booker argued october decided january federal sentencing guidelines sentence authorized jury verdict respondent booker drug case months prison sentencing hearing judge found additional facts preponderance evidence findings mandated sentence months life judge gave booker sentence instead sentence imposed based facts proved jury beyond reasonable doubt seventh circuit held application guidelines conflicted apprendi new jersey holding ther fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt relying blakely washington held sentence violated sixth amendment instructed district either sentence booker within sentencing range supported jury findings hold separate sentencing hearing jury respondent fanfan case maximum sentence authorized jury verdict guidelines months prison sentencing hearing district judge found preponderance evidence additional facts authorizing sentence range required impose sentence instead years authorized jury verdict alone relying blakely majority opinion statements dissenting opinions solicitor general brief blakely judge concluded follow guidelines imposed sentence based solely upon guilty verdict case government filed notice appeal first circuit petition certiorari judgment held judgment appeals affirmed case remanded judgment district vacated case remanded affirmed remanded vacated remanded justice stevens delivered opinion part concluding sixth amendment construed blakely applies federal sentencing guidelines pp addressing washington state determinate sentencing scheme blakely found jones apprendi new jersey ring arizona made clear maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant blakely dissenting opinions recognized constitutionally significant distinction guidelines washington procedure issue case conclusion rests premise common systems relevant sentencing rules mandatory impose binding requirements sentencing judges guidelines merely advisory recommending requiring selection particular sentences response differing sets facts use implicate sixth amendment however case title directs shall impose sentence kind within range established guidelines subject departures specific limited cases binding judges consistently held guidelines force effect laws availability departure judge finds aggravating mitigating circumstance kind degree adequately taken consideration sentencing commission formulating guidelines result sentence different described avoid constitutional issue departures unavailable cases commission adequately taken relevant factors account departure legally permissible instances judge legally bound impose sentence within guidelines range booker case illustrates point jury found guilty possessing least grams crack cocaine based evidence grams facts guidelines required possible sentence reach booker actual sentence almost years longer judge found possessed additional grams crack although jury never heard evidence judge found true preponderance evidence thus blakely jury verdict alone authorize sentence judge acquires authority upon finding additional fact finally factors sentencing commission failed adequately consider judge required impose sentence within higher guidelines range pp government arguments position blakely reasoning applied federal sentencing guidelines unpersuasive fact guidelines promulgated sentencing commission rather congress constitutionally irrelevant previously considered question sixth amendment principles apply sentencing guidelines cases considering guidelines inapplicable consider application apprendi sentencing guidelines finally separation powers concerns present rejected mistretta mistretta concluded even though commission performed political rather adjudicatory functions congress exceed constitutional limitations creating commission conclusion remains true regardless whether facts relevant sentencing labeled sentencing factors elements crimes pp justice breyer delivered opinion part concluding makes federal sentencing guidelines mandatory incompatible today sixth amendment jury trial holding therefore must severed excised sentencing reform act act section depends upon guidelines mandatory nature also must severed excised modified act makes guidelines effectively advisory requiring sentencing consider guidelines ranges see permitting tailor sentence light statutory concerns see pp answering remedial question requires determination congress intended light constitutional holding denver area ed telecommunications consortium fcc must decide two approaches compatible congress intent embodied act retaining act guidelines written today sixth amendment requirement engrafted onto eliminating act provisions evaluation constitutional requirement consequences light act language history basic purposes demonstrates requirement compatible act written severance excision necessary congress likely preferred total invalidation act act constitutional requirement engrafted onto likely preferred excision act mandatory language invalidation entire act pp several considerations demonstrate adding constitutional requirement onto act currently written transform statutory scheme congress likely intended act modified stand first references requires sentencing consider nature circumstances offense history characteristics defendant references judge act history must read context mean judge without jury judge working together jury made clear removes typical jury trial limitations information concerning offender sentencing may receive second congress basic statutory goal diminishing sentencing disparity depends success upon judicial efforts determine base punishment upon real conduct underlying crime conviction looking real conduct federal sentencing judges long relied upon probation officer presentence report often unavailable trial engraft constitutional requirement onto act destroy system preventing sentencing judge relying upon presentence report relevant factual information uncovered trial third act read include today constitutional requirement create system far complex congress intended thereby greatly complicating tasks prosecution defense judge jury fourth plea bargaining significantly diminish consequences constitutional holding operation guidelines make matters worse leading sentences gave greater weight real conduct rather counsel skill prosecutor policies caseload factors vary place place defendant defendant crime crime fifth congress enacted sentencing statutes make difficult adjust sentences upward adjust downward yet engrafted system create reasons act remain valid entirety severance excision necessary pp entire act need invalidated since perfectly valid order invalidat statute necessary regan time must retain portions act constitutionally valid capable functioning independently alaska airlines brock consistent congress basic objectives enacting statute regan supra application criteria demonstrates requires sentencing courts impose sentence within applicable guidelines range absent circumstances justifying departure provides de novo review appeal departures must severed excised two sections severed statutory two sections consequently invalidated rest act satisfies constitutional requirement falls outside scope apprendi new jersey act still requires judges take account guidelines together sentencing goals see consider guidelines sentencing range established applicable category offense committed applicable category defendant pertinent sentencing commission policy statements need avoid unwarranted sentencing disparities restitute victims impose sentences reflect seriousness offense promote respect law provide punishment afford adequate deterrence protect public effectively provide defendant needed training medical care moreover despite absence act continues provide appeals sentencing decisions irrespective whether trial judge sentences within outside guidelines range see excision sets forth appellate review standards pose critical problem appropriate review standards may inferred related statutory language statute structure sound administration justice pierce underwood factors past two decades appellate practice cases involving departures guidelines imply familiar practical standard review review unreasonable ness see finally act without mandatory provision related language remains consistent congress intent avoid unwarranted sentencing disparities maintai sufficient flexibility permit individualized sentences warranted sentencing commission remains place perform statutory duties see district courts must consult guidelines take account sentencing see courts appeals review sentencing decisions unreasonableness thus consistent congress likely intent preserve act important elements severing excising maintain act provisions engraft today constitutional requirement onto statutory scheme pp possible remedies including parties proposals guidelines remain binding cases constitution prohibits judicial factfinding act provisions requiring factfinding sentencing excised rejected pp remand respondent booker case district impose sentence accordance today opinions sentence comes seventh circuit review apply review standards set forth remedial opinion respondent fanfan case government fanfan choose may seek resentencing system set forth today opinions dispositions indicate today sixth amendment holding remedial interpretation sentencing act must applied cases direct review see griffith kentucky mean every sentence give rise sixth amendment violation every appeal lead new sentencing hearing reviewing courts expected apply ordinary prudential doctrines determining whether issue raised whether fails test also cases involving sixth amendment violation whether resentencing warranted whether instead sufficient review sentence reasonableness may depend upon application doctrine pp stevens delivered opinion part scalia souter thomas ginsburg joined breyer delivered opinion part rehnquist kennedy ginsburg joined stevens filed opinion dissenting part souter joined scalia joined except part iii scalia thomas filed opinions dissenting part breyer filed opinion dissenting part rehnquist kennedy joined petitioner freddie booker writ certiorari appeals seventh circuit petitioner ducan fanfan writ certiorari judgment appeals first circuit january justice stevens delivered opinion part question presented cases whether application federal sentencing guidelines violated sixth amendment case courts held binding rules set forth guidelines limited severity sentence judge lawfully impose defendant based facts found jury trial cases courts rejected basis decision blakely washington government recommended application sentencing guidelines proposed sentences based additional facts sentencing judge found preponderance evidence hold courts correctly concluded sixth amendment construed blakely apply sentencing guidelines separate opinion authored justice breyer concludes light holding two provisions sentencing reform act sra effect making guidelines mandatory must invalidated order allow statute operate manner consistent congressional intent respondent booker charged possession intent distribute least grams cocaine base crack heard evidence grams duffel bag jury found guilty violating statute prescribes minimum sentence years prison maximum sentence life offense iii based upon booker criminal history quantity drugs found jury sentencing guidelines required district judge select base sentence less months prison see sentencing commission guidelines manual hereinafter ussg judge however held sentencing proceeding concluded preponderance evidence booker possessed additional grams crack guilty obstructing justice findings mandated judge select sentence months life imprisonment judge imposed sentence low end range thus instead sentence years months judge imposed basis facts proved jury beyond reasonable doubt booker received sentence dissent judge easterbrook appeals seventh circuit held application sentencing guidelines conflicted holding apprendi new jersey ther fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt majority relied holding blakely washington maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant slip held sentence violated sixth amendment remanded instructions district either sentence respondent within sentencing range supported jury findings hold separate sentencing hearing jury respondent fanfan charged conspiracy distribute possess intent distribute least grams cocaine violation ii convicted jury answered yes question amount cocaine grams app pet cert guidelines without additional findings fact maximum sentence authorized jury verdict imprisonment months days decision blakely trial judge conducted sentencing hearing found additional facts guidelines authorized sentence month range specifically found respondent fanfan responsible kilograms cocaine powder grams crack also concluded respondent organizer leader manager supervisor criminal activity findings made preponderance evidence guidelines additional findings required enhanced sentence years instead years authorized jury verdict alone relying majority opinion blakely also categorical statements dissenting opinions solicitor general brief blakely see app pet cert pp judge concluded follow particular provisions sentencing guidelines involve drug quantity role enhancement expressly refusing make blanket decision federal guidelines followed provisions guidelines implicate sixth amendment imposing sentence respondent based solely upon guilty verdict case ibid following denial motion correct sentence fanfan case government filed notice appeal appeals first circuit petition writ certiorari judgment importance questions presented granted petition well similar petition filed government booker case petitions government asks us determine whether apprendi line cases applies sentencing guidelines portions guidelines remain opinion explain agree lower courts answer first question separate opinion justice breyer explains answer second question ii settled throughout history constitution protects every criminal defendant conviction except upon proof beyond reasonable doubt every fact necessary constitute crime charged winship equally clear constitution gives criminal defendant right demand jury find guilty elements crime charged gaudin basic precepts firmly rooted common law provided basis recent decisions interpreting modern criminal statutes sentencing procedures jones considered federal carjacking statute provides three different maximum sentences depending extent harm victim years jail serious injury victim years serious bodily injury life prison death resulted supp spite fact statute first glance look suggesting provisions relating extent harm victim sentencing provisions concluded harm victim element crime conclusion supported statutory text structure influenced desire avoid constitutional issues implicated contrary holding reduced jury role relative importance gatekeeping foreshadowing result reach today noted holding consistent rule requiring jury determination facts raise sentencing ceiling state federal sentencing guidelines systems apprendi new jersey defendant pleaded guilty possession firearm unlawful purpose carried prison term years thereafter trial found conduct violated new jersey hate crime law racially motivated imposed sentence set aside enhanced sentence held fact prior conviction fact increases penalty crime beyond prescribed statutory maximum must submitted jury proved beyond reasonable doubt fact new jersey labeled hate crime sentence enhancement rather separate criminal act irrelevant constitutional purposes matter simple justice seemed obvious procedural safeguards designed protect apprendi punishment possession firearm apply equally violation hate crime statute merely using label sentence enhancement describe latter provide principled basis treating two crimes differently ring arizona reaffirmed conclusion characterization critical facts constitutionally irrelevant held impermissible trial judge sitting alone determine presence absence aggravating factors required arizona law imposition death penalty state makes increase defendant authorized punishment contingent finding fact fact matter state labels must found jury beyond reasonable doubt opinion made clear ultimately procedural error ring case might harmless necessary finding implicit jury guilty verdict characterization fact circumstance factor determinative question decides judge jury blakely washington dealt determinate sentencing scheme similar federal sentencing guidelines defendant pleaded guilty kidnaping class felony punishable term years provisions washington law comparable federal sentencing guidelines mandated standard sentence months unless judge found aggravating facts justifying exceptional sentence although prosecutor recommended sentence standard range judge found defendant acted sentenced months slip reasons explained jones apprendi ring requirements sixth amendment clear application washington sentencing scheme violated defendant right jury find existence particular law makes essential punishment slip right implicated whenever judge seeks impose sentence solely based facts reflected jury verdict admitted defendant slip emphasis deleted rejected state argument jury verdict sufficient authorize sentence within general sentence class felonies noting washington law judge required find additional facts order impose greater sentence precedents explained make clear maximum apprendi purposes maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant ibid slip emphasis original determination defendant acted deliberate cruelty like determination apprendi defendant acted racial malice increased sentence defendant otherwise received since fact found judge using preponderance evidence standard sentence violated blakely sixth amendment rights dissenting opinions blakely recognized distinction constitutional significance federal sentencing guidelines washington procedures issue case see opinion slip structure federal guidelines likewise government suggests provide grounds distinction anything structural differences exist make federal guidelines vulnerable attack conclusion rests premise common systems relevant sentencing rules mandatory impose binding requirements sentencing judges 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 see apprendi indeed everyone agrees constitutional issues presented cases avoided entirely congress omitted sra provisions make guidelines binding district judges circumstance makes answer second question presented possible trial judge exercises discretion select specific sentence within defined range defendant right jury determination facts judge deems relevant guidelines written however advisory mandatory binding subsection sentencing lists sentencing guidelines one factor considered imposing sentence subsection directs shall impose sentence kind within range established guidelines subject departures specific limited cases binding