Much Ado About Sentencing: The Influence of Apprendi, Blakely, and Booker in the U.S. Courts of...

For many years, federal court judges enjoyed considerable discretion in their sentencing decisions, as sentences were largely based on an indeterminate system. The consequence was a great disparity of sentences even for those convicted of similar crimes. In response to a system that, for myriad reasons,

seemed troubled if not broken, Congress passed the Sentencing Reform Act of 1984. Among other things, this law created a commission empowered to devise sentencing guidelines for the federal system. The commission thereafter promulgated the federal Sentencing Guidelines (hereafter, Sentencing Guidelines), which encompassed a more determinate sentencing scheme the Sentencing Reform Act made binding on federal judges. In this largely determinate system that became effective on November 1, 1987, judges were required to follow the Sentencing Guidelines, though the Guidelines permitted discretion to depart from them when the presiding judge found aggravating or mitigating factors present.

When the constitutionality of this commission was initially challenged, in Mistretta v. United States (1989), the Supreme Court held that creation of the commission that designed the Sentencing Guidelines did not violate any separation-ofpowers notions. Consequently, the Sentencing Guidelines were deemed constitutional. The Guidelines thus provided the mechanism by which federal judges handled sentencing for over a decade. Indeed, after Mistretta, the authority of the Sentencing Guidelines hardly seemed in doubt.

Then, however, the Supreme Court decided Apprendi v. New Jersey (2000), which set into motion a number of cases holding to a line of reasoning that called into question the mandatory nature of sentencing guidelines in both federal and state courts, particularly when these determinate-sentencing schemes permitted judges to depart from the guidelines based on aggravating factors. Apprendi provided that facts increasing sentencing determinations must be made by juries, not judges. The Court next applied this so-called Apprendi rule a few years later in Blakely v. Washington (2004), holding that a state's determinative-sentencing structure was constitutionally unsound. Finally, in United States v. Booker (2005), the Court directly addressed the federal Sentencing Guidelines and held that they similarly ran afoul of the Apprendi rule when judges, not juries, employed the Sentencing Guidelines to increase sentences.

In this Legal Note, I analyze the Apprendi rule as it applies to the federal sentencing scheme. I am especially concerned with how the federal courts of appeals handled sentencing in the wake of Apprendi and Blakely, before the Court's determination in Booker neutered the mandatory nature of the Sentencing Guidelines. To do so, I first discuss these three cases to illustrate their potential impact on sentencing.

APPRENDI AND ITS PROGENY, BLAKELY AND BOOKER

As Justice Stevens stated for the 5-4 Court majority in Apprendi, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (at 490). In addition to Justice Stevens, the Apprendi majority included Justices Ginsburg, Scalia, Souter, and Thomas, while Justices Breyer, Kennedy, O'Connor, and Rehnquist dissented. Though this coalition of justices in Apprendi was atypical of many other 5-4 decisions during this era (see, e.g., United States v. Lopez, 1995), it would reappear in Blakely and Booker.

The critical theme that juries, not judges, must make factual determinations that ultimately lead to enhanced sentencing decisions runs through this line of cases. The precise constitutional defect in the sentence handed down in Apprendi was that the presiding judge added additional time to the defendant's sentence based on the judge's finding, by a preponderance of the evidence, regarding defendant's intended actions that led to his conviction. Although this sentence enhancement was authorized by the relevant state statute, the Supreme Court held the judge's actions violative of both the right to trial by jury and due-process requisites in the Sixth and Fourteenth Amendments.

Apprendi did not specifically pertain to any determinate sentencing scheme. Yet the Apprendi rule espoused by Justice Stevens plainly set the stage for the Court's subsequent decisions in Blakely and Booker, which did address the constitutionality of mandatory sentencing guidelines in state and federal systems, respectively. The Court clearly was interested in extending this novel line of constitutional thought (see, e.g., Ring v. Arizona, 2002, in which the Supreme Court relied on the Apprendi rationale to overrule in part the now contrary decision in Walton v. Arizona, 1990, where the Court had held that the state law authorizing the judge to make findings on mitigating or aggravating circumstances was not unconstitutional). Sensing the approaching changes on the horizon, Justice O'Connor vigorously dissented in Apprendi, calling it a "watershed change in constitutional law" (at 524).1

