer facts noted rules define circumstances aggravation facts justify imposition upper prison term rule emphasis added circumstances aggravation rules unambiguously declare shall established preponderance evidence rule clear factfinding directive exception see people hall cal selection upper term justified circumstances aggravation established preponderance evidence emphasis added rules list eneral objectives sentencing rule nowhere objectives cast circumstances aggravation alone authorize upper term sentence rules also state enumeration criteria making discretionary sentencing decisions prohibit application additional criteria reasonably related decision made rule california courts read language unmoor circumstances aggravation factfinding anchor line rules california repeatedly referred circumstances aggravation facts see black cal legislature identify particular facts justify upper term emphasis added people wiley cal rial courts assigned task deciding whether impose upper lower term imprisonment based upon determination whether circumstances aggravation mitigation crime determination invariably requires numerous factual findings emphasis added internal quotation marks omitted unsurprising state counsel oral argument acknowledged knew case california trial judge gone beyond middle term based fact judge found solely basis policy judgment subjective belief see tr oral arg notably penal code permits elevation sentence upper term based specified statutory enhancements relating defendant criminal history circumstances crime see penal code et seq west supp et seq see also black cal unlike aggravating circumstances statutory enhancements must charged indictment underlying facts must proved jury beyond reasonable doubt penal code black cal fact underlying enhancement double duty used impose upper term sentence top enhanced term penal code permitted statute however judge may use fact qualifying enhancer impose upper term rather enhanced sentence ibid rule ii repeatedly held sixth amendment fact exposes defendant greater potential sentence must found jury judge established beyond reasonable doubt merely preponderance evidence rule rooted longstanding practice explicit statement decisions recent jones examined sixth amendment historical doctrinal foundations recognized judicial factfinding operating increase defendant otherwise maximum punishment posed grave constitutional question construed statute issue avoid question jones opinion presaged decision months later apprendi new jersey charles apprendi convicted possession firearm unlawful purpose offense new jersey law punishable five ten years imprisonment separate hate crime statute authorized extended term imprisonment ten twenty years imposed trial judge found preponderance evidence defendant committing crime acted purpose intimidate individual group individuals race color gender handicap religion sexual orientation ethnicity quoting stat ann west supp judge apprendi case found therefore sentenced defendant years imprisonment held sixth amendment proscribed enhanced sentence prior conviction see held apprendi fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt see also harris plurality opinion apprendi said fact extending defendant sentence beyond maximum authorized jury verdict considered element aggravated crime thus domain jury framed bill since reaffirmed rule apprendi applying facts subjecting defendant death penalty ring arizona facts permitting sentence excess standard range washington sentencing reform act blakely washington facts triggering sentence range elevation federal sentencing guidelines booker blakely booker bear closely question presented case ralph howard blakely convicted kidnapping firearm class felony washington law blakely overall statutory maximum class felony ten years state sentencing reform act reform act added important qualification facts beyond reflected jury verdict found trial judge defendant receive sentence standard range months reform act permitted require judge exceed standard range found compelling reasons justifying exceptional sentence ibid quoting rev code ann reform act set nonexhaustive list aggravating facts sentence elevation based also clarified fact taken account fixing standard range fact found jury circumstances count determination whether impose exceptional sentence blakely sentenced months imprisonment three years standard range based trial judge finding acted deliberate cruelty applying rule apprendi held blakely sentence unconstitutional state blakely endeavored distinguish apprendi ground nder washington guidelines exceptional sentence within discretion result guilty verdict brief respondent blakely washington rejected argument judge sentenced blakely standard range without finding additional fact deliberate cruelty consequently fact subject sixth amendment guarantee matter explained blakely sentence though outside standard range within maximum class felonies precedents make clear maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant words relevant maximum maximum sentence judge may impose finding additional facts maximum may impose without additional findings judge inflicts punishment jury verdict alone allow jury found facts law makes essential punishment judge exceeds proper authority emphasis original quoting bishop criminal procedure ed judge blakely case imposed sentence outside standard range without finding additional fact top range months years relevant statutory maximum state additionally argued blakely