judges consistently held guidelines force effect laws see mistretta stinson availability departure specified circumstances avoid constitutional issue blakely guidelines permit departures prescribed sentencing range cases judge finds exists aggravating mitigating circumstance kind degree adequately taken consideration sentencing commission formulating guidelines result sentence different described supp first glance one might believe ability district judge depart guidelines means bound statutory maximum case apprendi problem importantly however departures available every case fact unavailable cases matter law commission adequately taken relevant factors account departure legally permissible instances judge bound impose sentence within guidelines range reason rejected similar argument blakely holding although washington statute allowed judge impose sentence outside sentencing range compelling reasons exception available blakely slip sentencing judge reversed invoked departure section justify sentence booker case illustrates mandatory nature guidelines jury convicted possessing least grams crack violation iii based evidence grams crack duffel bag facts guidelines specified offense level given defendant criminal history category authorized sentence months see ussg booker drug case present factors inadequately considered commission sentencing judge therefore reversed imposed sentence within level guidelines range booker actual sentence however months almost years longer guidelines range supported jury verdict alone reach sentence judge found facts beyond found jury namely booker possessed grams crack addition grams duffel bag jury never heard evidence additional drug quantity judge found true preponderance evidence thus blakely jury verdict alone authorize sentence judge acquires authority upon finding additional fact slip relevant distinction sentence imposed pursuant washington statutes blakely sentences imposed pursuant federal sentencing guidelines cases dissent post justice breyer argues historical grounds guidelines scheme constitutional across board points traditional judicial authority increase sentences take account unusual blameworthiness manner employed committing crime authority guidelines require exercised consistently throughout system tradition however provide sound guide enforcement sixth amendment guarantee jury trial today world quite true determinate sentencing fallen favor american judges commonly determined facts justifying choice heavier sentence account manner particular defendants acted apprendi provisions enhancements permissible sentencing range reflected growing wholly justified legislative concern proliferation variety drug crimes frequent identification firearms offences effect increasing emphasis facts enhanced sentencing ranges however increase judge power diminish jury became judge jury determined upper limits sentencing facts determined quired raised trial proved preponderance enhancements became greater jury finding underlying crime became less significant enhancements became serious indeed see jones judge finding increased maximum sentence years respondent booker months life sentence respondent fanfan months rodriguez posner dissenting denial rehearing en banc approximately months life sentence hammoud en banc motz dissenting actual sentence increased months years thus became clear sentencing longer taking place tradition justice breyer invokes faced issue preserving ancient guarantee new set circumstances new sentencing practice forced address question right jury trial preserved meaningful way guaranteeing jury still stand individual power government new sentencing regime new circumstances tradition practice new circumstances superseded led us answer first considered jones developed apprendi subsequent cases culminating one answer motivated sixth amendment formalism need preserve sixth amendment substance iii government advances three arguments support submission apply reasoning blakely federal sentencing guidelines contends blakely distinguishable guidelines promulgated commission rather legislature principles stare decisis require us follow four earlier decisions arguably inconsistent blakely application blakely guidelines conflict separation powers principles reflected mistretta arguments unpersuasive commission legislature judgment fact guidelines promulgated sentencing commission rather congress lacks constitutional significance order impose defendants sentences guidelines judges cases required find additional fact drug quantity judge found additional fact serious bodily injury victim jones far defendants concerned face significantly higher sentences booker case almost years higher judge found true preponderance evidence fact never submitted jury regardless whether congress sentencing commission concluded particular fact must proved order sentence defendant within particular range framers thought much demand depriving man ten years liberty state suffer modest inconvenience submitting accusation unanimous suffrage twelve equals neighbours rather lone employee state blakely slip citations omitted government correctly notes apprendi referred fact increases penalty crime beyond prescribed statutory maximum brief quoting apprendi emphasis brief simple answer course considering statute case expressly declined consider guidelines see apprendi therefore appropriate state rule case terms statutory maximum rather answering question properly us important language used holding apprendi principles sought vindicate principles unquestionably applicable guidelines product recent innovations jurisprudence rather genesis ideals constitutional tradition assimilated common law see jones framers constitution understood threat judicial despotism arise arbitrary punishments upon arbitrary convictions without benefit jury criminal cases federalist rossiter ed hamilton founders presumably carried concern england right jury trial enshrined since magna carta noted apprendi historical foundation recognition principles extends centuries common law guard spirit oppression tyranny part rulers great bulwark civil political liberties trial jury understood require truth every accusation whether preferred shape indictment information appeal afterwards confirmed unanimous suffrage twelve defendant equals neighbors citations omitted regardless whether legal basis accusation statute guidelines promulgated independent commission principles behind jury trial right equally applicable stare decisis government next argues four recent cases preclude application blakely sentencing guidelines disagree dunnigan held provisions guidelines require sentence enhancement judge determines defendant committed perjury violate privilege accused testify behalf contention enhancement invalid resulted severe sentence jury verdict authorized accordingly found case indistinguishable grayson case upheld similar sentence increase applying blakely guidelines invalidate sentence relied enhancement resulting sentence outside range authorized jury verdict nevertheless many situations district judge might find enhancement warranted yet still sentence defendant within range authorized jury see post stevens dissenting part thus reach dunnigan may limited need overrule witte held double jeopardy clause bar prosecution conduct provided basis enhancement defendant sentence prior case concluded information defendant character conduct sentencing result punishment offense one defendant convicted rather defendant fact present offense carried manner warrants increased punishment watts per curiam emphasis omitted quoting witte watts relying witte held double jeopardy clause permitted consider acquitted conduct sentencing defendant guidelines neither witte watts contention sentencing enhancement exceeded sentence authorized jury verdict violation sixth amendment issue confront today simply finally edwards held jury general verdict finding defendants guilty conspiracy involving either cocaine crack supported sentence based involvement drugs even though indictment charged conspiracy embraced argued appeal verdict limited judge sentencing authority recognized defendants statutory constitutional claims might merit possible argue activities part conspiracy cocaine activities failed make argument based review record showed series interrelated drug transactions involving cocaine crack concluded claim none prior cases inconsistent today decision stare decisis compel us limit blakely holding separation powers finally government lesser extent justice breyer dissent argue holding require guidelines sentencing factors proved jury beyond reasonable doubt effectively transform code defining elements criminal offenses result according government unconstitutional grant sentencing commission inherently legislative power define criminal elements merit argument commission authority identify facts relevant sentencing decisions determine impact facts federal sentences precisely whether one labels facts sentencing factors elements crimes decision mistretta upholding validity delegation authority unaffected characterization facts procedures used find facts particular sentencing proceedings indeed rejected similar argument jones contrary dissent suggestion constitutional proposition drives concern way question principle definition elements criminal offense entrusted legislature constitutional guarantees give rise concern way restrict ability legislatures identify conduct wish characterize criminal define facts whose proof essential establishment criminal liability constitutional safeguards figure analysis concern identity elements defining criminal liability required procedures finding facts determine maximum permissible punishment safeguards going formality notice identity factfinder burden proof holding today call question aspect decision mistretta decision premised understanding commission rather performing adjudicatory functions instead makes political substantive decisions noted promulgation guidelines much like activities judicial branch creation federal rules evidence activities also noted congress may delegate judicial branch nonadjudicatory functions trench upon prerogatives another branch appropriate central mission judiciary recognized guidelines substantive rules evidence nonadjudicatory functions delegated judicial branch nonetheless concluded delegation exceed congress powers recognition commission exercise judicial authority properly thought exercising sort legislative power essential holding commission fact performed adjudicatory functions violated article iii members article iii judges explained consequences locating commission within judicial branch pose threat undermining integrity judicial branch expanding powers judiciary beyond constitutional bounds uniting within branch political power commission judicial power courts commission powers powers judiciary way meaning analysis whatever constitutional problems might arise powers commission vested commission exercise judicial power controlled accountable members judicial branch thus always recognized fact commission independent agency exercises authority delegated congress nothing holding today inconsistent decision mistretta iv foregoing support conclusion holding blakely applies sentencing guidelines recognize jones apprendi blakely cases jury factfinding may impair expedient efficient sentencing defendants interest fairness reliability protected right jury trial right defendants enjoyed centuries enshrined sixth amendment always outweighed interest concluding trials swiftly blakely slip blackstone put owever convenient new methods trial may appear first doubtless arbitrary powers well executed convenient yet let remembered delays little inconveniences forms justice price free nations must pay liberty substantial matters inroads upon sacred bulwark nation fundamentally opposite spirit constitution though begun trifles precedent may gradually increase spread utter disuse juries questions momentous concerns commentaries laws england accordingly reaffirm holding apprendi fact prior conviction necessary support sentence exceeding maximum authorized facts established plea guilty jury verdict must admitted defendant proved jury beyond reasonable doubt petitioner freddie booker writ certiorari appeals seventh circuit petitioner ducan fanfan writ certiorari judgment appeals first circuit january justice breyer delivered opinion part first question government presented cases following whether sixth amendment violated imposition enhanced sentence sentencing guidelines based sentencing judge determination fact prior conviction found jury admitted defendant pet cert opinion justice stevens answers question affirmative applying decisions apprendi new jersey blakely washington federal sentencing guidelines holds circumstances mentioned sixth amendment requires juries judges find facts relevant sentencing see ante stevens opinion turn second question presented question concerns remedy must decide whether extent matter severability analysis guidelines whole inapplicable sentencing must exercise discretion sentence defendant within maximum minimum set statute offense conviction pet cert answer question remedy finding provision federal sentencing statute makes guidelines mandatory supp incompatible today constitutional holding conclude provision must severed excised must one statutory section main ed supp depends upon guidelines mandatory nature modified federal sentencing act see sentencing reform act amended et et makes guidelines effectively advisory requires sentencing consider guidelines ranges see supp permits tailor sentence light statutory concerns well see supp answer remedial question looking legislative intent see minnesota mille lacs band chippewa indians alaska airlines brock regan time plurality opinion seek determine congress intended light constitutional holding denver area ed telecommunications consortium fcc plurality opinion congress still passed valid sections known constitutional invalidity portions statute internal quotation marks omitted instance must determine two following remedial approaches compatible legislature intent embodied sentencing act one approach justice stevens dissent retain sentencing act guidelines written engraft onto existing system today sixth amendment jury trial requirement addition change guidelines preventing sentencing increasing sentence basis fact jury find offender admit approach adopt severance excision two provisions make guidelines system advisory maintaining strong connection sentence imposed offender real conduct connection important increased uniformity sentencing congress intended guidelines system achieve approaches significantly alter system congress designed today constitutional holding means longer possible maintain judicial factfinding congress thought underpin mandatory guidelines system sought create congress wrote act main ed supp hence must decide whether deviate less radically congress intended system superimposing constitutional requirement announced today elimination provisions statute say create new kind severability analysis post stevens dissenting rather recognize sometimes severability questions questions whether congress intend statute apply arise legislatively unforeseen constitutional problem requires modification statutory provision applied significant number instances compare welsh harlan concurring result explaining statute defective failure extend group constitutionally required benefit may either declare nullity extend benefit include aggrieved exclusion heckler mathews although ordinarily rather nullification proper course course remedial powers circumvent intent legislature quoting califano westcott id powell concurring part dissenting part citation omitted sloan lemon striking entire pennsylvania tuition reimbursement statute eliminate unconstitutional applications create program quite different one legislature actually adopted see also post thomas dissenting everability questions arise unconstitutional applications statutes question squarely presented vermeule saving constructions geo today context highly complex statute interrelated provisions constitutional requirement creates fundamental change assume congress faced statute invalidity key applications preferred apply statute many instances possible neither determine likely congressional intent mechanically simply approach problem grammatically say looking see whether constitutional requirement words act linguistically compatible simple numbers provide answer course true numbers show constitutional jury trial requirement lead additional decisionmaking juries minority cases see post stevens dissenting prosecutors defense attorneys still resolve lion share criminal matters plea bargaining plea bargaining takes place without jury see ibid many rest involve simple issues calling upward guidelines adjustment see post least remainder judge may find adequate room adjust sentence within single guidelines range jury verdict points within overlap range next highest see post constitutional jury trial requirement nonetheless affect every case affect decisions whether go trial affect content plea negotiations alter judge role sentencing thus must determine likely intent counting proceedings evaluating consequences constitutional requirement light act language history basic purposes reasonable minds differ outcome conclude constitutional jury trial requirement compatible act written severance excision necessary part ii infra explain incompatibility part iii infra describe necessary excision part iv infra explain rejected possibilities essence follows explain congress likely preferred total invalidation act act sixth amendment requirement engrafted onto congress likely preferred excision act namely act mandatory language invalidation entire act say light today holding compare maintaining act written jury factfinding added dissenters proposed remedy total invalidation statute conclude congress preferred latter compare remedy total invalidation statute conclude congress preferred remedy ii several considerations convince us constitutional requirement added onto sentencing act currently written requirement transform scheme congress created congress likely intended act modified stand first statute text sentencing consider nature circumstances offense history characteristics defendant main ed supp context words mean judge without jury judge working together jury statutory provision removing typical jury trial evidentiary limitations makes clear see ruling limitation information concerning offender background character conduct may receive act history confirms see guidelines system guide judge making sentencing decisions emphasis added sentencing judge must consider nature circumstances offense judge must conduct comprehensive examination characteristics particular offense particular offender provision