Four years after Apprendi, Justice Scalia, who had been the sole dissenter in Mistretta fifteen years earlier when the Court held that the commission charged with devising the federal Sentencing Guidelines was not unconstitutional, further extended the Apprendi logic in Blakely v. Washington. For the Court, he held that Washington State's mandatory sentencing scheme violated the constitutional right to a jury trial to the extent that it required or enabled judges to augment sentences based on information not found by the jury or confessed by the defendant. Whether Justice Scalia found a majority coalition willing to call into question determinate-sentencing schemes in Blakely where he was unable to do so in Mistretta, or whether he envisioned these two cases as presenting vastly different issues that coincidentally focused on mandatory sentencing guidelines, is beyond the scope of this Note. Nevertheless, this ruling portended a seismic shift in the future of sentencing in both state and federal courts.

In Blakely, the defendant had pled guilty to a criminal charge that carried a maximum sentence of fifty-three months under the determinate-sentencing scheme then in effect in Washington State. Finding, however, that the defendant "acted with 'deliberate cruelty,' a statutorily enumerated ground for departure in domestic-violence cases" (at 300), the judge sentenced the defendant to ninety months in prison. In holding the judge's ruling unconstitutional, Justice Scalia underscored that a jury did not reach a conclusion on any facts leading to the judge's "deliberate cruelty" finding, nor did the defendant admit any such facts in his plea; instead, this finding was determined solely by the judge. According to the Court, the Apprendi holding applied to Blakely, thus putting the state's mandatory sentencing scheme in doubt.

The Blakely opinion left open a number of issues. For one, the Court said that it was not ruling determinate-sentencing schemes unconstitutional per se, but was ruling only that this particular judgment pursuant to the sentencing guidelines in Washington was repugnant to a constitutional right to a jury trial. Nonetheless, as the legal provision at issue in Blakely, which permitted the judge to increase the sentence on his own, was similar to other guidelines in this and other determinate-sentencing schemes, one could infer from the Court's decision that doubt was being cast on many, if not all, such sentencing schemes.

This inference leads to the principal focus of this Note-the state of potential confusion in the federal courts resulting from the Blakely decision. If determinatesentencing provisions in the states contained invalid provisions, it appeared that the federal Sentencing Guidelines could similarly be found unconstitutional in part or perhaps entirely. Mindful of this potentiality, the Court in Blakely maintained, "The Federal Guidelines are not before us, and we express no opinion on them" (at 305, fin. 9). True enough, but the proverbial writing was on the wall, and the next case would address directly the rationale of Apprendi and Blakely as it applied to the federal sentencing scheme.

The vigorous dissenting opinions by Justices O'Connor and Breyer in Blakely, in which each joined the dissent of the other, require examination. Justice O'Connor echoed the complaints from her Apprendi dissent. In particular, she contended that the majority's approach would place the recent sentencing reform movement, specifically determinate-sentencing schemes of which she seems to support, in peril. She also predicted, even lamented, that Blakely inevitably would lead to the federal Sentencing Guidelines being ruled unconstitutional. Justice Breyer, earlier a member of the commission that devised the original federal Sentencing Guidelines, was equally displeased with the Blakely majority, and he also worried that the federal Sentencing Guidelines would fall under the Apprendi/Blakely rationale. He argued that there is no constitutional demand that all facts be decided by a jury. As well, he seemed most troubled about what he perceived would be the unfairness of applying Blakely to criminal defendants. Justices O'Connor and Breyer predicted that chaos and turmoil would ensue in both federal and state courts in the wake of Apprendi and Blakely as sentencing judges sought to decipher how to apply this new constitutional mandate. While Justice Scalia somewhat pejoratively dismissed the concerns of these dissenters, it is the potential confusion in the federal courts they foresaw that is particularly important.2

Perhaps anticipating such disarray, the Court soon thereafter granted certiorari in two cases that raised issues like those in Blakely but did so with respect to the federal Sentencing Guidelines. The result was the consolidated decision in United States v. Booker and United States v. Fanfan, referred to as United States v. Booker. (The Fanfan case, part of the Booker decision in the Supreme Court, came through the First Circuit, which never issued a decision as the Court granted certiorari before judgment.) In an opinion written by Justice Stevens for the same five-justice majority, the Court answered the question of whether the Apprendi/Blakely reasoning applied to the Sentencing Guidelines. Indeed, it did apply, said the Court, with the Court holding unconstitutional the Sentencing Reform Act of 1984 to the extent that it, and the Sentencing Guidelines the law begat, mandated sentencing decisions by federal judges. Based on the Fifth and Sixth Amendments, Booker specifically reaffirmed Apprendi and applied the Blakely holding to the federal sentencing scheme, there being "no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in [Blakely]" (at 749). Consequently, the mandatory nature of the Sentencing Guidelines was ruled unconstitutional, to be replaced by a reasonableness criterion for sentencing.