apprendi rule satisfied washington reform act specify exclusive catalog potential facts judge might base departure standard range rejected argument well whether judge authority impose enhanced sentence depends finding specified fact one several specified facts aggravating fact observed remains case jury verdict alone authorize sentence emphasis original held irrelevant reform act ultimately left decision whether depart judge discretion whether judicially determined facts require sentence enhancement merely allow noted verdict alone authorize sentence emphasis original freddie booker convicted possession intent distribute crack cocaine sentenced federal sentencing guidelines facts found booker jury yielded base guidelines range months imprisonment range judge exceed without undertaking additional factfinding booker judge finding preponderance evidence booker possessed amount drugs excess amount determined jury verdict finding boosted booker higher guidelines range booker sentenced bottom higher range months prison opinion written justice stevens majority held booker sentence impermissible sixth amendment majority judgment distinction constitutional significance federal sentencing guidelines washington procedures issue blakely systems mandatory impose binding requirements sentencing judges justice stevens opinion bears emphasis next expressed view disagreement among justices acknowledged federal guidelines implicate sixth amendment advisory guidelines currently written read merely advisory provisions recommended rather required selection particular sentences response differing sets facts use implicate sixth amendment never doubted authority judge exercise broad discretion imposing sentence within statutory range indeed everyone agrees constitutional issues presented case avoided entirely congress omitted federal sentencing reform act provisions make guidelines binding district judges trial judge exercises discretion select specific sentence within defined range defendant right jury determination facts judge deems relevant guidelines written however advisory mandatory binding judges ibid citations omitted opinion written justice breyer also garnering majority faced remedial question turned assessment legislative intent alteration congress intended known guidelines vulnerable sixth amendment challenge three choices apparent invalidate entirety sentencing reform act sra law comprehensively delineating federal sentencing system preserve sra mandatory guidelines regime sra established attaching requirement fact increasing defendant base guidelines range finally render guidelines advisory severing two provisions sra ed supp iv recognizing reasonable minds differ remedial question majority concluded advisory guidelines solution came closest congressional mark system described justice breyer opinion booker judges longer tied sentencing range indicated guidelines obliged take account range along sentencing goals congress enumerated sra severed provision sra governing appellate review sentences mandatory guidelines scheme see supra installed consistent act sound administration justice reasonableness standard review without attempting elaborate discussion standard justice breyer remedial opinion observed section remains effect sets forth numerous factors guide sentencing factors turn guide appellate courts past determining whether sentence reasonable emphasized provisional character booker remedy recognizing authority speak last word resides congress said ball lies congress national legislature equipped devise install long term sentencing system compatible constitution congress judges best federal system justice turn instant case light parts booker opinion earlier decisions point iii california dsl upper term sentence may imposed trial judge finds aggravating circumstance see supra element charged offense essential jury determination guilt admitted defendant guilty plea qualify circumstance see supra instead aggravating circumstances depend facts found discretely solely judge accord blakely therefore middle term prescribed california statutes upper term relevant statutory maximum maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant emphasis original circumstances aggravation found judge jury need established preponderance evidence beyond reasonable doubt see supra dsl violates apprendi rule except prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt hat end matter blakely people black california held otherwise view dsl survived examination precedent intact see cal black acknowledged california system appears surface inspection tension rule apprendi operation effect said dsl simply authorize sentencing engage type factfinding traditionally incident judge selection appropriate sentence within statutorily prescribed sentencing range cal therefore concluded upper term maximum trial imposition upper term sentence violate defendant right jury trial principles set forth apprendi blakely booker ibid see kennard concurring dissenting nothing high majority opinions apprendi blakely booker suggests constitutionality state sentencing scheme turns whether words majority involves type factfinding traditionally performed judge quoting black conclusion upper term middle term qualifies relevant statutory maximum rested several considerations first reasoned given ample discretion afforded trial judges identify aggravating facts warranting upper term sentence dsl represent legislative effort shift proof particular facts elements crime proved jury