United States v. Booker, 543 U.S. 220 (2005)
SYLLABUS
OCTOBER TERM, 2004
UNITED STATES V. BOOKER
SUPREME COURT OF THE UNITED STATES
UNITED STATES v. BOOKER
certiorari to the united states court of appeals for the seventh circuit
No. 04–104.Argued October 4, 2004—Decided January 12, 2005
Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker’s drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month, sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt. The Seventh Circuit held that this application of the Guidelines conflicted with the Apprendi v. New Jersey, 530 U. S. 466, 490, holding that “[o]ther 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.” Relying on Blakely v. Washington, 542 U. S. ___, the court held that the sentence violated the Sixth Amendment and instructed the District Court either to sentence Booker within the sentencing range supported by the jury’s findings or to hold a separate sentencing hearing before a jury. In respondent Fanfan’s case, the maximum sentence authorized by the jury verdict under the Guidelines was 78 months in prison. At the sentencing hearing, the District Judge found by a preponderance of the evidence additional facts authorizing a sentence in the 188-to-235-month range, which would have required him to impose a 15- or 16-year sentence instead of the 5 or 6 years authorized by the jury verdict alone. Relying on Blakely’s majority opinion, statements in its dissenting opinions, and the Solicitor General’s brief in Blakely, the judge concluded that he could not follow the Guidelines and imposed a sentence based solely upon the guilty verdict in the case. The Government filed a notice of appeal in the First Circuit and a petition for certiorari before judgment in this Court.
Held: The judgment of the Court of Appeals in No. 04–104 is affirmed, and the case is remanded. The judgment of the District Court in No. 04–105 is vacated, and the case is remanded.
No. 04–104, 375 F. 3d 508, affirmed and remanded; and No. 04–105, vacated and remanded.
Justice Stevens delivered the opinion of the Court in part, concluding that the Sixth Amendment as construed in Blakely applies to the Federal Sentencing Guidelines. Pp. 5–20.
(a) In addressing Washington State’s determinate sentencing scheme, the Blakely Court found that Jones v. United States, 526 U. S. 227; Apprendi v. New Jersey, 530 U. S. 466; and Ring v. Arizona, 536 U. S. 584, made clear “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at ___. As Blakely’s dissenting opinions recognized, there is no constitutionally significant distinction between the Guidelines and the Washington procedure at issue in that case. This conclusion rests on the premise, common to both systems, that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges. Were the Guidelines merely advisory—recommending, but not requiring, the selection of particular sentences in response to differing sets of facts—their use would not implicate the Sixth Amendment. However, that is not the case. Title 18 U. S. C. A. §3553(b) directs that a court “shall impose a sentence of the kind, and within the range” established by the Guidelines, subject to departures in specific, limited cases. Because they are binding on all on judges, this Court has consistently held that the Guidelines have the force and effect of laws. Further, the availability of a departure where the judge “finds … an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described,” §3553(b)(1), does not avoid the constitutional issue. Departures are unavailable in most cases because the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is legally bound to impose a sentence within the Guidelines range. Booker’s case illustrates this point. The jury found him guilty of possessing at least 50 grams of crack cocaine, based on evidence that he had 92.5 grams. Under those facts, the Guidelines required a possible 210-to-262-month sentence. To reach Booker’s actual sentence—which was almost 10 years longer—the judge found that he possessed an additional 566 grams of crack. Although, the jury never heard any such evidence, the judge found it to be true by a preponderance of the evidence. Thus, as in Blakely, “the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” 542 U. S., at ___. Finally, because there were no factors the Sentencing Commission failed to adequately consider, the judge was required to impose a sentence within the higher Guidelines range. Pp. 5–12.