Interestingly, the Court in Booker decided an additional question, concerning the Sentencing Guidelines' continued applicability. Because Justice Ginsburg joined Breyer's coalition of justices with respect to this issue, Justice Breyer wrote the opinion for the Court on this remedy question.3 Here, Justice Breyer asserted that, based on Justice Stevens' decision in this case, the mandatory nature of the Sentencing Guidelines was unconstitutional. However, he held the Sentencing Guidelines themselves were not fully unconstitutional; instead, they were rendered "effectively advisory ... [which] requires a sentencing court to consider Guideline ranges ... [but] permits the court to tailor the sentence in light of other statutory concerns as well" (at 757).

The result of these seemingly inconsistent majority opinions in Booker is that the Apprendi rule applies to the federal Sentencing Guidelines and, thus, decisions that enhance a defendant's sentence over the maximum must be based on facts determined by a jury or found in a guilty plea. Nevertheless, the Sentencing Guidelines are not rendered entirely unconstitutional, so long as federal judges consider them advisory, not mandatory, and follow the Apprendi rule when sentencing defendants.

The Blakely decision on state determinate-sentencing rules was issued June 24, 2004- The Booker decision on the federal determinate scheme followed relatively posthaste on January 12, 2005. As anticipated, some confusion did ensue in the federal courts before Booker, though perhaps not to the degree Justices O'Connor and Breyer predicted. Justice Breyer's attempt to salvage the Sentencing Guidelines in Booker, even if in a merely advisory role, signified the potential for continued disorder in the federal courts on these issues. Nevertheless, to a critical degree Booker did settle open issues regarding the Sentencing Guidelines by affirmatively conveying that their mandatory nature was unconstitutional; hence, all issues of fact that go into sentencing enhancements must be admitted by the defendant or found by a jury. Booker thus completed the line of reasoning begun and raised in Apprendi and Blakely, thereby resolving this constitutional issue regarding the Sentencing Guidelines. As a consequence, it is especially important to address the federal courts' response to Apprendi and particularly to Blakely during the time before the Booker decision. Indeed, the post-Blakely/pre-Booker period embodied the greatest potential for uncertainty regarding the federal sentencing system.

FEDERAL SENTENCING POST-APPRENDI

I now turn to an analysis of the influence of Apprendi and Blakely in the courts of appeals. Before the Booker case, which chiefly settled the constitutional issues in the federal courts, the Blakely decision was the shot across the bow of the federal Sentencing Guidelines. In particular, the Blakely rationale regarding the Washington State sentencing guidelines appeared to apply equally to the federal Sentencing Guidelines. Consequently, after Blakely, the several circuits, surmising the questionable constitutionality of the Sentencing Guidelines, were quick to act. In fact, a number of circuits sat en banc to decide whether and how Blakely would (or would not) apply as the law of their respective circuits. Even before Blakely, however, federal courts were confronted with a number of issues previously raised by Apprendi, and some circuits had held en banc hearings to determine a circuit-wide response to that ruling.