sentencing factors decided judge instead afforded sentencing judge discretion decide guidance rules statutes whether facts case history defendant justify higher sentence system diminish traditional power jury omitted cautioned blakely however broad discretion decide facts may support enhanced sentence determine whether enhanced sentence warranted particular case shield sentencing system force decisions jury verdict alone authorize sentence instead judge must find additional fact impose longer term sixth amendment requirement satisfied blakely black also urged dsl cause concern reduced penalties crimes prior indeterminate sentencing regime cal see kennard concurring dissenting aspect sentencing law differ significantly washington sentencing scheme high invalidated blakely supra furthermore california system unfair defendants reasonably expect guarantee upper term imposed given judges broad discretion impose upper term sentence keep punishment middle term cal black additionally noted dsl requires statutory enhancements distinguished aggravators use firearm dangerous weapon infliction great bodily injury penal code west supp charged indictment proved jury beyond reasonable doubt cal black examination dsl short satisfied california sentencing system implicate significantly concerns underlying sixth amendment guarantee decisions however leave room examination asking whether defendant basic right preserved though facts essential punishment reserved determination judge said inquiry apprendi rule designed exclude see blakely see black cal stating remarkably high precedents draw bright line ultimately black relied equation california dsl system federal system level discretion available california judge selecting three available terms impose said appears comparable level discretion high chosen permit federal judges sentencing cal equation drives justice alito dissent see post california sentencing law indistinguishable constitutionally significant respect advisory guidelines scheme approved booker attempted comparison unavailing earlier explained see supra booker held federal sentencing guidelines incompatible sixth amendment guidelines mandatory imposed binding requirements sentencing judges erely advisory provisions recommending requiring selection particular sentences response differing sets facts members agreed implicate sixth amendment ibid remedy constitutional infirmity found booker majority excised provisions rendered system mandatory leaving guidelines place advisory see also supra california dsl resemble advisory system booker view california system judges free exercise discretion select specific sentence within defined range booker california legislature adopted sentencing triads three fixed sentences ranges cunningham sentencing judge discretion select sentence within range years instruction select years nothing less nothing unless found facts allowing imposition sentence years factfinding elevate sentence years decisions make plain falls within province jury employing standard bailiwick judge determining preponderance evidence lies nevertheless black attempted rescue dsl judicial factfinding authority typing simply reasonableness constraint equivalent constraint operative federal system see cal aggravating factor california law may include factor judge reasonably deems relevant dsl requirement upper term sentence imposed aggravating factor exists comparable booker requirement federal judge sentencing decision reasonableness however black touchstone sixth amendment analysis reasonableness requirement booker anticipated federal system operates within sixth amendment constraints delineated precedent substitute constraints dsl allocates judges sole authority find facts permitting imposition upper term sentence system violates sixth amendment comforting beside point california system requires dsl sentences reasonable booker remedy federal guidelines short recipe rendering sixth amendment case law summarize contrary black holding decisions apprendi booker point middle term specified california statutes upper term relevant statutory maximum dsl authorizes judge jury find facts permitting upper term sentence system withstand measurement sixth amendment iv adjustment california sentencing system light decision ball lies california booker cf supra note several modified systems wake apprendi blakely retain determinate sentencing done calling upon jury either trial separate sentencing proceeding find fact necessary imposition elevated earlier noted california already employs juries manner determine statutory sentencing enhancements see supra chosen permit judges genuinely exercise broad discretion within statutory range everyone agrees encounters sixth amendment shoal booker california may follow paths taken sister otherwise alter system long state observes sixth amendment limitations declared decisions reasons stated judgment california appeal reversed part case remanded proceedings inconsistent opinion ordered john cunningham petitioner california writ certiorari appeal california first appellate district january justice kennedy justice breyer joins dissenting dissenting opinion justice alito join full well explains continues wrong unfortunate direction cases following apprendi new jersey see booker breyer dissenting part blakely washington dissenting kennedy dissenting see also apprendi supra dissenting jones kennedy dissenting discussion dissenting opinion fully sufficient show respectful view analysis holding mistaken seem