(b) The Government’s arguments for its position that Blakely’s reasoning should not be applied to the Federal Sentencing Guidelines are unpersuasive. The fact that the Guidelines are promulgated by the Sentencing Commission, rather than Congress, is constitutionally irrelevant. The Court has not previously considered the question, but the same Sixth Amendment principles apply to the Sentencing Guidelines. Further, the Court’s pre-Apprendi cases considering the Guidelines are inapplicable, as they did not consider the application of Apprendi to the Sentencing Guidelines. Finally, separation of powers concerns are not present here, and were rejected in Mistretta. In Mistretta the Court concluded that even though the Commission performed political rather than adjudicatory functions, Congress did not exceed constitutional limitations in creating the Commission. 488 U. S., at 393, 388. That conclusion remains true regardless of whether the facts relevant to sentencing are labeled “sentencing factors” or “elements” of crimes. Pp. 13–20.
Justice Breyer delivered the opinion of the Court in part, concluding that 18 U. S. C. A. §3553(b)(1), which makes the Federal Sentencing Guidelines mandatory, is incompatible with today’s Sixth Amendment “jury trial” holding and therefore must be severed and excised from the Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends upon the Guidelines’ mandatory nature, also must be severed and excised. So modified, the Act makes the Guidelines effectively advisory, requiring a sentencing court to consider Guidelines ranges, see §3553(a)(4), but permitting it to tailor the sentence in light of other statutory concerns, see §3553(a). Pp. 2–26.
(a) Answering the remedial question requires a determination of what “Congress would have intended” in light of the Court’s constitutional holding. E.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 767. Here, the Court must decide which of two approaches is the more compatible with Congress’ intent as embodied in the Act: (1) retaining the Act (and the Guidelines) as written, with today’s Sixth Amendment requirement engrafted onto it; or (2) eliminating some of the Act’s provisions. Evaluation of the constitutional requirement’s consequences in light of the Act’s language, history, and basic purposes demonstrates that the requirement is not compatible with the Act as written and that some severance (and excision) is necessary. Congress would likely have preferred the total invalidation of the Act to an Act with the constitutional requirement engrafted onto it, but would likely have preferred the excision of the Act’s mandatory language to the invalidation of the entire Act. Pp. 2–6.
(b) Several considerations demonstrate that adding the Court’s constitutional requirement onto the Act as currently written would so transform the statutory scheme that Congress likely would not have intended the Act as so modified to stand. First, references to “[t]he court” in §3553(a)(1)—which requires “[t]he court” when sentencing to consider “the nature and circumstances of the offense and the history and characteristics of the defendant”—and references to “the judge” in the Act’s history must be read in context to mean “the judge without the jury,” not “the judge working together with the jury.” That is made clear by §3661, which removes typical “jury trial” limitations on “the information” concerning the offender that the sentencing “court … may receive.” Second, Congress’ basic statutory goal of diminishing sentencing disparity depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct underlying the crime of conviction. In looking to real conduct, federal sentencing judges have long relied upon a probation officer’s presentence report, which is often unavailable until after the trial. To engraft the Court’s constitutional requirement onto the Act would destroy the system by preventing a sentencing judge from relying upon a presentence report for relevant factual information uncovered after the trial. Third, the Act, read to include today’s constitutional requirement, would create a system far more complex than Congress could have intended, thereby greatly complicating the tasks of the prosecution, defense, judge, and jury. Fourth, plea bargaining would not significantly diminish the consequences of the Court’s constitutional holding for the operation of the Guidelines, but would make matters worse, leading to sentences that gave greater weight not to real conduct, but rather to counsel’s skill, the prosecutor’s policies, the caseload, and other factors that vary from place to place, defendant to defendant, and crime to crime. Fifth, Congress would not have enacted sentencing statutes that make it more difficult to adjust sentences upward than to adjust them downward, yet that is what the engrafted system would create. For all these reasons, the Act cannot remain valid in its entirety. Severance and excision are necessary. Pp. 6–15.