tied provision act makes guidelines mandatory see supp part parcel single unified whole whole congress intended apply federal sentencing provision makes difficult justify justice stevens approach approach requires reading words meant judge working together jury unlike justice stevens believe interpret statute language save constitutionality see post stevens dissenting believe reinterpretation even limited instances sixth amendment problem arises plainly contrary intent congress video without reinterpretation however provision statute along inextricably connected constitutionally invalid fall outside congress power enact agree justice stevens newly passed identical statute valid post dissenting opinion new identically worded statute valid unlike present statute interpret new statute without disregarding congress basic intent consistent jury factfinding requirement compare post stevens dissenting statute stand second congress basic statutory goal system diminishes sentencing disparity depends success upon judicial efforts determine base punishment upon real conduct underlies crime conviction determination particularly important federal system crimes defined example obstruct ing delay ing affect ing commerce movement article commodity commerce extortion say using mail purpose executing scheme artifice defraud supp ii encompass vast range different kinds underlying conduct also important even respect ordinary crimes robbery act meets statutory definition committed host different ways judges long looked real conduct sentencing federal judges long relied upon presentence report prepared probation officer information often unavailable trial relevant manner convicted offender committed crime conviction congress expected system continue specifically inserted act provision cited recodifying prior law says limitation shall placed information concerning background character conduct person convicted offense may receive consider purpose imposing appropriate sentence earlier opinions assumed system continue example held watts per curiam sentencing judge rely sentencing purposes upon fact jury found unproved beyond reasonable doubt see see also quoting sentencing commission guidelines manual backg ussg describes sweeping language conduct sentencing may consider determining applicable guideline range provides onduct formally charged element offense conviction may enter determination applicable guideline sentencing sentencing guidelines also assume congress intended system continue see ussg backg among things permit judge reject sentence determines reviewing presentence report sentence adequately reflect seriousness defendant actual conduct see engraft constitutional requirement onto sentencing statutes however destroy system prevent judge relying upon presentence report factual information relevant sentencing uncovered trial even compared sentencing weaken tie sentence offender real conduct thereby undermine sentencing statute basic aim ensuring similar sentences committed similar crimes similar ways several examples help illustrate point imagine smith jones violates hobbs act different ways see forbidding obstruct ing delay ing affect ing commerce movement article commodity commerce extortion smith threatens injure unless advances dollars interstate company till jones similarly threatening causes far harm seeking far money making certain family aware threat arranging deliveries dead animals home show serious forth offenders behavior different known harmful consequences actions different punishments guidelines different dissenters approach unless prosecutors decide charge elements crime judge impose similar punishments see post scalia dissenting imagine two former felons johnson jackson engages identical criminal behavior threatening bank teller gun securing injuring innocent bystander fleeing bank suppose prosecutors charge johnson one crime say illegal gun possession see jackson another say bank robbery see guidelines single judge faced similar real conduct able within statutory limits impose similar sentences upon two similar offenders despite different charges brought guidelines ordinarily required judges sentence two offenders similarly dissenters system circumstances offenders likely receive different punishments see post scalia dissenting consider complex mail fraud conspiracy prosecutor may well uncertain amount harm role indicted individual played conviction offenders may turn financial records becomes easier determine leaders followers victim interviews seen worth time case relation sentence actually occurred likely considerably distant system jury trial requirement patched onto even prior sentencing act judges routinely used information obtained verdict decide upon proper sentence point critically important congress basic goal passing sentencing act move sentencing system direction increased uniformity see see also uniformity consist simply similar sentences convicted violations statute uniformity consistent dissenters remedial approach consists importantly similar relationships sentences real conduct relationships congress sentencing statutes helped advance justice stevens approach undermine compare post dissenting opinion conceding sixth amendment requirement undoubtedly affect conduct sentencing certain cases minimizing significance circumstance significant part weakening relationship inexplicabl concerns manner achieving uniform sentences post scalia dissenting leads us conclude congress preferred mandatory system system dissenters envisage third sentencing statutes read include sixth amendment requirement create system far complex congress intended courts counsel work indictment jury trial involved whether defendant robbed bank also indictment allege addition elements robbery whether defendant possessed firearm whether brandished discharged whether threatened death whether caused bodily injury whether injury ordinary serious permanent life threatening whether abducted physically restrained anyone whether victim unusually vulnerable much money taken whether organizer leader manager supervisor robbery gang see ussg defendant mount defense specific claims also try simultaneously maintain government evidence failed place scene crime indictment mail fraud case allege number victims vulnerability amount taken judge expect jury work guidelines definitions say relevant conduct includes acts omissions committed aided abetted counseled commanded induced procured willfully caused defendant case conspiracy reasonably foreseeable acts omissions others furtherance jointly undertaken criminal activity jury measure loss securities fraud case matter complex lead commission instruct judges make reasonable estimate take account punishment purposes defendant contemptuous behavior trial matter government charged indictment fourth plea bargaining significantly diminish consequences constitutional holding operation guidelines compare post stevens dissenting rather plea bargaining make matters worse congress enacted sentencing statutes major part achieve greater uniformity sentencing increase likelihood offenders engage similar real conduct receive similar sentences statutes reasonably assume efforts move sentencing process direction greater sentencing uniformity similar positive impact upon sentences plea bargaining takes place shadow eye towards hypothetical result potential trial congress understanding realities plea bargaining authorized commission promulgate policy statements assist sentencing judges determining whether reject plea agreement reading defendant real conduct presentence report giving offender opportunity challenge report see ussg system worked perfectly judges often simply accepted account conduct issue compared law statutes try move system right direction toward greater sentencing uniformity constitutional jury trial requirement however patched onto present sentencing act move system backwards respect tried cases respect tried cases effectively deprive judge ability use information prohibit judge basing sentence upon conduct conduct prosecutor chose charge put defendant set difficult strategic choices prosecutorial claims contest sentence emerge case tried system likely reflect real conduct less completely less accurately less often well guidelines trial plea bargaining inevitably reflects estimates happen trial plea bargaining system move wrong direction say sentencing system modified constitutional requirement plea bargaining likely lead sentences gave greater weight real conduct rather skill counsel policies prosecutor caseload factors vary place place defendant defendant crime crime compared plea bargaining plea bargaining kind necessarily move federal sentencing direction diminished increased uniformity sentencing compare supra post stevens dissenting tend defeat congress basic statutory goal system particularly troubling consequences respect prosecutorial power sentencing factors come judge presentence report sentencing system constitutional requirement engrafted onto factor prosecutor chose charge plea negotiation placed beyond reach judge entirely prosecutors thus exercise power sentencing act vested judges power decide based relevant information offense offender defendants merit heavier punishment respondent booker case example jury heard evidence crime involved grams crack cocaine convicted booker possessing grams judge sentencing found crime involved additional grams total grams system require jury judge make additional grams finding system prosecutor judge control sentence prosecutor decide drug amount charge choose charge grams less prosecutor charging decision control sentencing range different prosecutors different cases say two cases involving grams potentially insist upon different punishments similar defendants engaged similar criminal conduct involving similar amounts unlawful drugs say charging one full grams long different prosecutors react differently system jury factfinding requirement mean different sentences otherwise similar conduct whether context trials plea bargaining fifth congress enacted sentencing statutes make difficult adjust sentences upward adjust downward several senators written amicus brief congress enacted act conceive much less establish sentencing guidelines system sentencing judges free consider facts circumstances found jury admitted plea agreement purpose adjusting level within applicable guidelines range lever grossly odds congress intent brief senator orrin hatch et al amici curiae yet system dissenters remedy create compare post stevens dissenting conceding asymmetry stating belief unlikely minimal effect reasons congress faced constitutional jury trial requirement likely passed sentencing act likely found requirement incompatible act written hence act remain valid entirety severance excision necessary iii turn question portions sentencing statute must sever excise inconsistent constitutional requirement although explained see part ii supra believe congress preferred total invalidation statute dissenters remedial approach nevertheless believe entire statute must invalidated compare post stevens dissenting statute perfectly valid see main ed supp describing authorized sentences probation fine imprisonment presentence reports forfeiture notification victims supervised release must refrain invalidating statute necessary regan indeed must retain portions act constitutionally valid capable functioning independently alaska airlines consistent congress basic objectives enacting statute regan supra application criteria indicates must sever excise two specific statutory provisions provision requires sentencing courts impose sentence within applicable guidelines range absence circumstances justify departure see supp provision sets forth standards review appeal including de novo review departures applicable guidelines range see main ed supp see appendix infra text provisions two sections excised statutory two sections consequently invalidated remainder act satisfies constitutional requirements today recognizes first opinion cases existence necessary condition constitutional violation say without provision namely provision makes relevant sentencing rules mandatory impose binding requirements sentencing judges statute falls outside scope apprendi requirement ante stevens opinion see also ibid veryone agrees constitutional issues presented cases avoided entirely congress omitted sentencing reform act provisions make guidelines binding district judges cf post thomas dissenting remainder act function independently alaska airlines supra without mandatory provision act nonetheless requires judges take account guidelines together sentencing goals see supp act nonetheless requires judges consider guidelines sentencing range established applicable category offense committed applicable category defendant pertinent sentencing commission policy statements need avoid unwarranted sentencing disparities need provide restitution victims main ed supp act nonetheless requires judges impose sentences reflect seriousness offense promote respect law provide punishment afford adequate deterrence protect public effectively provide defendant needed educational vocational training medical care main ed supp see appendix infra text moreover despite absence act continues provide appeals sentencing decisions irrespective whether trial judge sentences within outside guidelines range exercise discretionary power see main ed appeal defendant appeal government concede excision requires excision different section namely main ed supp sets forth standards review appeal section contains critical consequently must severed excised similar reasons excision however pose critical problem handling appeals previously held statute explicitly set forth standard review may nonetheless implicitly see pierce underwood adopting standard review neither clear statutory prescription historical tradition existed based statutory text structure practical considerations see also cooter gell hartmarx koon citing pierce cooter gell approval infer appropriate review standards related statutory language structure statute sound administration justice pierce supra instance factors addition past two decades appellate practice cases involving departures imply practical standard review already familiar appellate courts review unreasonable ness explicitly set forth standard see congress modified text adding de novo standard review departures inserting prosecutorial remedies tools end exploitation children today act pub stat light today holding reasons revisions make guidelines sentencing even mandatory ceased relevant text directed appellate courts review sentences reflected applicable guidelines range correctness review sentences fell outside applicable guideline range view toward determining whether sentence unreasonable regard factors considered imposing sentence set forth chapter title reasons imposition particular sentence stated district pursuant provisions section ed emphasis added words text told appellate courts determine whether sentence unreasonable regard section remains effect sets forth numerous factors guide sentencing factors turn guide appellate courts past determining whether sentence unreasonable taking account factors set forth pierce read statute implying appellate review standard standard consistent appellate sentencing practice last two decades justice scalia believes wonderland possible infer standard review excising see post dissenting opinion application pierce justify characterization pierce requires us judge appropriateness inference based statute language basic purposes believe inference fair one linguistically one consistent congress intent provide appellate review circumstances refuse apply pierce thereby retreat remedy raises problems discussed part ii supra dissenters thereby eliminate appellate review entirely cut statute loose moorings congressional purpose share dissenters doubts practicality reasonableness standard review reasonableness standards foreign sentencing law act long required use important sentencing circumstances review departures see ed review sentences imposed applicable guideline see together cases account sentencing appeals see sentencing commission sourcebook federal sentencing statistics least sentencing appeals involved departures least sentencing appeals involved imposition term imprisonment revocation supervised release see also white face tsosie salinas cook olabanji think fair justice scalia words gross exaggeratio post dissenting opinion assume judicial familiarity reasonableness standard believe appellate judges prove capable facing greater equanimity justice scalia calls daunting prospect applying standard across board neither share justice scalia belief use reasonableness standard produce discordant symphony leading excessive sentencing disparities wreak havoc judicial system post internal quotation marks omitted sentencing commission continue collect study appellate decisionmaking continue modify guidelines light learns thereby encouraging finds better sentencing practices thereby promote uniformity sentencing process main ed supp regardless context must view fears discordant symphony excessive disparities havoc gross exaggerations comparative eye claim use reasonableness standard provide uniformity congress originally sought secure doubt congress wrote language appellate provisions correspond mandatory system intended create compare post scalia dissenting expressing concern regarding presence light absence clear mandatory system longer open choice remedial question must ask respect alternative adheres closely congress original objective retention sentencing appeals invalidation entire act including appellate provisions former providing appellate review tend iron sentencing differences latter hence believe congress preferred former latter even former means provisions apply differently way congress originally expected see post scalia dissenting said believe congress preferred even latter system dissenters recommend system problems practicality see supra finally act without mandatory provision related language remains consistent congress initial basic sentencing intent congress sought provide certainty fairness meeting purposes sentencing avoiding unwarranted sentencing disparities maintaining sufficient flexibility permit individualized sentences warranted see also ussg application note explaining congress sought achieve honesty uniformity proportionality sentencing emphases deleted system remaining excision lacking mandatory features congress enacted retains features help objectives said sentencing commission remains place writing guidelines collecting information actual district sentencing decisions undertaking research revising guidelines accordingly see main ed supp district courts bound apply guidelines must consult guidelines take account sentencing see supp compare post