appropriate add brief comment view apprendi line cases remains incorrect yet may principled rationale permitting cases control within central sphere concern reducing collateral widespread harm criminal justice system corrections process resulting wooden unyielding insistence expanding apprendi doctrine far beyond necessary boundaries distinguish sentencing enhancements based nature offense apprendi principle apply sentencing enhancements based nature offender california attempted make initial distinction compare cal rule criminal cases west listing aggravating acts relating crime rule listing aggravating acts relating defendant foreclose efforts california notes experimented earlier indeterminate sentencing system ante state reposed vast power discretion nonjudicial agency set release date convicted felons system seems untouched apprendi state sought reform system might chosen give judges authority sentence maximum depart downward unexplained reasons considerable irony untouched apprendi instead california sought use system based guided discretion apprendi holds today forecloses option dissenting opinions suggested constitution interpreted strike aspects sentencing systems grant judicial discretion legislative direction control judges legislators must capacity develop consistent standards standards individual juries empaneled short time elaborate permanent way see blakely opinion opinion kennedy explaining entencing guidelines prime example collaborative process courts legislatures judges sentencing officials broad view commitment correctional systems juries judicial officers corrections professionals guidance control legislature encouraged participate ongoing manner improve various sentencing schemes country system guided discretion permitted large extent confined apprendi rule sentencing enhancements based nature offense include example fact weapon used violence employed stated amount drugs contraband involved crime motivated victim race gender status protected statute juries consider matters without serious disruption factors often part statutory definition aggravated crime event evidence support enhancements likely central part prosecution case hand judicial determination appropriate regard factors exhibited defendant include example prior convictions cooperation noncooperation law enforcement remorse lack aspects defendant history bearing upon background contribution community even relevant facts found judge preponderance evidence facts taken account sentencing little significance whether defendant committed crime see berman bibas making sentencing sensible ohio crim line offense offender always clear instances nature offense defined manner ensures problem categories difficult apprendi suffers similar problem facts must considered jury considerations judge take account main part apprendi holding retained far less systemic disruption regretted decision today appears foreclose consideration approach reasonable efforts develop systems guided discretion within general constraint apprendi imposes john cunningham petitioner california writ certiorari appeal california first appellate district january justice alito justice kennedy justice breyer join dissenting california sentencing law strikes today indistinguishable constitutionally significant respect advisory guidelines scheme approved booker sentencing schemes grant trial judges considerable discretion sentencing subject exercise discretion appellate review reasonableness california law explicitly federal scheme implicitly require sentencing judge find factor justify sentence minimum imposed based solely jury verdict held unequivocally federal sentencing system satisfies requirements sixth amendment true regard california system therefore respectfully dissent apprendi new jersey cases followed wake held certain circumstances criminal defendant possesses sixth amendment right jury find facts result increased sentence however never suggested factual findings affect defendant sentence must made jury contrary apprendi later cases consistently stated trial makes fully discretionary sentencing decision sentencing decision reform act federal sentencing system sixth amendment permits base sentence factual findings see blakely washington booker supra see also harris applying rule booker unanimously agreed judicial factfinding purely advisory guidelines system likewise comport sixth amendment writing five justices struck mandatory federal sentencing guidelines system justice stevens stated guidelines currently written read merely advisory provisions recommended rather required selection particular sentences response differing sets facts use implicate sixth amendment never doubted authority judge exercise broad discretion imposing sentence within statutory range trial judge exercises discretion select specific sentence within defined range defendant right jury determination facts judge deems relevant booker supra similar vein remedial portion opinion booker written justice breyer held sixth amendment permits system advisory guidelines reasonableness justice breyer opinion avoided blanket invalidation guidelines excising provision sentencing reform act supp iv required sentencing judge impose sentence within applicable guidelines range see booker justice breyer explained existence necessary condition constitutional violation say without provision statute falls outside scope apprendi requirement ibid federal sentencing system district courts bound apply guidelines must consult