(c) The entire Act need not be invalidated, since most of it is perfectly valid. In order not to “invalidat[e] more of the statute than is necessary,” Regan v. Time, Inc., 468 U. S. 641, 652, the Court must retain those portions of the Act that are (1) constitutionally valid, ibid., (2) capable of “functioning independently,” Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684, and (3) consistent with Congress’ basic objectives in enacting the statute, Regan, supra, at 653. Application of these criteria demonstrates that only §3553(b)(1), which requires sentencing courts to impose a sentence within the applicable Guidelines range (absent circumstances justifying a departure), and §3742(e), which provides for de novo review on appeal of departures, must be severed and excised. With these two sections severed (and statutory cross-references to the two sections consequently invalidated), the rest of the Act satisfies the Court’s constitutional requirement and falls outside the scope of Apprendi v. New Jersey, 530 U. S. 466. The Act still requires judges to take account of the Guidelines together with other sentencing goals, see §3553(a)(4); to consider the Guidelines “sentencing range established for … the applicable category of offense committed by the applicable category of defendant,” pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing disparities and to restitute victims, §§3553(a)(1), (3)–(7); and to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed training and medical care, §3553(a)(2). Moreover, despite §3553(b)(1)’s absence, the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range). See §§3742(a) and (b). Excision of §3742(e), which sets forth appellate review standards, does not pose a critical problem. Appropriate review standards may be inferred from related statutory language, the statute’s structure, and the “sound administration of justice.” Pierce v. Underwood, 487 U. S. 552, 559–560. Here, these factors and the past two decades of appellate practice in cases involving departures from the Guidelines imply a familiar and practical standard of review: review for “unreasonable[ness].” See, e.g., 18 U. S. C. §3742(e)(3) (1994 ed.). Finally, the Act without its mandatory provision and related language remains consistent with Congress’ intent to avoid “unwarranted sentencing disparities … [and] maintai[n] sufficient flexibility to permit individualized sentences when warranted,” 28 U. S. C. §991(b)(1)(B), in that the Sentencing Commission remains in place to perform its statutory duties, see §994, the district courts must consult the Guidelines and take them into account when sentencing, see 18 U. S. C. §3553(a)(4), and the courts of appeals review sentencing decisions for unreasonableness. Thus, it is more consistent with Congress’ likely intent (1) to preserve the Act’s important pre-existing elements while severing and excising §§3553(b) and 3742(e) than (2) to maintain all of the Act’s provisions and engraft today’s constitutional requirement onto the statutory scheme. Pp. 15–22.
(d) Other possible remedies—including, e.g., the parties’ proposals that the Guidelines remain binding in cases other than those in which the Constitution prohibits judicial factfinding and that the Act’s provisions requiring such factfinding at sentencing be excised—are rejected. Pp. 22–24.
(e) On remand in respondent Booker’s case, the District Court should impose a sentence in accordance with today’s opinions, and, if the sentence comes before the Seventh Circuit for review, that court should apply the review standards set forth in this Court’s remedial opinion. In respondent Fanfan’s case, the Government (and Fanfan should he so choose) may seek resentencing under the system set forth in today’s opinions. As these dispositions indicate, today’s Sixth Amendment holding and the Court’s remedial interpretation of the Sentencing Act must be applied to all cases on direct review. See, e.g., Griffith v. Kentucky, 479 U. S. 314, 328. That does not mean that every sentence will give rise to a Sixth Amendment violation or that every appeal will lead to a new sentencing hearing. That is because reviewing courts are expected to apply ordinary prudential doctrines, determining, e.g., whether the issue was raised below and whether it fails the “plain-error” test. It is also because, in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine. Pp. 24–25.
Stevens, J., delivered the opinion of the Court in part, in which Scalia, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., delivered the opinion of the Court in part, in which Rehnquist, C. J., and O’Connor, Kennedy, and Ginsburg, JJ., joined. Stevens, J., filed an opinion dissenting in part, in which Souter, J., joined, and in which Scalia, J., joined except for Part III and footnote 17. Scalia, J., and Thomas, J., filed opinions dissenting in part. Breyer, J., filed an opinion dissenting in part, in which Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined.