scalia dissenting claiming sentencing judge discretion possessed act passed courts appeals review sentencing decisions unreasonableness features remaining system system congress enacted nonetheless continue move sentencing congress preferred direction helping avoid excessive sentencing disparities maintaining flexibility sufficient individualize sentences necessary see find feature remaining system tends hinder rather basic objectives circumstances congress preferred excision mandatory provision system engrafts today constitutional requirement onto unchanged statute system terms congress basic objectives counterproductive doubt congress wrote sentencing act intended create form mandatory guidelines system see post stevens dissenting repeat given today constitutional holding choice remains open hence examined statute depth determine congress likely intent light today holding see denver area ed telecommunications consortium concluded today holding fundamentally inconsistent sentencing system congress enacted law view consistent congress likely intent enacting sentencing reform act preserve important elements system severing excising two provisions maintain provisions act engraft today constitutional requirement onto statutory scheme course last word ball lies congress national legislature equipped devise install sentencing system compatible constitution congress judges best federal system justice iv briefly explain fully adopted remedial proposals parties advanced first government argues case constitution prohibits judicial factfinding procedures congress commission contemplated implementing guidelines guidelines whole become inapplicable brief thus guidelines system contemplated congress created commission inapplicable case guidelines require sentencing find fact guidelines remain advisory however remain intact ibid cf brief new york council defense lawyers amicus curiae decision section unconstitutional necessarily jeopardize reforms made sentencing reform act including see also ibid recognizing remainder act functions independently brief families mandatory minimums amicus curiae understand government remedial suggestion coincides significantly compare post stevens dissenting asserting party amicus sought remedy adopt post scalia dissenting government render guidelines advisory case constitution prohibits judicial factfinding apparently leave binding cases agree first part government suggestion however see possible leave guidelines binding cases one thing government proposal impose mandatory limits upon judge ability reduce sentences impose limits upon judge ability increase sentences believe lever compatible congress intent cf brief senator orrin hatch et al amicus curiae see also supra another believe congress authorized mandatory system cases nonmandatory system others given administrative complexities system create proposal seems unlikely congress basic objective promoting uniformity sentencing second respondents essence take approach justice stevens believe constitutional requirement compatible sentencing act ask us hold act continues stand written constitutional requirement engrafted onto accept position reasons already given see part ii supra respondent fanfan argues alternative excise provisions sentencing act require judicial factfinding sentencing system however produce problems similar discussed part ii see ibid reject fanfan remedial suggestion reason respondent booker case district applied guidelines written imposed sentence higher maximum authorized solely jury verdict appeals held blakely applicable guidelines concluded booker sentence violated sixth amendment vacated judgment district remanded resentencing affirm judgment appeals remand case remand district impose sentence accordance today opinions sentence comes appeals review appeals apply review standards set forth opinion respondent fanfan case district held blakely applicable guidelines imposed sentence authorized jury verdict sentence lower sentence authorized guidelines written thus fanfan sentence violate sixth amendment nonetheless government defendant choose may seek resentencing system set forth today opinions hence vacate judgment district remand case proceedings consistent opinion dispositions indicate must apply today holdings sixth amendment holding remedial interpretation sentencing act cases direct review see griffith kentucky new rule conduct criminal prosecutions applied retroactively cases pending direct review yet final exception cases new rule constitutes break past see also reynoldsville casket hyde civil case harper virginia dept taxation fact mean believe every sentence gives rise sixth amendment violation believe every appeal lead new sentencing hearing expect reviewing courts apply ordinary prudential doctrines determining example whether issue raised whether fails test also cases involving sixth amendment violation whether resentencing warranted whether instead sufficient review sentence reasonableness may depend upon application doctrine ordered appendix opinion title main ed supp provides factors considered imposing shall impose sentence sufficient greater necessary comply purposes set forth paragraph subsection determining particular sentence imposed shall consider nature circumstances offense history characteristics defendant need sentence imposed 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 kinds sentences available kinds sentence sentencing range established applicable category offense committed applicable category defendant set forth guidelines issued sentencing commission pursuant section title code subject amendments made guidelines act congress regardless whether amendments yet incorporated sentencing commission amendments issued section title ii except provided section effect date defendant sentenced case violation probation supervised release applicable guidelines policy statements issued sentencing commission pursuant section title code taking account amendments made guidelines policy statements act congress regardless whether amendments yet incorporated sentencing commission amendments issued section title pertinent policy statement issued sentencing commission pursuant section title code subject amendments made policy statement act congress regardless whether amendments yet incorporated sentencing commission amendments issued section title except provided section effect date defendant sentenced need avoid unwarranted sentence disparities among defendants similar records found guilty similar conduct need provide restitution victims offense title supp provides application guidelines imposing except provided paragraph shall impose sentence kind within range referred subsection unless finds exists aggravating mitigating circumstance kind degree adequately taken consideration sentencing commission formulating guidelines result sentence different described determining whether circumstance adequately taken consideration shall consider sentencing guidelines policy statements official commentary sentencing commission absence applicable sentencing guideline shall impose appropriate sentence due regard purposes set forth subsection absence applicable sentencing guideline case offense petty offense shall also due regard relationship sentence imposed sentences prescribed guidelines applicable similar offenses offenders applicable policy statements sentencing commission title main ed supp provides upon review record appeals shall determine whether sentence imposed violation law imposed result incorrect application sentencing guidelines outside applicable guideline range district failed provide written statement reasons required section sentence departs applicable guideline range based factor advance objectives set forth section ii authorized section iii justified facts case sentence departs unreasonable degree applicable guidelines range regard factors considered imposing sentence set forth section title reasons imposition particular sentence stated district pursuant provisions section imposed offense applicable sentencing guideline plainly unreasonable appeals shall give due regard opportunity district judge credibility witnesses shall accept findings fact district unless clearly erroneous except respect determinations subsection shall give due deference district application guidelines facts respect determinations subsection appeals shall review de novo district application guidelines facts petitioner freddie booker writ certiorari appeals seventh circuit petitioner ducan fanfan writ certiorari judgment appeals first circuit january justice stevens justice souter joins justice scalia joins except part iii dissenting part neither two opinions decide cases finds constitutional infirmity inherent provision sentencing reform act sra federal sentencing guidelines specifically neither supp makes application guidelines mandatory main ed supp authorizes appellate review departures guidelines even arguably unconstitutional neither government respondents numerous amici suggested need invalidate either provision order avoid violations sixth amendment administration guidelines decision represents policy choice congress considered decisively rejected perfectly clear congress ample power repeal two statutory provisions desires make choice congress behalf respectfully dissent extraordinary exercise authority explaining law authorize creative remedy reasons advances support decision unpersuasive abundantly clear congress already rejected remedy appropriate explain violation sixth amendment occurred booker case readily avoided without making change guidelines booker received sentence months imprisonment sentence based four factual determinations jury finding possessed grams crack cocaine base judge finding possessed additional grams judge conclusion obstructed justice judge evaluation prior criminal record jury grams finding maximum sentence authorized guidelines term months see sentencing commission guidelines manual ussg gram finding made jury based proof beyond reasonable doubt finding authorized guidelines sentence anywhere months equivalent range nearly years given booker criminal history relying appraisal defendant obstruction justice presumably information presentence report judge discretion select sentence within range thus two facts case actually established two separate crimes found jury judicial factfinding produced actual sentence violated constitution words judge considered booker obstruction justice criminal history real offense offender factors without violating sixth amendment guidelines written possess virtue combining mandatory determination sentencing ranges discretionary decisions within ranges allow ample latitude judicial factfinding even arguably raise sixth amendment issue principal basis chosen remedy assumption congress contemplate sixth amendment violated depriving defendant right jury trial factual issue important whether booker possessed additional grams crack exponentially increased maximum sentence receive sure assumption correct even provide adequate basis volunteering systemwide remedy congress already rejected enact elected one pauses note federal criminal prosecutions terminated plea bargain fact almost half cases go trial sentencing enhancements extraordinary overbreadth unprecedented remedy manifest moreover unique reasoning congress decide reenact exact text two provisions chosen invalidate reenactment unquestionably constitutional judgment therefore clear creative remedy exercise legislative rather judicial power fundamental premise judicial review acts congress presumptively valid see regan time ruling unconstitutionality frustrates intent elected representatives people ibid past respect coordinate branches government invalidated duly enacted statutes particular provisions statutes upon plain showing congress exceeded constitutional bounds morrison see also el paso northeastern gutierrez exercise power traditionally limited issues presented case controversy imposition remedies redress specific constitutional violations two narrow exceptions general rule facial challenge may succeed legislative scheme unconstitutional nearly applications certainly true cases however applications guidelines unquestionably valid second exception involves cases invalid provision application severed remainder statute exception inapplicable statutory guidelines provision invalid neither exception supports majority newly minted remedy facial invalidity regardless defines standard determining facial challenge statute abundantly clear fact statute provision statute unconstitutional portion applications render statute provision invalid party suggests otherwise government conceded oral argument federal sentences involve enhancements cf sentencing commission sourcebook federal sentencing statistics hereinafter sourcebook according two sentencing commissioners testified congress shortly handed decision blakely washington number enhancements actually implicate defendant sixth amendment rights even smaller see hearings blakely washington future federal sentencing guidelines senate committee judiciary hereinafter hearings blakely testimony commissioners john steer hon william sessions iii majority cases sentenced federal guidelines receive sentencing enhancements potentially implicate blakely available http internet materials visited available clerk case file simply stated government submissions congress demonstrate guidelines constitutionally applied entirety without modifications majority cases sentenced federal guidelines ibid basis submissions alone declined find guidelines particular provisions guidelines facially accordingly majority claim jury factfinding requirement destroy system ante opinion breyer apply minority sentences imposed guidelines reality given government judges apprised requirements sixth amendment number unconstitutional applications even smaller allowed opportunity comply constitutional holding several reasons first axiomatic defendant may waive sixth amendment right trial jury patton blakely explained hen defendant pleads guilty state free seek judicial sentence enhancements long defendant either stipulates relevant facts consents judicial factfinding slip reasoning applies equal force sentences imposed guidelines majority concedes ante tiny fraction federal prosecutions ever go trial see estimate percent cases sentenced guidelines result plea agreements procedures followed future holding blakely applies guidelines consequential tiny portion prospective sentencing decisions made defendant found guilty jury second remaining fraction cases result jury trial confident charged complying guidelines judges aided prosecutors defense attorneys adequately protect defendants sixth amendment rights without extraordinary remedy many cases prosecutors avoid apprendi new jersey problem simply alleging indictment facts necessary reach chosen guidelines sentence following decision apprendi decision blakely department justice advised federal prosecutors adopt practices enable charge prove jury facts increase statutory maximum example drug type quantity offenses enhancing specificity indictments simple matter example prosecutions federal drug statutes booker prosecution government already directed prosecutors allege facts possession dangerous weapon defendant organizer leader criminal activity involved five participants indictment prove jury beyond reasonable third even trials guidelines require finding facts alleged indictment factfinding judge unconstitutional per se clear holding parts ante stevens opinion blakely applies guidelines establish impermissibility judicial factfinding brief instead judicial factfinding support offense level determination enhancement unconstitutional finding raises sentence beyond sentence lawfully imposed reference facts found jury admitted defendant distinction crucial proper understanding guidelines easily function currently written consider instance case defendant initial sentencing range guidelines months calculated combining base offense level criminal history category see ussg ch pt table depending upon particular offense sentencing judge may use discretion select sentence within range even selection relies upon factual determinations beyond facts found jury defendant described also possessed firearm guidelines direct judge apply enhancement raise defendant total offense level turn raise defendant eligible sentencing range months act judicial factfinding comply guidelines sixth amendment long sentencing judge selected sentence months lower number bottom offense level higher number maximum sentence level upper limit range supported jury findings alone type overlap sentencing ranges rule exception guidelines currently constituted see practice federal sentencing guidelines bamberger gottlieb eds ed supp noting nearly guidelines ranges overlap overlap actual sentence imposed theoretically matter guideline range chosen trial courts developed considerable expertise employing overlapping provisions manner avoid unnecessary resolution factual disputes see supp lower courts shown capable distinguishing proper improper applications sentencing enhancements blakely see mayfield upholding enhancement firearm possession offense level sentencing judge selected sentence within overlapping range two levels interaction various guidelines provisions demonstrates fallacy assumption judicial factfinding never constitutional guidelines majority answer fact vast majority applications guidelines constitutional must determine likely intent counting proceedings evaluating consequences constitutional requirement every imaginable case ante opinion breyer approach ignores lessons facial invalidity cases cases stress ill suited task drafting legislation therefore matter respect coordinate branches government presume whenever possible charged writing implementing legislation apply statute consistently constitutional command time hill indeed generally refused consider every conceivable situation might possibly arise application complex comprehensive legislation barrows jackson delicate power pronouncing act congress unconstitutional exercised reference hypothetical cases thus imagined raines government already shown apply guidelines constitutionally even written congress perfectly capable redrafting statute thus justification extreme judicial remedy total invalidation part sra guidelines sum indisputable vast majority federal sentences guidelines complied sixth amendment without extraordinary remedy reasonable reading precedents way said guidelines particular guidelines provision facially unconstitutional severability even though statute facially invalid holding certain specific provisions unconstitutional may make necessary invalidate entire statute see generally stern separability separability clauses harv rev hereinafter stern normal rule however unconstitutionality part act necessarily defeat