How did the federal appellate courts address the Apprendi rationale before Blakely made it apparent that the Sentencing Guidelines had a dubious future? There were a variety of responses to the Apprendi rule. Yet the courts of appeals appeared to agree on one critical point that perhaps served to limit the reach of Apprendi-that aggravating factors increasing the sentence beyond the maximum were subject to Apprendi, but not otherwise, as sentence enhancements within the Guidelines did not have to be based on facts determined by a jury. Cases from the First and second Circuits are illustrative here. A First Circuit panel, in United States v. Boitas (2001), citing an Eighth Circuit case, held that a judge can increase a defendant's sentence so long as it does not rise above the ceiling permitted in the Sentencing Guidelines. In United States v. Caba (2001), the court reached a similar result: "Apprendi simply does not apply to guideline findings . . . that increase the defendant's sentence, but do not elevate the sentence to a point beyond the lowest applicable statutory maximum" (at 101). Both of these First Circuit cases involved sentences that did not exceed the maximum. However, if an aggravating factor served to propel a sentence above the maximum, Apprendi clearly applied. As the Second Circuit ruled in United States v. Thomas (2001), an en banc decision: "We conclude, following Apprendi's teachings, that if the type and quantity of drugs involved in a charged crime may be used to impose a sentence above the statutory maximum for an indeterminate quantity of drugs, then the type and quantity of drugs is an element of the offense that must be charged in the indictment and submitted to the jury" (at 660).4

Another issue in which the circuits seemed to agree was Apprendi's potential retroactive effect. Typical is United States v. Jenkins (2003) from the Third Circuit, where the court held that the Apprend? rule is procedural, not substantive, and thus generally not subject to retroactive application. A consequence of these several circuits generally restricting Apprendi to future cases was that a broader application of the Apprendi rule was forestalled.5

These examples substantiate that, while Apprendi may have been a watershed ruling as Justice O'Connor had forecast, the circuits seemed to settle rather easily into a particular interpretation of Apprendi. In particular, if an aggravating circumstance moved a sentence above the prescribed guideline, that fact must be admitted or found by a jury beyond a reasonable doubt, as dictated by Apprendi, but if an aggravating factor increased a sentence within that prescribed by the Sentencing Guidelines, Apprendi did not apply. In either event, the rule would not be retroactively applied. In other words, Apprendi changed the procedures for sentencing in the federal courts, and defense attorneys clearly attempted to rely on the case to obtain reversal of sentencing decisions. However, the overall impact of Apprendi was not nearly as grand as some may have hoped or feared. Such uncertainty and change in the Sentencing Guidelines would have to await the Blakely decision.

FEDERAL SENTENCING POST-BLAKELY

The real action and uncertainty in the federal courts regarding the influence of the Apprendi rationale came with the Supreme Court's decision in Blakely. To reiterate, before Booker held unconstitutional the mandatory nature of the federal Sentencing Guidelines, Blakely had indirectly questioned the constitutionality of the federal scheme. More specifically, Blakely held that a state determinate-sentencing structure was constitutionally defective if and when it permitted judges to add time to a defendant's sentence based on aggravating circumstances determined by solely the judge. As the federal Sentencing Guidelines were remarkably similar to the state sentencing system at issue in Blakely, the days of the Sentencing Guidelines surely seemed numbered. In this section, I examine each circuit's response to Blakely within the courts of appeals before Booker, for this was the critical, albeit short, time period during which the dubiousness of the federal Sentencing Guidelines was evident, though as of yet no Supreme Court decision had stated so affirmatively.

Generally, the circuit courts that addressed whether and how Blakely would apply to the federal Sentencing Guidelines took one of three stances: 1) some made no direct ruling on the applicability of Blakely, as these courts took a wait-and-see approach regarding future Supreme Court action; 2) others specifically held that Blakely did not apply to the Sentencing Guidelines until the Supreme Court particularly said so; and 3) others still held that Blakely did apply and, thus, the Guidelines were unconstitutional. I categorize the reaction of the several circuits according to their treatment of Blakely. The cases I discuss below are the lead decisions within a circuit that were followed in subsequent cases, or are otherwise typical of how that circuit handled the Blakely precedent.

No Direct Ruling on the Applicability of Blakely. The First Circuit addressed the Blakely situation in United States v. Cordoza Estrada (2004). There, the defendant argued that a prior conviction should not have served to increase the sentence above the maximum and that, in light of Blakely, the Sentencing Guidelines should not be followed. The court held there was no error in using the prior conviction, as Blakely did not change that aspect of Apprendi. With respect to the status of the Sentencing Guidelines, the court stated, "Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was 'plain'" (at 60). Finding no plain error, the court affirmed the sentence, then took a wait-and-see approach to the applicability of the Guidelines, as the other circuits already were split on the issue, and it seemed the Supreme Court would eventually settle the matter. This wait-and-see approach seemed rather prudent. In a separate, unpublished decision, United States v. Quintana-Perez (2004), the court held that sentence enhancements were permissible under Blakely where they were based on admissions made by the defendant at his plea hearing. The Supreme Court subsequently vacated and remanded the case for sentencing in light of the Booker decision that was subsequently released.