Together with No. 04–105, United States v. Fanfan, on certiorari before judgment to the United States Court of Appeals for the First Circuit.
- Opinion (Breyer)
- Opinion (Stevens)
- Dissent (Stevens)
- Dissent (Thomas)
- Dissent (Breyer)
- Dissent (Scalia)
OPINION OF THE COURT
UNITED STATES V. BOOKER
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 04-104 AND 04-105
UNITED STATES, PETITIONER 04–104 v. FREDDIE J. BOOKER on writ of certiorari to the united states court of appeals for the seventh circuit UNITED STATES, PETITIONER 04–105 v. DUCAN FANFAN on writ of certiorari before judgment to the united states court of appeals for the first circuit [January 12, 2005] Justice Breyer delivered the opinion of the Court in part.*
OPINION OF THE COURT
UNITED STATES V. BOOKER
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 04-104 AND 04-105
UNITED STATES, PETITIONER 04–104 v. FREDDIE J. BOOKER on writ of certiorari to the united states court of appeals for the seventh circuit UNITED STATES, PETITIONER 04–105 v. DUCAN FANFAN on writ of certiorari before judgment to the united states court of appeals for the first circuit [January 12, 2005] Justice Stevens delivered the opinion of the Court in part.*
543 U. S. ____ (2005)
543 U. S. ____ (2005)
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 04-104 AND 04-105
UNITED STATES, PETITIONER 04–104 v. FREDDIE J. BOOKER on writ of certiorari to the united states court of appeals for the seventh circuit UNITED STATES, PETITIONER 04–105 v. DUCAN FANFAN on writ of certiorari before judgment to the united states court of appeals for the first circuit [January 12, 2005] Justice Stevens, with whom Justice Souter joins, and with whom Justice Scalia joins except for Part III and footnote 17, dissenting in part. Neither of the two Court opinions that decide these cases finds any constitutional infirmity inherent in any provision of the Sentencing Reform Act of 1984 (SRA) or the Federal Sentencing Guidelines. Specifically, neither 18 U. S. C. A. §3553(b)(1) (Supp. 2004), which makes application of the Guidelines mandatory, nor §3742(e) (main ed. and Supp. 2004), which authorizes appellate review of departures from the Guidelines, is even arguably unconstitutional. Neither the Government, nor the respondents, nor any of the numerous amici has suggested that there is any need to invalidate either provision in order to avoid violations of the Sixth Amendment in the administration of the Guidelines. The Court’s decision to do so represents a policy choice that Congress has considered and decisively rejected. While it is perfectly clear that Congress has ample power to repeal these two statutory provisions if it so desires, this Court should not make that choice on Congress’ behalf. I respectfully dissent from the Court’s extraordinary exercise of authority. Before explaining why the law does not authorize the Court’s creative remedy, why the reasons it advances in support of its decision are unpersuasive, and why it is abundantly clear that Congress has already rejected that very remedy, it is appropriate to explain how the violation of the Sixth Amendment that occurred in Booker’s case could readily have been avoided without making any change in the Guidelines. Booker received a sentence of 360 months’ imprisonment. His sentence was based on four factual determinations: (1) the jury’s finding that he possessed 92.5 grams of crack (cocaine base); (2) the judge’s finding that he possessed an additional 566 grams; (3) the judge’s conclusion that he had obstructed justice; and (4) the judge’s evaluation of his prior criminal record. Under the jury’s 92.5 grams finding, the maximum sentence authorized by the Guidelines was a term of 262 months. See United States Sentencing Commission, Guidelines Manual §2D1.1(c)(4) (Nov. 2003) (USSG). If the 566 gram finding had been made by the jury based on proof beyond a reasonable doubt, that finding would have authorized a guidelines sentence anywhere between 324 and 405 months—the equivalent of a range from 27 to nearly 34 years—given Booker’s criminal history. §2D1.1(c)(2). Relying on his own appraisal of the defendant’s obstruction of justice, and presumably any other information in the presentence report, the judge would have had discretion to select any sentence within that range. Thus, if the two facts, which in this case actually established two separate crimes, had both been found by the jury, the judicial factfinding that produced the actual sentence would not have violated