affect validity remaining provisions unless evident legislature enacted provisions within power independently invalid part may dropped left fully operative law champlin refining corporation emphasis added severability precedents however support remedy provision sra guidelines falls outside congress power see alaska airlines brock accordingly severability analysis simply apply majority concludes constitutional holding requires invalidation first sections uses word shall make substantive provisions guidelines mandatory see mistretta second authorizes de novo review sentencing judges applications relevant guidelines provisions neither section unconstitutional provisions certain cases combined statutory guidelines provisions result violation sixth amendment plainly constitutional faces rather rely traditional principles facial invalidity severability majority creates new category cases may invalidate part parts statute add others concludes congress preferred modified system administering statute compliance constitution entirely new law usually first declares unconstitutional particular provision law inquire whether remainder statute saved see regan time alaska airlines review manner limits judicial power minimizing damage done statute judicial fiat case aware however used severability analysis majority today determine unconstitutional applications statute viewed light reading likely legislative intent justifies invalidation certain statutory sections entirety constitutionality notwithstanding order save parts statute deemed important novelty remedial maneuver perhaps explains party amicus curiae litigation requested remedy orders addition none federal courts addressed blakely application guidelines concluded striking proper solution importantly simply authority invalidate legislation absent showing unconstitutional paraphrase chief justice marshall act legislature must repugnant constitution order void marbury madison cranch provision statute unconstitutional provision void judiciary therefore bound particular case however provisions majority excised statute perfectly valid congress pass identical statute tomorrow binding long administered compliance sixth statute repugnant constitution terms comport sixth amendment constitutional authority invalidate precedent relies scant indeed point cases provision law unconstitutionally extended limited particular class cases necessary either invalidate provision require legislature extend benefit excluded given sweeping nature remedy ordained today majority assertions proper engage ex ante analysis congressional intent order select first instance statutory provisions struck contrary purpose engaging severability analysis remedy expands rather limits judicial power justification extending severability cases cover situation sra guidelines read currently read way complies sixth amendment congress wished amend statute enact majority vision guidelines operate perfectly free need devise novel questionable method invalidating statutory provisions constitutionally applied ii rather engage wholesale rewriting sra simply allow government continue done since handed blakely prove fact required increase defendant sentence guidelines jury beyond reasonable doubt already discussed requirement jury factfinding certain issues implemented without difficulty vast majority cases see supra indeed already appears case department justice already instituted procedures protect overwhelming majority future cases blakely infirmity department justice issued detailed guidance every stage prosecution indictment final sentencing including alleging facts support sentencing enhancements requiring defendants waive potential blakely rights plea agreements hearings blakely given experience think dramatically overstates difficulty implementing solution majority advances five reasons remedy already place work first majority points statutory text referring arguing jury factfinding impermissible text doubt evidence congress contemplated judicial factfinding demonstrate congress thought judicial factfinding essential forced choose system including jury determinations certain facts certain cases one hand system guidelines cease restrain discretion federal judges congress selected latter textual matter word certainly read include judge selection sentence supported jury verdict reading plausible either pure matter statutory construction principles constitutional avoidance ordinarily statute susceptible two constructions one grave doubtful constitutional questions arise questions avoided duty adopt latter jones quoting ex rel attorney general delaware hudson principle long applied beyond debate edward debartolo florida gulf coast building constr trades council intended show respect congress presuming legislates light constitutional limitations rust sullivan however reverses ordinary presumption interprets phrase shall consider supp mean judge shall consider impose appropriate sentence judge shall constrained findings jury see ante opinion breyer interpreting word mean judge without narrow reading statutory text unnecessary even assuming word read mean judge judge requirement certain enhancements supported jury verdicts leaves ultimate sentencing decision exclusively within judge hands judge judge alone retain discretion sentence defendant anywhere within required guidelines range within overlapping guidelines ranges applicable see supra judge doubt limited findings jury certain cases fact limitation required sixth amendment limited circumstances reason adopt constrained view act adopting constrictive reading majority manufactured broader constitutional problem necessary thereby made necessary extraordinary remedy chosen pause however stress holding guidelines must applied consistently sixth amendment made majority remedy necessary rather miserly reading statutory language results constitutional infirmities see ante opinion breyer second argues simply applying blakely guidelines make real conduct sentencing difficult perhaps true cases judges always consider relevant conduct obtained presentence report pursuant main ed ussg selecting sentence within guidelines range course free consider circumstances cases defendant pleads guilty waives blakely rights many cases government simply prove additional facts jury beyond reasonable doubt cases since apprendi use bifurcated proceedings relevant conduct proved jury convicted defendant underlying crime majority correct however preferred holding undoubtedly affect real conduct sentencing certain cases goal sentencing increasing defendant sentence basis conduct proved trial contrary core apprendi certain applications relevant conduct sentencing unconstitutional come complete surprise congress house report recognized real offense sentencing pose constitutional difficulties reality majority concerns relevant conduct nothing objection apprendi objection rejected parts ante opinion stevens explain proposed remedy ensure judges take real conduct account judges certainly may discretion indication much extent relevant conduct matter majority regime meaningful standard appellate courts may review sentencing judge relevant conduct determination general reasonableness inquiry may discourage sentencing judges considering conduct altogether holding thus may much damage real conduct sentencing simply requiring government follow guidelines consistent sixth amendment third majority argues remedy make sentencing proceedings far complex small number cases guidelines sentence implicate sixth amendment see supra involve drug quantity determinations firearm enhancements factual findings readily made juries blind fact cases fraud prosecutions pose new problems prosecutors trial judges see ante opinion breyer cases confident federal trial judges assisted capable prosecutors defense attorneys devised appropriate procedures impose sentences guidelines envision manner consistent sixth amendment always trusted juries sort complex facts various areas law may efficient system imaginable constitution permit efficiency primary concern see blakely washington slip fourth majority assails reliance plea bargaining claims discount effect applying blakely guidelines cases since specter blakely affect cases however majority decision suffers problem much greater degree prior decision strike mandatory feature guidelines prosecutors defendants alike bargain position reasonable confidence respect sentencing range defendant likely fall majority however eliminated certainty expectations plea process unlike proposed remedy potentially affect fraction plea bargains uncertainty resulting regime change infect entire universe guilty pleas occur federal prosecutions majority also argues applying blakely guidelines allow prosecutors exercise power sentencing act vested judges see ante opinion breyer giving prosecutors choice whether charge particular fact remedy favor however judges still able reject factually false plea agreements ussg still consider relevant information offense offender every single case judges consider characteristics aid selecting appropriate sentence within guidelines range authorized jury verdict determining defendant criminal history level reducing defendant sentence justifying discretionary departures applicable guidelines range therefore incorrect suggests requiring supporting jury verdict certain enhancements certain cases place certain sentencing factors beyond reach judge entirely see ante opinion breyer moreover premise argument based guidelines currently written prevent fact bargaining therefore diminish prosecutorial power probably correct one commentator noted prosecutors exercise nearly much control guidelines tie sentences factors one might reasonably assume factors outside prosecutors control experience federal sentencing guidelines suggests otherwise necessary litigants simply bargain facts wo form basis sentencing seems iron rule guidelines sentencing empowers prosecutors even guidelines authors try fight tendency stuntz plea bargaining criminal law disappearing shadow harv rev omitted fact bargaining quite common current system also clear prosecutors substantial bargaining surely contrary response dissent ante opinion breyer prosecutor need prove enhancing fact preponderance evidence bargaining power required prove fact beyond reasonable doubt finally majority argues solution require different burden proof enhancements maximum authorized jury verdict reductions true requirement guilt established proof beyond reasonable doubt constitutional mandate however given relatively reductions available guidelines availability judicial discretion within applicable range unlikely minimal effect sum find unpersuasive objections allowing congress decide first instance whether guidelines converted mandatory discretionary system far important objections overwhelming evidence congress already considered unequivocally rejected regime endorses today iii even innovative approach severability analysis confronted unconstitutional applications statute opinion unpersuasive assumes inquiry decide whether deviate less radically congress intended system superimposing constitutional requirement announced today elimination provisions statute ante opinion breyer assume consistently majority exercise never use remedial powers circumvent intent legislature califano westcott powell concurring part dissenting part must create program quite different one legislature actually adopted sloan lemon context framework order justify excising supp main ed supp burden showing congress preferred remaining system discretionary sentencing guidelines remedy favor also available alternative including alternative total invalidation give congress clean slate write entirely new law meet burden congress already considered overwhelmingly rejected system enacts today congress revealed unmistakable preference certainty binding regime deep suspicion judges ability reduce disparities federal sentencing brief examination sra history reveals gross impropriety remedy selected history sentence reform efforts congress began study numerous problems attendant indeterminate sentencing federal criminal justice system nearly decade review congress decided system needed comprehensive overhaul elimination sentencing disparity congress determined chiefly result discretionary sentencing regime unquestionably congress principal aim see feinberg federal criminal sentencing reform congress sentencing commission wake forest rev first foremost goal sentencing reform effort alleviate perceived problem federal criminal sentencing disparity quite frankly considerations secondary see also breyer federal sentencing guidelines revisited fed sentencing rptr seeking fairness congress acting bipartisan fashion intended respond complaints unreasonable disparity sentencing complaints differences among sentences reflected simply different offense conduct different offender history fact different judges imposed sentences emphases added senator hatch central participant reform effort explained discretion congress conferred long upon judiciary parole authorities heart sentencing disparity role congress sentencing sentencing commission mandatory minimum sentences search certain effective sentencing system wake forest rev hereinafter hatch emphasis added consequently congress explicitly rejected model reform various proposals advisory guidelines introduced past congresses one example legislation bill introduced senators kennedy mcclellan sess reported senate judiciary committee hereinafter allowed judges impose sentences based characteristics individual defendant granted judges substantial discretion depart recommended guidelines sentences see stith koh politics sentencing reform legislative history federal sentencing guidelines wake forest rev hereinafter stith koh bill never became law refined several times refinements made regime less restrictive trial judges discretion passage sentencing reform act congress preference binding guidelines evident debate passage sra predicated entirely move discretionary guidelines system mandatory system strikes today sra product competing versions sentencing reform legislation house bill authorized creation discretionary guidelines whereas senate bill provided binding guidelines de novo appellate review house splintered regarding whether make guidelines binding judges vote senate overwhelming favor binding guidelines cong rec see generally stith koh eventually house substituted senate version current system mandatory guidelines became law cong rec text law actually passed congress including sufficient demonstrate congress unmistakable commitment binding guidelines system text requires sentencing judge impose sentence dictated guidelines shall impose sentence kind within range provided guidelines unless circumstance adequately taken consideration guidelines gives teeth instructing judges sentence outside guidelines range without adequate explanation overturned congress chosen regime carefully designed produce uniform compliance guidelines congress surely taken pains create regime found system discretionary guidelines acceptable way accompanying senate report floor debate make plain obvious structure statute congress refused accept discretionary system implausibly deems consistent congressional words given choice statute created today clean slate write wholly different law congress undoubtedly selected latter congress method reducing disparities notion congress confidence judges reduce sentencing disparities considering relevant conduct idea championed ante opinion breyer either ignores misreads political environment sra passed true sra instructs sentencing judges consider real offense offender characteristics main ed supp congress wanted judges consider characteristics within limits mandatory senate report relies see ante clearly concluded existence sentencing disparities traced directly unfettered discretion law confers judges responsible imposing implementing sentence even system judges impose sentences based relevant conduct determinations absent plea agreement supporting jury findings sentences still every bit certain uniform status quo process imposing sentences complex hardly said chosen system federal sentencing judges cases regain unconstrained discretion congress eliminated conclusion congress envisioned sentencing judge centerpiece effort reduce disparities remarkable given context broader legislative debate entity responsible drafting guidelines sra house version bill preferred guidelines written judicial conference house report accompanying bill argued judges vast experience sentencing best able craft system capable providing sentences based real conduct without excessive disparity see senate majority however favored independent commission whether rightly wrongly based belief federal judges trusted impose fair uniform sentences see cong rec remarks laxalt present problem disparity sentencing stems precisely failure ederal judges individually collectively sentence similarly situated defendants consistent reasonable manner little reason believe judges begin failed past end debate remaining members minority recognized battle empower judges discretion lost see remarks mathias arguing proponents bill argue essence judges trusted trust judge must trust judge find impossible believe congress sentiments prevailed ever approved discretionary sentencing regime enacts today congressional activity since congress wavered commitment binding system sentencing guidelines fact congress rejected every attempt loosen rigidity guidelines vest judges sentencing options see hatch ensuing years congress maintain adherence concept binding guidelines consistently rejecting efforts make guidelines discretionary recently congress passage prosecutorial remedies tools end exploitation children today act protect act pub stat reinforced mandatory nature guidelines expanding de novo review sentences include departures guidelines directing commission limit number available departures majority admits holding made protect act irrelevant see ante opinion breyer admitting remedy protect act provisions ceased relevant even cursory reading legislative history protect act reveals absurdity claim congress find acceptable circumstances restoration judicial discretion facial invalidation sum despite congress unequivocal demand guidelines operate binding system name avoiding reduction power sentencing judge jury subject congress speak majority erased heart sra ignored entirety legislative branch expressions guidelines supposed operate majority answer overwhelming history retaining mandatory guidelines system choice remains open given holding blakely applies guidelines ante argument essentially apprendi rule makes determinate sentencing unconstitutional advanced repeatedly since apprendi see dissenting blakely slip dissenting slip breyer dissenting prophecies self fulfilling