guidelines take account sentencing addition sentencing courts must take account general sentencing goals set forth congress including avoiding unwarranted sentencing disparities providing restitution victims reflecting seriousness offense promoting respect law providing punishment affording adequate deterrence protecting public effectively providing defendant needed educational vocational training medical care see citing ed supp iv significant booker rendering guidelines advisory reinstitute federal sentencing system doctrine bar red review exercise sentencing discretion within broad sentencing ranges imposed criminal statutes dorszynski rather booker conditioned district sentencing discretion appellate review reasonableness light guidelines factors see booker supra section remains effect sets forth numerous factors guide sentencing factors turn guide appellate courts past determining whether sentence unreasonable although booker spell detail sentencing judges proceed new advisory guidelines regime seems clear regime permits indeed requires sentencing judges make factual findings base sentences findings federal criminal statutes generally set wide sentencing ranges thus case sentencing judge must use criteria selecting sentence imposed federal judges generally made relied upon factual determinations nature offense offender impossible imagine federal judges reasonably carry sentencing responsibilities without making factual determinations mandatory federal sentencing guidelines regime factual determinations relatively formal precise example trial judge regime might found based proceeding drug offense involved six kilograms cocaine loss caused mail fraud offense million contrast reform act federal system factual determinations often relatively informal imprecise trial judge might concluded presentence report offense involved large quantity drugs mail fraud scheme caused great loss systems however judges made factual determinations nature offense offender determined sentence accordingly courts appeals unanimously concluded federal sentencing regime also permits trial judges make factual findings rely findings selecting sentences appropriate particular system defendant believes sentence based erroneous factual determination seems clear defendant may challenge finding appeal noted system permits defendant obtain appellate review reasonableness sentence sentence sentencing justifies solely basis erroneous finding fact hardly regarded reasonable thus system cases likelihood good many cases question whether defendant required serve greater lesser sentence depends whether appeals sustains finding fact made sentencing judge simple example illustrates point suppose defendant found guilty counts mail fraud defendant made mailings furtherance scheme defraud see supp iv mail fraud statute district discretion sentence defendant sentence ranging probation years imprisonment years count suppose sentencing judge imposes maximum sentence allowed statute years imprisonment without identifying single fact offense offender justification lengthy sentence surely unreasonable sentence sustained appeal suppose alternatively sentencing finds mail fraud scheme caused loss million victims elderly people limited means suppose based findings imposes sentence years imprisonment defendant challenges sentence appeal ground findings erroneous question whether defendant required serve years lesser sentence may well depend validity district findings fact booker approved sentencing system requires sentencing judge consult take account legislatively defined sentencing factors guidelines subjects sentencing judge exercise sentencing discretion appellate review reasonableness requires sentencing judges make factual findings order support exercise discretion ii california sentencing law strikes today meaningfully different federal scheme upheld booker initial matter california law gives judge least much sentencing discretion federal scheme california system sentencing triads separate enhancements enacted achieve sentences proportion seriousness offense determined legislature imposed specified discretion cal penal code ann west supp specified discretion quite broad statute sentencing shall order imposition middle term triad unless circumstances aggravation mitigation crime may rely fact essential element crime proven enhancement sentencing judge retains considerable discretion identify aggravating factors people black cal exercising sentencing discretion california look specific aggravating circumstances see cal rule criminal cases west specific mitigating circumstances see rule itemized california rules california trial also consider eneral objectives sentencing including protecting society punishing defendant encouraging defendant lead life deterring defendant committing future offenses deterring others criminal conduct demonstrating consequences preventing defendant committing new crimes means incarceration securing restitution crime victims achieving uniformity rule california trial finds sentencing authority unduly restricted factors california recognized largely articulation considerations sentencing judges always used making decisions people hernandez cal bank overruled grounds people king cal banc california sentencing judge also authorized consider additional criteria reasonably related decision made rule see also black supra legislature identify particular facts justify upper term short california law sentencing judge may look aggravation mitigation crime