the Constitution. In other words, the judge could have considered Booker’s obstruction of justice, his criminal history, and all other real offense and offender factors without violating the Sixth Amendment. Because the Guidelines as written possess the virtue of combining a mandatory determination of sentencing ranges and discretionary decisions within those ranges, they allow ample latitude for judicial factfinding that does not even arguably raise any Sixth Amendment issue. The principal basis for the Court’s chosen remedy is its assumption that Congress did not contemplate that the Sixth Amendment would be violated by depriving the defendant of the right to a jury trial on a factual issue as important as whether Booker possessed the additional 566 grams of crack that exponentially increased the maximum sentence that he could receive. I am not at all sure that that assumption is correct, but even if it is, it does not provide an adequate basis for volunteering a systemwide remedy that Congress has already rejected and could enact on its own if it elected to. When one pauses to note that over 95% of all federal criminal prosecutions are terminated by a plea bargain, and the further fact that in almost half of the cases that go to trial there are no sentencing enhancements, the extraordinary overbreadth of the Court’s unprecedented remedy is manifest. It is, moreover, unique because, under the Court’s reasoning, if Congress should decide to reenact the exact text of the two provisions that the Court has chosen to invalidate, that reenactment would be unquestionably constitutional. In my judgment, it is therefore clear that the Court’s creative remedy is an exercise of legislative, rather than judicial, power. I It is a fundamental premise of judicial review that all Acts of Congress are presumptively valid. See Regan v. Time, Inc., 468 U. S. 641, 652 (1984). “A ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Ibid. In the past, because of its respect for the coordinate branches of Government, the Court has invalidated duly enacted statutes—or particular provisions of such statutes—“only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U. S. 598, 607 (2000); see also El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 97 (1909). The exercise of such power is traditionally limited to issues presented in the case or controversy before the Court, and to the imposition of remedies that redress specific constitutional violations. There are two narrow exceptions to this general rule. A facial challenge may succeed if a legislative scheme is unconstitutional in all or nearly all of its applications. That is certainly not true in these cases, however, because most applications of the Guidelines are unquestionably valid. A second exception involves cases in which an invalid provision or application cannot be severed from the remainder of the statute. That exception is inapplicable because there is no statutory or Guidelines provision that is invalid. Neither exception supports the majority’s newly minted remedy. Facial Invalidity: Regardless of how the Court defines the standard for determining when a facial challenge to a statute should succeed,[Footnote 1] it is abundantly clear that the fact that a statute, or any provision of a statute, is unconstitutional in a portion of its applications does not render the statute or provision invalid, and no party suggests otherwise. The Government conceded at oral argument that 45% of federal sentences involve no enhancements. Cf. United States Sentencing Commission, 2002 Sourcebook of Federal Sentencing Statistics 39–40 (hereinafter Sourcebook).[Footnote 2] And, according to two U. S. Sentencing Commissioners who testified before Congress shortly after we handed down our decision in Blakely v. Washington, 542 U. S. ___ (2004), the number of enhancements that would actually implicate a defendant’s Sixth Amendment rights is even smaller. See Hearings on Blakely v. Washington and the Future of the Federal Sentencing Guidelines before the Senate Committee on the Judiciary, 108th Cong., 2d Sess., p. 2 (2004) (hereinafter Hearings on Blakely) (testimony of Commissioners John R. Steer and Hon. William K. Sessions III) (“[A] majority of the cases sentenced under the federal guidelines do not receive sentencing enhancements that could potentially implicate Blakely”), available at http://www.ussc.gov/hearings/BlakelyTest.pdf (all Internet materials as visited Jan. 7, 2005, and available in Clerk of Court’s case file). Simply stated, the Government’s submissions to this Court and to Congress demonstrate that the Guidelines could be constitutionally applied in their entirety, without any modifications, in the “majority of the cases sentenced under the federal guidelines.” Ibid. On the basis of these submissions alone, this Court should have declined to find the Guidelines, or any particular provisions of the Guidelines, facially invalid.