apprendi brought end determinate sentencing clearly power adopt remedy complied sixth amendment also preserved determinate sentencing regime judges make regular factual determinations regarding defendant sentence chosen instead exaggerate constitutional problem expand scope judicial invalidation far beyond even arguably necessary holding blakely applies sentencing guidelines dictate unprecedented remedy iv matter policy differences regime enacted congress system chosen stark doubts whether congress preferred majority solution sufficient dispel first congress stated goal uniformity eliminated majority remedy true judges must still consider sentencing range contained guidelines range nothing suggestion may may persuasive judge weighed numerous considerations listed result certain return type sentencing disparities congress sought eliminate prior protect act rates departure applicable guidelines sentence via upward downward departure varied considerably depending upon circuit one sentenced see sourcebook table showing sentences fourth circuit within applicable guidelines range whereas sentences ninth circuit fell within range disparities undoubtedly increase discretionary system guidelines one factor judge must consider sentencing defendant within broad statutory range moreover neglected provide critical procedural protection existed prior enactment binding guidelines system sra sentencing judge discretion impose sentence designated minimum term expiration prisoner shall become eligible parole ed repealed pub stat sentencing judges discretion reduce minimum term imprisonment upon recommendation bureau prisons provisions others see generally effectively repealed parole commission sentencing judge ultimately responsible determining length defendant real sentence see prior guidelines regime parole commission designed reduce sentencing disparities provide check defendants received excessive sentences today reenacts discretionary guidelines system existed without providing crucial safety net concerns likely arise congress demand protect act departures guidelines closely regulated monitored eviscerated departure mere suggestion judge go determining much deference give applicable guidelines range appeals review reasonableness district decision need punishment adequate deterrence criminal conduct simply outweighs considerations contemplated sentencing commission see main sentencing judge determines defendant need educational vocational training medical care correctional treatment effective manner requires disregarding stiff guidelines range congress presumably preferred questions arise every case federal system system regrettably exactly sort questions congress hoped sentencing judges ask sra consequences drastic change unaided usual processes legislative deliberation likely sweeping example majority unnecessarily broad remedy sends every federal sentence back drawing board least novel review reasonableness regardless whether individuals constitutional rights violated highly unlikely mere application prudential doctrines mitigate consequences gratuitous change majority remedy inevitable result holding blakely applies guidelines neither apprendi blakely cases made determinate sentencing merely requiring applications guidelines comply sixth amendment allowed judges distinguish harmless error error requiring correction required complicated procedures procedural regime majority enacts today ultimately left sentences intact unlike rule merely require judges prosecutors comply sixth amendment systematic overhaul turns entire system head every case runs contrary central purpose motivated congress act first instance moreover repealing right determinate sentence congress established sra effectively eliminated constitutional right apprendi sought vindicate judicial remedy proper commensurate constitutional violation repaired hills gautreaux system fails test frustrates congress principal goal enacting sra violates tradition judicial restraint heretofore limited power overturn validly enacted statutes respectfully dissent petitioner freddie booker writ certiorari appeals seventh circuit petitioner ducan fanfan writ certiorari judgment appeals first circuit january justice scalia dissenting part join portions opinion delivered justice stevens also join justice stevens dissent exception part write separately mainly add comments regarding change remedial majority handiwork wrought perhaps tell wrought upon appellate review federal sentencing remedial majority takes north star analysis fact congress enacted sentencing system ante opinion breyer seems quite misguided congress indeed expect judges make factual determinations guidelines apply expected guidelines mandatory expectations central congressional purpose hard determine headline describing sentencing reform act act read congress reaffirms sentencing rather congress prescribes standardized sentences justice breyer opinion repeatedly acknowledges primary objective act reduce sentencing inexplicably however opinion concludes manner achieving uniform sentences important congress actually achieving uniformity congress attached judges determine real conduct basis bureaucratically prepared presentence reports rather lose binding nature guidelines adhere process juries find facts expose defendant increased prison time see ante majority remedial choice thus wonderfully ironic order rescue nullification statutory scheme designed eliminate discretionary sentencing discards provisions eliminate discretionary sentencing plain effect remedial majority decision excise supp see ante district judges longer told shall impose sentence within range established guidelines instead need consider range one many factors including need sentence provide punishment offense main ed afford adequate deterrence criminal conduct protect public crimes defendant statute provides order priority among factors since three mentioned fundamental criteria governing penology statute absent mandate authorizes judge apply perceptions punishment deterrence protection public even differ perceptions commission members drew guidelines since guidelines binding order comply oddly surviving requirement set forth specific reason imposition sentence different described guidelines sentencing judge need state believe punishment set forth guidelines appropriate sort offense say district courts discretion sentence anywhere within ranges authorized statute much generally able guidelines came sure factor need avoid unwarranted sentence disparities among defendants similar records found guilty similar conduct main ed require judge adhere guidelines judges adhere guidelines certainly holds today judges least expected adhere guidelines certainly given notorious unpopularity guidelines many district judges thus logic compels conclusion sentencing judge considering recited factors including guidelines full discretion full possessed act passed sentence anywhere within statutory range majority thought otherwise thought guidelines considered amputated statute requires generally followed opinion surely say frustrating conclusion act purpose uniform sentencing least establishes clear comprehensible regime essentially regime existed act became effective clarity eliminated however remedial majority surgery main ed supp provision governing appellate review sentences even casual reading section discloses purpose purpose enable courts appeals enforce conformity guidelines provisions section impose review obligation beyond existed prior related district judge obligations guidelines guidelines longer binding one think provision designed ensure compliance totality inoperative holds otherwise like alexander cutting gordian knot simply severs purpose review provisions text holding subsection sets forth determinations appeals must make inoperative whereas rest subsists including mirabile dictu subsection entitled decision disposition tracks determinations required severed subsection specifies disposition determinations produce rather like deleting ingredients portion recipe telling cook proceed preparation today appellate review sentencing discretion limited instances prescribed statute guidelines federal appellate courts little experience reviewing sentences anything legal error doctrine said bars appellate review exercise sentencing discretion dorszynski nce determined sentence within limitations set forth statute imposed appellate review end citing cases established guidelines regime congress expressly provided appellate review sentences specified circumstances appropriately chary aggrandizement refusing treat blank check appellate courts thus recognized congress grant limited appellate review sentencing decisions alter appeals traditional deference district exercise sentencing discretion williams emphasis added notwithstanding much remained courts appeals selection appropriate sentence within guideline range well decision depart range certain circumstances decisions left solely sentencing ibid emphasis added similarly took pains note power engage limited appellate review guidelines departures vest appellate courts authority district sentencing decisions koon repeated caution development guideline sentencing allow appellate review extent specifically directed statute ibid quoting williams supra today remedial opinion even pretend honor principle sentencing discretion unreviewable except pursuant specific statutory direction discussion appellate review begins declaration despite absence act continues provide appeals sentencing decisions irrespective whether trial judge sentences within outside guidelines range ante citing opinion later announces standard review appeals unreasonableness ante conflates different distinct statutory authorizations appeal elides crucial differences statutory scope review section specifies four different kinds setting forth grounds appeal permitted defendant government manner ground considered permissible dispositions unreasonableness review power review sentence reasonableness arises sentencing departed applicable guideline range cf breyer sentencing statutes provide defendant narrow right appeal power set aside departure appears context provisions permit defendants appeal upward departures expressly rejected proposition may reasonable ness inquiry sentence imposed result incorrect application guidelines see williams supra claims statute explicitly set forth standard review may nonetheless implicitly ante opinion breyer perhaps us statute explicitly set forth standard review question severed standard review contained make sense look congressional implication different standard review remnants statute left standing wonderland may explain part justice stevens dissent correctly observes ante none numerous persons organizations filing briefs parties amici cases filed side proposed think even imagined remedial majority wonderful disposition unsurprisingly none three cases cited used power implication fill gap created removal explicit need create new implied standard review however linguistically fair ante amounts confession exceeded powers according well established standard severability unconstitutional part statute may dropped left fully operative law alaska airlines brock emphasis added internal quotation marks omitted severance possible balance legislation incapable functioning independently ibid need supplement text remains severance suggests engaged redraft ing statute rather implementing valid portions treasury employees see also rehnquist dissenting reno american civil liberties union even assuming inferring standards review stanch bleeding created aggressive severance unreasonableness standard claims consistent related statutory language appellate sentencing practice last two decades ante already noted sentences within guidelines range previously reviewed reasonableness indeed concept unitary standard review kinds appeals authorized finds support statutory language established practice last two decades although reasonableness standard appear never extended beyond review deliberate departures guidelines range see ed see also prescribing dispose appeal sentence outside applicable guideline range unreasonable according statistics cited standard applied federal sentencing appeals see ante apply across board sentencing appeals even sentences within applicable guideline range legal error misapplication guidelines doubt severability analysis produced scheme dramatically different anything congress enacted since sentencing courts told provide punishment among things appellate courts told ensure district judges unreasonable worst feature scheme one knows perhaps one meant know advisory guidelines unreasonableness review function practice description anticipates positively delphic features remaining system continue move sentencing congress preferred direction helping avoid excessive sentencing disparities maintaining flexibility sufficient individualize sentences necessary find feature remaining system tends hinder rather basic objectives ante citation omitted suggested earlier system held per se unreasonable hence reversible sentencing judge reject guidelines indistinguishable mandatory guidelines system today holds unconstitutional remedial majority gross exaggerations says practical standard review prescribes already familiar appellate courts consistent appellate sentencing practice last two decades ante may lead courts appeals conclude may indeed designed lead courts appeals conclude little changed bear mind one significant features remedial majority scheme unreasonableness review requires courts appeals evaluate sentence individually reasonableness rather apply standards mandatory guidelines within correct guidelines range affirm outside range without adequate explanation vacate remand appeals faced daunting prospect might seek refuge familiar continue remedial majority invites though merits majority forbids appellate sentencing practice last two decades ante opinion breyer extreme appeals might handle new workload approving virtually sentence within statutory range sentencing imposes long district judge goes appropriate formalities expressing consideration disagreement guidelines sentence anticipate happen unreasonableness review produce discordant symphony different standards varying judge judge giving lie remedial majority sanguine claim feature guidelines system ten hinder avoidance excessive sentencing disparities ante blakely washington four dissenting justices accused ignoring havoc wreak trial courts across country opinion slip harsh assessment course referred temporary unavoidable uncertainty get case properly presenting constitutionality mandatory guidelines today justices wreak havoc federal district appellate courts quite needlessly indefinite future appellate review unreasonableness preserve de facto mandatory guidelines discouraging district courts sentencing outside guidelines ranges simply add another layer unfettered judicial discretion sentencing process mere formality used busy appellate judges ensure busy district judges say right things explain exercised newly restored discretion time may tell today remedial majority respectfully dissent petitioner freddie booker writ certiorari appeals seventh circuit petitioner ducan fanfan writ certiorari judgment appeals first circuit january justice thomas dissenting part join justice stevens opinion dissent justice breyer opinion agree justice stevens proposed remedy much analysis disagree restatement severability principles reliance legislative history thus write separately constitution prohibits allowing judge alone make finding raises sentence beyond sentence lawfully imposed reference facts found jury admitted defendant application federal sentencing guidelines resulted impermissible factfinding booker case fanfan thus booker sentence unconstitutional fanfan rather applying usual presumption favor severability leaving guidelines standing insofar may applied without constitutional problem remedial majority converts guidelines mandatory system discretionary one majority solution fails tailor remedy wrong precedents require litigant claims statute unconstitutional applied statute fact unconstitutional applied normally invalidate statute applied litigant question strike statute face typical case neither want need provide relief nonparties narrower remedy fully protect litigants treasury employees see also renne geary board trustees state univ fox brockett spokane arcades absent exception first amendment overbreadth facially invalidate statute plaintiff establishes statute invalid applications salerno booker case presents challenge booker challenges guidelines enhancements based factfinding judge alone raised sentence range legally mandated base offense level determined reference jury verdict effect contends guidelines supporting enhancements sentencing reform act sra makes guidelines enhancements mandatory unconstitutionally applied fanfan makes similar contention seeks uphold district application guidelines provision sra supp commands shall impose sentence kind within range referred subsection turn refers guidelines emphasis added reasons invalidating render guidelines nonbinding therefore constitutional hence concludes must fall majority excision narrow broad narrow focuses booker unconstitutional sentence enhancements stemmed alone combination individual guidelines specifically booker case district increased base offense ussg instructs base offense level shall certain offenses take account acts part course conduct common scheme plan offense conviction sets offense level cocaine base provides increase offense level obstruction justice also implicitly applied provides general instructions applying guidelines including determining base offense level applying appropriate adjustments requires guidelines manual effect particular date shall applied entirety provides shall resolve disputed sentencing factors sentencing hearing accordance rule fed crim rule turn provided sentencing hearing must rule unresolved objections presentence report matter controverted must make either finding allegation determination finding necessary controverted matter taken account affect sentencing section listed guidelines policy statement rule unconstitutional applied booker authority judge rather jury found facts necessary increase booker offense level pursuant listed provisions judge found facts preponderance evidence rather beyond reasonable doubt basis findings judge imposed sentence maximum legally permitted jury findings thus booker case concerted action operative guidelines relevant rule criminal procedure resulted unconstitutional judicial factfinding majority pinpoint alone source violation time majority remedy far broad us single unconstitutional application accompanying parts sentencing scheme case facial invalidation unprecedented particularly inappropriate evident entirely