In United States v. Thomas (2004), the only published decision within the Third Circuit to deal somewhat directly with Blakely, the court held that Blakely did not apply because the defendant had admitted facts in his plea that led to enhancement of his sentence. As the panel stated (at 426), "If Blakely were arguably applicable to this case, we would delay its disposition until the Supreme Court decides" this matter, but the court took no position on whether Blakely applied to the Sentencing Guidelines and upheld the sentence.

The Tenth Circuit was another that would not hold Blakely applicable to the Sentencing Guidelines, although it never specifically stated that Blakely did not so apply. Two cases in point from this circuit are relevant here. United States v. Sanchez Cruz (2004) refused to hold the Sentencing Guidelines unconstitutional, as the defendant failed specifically to contest the Guidelines, but as the key aspect of the sentence enhancement was a prior conviction, an exception specifically carved out in both Apprendi and Blakely, application of the Guidelines was not unconstitutional on those grounds. Similarly, the panel in Leonard v. United States (2004) held that as the Supreme Court had not specifically applied Blakely to the federal Guidelines, it was inappropriate for the court of appeals to do so.

Sentencing (guidelines Operative Despite Blakely. Due to the importance of, and uncertainty besetting, the Sentencing Guidelines in light of Blakely, the Second Circuit decided to sit en banc in United States v. Penaranda (2004), for the sole purpose of certifying questions for Supreme Court review. As the unanimous en banc court contended:

In sum, there are reasonable arguments both in favor of and against the proposition that Blakely applies to the Sentencing Guidelines, and reasonable questions (if it does so apply) about whether it prohibits judicial fact finding that determines the applicable Guidelines sentencing range within an applicable statutory maximum....

... We are convinced that a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts-disruption that would be unfair to defendants, to crime victims, to the public, and to the judges who must follow applicable constitutional requirements (at 245-46).

Because all it sought in this case was certification to Supreme Court for an expedited briefing and hearing schedule, the Second Circuit in Penaranda did not resolve one way or another the issue of whether the Sentencing Guidelines were affected by the Blakely ruling.

Once the Supreme Court granted certiorari in Booker and Fanfan, it did not need to review Penaranda. However, before the Booker decision, sentences had to be handed out within the Second Circuit. So, in United States v. Mincey (2004), a Second Circuit panel held that the Sentencing Guidelines continued to apply in the circuit "until the Supreme Court rules otherwise" (at 106). Of course, the Court did rule otherwise, which meant that Mincey was vacated in light of the Booker decision. Along with Penaranda, Mincey is evidence of the apparent disorder in the courts of appeals, even within a single circuit, in the wake of Blakely and before Booker.

Like the Second Circuit, the Fourth Circuit handled the Blakely matter in an en banc setting, holding in United States v. Hammoud (2004) that the Sentencing Guidelines remained in effect despite Blakely. Even so, the presence of a nontrivial number of dissents from this en banc decision further demonstrates the unsettled state of the federal law before Booker.

The Fifth, Sixth, and Eleventh Circuits similarly ruled that Blakely did not apply to the federal Sentencing Guidelines. The Fifth Circuit's key decision was United States v. Pineiro (2004), where the three-judge panel held, "Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines" (at 465). In United States v. Koch (2004), an en banc decision, the Sixth Circuit likewise provided that Blakely did not apply to the Sentencing Guidelines. The Eleventh Circuit was another to hold that Blakely did not apply to the Sentencing Guidelines. In United States v. Reese (2004) the court stated, "We agree with the Fifth Circuit in Pineiro and the Sixth Circuit in Koch that Blakely does not compel a departure from previous Supreme Court precedent" (at 1310). All of these cases were vacated in light of the Supreme Court's decision in Booker.