include everything legitimate bearing matter issue people guevara cal app cal rptr see also rule sentencing judge guided statutory statements policy criteria rules facts circumstances case indeed one california explained sentencing discretion may even guided judge subjective determination appropriate aggregate sentence based experiences prior cases record defendant case people stevens cal app cal rptr judge subjective belief regarding length sentence imposed improper long channeled guided discretion outlined myriad statutory sentencing criteria ibid california scheme like federal advisory guidelines require discretion exercised reasonably indeed california authoritatively construing california explained requirement aggravating factor exist merely requirement decision impose upper term reasonable black cal emphasis original see also jury verdict guilty offense authorizes judge sentence defendant three terms specified statute potential punishments offense long judge exercises discretion reasonable manner consistent requirements guidelines contained statutes rules even imposes presumptive middle term decision reviewable abuse discretion decision sentence standard term must reasonable see people cattaneo cal app cal rptr moreover california system like federal regime recognizes sentencing judge must ability look relevant facts even outside trial record jury verdict exercising discretion judicial factfinding occurs selection process type judicial factfinding traditionally part sentencing process black supra iii despite similarities california system advisory guidelines scheme approved booker nevertheless holds california regime runs afoul sixth amendment reasons follows california requires aggravating fact apart elements offense found jury must support upper term sentence blakely defined statutory maximum maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant emphasis original therefore california regime violates apprendi rule fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt apprendi argument flawed one thing clear california must find adjudicative fact opposed identifying relevant policy consideration imposing upper term sentence california sentencing must find circumstanc aggravation cal penal code ann emphasis added california rules make clear include criteria reasonably related decision made rule california courts thus empowered take account full panoply factual policy considerations traditionally considered judges operating fully discretionary sentencing regimes constitutionality repeatedly reaffirmed california law explicitly authorizes sentencing take account example broad sentencing objectives like punishment deterrence restitution uniformity see rule even judge subjective belief appropriateness sentence see stevens supra cal long final result policy considerations like always outside province jury implicate sixth amendment concerns expressed apprendi short requirement california find circumstanc aggravation imposing upper term sentence requirement find aggravating fact california sentencing need find fact beyond reflected jury verdict admitted defendant blakely supra emphasis deleted apprendi rule plainly even california law require sentencing find aggravating fact imposing upper term sentence make case constitutionally distinguishable booker previously explained advisory guidelines bounded reasonableness review effectively albeit less explicitly impose requirement federal judges booker reasonableness review necessarily supposes sentences unreasonable absence additional facts justifying recall prior hypothetical case posited district imposed sentence years imprisonment mail fraud without citing single aggravating fact offense offender thus although guidelines labeled advisory reasonableness review imposes real constraint judge ability sentence across full statutory range without finding aggravating downplays significance booker reasonableness review ground reasonableness operates within sixth amendment constraints delineated precedent substitute constraints ante emphasis original begs question concerns scope sixth amendment constraints question answered remedial holding booker necessarily stands proposition consistent sixth amendment imposition enhanced sentence conditioned factual finding made sentencing judge jury relies heavily blakely admonition maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant emphasis original fails recognize statement must understood wake booker statutory offense must sentence represents least onerous sentence regarded reasonable light bare statutory elements found jury return prior example mail fraud offense must sentence represents least onerous sentence appropriate case statutory elements mail fraud satisfied offense offender little deserving punishment imagined whether sentence statutory minimum probation see supp iv minimum advisory guidelines also probation see sentencing commission guidelines manual sentencing table irrelevant present purposes relevant must minimum reasonable sentence sentence maximum sentence reasonably imposed solely basis facts reflected jury verdict admitted defendant blakely supra emphasis deleted booker reasonableness review necessarily anticipates imposition sentences level may conditioned upon findings fact made judge jury booker held system advisory guidelines reasonableness review consistent sixth amendment analysis govern california requirement decision impose upper term reasonable black cal emphasis original california requirement explicit