constitutional numerous applications fanfan case example judge applied guidelines extent supported jury findings application constitutional take another example government seeks sentence within guidelines range supported jury verdict applying restrict judge discretion guidelines range constitutional section also constitutional government seeks sentence guidelines range supported jury verdict proves facts supporting enhancements jury beyond reasonable doubt section provides shall impose sentence kind within range set guidelines emphasis added says nothing however procedures must employ determine sentence ultimately impose says nothing whether imposing sentence may submit facts jury says nothing standard proof address procedures guidelines sentencing proceedings comfortably accommodates cases determines defendant guidelines range way jury factfinding admissions rather judicial factfinding constitution prohibit accomplishes binding district courts guidelines prohibits allowing judge alone make finding raises sentence beyond sentence lawfully imposed reference facts found jury admitted defendant many applications suffer vice yet majority facially invalidating statute also invalidates unobjectionable applications statute thereby ignores longstanding distinction facial challenges reason strike face likewise basis striking guideline issue face respondents established ussg invalid applications salerno requires contrary numerous applications provisions valid applications include cases defendant admits relevant facts jury finds relevant facts beyond reasonable doubt like ussg say nothing must find facts supporting enhancements standard proof prosecution must satisfy simply attach effects certain facts prescribe procedures determining facts even provides instructions applying guidelines directs order various provisions applied etermine base offense level pply adjustments says nothing specific procedures sentencing may employ determining base offense level applying adjustments moreover basis facially invalidating rule sure rule prescribe procedure require judge acting alone resolve factual disputes booker sentenced provided shall resolve disputed sentencing factors sentencing hearing accordance rule fed crim time relevant portions rule provided sentencing hearing must rule unresolved objections presentence report matter controverted must make either finding allegation determination finding necessary controverted matter taken account affect sentencing emphasis added natural meaning must rule judge without jury must resolve factual disputes necessary rule criminal procedure applied booker sentencing hearing required judge make findings increased booker offense level beyond guidelines range authorized jury application rule booker therefore unconstitutional nonetheless rule valid applications example rule valid requires sentencing judge without jury resolve factual dispute order decide within guidelines range defendant sentenced rule equally valid requires judge resolve factual dispute order support downward adjustment defendant offense given significant number valid applications portions current sentencing scheme facially invalidate particular section federal rules criminal procedure guidelines sra instead invalidate application booker previous sentencing hearing ussg rule ii invalidating guidelines listed rule applied booker district leaves question whether scheme unconstitutional application booker severed scheme many constitutional applications defendants like fanfan severability doctrine grounded presumption congress intends statutes effect full extent constitution regan time vermeule saving constructions geo hereinafter vermeule severability issue may arise strikes either provision statute application provision severability provisions perhaps visible severability applications case law see alaska airlines brock severing unconstitutional legislative veto provision provisions however severability questions arise unconstitutional applications statutes well congress often expressly provides severance unconstitutional acknowledged severability applications striking applications statute leaving others standing brockett considered state statute authorized police use necessary means effect arrest held statute unconstitutional insofar allowed use deadly force unarmed nondangerous suspect declined invalidate statute face specifically noting statute applied constitutionally circumstances brockett garner recognized unconstitutional applications statutes severable constitutional applications fashioned remedy narrowly keeping usual presumption severability thus disagree justice stevens severability analysis apply ante opinion dissenting part acknowledge general matter often disposes challenges statute simply invalidating particular applications statute without saying anything severability see grace concluding statute prohibited carrying banners building grounds unconstitutional applied sidewalks surrounding building edenfield fane striking solicitation ban certified public accountants applied business context treasury employees rehnquist joined scalia thomas dissenting expressing view injunction honoraria ban tailored unconstitutional applications decisions silent applications might viewed conducted implicit severability analysis see concurring judgment part dissenting part better view parties cases raised issue severability bother often case arguable reason defeat presumption severability unconstitutional applications statute fully independent severable remaining constitutional applications question squarely presented parties press extraordinary reason clarify remedy namely decision potentially affects every sentencing federal courts therefore proceed severability question whether unconstitutional application ussg rule booker severable constitutional applications provisions even though invalidated application provisions booker may defendants sentenced pursuant presume unconstitutional application severable see regan presumption manifestation salerno general rule strike statute face unless invalid applications unless legislature clearly enacted constitutional applications independently unconstitutional application leaves constitutional applications standing presumption severability overcome light significant number constitutional applications scheme far clear congress passed sra allowed rule take effect commission promulgated particular guidelines issue either body known application scheme booker unconstitutional ante stevens dissenting part noted many applications guidelines constitutional defendant may admit necessary facts government may seek enhancements beyond offense level supported jury verdict judge may find facts supporting enhancement taking advantage overlap guidelines ranges sentence defendant within range jury may find necessary facts certainly obvious congress preferred entirely discretionary system majority fashions text structure sra show congress meant guidelines bind judges one purposes commission set forth sra provide certainty fairness meeting purposes sentencing avoiding unwarranted sentencing disparities among defendants similar records found guilty similar criminal conduct maintaining sufficient flexibility permit individualized sentences warranted mitigating aggravating factors taken account establishment general sentencing practices emphases added accordingly congress made guidelines mandatory closely circumscribed courts authority depart guidelines range supp congress also limited appellate review sentences imposed pursuant guidelines instances sentence violation law result incorrect application guidelines outside applicable guidelines range absence applicable guideline plainly unreasonable main ed supp striking guidelines applied booker defendants received unconstitutional enhancements leave place essential framework mandatory system congress created applying guidelines constitutional fashion affords uniformity total discretion none suggest justice breyer discretionary system otherwise ante opinion either supposes system discretionary name overlooks nature discretion either assumption implausible majority says retaining sra guidelines engraft jury trial requirement onto sentencing scheme ante opinion breyer course aware though severability analysis may proceed striking disregarding words applications challenged section may proceed inserting applications constitute legislation beyond judicial power reese allowing jury factfinding cases however engrafting new requirement onto statute every time invalidate statute applications statute face appears authorize see brockett spokane arcades therefore find engraftment label helpful means judging correctness severability analysis granted part severability inquiry whether statute severed function manner consistent intent congress alaska airlines applying guidelines constitutionally instance admissions jury findings support upward enhancements might seem first glance violate principle government proposal applying guidelines whole defendants others solution violates even clearly creating system eliminates mandatory nature guidelines end nothing except guidelines written function manner perfectly consistent intent congress guidelines written unconstitutional applications remedial possibilities thus sense solution justice stevens adopt least violence statutory regulatory scheme hold provisions guidelines discussed rule unconstitutional applied booker government overcome presumption severability accordingly unconstitutional application scheme booker case severable constitutional applications scheme defendants respectfully dissent contrary conclusion petitioner freddie booker writ certiorari appeals seventh circuit petitioner ducan fanfan writ certiorari judgment appeals first circuit january justice breyer chief justice justice justice kennedy join dissenting part today applies decisions apprendi new jersey blakely washington federal sentencing guidelines holds sixth amendment requires jury judge find sentencing facts facts way offender committed crime facts move offender lower higher guidelines ranges disagree conclusion find nothing sixth amendment forbids sentencing judge determine judges sentencing traditionally determined manner way offender carried crime convicted substantive holding rests upon decisions apprendi supra blakely supra apprendi held sixth amendment requires juries find beyond reasonable doubt existence fact increases penalty crime beyond prescribed statutory maximum emphasis added blakely defined latter term maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant slip emphasis original today applies blakely definition federal sentencing guidelines continue disagree constitutional analysis set forth apprendi blakely even accept analysis valid disagree way applies chief justice justice justice kennedy previously explained length accept constitutional analysis see blakely dissenting kennedy dissenting breyer dissenting harris kennedy opinion breyer concurring part concurring judgment apprendi kennedy dissenting monge california opinion mcmillan pennsylvania rehnquist opinion one thing found historical argument unpersuasive see blakely supra slip dissenting apprendi supra dissenting indeed opinion today illustrates historical mistake upon conclusions rest reiterates view right jury understood jury trial determination truth every accusation ante opinion stevens quoting apprendi supra emphasis original claim makes historical sense insofar accusation encompasses factual element crime defendant accused see gaudin key question whether word also encompasses sentencing facts facts offender say recidivism way offender committed crime say seriousness injury amount stolen help sentencing judge determine convicted offender specific sentence history support right jury trial respect sentencing facts traditionally law distinguished facts elements crimes facts relevant sentencing see witte watts per curiam dunnigan mistretta traditionally federal law looked judges juries resolve disputes sentencing facts see fed rule crim proc traditionally familiar criminal justice system found separate postconviction sentencing procedures sensible given difficulty obtaining relevant sentencing information moment conviction found proceedings practical given impracticality alternatives say guilt sentence jury procedures see judicial conference committee defender services subcommittee federal death penalty cases federal death penalty cases recommendations concerning cost quality defense representation may despite absence jury determinations found proceedings fair long convicted offender opportunity contest claimed fact judge long sentence falls within maximum range congressional statute specifically sets forth administrative rules issue federal sentencing guidelines focus sentencing facts circumscribe federal judge sentencing discretion respect facts change nature facts sentencing courts continue use facts convict person crime statute defines help determine appropriate punishment thus ground today holding constitutional tradition assimilated common law magna carta ante opinion stevens look framers support enacted criminal statutes indeterminate sentences revealing understanding acceptance judge factfinding role sentencing see act apr ch stat indeed difficult find historical support two recent cases apprendi blakely cases like lower courts read confirming confounding legal tradition stretches back century see williams new york case blakely redefined ameline blakely worked sea change body sentencing law pineiro see also penaranda collecting cases another thing applied federal context mandatory guidelines sixth amendment decision risk unwieldy trials jury system return judicial sentencing discretion replacement sentencing ranges specific mandatory sentences cf blakely slip breyer dissenting decision pose serious obstacle congressional efforts create sentencing law mandate similar treatment like offenders thereby diminish sentencing disparity consequently help overcome irrational discrimination including racial discrimination sentencing see slip dissenting consequences seem perverse viewed lens constitution seeks fair criminal process upshot sixth amendment decisions apprendi blakely today deprive congress state legislatures authority constitutionally cf blakely supra kennedy dissenting apprendi dissenting breyer dissenting sentencing function long peculiarly shared responsibility among branches government mistretta supra congress share joint responsibility long included power define crimes enacting statutes setting forth factual elements also power specify sentences whether setting forth range sentences say years imprisonment bank robbery identifying sentencing factors permit require judge impose higher lower sentences particular circumstances see mcmillan last mentioned power absolute suggested mcmillan confirmed recognized rejected blakely one might read sixth amendment permitting legislatures establish legally essential sentencing factors within say due process limits blakely supra slip emphasis original cf supra distinguishing elements factors relevant sentencing noting ithin limits question factors normally matter congress citation omitted mcmillan supra upholding pennsylvania statute part gave impression tailored permit sentencing factor finding tail wags dog substantive offense power give congress degree freedom within constraints fairness choose characterize fact sentencing factor relevant punishment element crime relevant guilt innocence rejected approach apparently finds difficult judicial job managing fairness constraint determining congress overreached nowhere asked compared done found practical difficulty mentioned blakely supra slip sufficient justify severe limits approach imposes upon congress legislative authority considerations history constitutionally relevant consequences constitutional authority fully discussed opinions see blakely supra dissenting kennedy dissenting breyer dissenting harris apprendi supra mcmillan supra need elaborate ii although considerations mentioned dissuade holdings apprendi blakely hoped dissuaded extending holdings statute guidelines issue see sentencing reform act amended et et seq sentencing commission guidelines manual ussg legal logic require extension key differences first federal guidelines statutes rules set forth administrative statutory nature members congress judicial branch commission wrote rules rules establis minimum maximum penalties individual crimes guide sentencing courts degree fetter ing discretion sentencing judges done generations impose sentences within broad limits established congress mistretta see also ussg cf witte explaining guidelines range still falls within scope legislatively authorized penalty rules create new set legislatively determined sentences much reflect organize rationalize modify old set judicially determined sentences see ussg editorial note pp describing commission empirical approach thus rules apprendi words set forth prescribed statutory maximum emphasis added law traditionally understood phrase concede blakely defined prescribed statutory maximum broadly maximum sentence judge may impose solely basis facts reflected jury verdict admitted defendant slip emphasis omitted need read language extending scope apprendi blakely purports follow extend apprendi slip blakely like apprendi involved sentences embodied statute administrative rules importantly less justification applying constitutional rule administrative guidelines statutes issue applies constitutional rule statutes part avoid blakely sees serious problem namely legislature ability make particular fact element crime sentencing factor see ante opinion stevens problem legislative temptation severely diminished commission guidelines issue commission create elements crimes write rules bind regulate primary conduct public mistretta supra rather must write rules reflect law traditionally understood sentencing factors say commission switch elements sentencing factors write substantive criminal statutes see cf blakely supra slip time extend blakely holding administratively written sentencing rules risks added legal confusion uncertainty read literally blakely language include within apprendi strictures host nonstatutory sentencing determinations including appellate decisions delineating limits legally reasonable imagine appellate opinion says sentence ordinary robbery greater five years unreasonably long unless special factor possession gun present indeed read literally blakely holding apply single judge determination factors make particular sentence disproportionate proportionate imagine single judge setting forth binding rule law legal proposition robbery sentences mentioned appellate courts efforts define limits reasonable course fall outside blakely scope escape blakely literal language legislative efforts create limits neither guidelines legislative