Sentencing Guidelines Unconstitutional Based on Blakely. The Seventh Circuit illustrates the conflict among the circuits that Blakely engendered. An opinion by Judge Posner for a 2-1 panel in United States v. Booker (2004) stated that the Sentencing Guidelines could not stand along with the Blakely reasoning, and thus the Guidelines were unconstitutional. Subsequent cases within the Seventh Circuit followed the rule of this case (see, e.g., United States v. Ward, 2004). Yet, Judge Posner realized he was treading in unpredictable terrain with respect to the panel's conclusion in Booker about the Guidelines: "We cannot be certain of this. But we cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it" (Booker, at 513). In fact, the Supreme Court agreed with much of the reasoning in this opinion, for this is the appeals-court decision in which the Court granted certiorari and specifically affirmed.

A Ninth Circuit panel, also divided, similarly determined that, based on Blakely, the Sentencing Guidelines were unconstitutional. As the court stated in United States v. Ameline (2004), "We join the Seventh Circuit [in Booker] in holding that there is no principled distinction between the Washington Sentencing Reform Act at issue in Blakely and the United States Sentencing Guidelines" (at 974).

Indeterminate Position. Two circuits resist neat categorization. The Eighth Circuit was inconsistent on whether Blakely applied to the Sentencing Guidelines. In a published decision in United States v. Lucca (2004), the court seemed to take a wait-and see approach on the applicability of Blakely to the Guidelines, saying, "Whatever the ramifications of Blakely for the constitutionality of the United States Sentencing Guidelines, we perceive no constitutional flaw in [defendant's] sentence" (at 934). However, the Lucca court followed an unpublished 2-1 decision, United States v. Mooney (2004), in which a panel held that the Sentencing Guidelines were unconstitutional in light of Blakely. The Mooney case was subsequently cited as circuit authority in a published decision in United States v. Mendoza-Mesa (2004). Because one published decision called for a wait-and-see approach, while another published decision relied on a non-precedential, unpublished decision that called the Sentencing Guidelines unconstitutional, I am unable to categorize this circuit.

And finally, in the only case on the topic that the D.C. Circuit decided during the relevant time period, United States v. Miller (2005), the court held that Blakely did not change the prior conviction exception from previous cases, but no direct ruling was made on whether this precedent applied to invalidate the Sentencing Guidelines. The D.C. Circuit issued its decision in Miller less than a week after the Supreme Court announced its decision in Booker, though this Supreme Court case did not appear to affect the holding or rationale of the appeals-court decision in any meaningful way.

Plainly, confusion and conflict reigned in the courts of appeals after Blakely raised doubt about the constitutionality of the Sentencing Guidelines. Whatever their legal or ideological inclination, it is likely that most actors directly involved in these matters, particularly judges and lawyers, were initially relieved when the Supreme Court's Booker decision settled the matter by holding that the Apprendi/Blakely rule applied to the Guidelines. Whether that relief was justified is another matter entirely.

DID BOOKER RESOLVE THE UNCERTAINTY IN THE COURTS OF APPEALS?

While a particularized analysis of how the federal courts handled the new rule espoused in Booker is beyond the scope of this Note, a few brief comments about Booker are in order. Because of the confusing organization of the Booker decision, in which the mandatory nature of the Sentencing Guidelines was ruled unconstitutional but the Guidelines themselves remained in effect as advisory, Booker is not likely the final word on this matter. The reaction of the second Circuit is illustrative. In the immediate aftermath of Booker, one panel of that court held in United States v. Crosby (2005) that the presiding judge is duty-bound to consider the Sentencing Guidelines in a way similar to but not exactly the same as in the pre-Booker era, and the court listed specific standards to consider in light of the reasonableness standard mandated by Booker. It was fairly clear that the Crosby court was attempting to find objective, valid guidelines for sentencing in light of the new federal mandate. However, in United States v. Williams (2005), a subsequent second Circuit panel reversed a decision in light of Booker and Crosby, based on an inappropriate sentencing enhancement by the judge. It seems that clarity had not yet come to the second Circuit with respect to sentencing, even after Booker.

Other circuits also addressed the Booker decision directly and relatively soon after it was decided, in an attempt to provide district courts some clarity in sentencing and thus avoid the confusion that seemed likely after Booker. For instance, the Ninth Circuit sat en banc to review its earlier panel ruling in United States v. Ametine (2004) to delineate a specific procedure for sentencing in light of the Booker mandate, and its 2005 Ameline en banc decision specifically followed the second Circuit's reasoning in Crosby. Whether either the second or Ninth Circuit, or any other circuit, will succeed in creating an orderly process for sentencing and appeals of those sentences remains to be seen. Nevertheless, these cases make clear that courts are making conscientious attempts to address their sentencing decisions in accord with Booker.