federal aggravating factor requirement least implicit constitutionally dispositive unless prepared overrule remedial decision booker california sentencing scheme issue case held consistent sixth amendment therefore affirm decision california appeal footnotes particular vulnerability victim listed cal rule criminal cases west hereinafter rule fact relating crime violent conduct indicating serious danger society listed rule fact relating defendant addition sixth amendment challenge cunningham disputed substance five six findings made trial judge appellate panel affirmed trial judge vulnerable victim violent conduct findings rejected finding cunningham abused position trust finding overlapped vulnerable victim finding panel decide whether judge findings warranted concluding properly relied least two aggravating facts imposing upper term reasonably probable different sentence imposed absent improper findings app may order modifying opinion denying rehearing murder certain grave offenses still carry lengthy indeterminate terms possibility early release parole brief respondent see penal code west supp judicial council includes chief justice another justice california three judges sitting courts appeal ten judges superior courts nonvoting members cal art west supp california constitution grants council authority inter alia adopt rules administration practice procedure perform functions prescribed statute art rules amended january amendments made technical changes none material constitutional question us refer opinion prior text rules upon parties principal authorities rely judge must provide statement reasons sentence lower upper term sentence imposed rules rule fact crime involved great violence great bodily harm threat great bodily harm acts disclosing high degree cruelty viciousness rule fact defendant engaged violent conduct indicates serious danger see also rule selection upper term justified consideration relevant facts circumstances aggravation outweigh circumstances mitigation emphasis added rule must provide concise statement ultimate facts deemed constitute circumstances aggravation mitigation emphasis added california dsl note context resembles federal sentencing ways washington sentencing system key california penal code provision sentencing shall order imposition middle term absent circumstances aggravation mitigation crime emphasis added move upper lower term must justified concise statement ultimate facts departure rests rule emphasis added see post alito dissenting characterizing california dsl indistinguishable sentencing title mandated imposition guidelines sentence unless district found aggravating mitigating circumstance kind degree adequately taken consideration sentencing commission formulating guidelines section directed appeals determine inter alia whether district correctly applied guidelines sentence imposed fell outside applicable guidelines range whether sentencing judge provided written statement reasons whether facts case warranted departure whether degree departure reasonable section instructs sentencing judges consider nature circumstances offense history characteristics defendant kinds sentences available guidelines policy statements issued sentencing commission avoidance unwarranted sentencing disparities need provide restitution also listed concerns judge respond enumeration calls imposition sentence sufficient greater necessary reflect seriousness offense promote respect law provide punishment offense afford adequate deterrence criminal conduct protect public crimes defendant provide defendant needed educational vocational training medical care correctional treatment effective manner case call elaboration reasonableness check federal sentencing note granted review two cases raising questions trained matter claiborne cert granted rita cert granted claiborne consider whether consistent advisory cast guidelines system require extraordinary circumstances attend sentence varying substantially guidelines rita includes question whether consistent booker accord presumption reasonableness sentence regard note justice alito view california dsl essentially federal sentencing post maintain position dissent previews without benefit briefing argument reasonableness review works post neither necessary proper join issue justice alito matter justice kennedy urges distinction facts concerning offense apprendi apply facts concerning offender post dissenting opinion apprendi however leaves room bifurcated approach justice kennedy proposes see ny fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt emphasis added justice alito however opinion reads remedial portion opinion booker override blakely render academic entire first part booker post majority booker revision blakely essayed dissent grounded notion federal reasonableness review operates practice justice alito necessarily anticipates question aired later term rita claiborne see supra forecast responses cases affirm continuing vitality prior decisions point respondent amici argue whatever makes california sentencing law black construction law consistent sixth amendment authoritative brief respondent brief hawaii et al amici curiae disagree black modify california law align sixth amendment precedent see cal kennard concurring dissenting rather construed decisions endeavor render consistent california law black interpretation federal constitutional law plainly qualify deference altered systems alaska arizona kansas minnesota north carolina oregon washington