efforts see mistretta supra second sentencing statutes issue blakely imposed absolute constraints judge sentencing discretion federal sentencing statutes issue blakely emphasized washington statutes authorized sentence basis factual finding fact question new fact fact constitute element crime conviction element serious additional crime slip judge applying statutes even consider much less impose exceptional sentence unless found facts used computing standard range sentence offense slip quoting state gore federal sentencing statutes however offer defendant assurance long exists aggravating mitigating circumstance kind degree adequately taken consideration sentencing commission permit judge depart guidelines sentence based facts constitute elements crime say bank robbery involving threat use weapon weapon question nerve gas whether circumstances exist particular case matter congress decide thus far federal statutes concerned federal system unlike state system issue blakely provides defendant guarantee jury finding factual elements result sentence lower statutory maximum rather statutes put potential federal defendant notice judge conceivably might sentence anywhere within range provided statute regardless applicable guidelines range see witte see also comment sixth amendment state sentencing guidelines harv rev hence practical matter grant potential federal defendant less assurance lower guidelines sentence state statutes issue blakely differences distinguish cases apprendi blakely offer principled basis refusing extend apprendi rule cases iii reasons respectfully dissent footnotes together fanfan certiorari judgment appeals first circuit footnotes justice scalia justice souter justice thomas justice ginsburg join opinion questions presented whether sixth amendment violated imposition enhanced sentence sentencing guidelines based sentencing judge determination fact prior conviction found jury admitted defendant answer first question following question presented whether case guidelines require find fact sentencing guidelines whole inapplicable matter severability analysis sentencing must exercise discretion sentence defendant within maximum minimum set statute offense conviction pet cert mistretta pointed congress chose explicitly adopt system rather system advisory statute makes sentencing commission guidelines binding courts main ed supp watts particular presented narrow question regarding interaction guidelines double jeopardy clause even benefit full briefing oral argument unsurprising failed consider fully issues presented us cases see kennedy dissenting added instead petitioners argue judge might made different factual findings judge known law required assume jury found conspiracy sufficient present purposes however point petitioners make particular argument district indeed seem raised entire argument first time appeals thus petitioners explain sentencing judge assumption made difference judge findings explain assumption given judge findings lead greater leniency edwards footnotes chief justice justice justice kennedy justice ginsburg join opinion footnotes occasion debated proper interpretation various precedents concerning facial challenges statutes compare chicago morales plurality opinion scalia dissenting salerno debate immaterial conclusion borders frivolous contend guidelines constitutionally applied fraction cases originally designed cover raines see also lodging government estimate number cases possibly impacted blakely decision hereinafter estimate see webster reproductive health services concurring part concurring judgment arguing statute struck face whenever statute quite straightforward applications constitutional secretary state md joseph munson rehnquist dissenting litigant challenges constitutionality statute challenges statute application prevails invalidates statute toto applied activities law refined preventing improper applications basis meantime interests underlying law still served enforcement within constitutional bounds cf raines plurality opinion statutes invalidated facial challenge based upon analysis may never occur memorandum christopher wray assistant attorney general department justice criminal division federal prosecutors guidance regarding application blakely washington pending cases available http hereinafter application blakely see also brief national association federal defenders amicus curiae see application blakely line cases commentators described standing proposition must engage severability analysis statute unconstitutional applications see stern however cases simply hold statute may apply situations within scope congress enumerated powers also situations exceed powers sustain statute validly limited former situations strike limited compare reese invalidating entirety statute punished individuals interfered right vote statute applied conduct violated fifteenth amendment conduct outside constitutional prohibition cases concluding act must read establish uniform system registration thus invalid entirety exceeded bounds commerce clause abby dodge construing language apply waters within jurisdiction therefore entirely valid nlrb jones laughlin steel holding national labor relations act applied interstate commerce upholding constitutionality basis cases thus constitutional avoidance severability separate dissent justice thomas relies principle conclude proper analysis whether unconstitutional applications guidelines sufficiently numerous integral warrant invalidating guidelines entirety see post understand intuitive appeal justice thomas dissent believe cases support approach event given vast number constitutional applications see supra clear congress justice thomas concludes prefer guidelines invalidated therefore believe extension severability cases warranted predicate remedy assumption congress enacted mandatory guidelines realized sixth amendment require enhancements supported jury factfinding congress reenact statute following decision today repudiate premise find professed disagreement proposition unpersuasive see ante opinion breyer surely congress reenact identical substantive provisions reenactment included clarifying provision stating word shall construed prohibit judge requiring jury factfinding necessary comply sixth amendment indeed view construction word appropriate event see infra need include clarifying provision save statute sloan lemon concluded legislation reimbursing parents tuition paid private schools ran afoul establishment clause struck law entirety even applied parents students secular schools dissent us strike particular parts statute welsh justice harlan writing alone concluded statutory provision allowed conscientious objectors exempt military service views religiously based violated establishment clause concluded rather deny exception religiously based objectors extended moral objectors large part broad discretion conferred severability clause present case finally heckler mathews stated obvious rule statute provides benefit one protected class faced choice requiring legislature extend benefits nullifying benefits altogether none cases stands sweeping proposition parts statute invalid certain applications may opine whether congress prefer facial invalidation provisions necessary constitutional violation commissioners went note ven blakely found apply federal guidelines waters choppy make viability guidelines previously called question apprendi new jersey initial period uncertainty however circuit courts issued opinions department justice instituted procedures ensure future cases complied apprendi requirements also left guidelines system intact hearings blakely argument finds support government successful adaptation decision apprendi decision prosecutors began allege sentencing factors indictments see supra government ability suggests guidelines far compatible jury factfinding admits fact congress presumably aware government practices light apprendi yet condemned practices taken actions reform indicates limited jury factfinding contrary majority assertion compatible legislative intent see ante opinion breyer see johnson gilbert sentencing guidelines results federal judicial center survey noting among federal judges probation officers widespread frustration power discretion held prosecutors guidelines guidelines manipulated plea agreements saris sentencing guidelines eliminated disparity one judge perspective suffolk rev see also nagel schulhofer tale three cities empirical study charging bargaining practices federal sentencing guidelines cal rev arguing fact bargaining common guidelines resulted substantial sentencing disparities incidentally original version looked much like regime mandated today directed sentencing judge consider variety factors one sentencing range established guidelines subjected ultimately chosen sentence appellate review clearly unreasonable standard see proposed law amended twice passed first time include mandatory directive trial judges impose sentence within guidelines range second time change standard review see stith koh detailing amendments prior passage worth noting congress countless opportunities course seven years debate enact law creates today congress repeated rejection proposed legislation constitutes powerful evidence congress want become law see stith koh see also wilkins newton steer competing sentencing policies war drugs era wake forest rev see cong rec remarks hatch core function guidelines underlying statute reduce disparity sentencing restore fairness predictability sentencing process adherence guidelines therefore properly required law except rare particularly unusual instances remarks biden notion allowing courts effect wisdom sentencing guideline plainly contrary act purpose sentencing guidelines system mandatory except finds circumstance meeting standard articulated also contrary purpose congress rather courts review sentencing guidelines appropriateness authorized levels punishment noting senate judiciary committee resisted attempt make sentencing guidelines voluntary mandatory poor record reported national academy science report experimented guidelines citing urgent need sentencing reform sentencing disparities caused directly unfettered discretion law confers sentencing judges parole authorities responsible imposing implementing sentence cataloging astounding variations federal sentencing criticizing unfairness sentencing disparities indeed contention real conduct sentencing principal aim sra finds support legislative history authority cites permits judge consider information considers relevant sentencing see ante opinion breyer provision however enacted see pub stat thus provides evidence whatsoever congress intent passed sra clearly congress thought real conduct sentencing effectively address sentencing disparities without binding guidelines regime reason traditional sentencing goals always played minor role guidelines system guideline manual specifically directs sentencing judges make thousands determinations discrete points expressly direct specific decision leading applicable guideline range grid must turn individualized consideration traditional goals sentencing osler uniformity traditional sentencing goals age feeney fed sentencing rptr although accompanying committee report attached protect act floor debates act relevant provisions belie majority contention discretionary guidelines system consistent congress intent holding adopt see cong rec apr remarks hatch arguing protect act says game judges departure guidelines sentencing commission going go beyond going go happening society today children crimes matter softhearted trying say bill sick judges going anymore except within guidelines set sentencing commission rial judges systematically undermine sentencing guidelines creating new reasons reduce sentences may remarks kennedy feeney amendment effectively strips federal judges discretion impose individualized sentences transforms longstanding sentencing guidelines system mandatory minimum sentencing system limits several ways ability judges depart downwards guidelines moreover even change indeterminate system necessary minimized consequences system limiting application holding defendants direct review actually suffered sixth amendment violation griffith kentucky require blind application every part holdings pending cases rather requires apply new rule similar cases pending direct review obvious reasons pending cases made similar booker fanfan merely involved application guidelines footnotes part iii justice stevens dissent relies large part legislative history agree assertion text law actually passed congress sufficient demonstrate congress unmistakable commitment binding guidelines system ante resort committee reports statements various individuals none constitutes tion taken interpretations adopted congress one determines congress done examining legal services corporation velazquez scalia dissenting see ante noting congress intended guidelines system achieve increased uniformity sentencing ante referring diminish ing sentencing disparity congress basic statutory goal ante congress enacted sentencing statutes major part achieve greater uniformity sentencing ante referring congress basic objective promoting uniformity sentencing see also sentencing commission fifteen years guidelines sentencing xvi sentencing reform greatest impact controlling disparity arising source guidelines targeted judicial discretion guidelines succeeded job principally designed reduce unwarranted disparity arising differences among judges although guidelines took sentencing practices account product policy decisions sentencing commission including instance decisions call sentences significantly severe past practice frequently sentenced offenses federal courts policy decisions longer mandatory sentencing judge free disagree closest remedial majority dares come assertion guidelines must followed carefully crafted statement district courts bound apply guidelines must consult guidelines take account sentencing ante remedial majority also notes guidelines represent sentencing commission finds better sentencing practices ante true enough commission view better longer authoritative district judges free disagree appellate judges paragraph requires appeals determine whether sentence imposed violation law main courts appeals course always done face immense reality almost captious point text preserved subsection plainly assumes binding nature guidelines example reference sentence imposed result incorrect application sentencing guidelines supp reference departure based impermissible factor moreover subsection requires appellate remand sentencing proceedings case sentence imposed result incorrect application sentencing guidelines incomprehensible instruction combined obligation upon appellate conduct independent evaluation reasonableness sentence four kinds appeal arise respectively sentence imposed violation law main ed supp sentence imposed result incorrect application sentencing guidelines sentence either applicable guideline range guideline applicable sentence plainly unreasonable pierce underwood cooter gell hartmarx koon deciding whether departure mandatory sentence reason taken account guidelines unreasonable required whether sentence imposed one rare offenses covered guidelines though surrounded mandatory sentences related analogous offenses plainly unreasonable required differs toto caelo determining absence mandatory scheme particular sentence unreasonable footnotes majority invalidates supp face driven also invalidate main ed supp establishes standards review sentences premised binding nature guidelines see main ed directing appeals determine whether sentence imposed result incorrect application sentencing guidelines supp directing appeals determine whether sentence outside applicable guideline range satisfies factors given explain warrant striking face striking well needless violence statutory scheme booker base offense level supported facts jury found see sentencing commission guidelines manual ussg setting base offense level crime possession intent sell grams cocaine base district applied version guidelines effective november take position whether ussg policy statement bound district cf stinson williams case rule effect certainly bound rule amended replaced rule new rule provides substantially similar fashion sentencing must disputed portion presentence report controverted matter rule dispute determine ruling unnecessary either matter affect sentencing consider matter sentencing fed rule crim proc commentary commission believes use preponderance evidence standard appropriate meet due process requirements policy concerns resolving disputes regarding application guidelines facts case holding today corrects mistaken belief fifth amendment requires proof beyond reasonable doubt preponderance evidence fact increases sentence beyond lawfully imposed basis facts found jury admitted defendant assume without deciding severability precedents require nebulous inquiry hypothetical congressional intent valid point parties contest also assume doctrine severability facial challenges applies equally regulations statutes see reno flores see also provision act application thereof person circumstance held invalid validity remainder act application provision persons circumstances shall affected thereby emphasis added similar supp ii similar similar similar similar provision chapter held invalid valid provisions severable shall remain effect see provision act application thereof person circumstance held invalid validity remainder act application provision persons circumstances shall affected thereby emphasis added similar supp ii similar similar similar similar relevant part provision chapter held invalid one applications provision shall remain effect valid applications severable see also vermeule common misconception severability analysis refers severance provisions subsections enumerated labeled independently official text statute fact however severability problems arise respect different sections clauses provisions statute also respect applications particular statutory provision applications unconstitutional stern separability separability clauses harv rev one type severability question relates situations applications language statute valid applications invalid however agree justice stevens justice breyer grossly distorts severability analysis using severability principles determine provisions strike unconstitutional ante stevens dissenting part justice breyer severability analysis asks provisions must cut statute fix constitutional problem ante opinion normally however declares provision application unconstitutional using substantive constitutional doctrine severability doctrine asks severability principles whether remainder act left standing justice breyer skips first step necessary precursor proper severability analysis