COMMENTARY

As this analysis demonstrates, there were clear conflicts on a critical sentencing issue among the circuits after Biakely and before Booker. In particular, two circuits directly held the Sentencing Guidelines unconstitutional (Seventh and Ninth). These would be the only circuits with which the Supreme Court would agree when it released its Booker decision. Five other circuits specifically held that Biakely did not apply to the Sentencing Guidelines (second, Fourth, Fifth, Sixth, and Eleventh). All of the cases cited from these circuits were vacated in light of Booker. Three circuits (First, Third, and Tenth) were in tandem, except that these circuits did not directly address the issue of Blakely's applicability as they awaited express word from the Supreme Court. Finally, one circuit released inconsistent decisions (Eighth) while another (D.C.) issued no relevant decision on the Blakely matter.

From this perspective, it was axiomatic that the Supreme Court quickly and definitively settle the uncertainty apparent in the federal circuits after Bldkely. This seems to bolster what Justice Brandeis famously expressed in Di Santo v. Pennsylvania (1927): "It is usually more important that a rule of law be settled, than that it be settled right" (at 42). This is not to suggest that Blakely and Boolcer were incorrectly decided; to the contrary, the uncertainty evident in the wake of Blakely shows that a relatively settled state of the law is essential to the functioning of the legal system. Thus, the Court needed to delineate whether Blakely applied to the Sentencing Guidelines. In Boolcer, it did just that by holding the mandatory nature of the Guidelines unconstitutional to the extent they ran afoul of the Apprendi rule as applied in Blakely. Yet, its bifurcated decision in Boolcer denoted that some confusion lingered in the trenches where sentencing decisions are made.

In the end we must ask, did the sky fall, as Justices O'Connor and Breyer gravely warned? Indeed, was their alarm justified? Both questions can be answered "yes and no." Plainly, in the wake of Blakely, confusion was the norm in the courts of appeals-and in the district courts where judges were making specific sentencing decisions. That is, the circuits split on how to apply the Blakely decision, and the federal courts did demand swift resolution from the Supreme Court. Until that occurred in Boolcer, however, the state of the law of sentencing in the federal courts was unsettled at best, perhaps even chaotic.

Even after Booker, which generally settled the question of whether Blakely applied to the Sentencing Guidelines, the confusing opinions dividing the questions of the constitutional issues and the remedy caused continued problems. Moreover, those courts that in the interim had ruled Blakely inapplicable had to revisit their sentencing decisions.

Nonetheless, just as Blakely did not have as broad an effect on sentencing systems in state courts (see accompanying Note in this issue) as it did on the federal sentencing regime, it is unlikely that Boolcer will produce massive confusion in the federal courts. In fact, in United States v. Crosby (2005), decided shortly after Boolcer when the second Circuit was attempting to promulgate standards in light of the brand new precedent, Judge Jon Newman conveyed: "Booker/Fanfan can be expected to have a significant effect on sentencing in federal criminal cases, although perhaps not as drastic an effect as some might suppose" (at 110-11). Judge Dickran Tevrizian of the Central District of California, whose job it is to sentence, and perhaps resentence, defendants in the wake of Boolcer, echoed this sentiment when he said, "I think in 95 percent of the cases the judges will say the prior sentence was reasonable" (Henry Weinstein, "Court Backs Sentencing Reviews," Los Angeles Times, June 2, 2005, p. A10).

In sum, the Supreme Court absolutely changed how sentencing would proceed in the federal courts with its decisions in Apprenti, Blakely, and Booker. Certainly before the Booker decision was released, there was much skepticism as to whether the federal Sentencing Guidelines would survive. The Guidelines barely survived, albeit in advisory form, as the determinate system with judicial enhancements originally envisioned by the sentencing commission was ruled unconstitutional. Nevertheless, the federal courts, including the judges and lawyers who practice in matters of sentencing defendants, apparently have adjusted rather expeditiously to the new order. While Apprendi and its progeny Blakely and Booker represented a sea change in some respects, these cases may not have had quite the dramatic influence as one might have first imagined.