alaska stat rev stat ann west supp stat ann supp stat subd supp stat ann lexis sess laws ch rev code colorado adopted approach interim solution lopez people en banc see also stemen wilhelm finding jury state legislative responses blakely washington fed sentencing rptr majority affected retained determinate sentencing systems see ind code ann west code ann footnotes recognition hardly surprising since judge mcconnell pointed fully discretionary sentencing system place sixth amendment adopted prevailed federal courts founding enactment sentencing reform act without anyone ever suggesting conflict sixth amendment mcconnell booker mess denver rev indeed original federal criminal statute enacted first congress set forth indeterminate sentencing ranges variety offenses leaving determination precise sentence judge discretion see act apr ch stat crime misprision treason punishable imprisonment exceeding seven years fine exceeding crime misprision felony punishable imprisonment exceeding three years fine exceeding crime falsifying federal records punishable imprisonment exceeding seven years fine exceeding whipping exceeding stripes see generally little chen lost history apprendi blakely petition rehearing fed sentencing four justices upheld constitutionality mandatory federal sentencing guidelines system course disagree basic point indeed view istory support jury trial respect sentencing facts booker breyer dissenting part dissenters remedial portion opinion disagreed justice breyer severablity analysis suggest resulting advisory guidelines structure unconstitutional rather recognized justice stevens explained portion opinion guidelines currently written read merely advisory provisions recommended rather required selection particular sentences response differing sets facts use implicate sixth amendment every appeals address issue held district sentencing may rely facts found judge preponderance evidence see kilby cooper vaughn morris price magallanez pirani en banc yagar mares duncan antonakopoulos enhancements add additional years onto term selected see ante must pleaded proved jury beyond reasonable doubt issue case factors similar federal sentencing policies set forth ed supp iv directs consider among things need promote respect law provide punishment offense afford adequate deterrence criminal conduct protect public california explained black adopting sentencing rules judicial council considered rejected proposals rules provide exclusive list sentencing criteria criteria assigned specific weights ground legislature intended give sentencing judge discretion selecting among lower middle upper terms report judicial council acted adopting rules explains exclusive listing inconsistent statutory mandate adopt rules providing criteria consideration trial judge since language purport limit discretion afforded five enumerated sentencing decisions calls criteria assist courts exercise discretion judicial council advisory com sentencing rules sentencing reporting system attempt impose weighting system trial courts infringement sentencing power substantive law section give discretion trial rules guide compel exercise discretion cal correctly notes need defer california construction federal law including judgment whether california law consistent sixth amendment jurisprudence see ante california exposition california law authoritative binding see mullaney wilbur tate courts ultimate expositors state law bound constructions except extreme circumstances wainwright goode per curiam views state highest respect state law binding federal courts ring arizona recognizing arizona construction arizona sentencing law authoritative state california acknowledged brief rely essentially reason placing defendant particular offense outside mean selecting term triad impose brief respondent california counsel acknowledged oral argument concern deterrence light uptick crime particular community example circumstance aggravation supporting imposition upper term sentence california law even though concern based facts see tr oral arg true california rules also itemize concrete aggravating circumstances label acts relating crime acts relating defendant see cal rules criminal cases west lists exhaustive impair ability take account general sentencing objectives deciding whether sentence defendant upper term rules provision ircumstances aggravation mitigation shall established preponderance evidence rule clearly meant cover types adjudicative facts set forth rules immediately following nothing suggest provision excludes consideration general sentencing objectives conducive proof rules explicitly recognize different categories sentencing considerations mutually exclusive see rule sentencing judge guided statutory statements policy criteria rules facts circumstances case believes order reach conclusion must previe review works ante perhaps even prejudge forthcoming decisions rita claiborne ante point much modest need map murky contours landscape order conclude reasonableness review must mean something reasonableness review empty exercise inevitably sentences absent aggravating fact unreasonable one need embrace presumption reasonableness unreasonableness accept simple point case see given endorsement reasonableness review booker meaningful sixth amendment difference california sentencing system advisory guidelines sentencing judge operating reasonableness constraint must find facts beyond jury verdict order justify imposition least sentences high end statutory range