[Footnote 3] Accordingly, the majority’s claim that a jury factfinding requirement would “destroy the system,” ante, at 9 (opinion of Breyer, J.), would at most apply to a minority of sentences imposed under the Guidelines. In reality, given that the Government and judges have been apprised of the requirements of the Sixth Amendment, the number of unconstitutional applications would have been even smaller had we allowed them the opportunity to comply with our constitutional holding. This is so for several reasons. First, it is axiomatic that a defendant may waive his Sixth Amendment right to trial by jury. Patton v. United States, 281 U. S. 276, 312–313 (1930). In Blakely we explained that “[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding.” 542 U. S., at ___ (slip op., at 14). Such reasoning applies with equal force to sentences imposed under the Guidelines. As the majority concedes, ante, at 5, only a tiny fraction of federal prosecutions ever go to trial. See Estimate 2 (“In FY02, 97.1 percent of cases sentenced under the guidelines were the result of plea agreements”). If such procedures were followed in the future, our holding that Blakely applies to the Guidelines would be consequential only in the tiny portion of prospective sentencing decisions that are made after a defendant has been found guilty by a jury. Second, in the remaining fraction of cases that result in a jury trial, I am confident that those charged with complying with the Guidelines—judges, aided by prosecutors and defense attorneys—could adequately protect defendants’ Sixth Amendment rights without this Court’s extraordinary remedy. In many cases, prosecutors could avoid an Apprendi v. New Jersey, 530 U. S. 466 (2000), problem simply by alleging in the indictment the facts necessary to reach the chosen Guidelines sentence. Following our decision in Apprendi, and again after our decision in Blakely, the Department of Justice advised federal prosecutors to adopt practices that would enable them “to charge and prove to the jury facts that increase the statutory maximum—for example, drug type and quantity for offenses under 21 U. S. C. 841.”[Footnote 4] Enhancing the specificity of indictments would be a simple matter, for example, in prosecutions under the federal drug statutes (such as Booker’s prosecution). The Government has already directed its prosecutors to allege facts such as the possession of a dangerous weapon or “that the defendant was an organizer or leader of criminal activity that involved five or more participants” in the indictment and prove them to the jury beyond a reasonable doubt.[Footnote 5] Third, even in those trials in which the Guidelines require the finding of facts not alleged in the indictment, such factfinding by a judge is not unconstitutional per se. To be clear, our holding in Parts I–III, ante, at 19–20 (Stevens, J., opinion of the Court), that Blakely applies to the Guidelines does not establish the “impermissibility of judicial factfinding.” Brief for United States 46. Instead, judicial factfinding to support an offense level determination or an enhancement is only unconstitutional when that finding raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant. This distinction is crucial to a proper understanding of why the Guidelines could easily function as they are currently written. Consider, for instance, a case in which the defendant’s initial sentencing range under the Guidelines is 130-to-162 months, calculated by combining a base offense level of 28 and a criminal history category of V. See USSG ch. 5, pt. A (Table). Depending upon the particular offense, the sentencing judge may use her discretion to select any sentence within this range, even if her selection relies upon factual determinations beyond the facts found by the jury. If the defendant described above also possessed a firearm, the Guidelines would direct the judge to apply a two-level enhancement under §2D1.1, which would raise the defendant’s total offense level from 28 to 30. That, in turn, would raise the defendant’s eligible sentencing range to 151-to-188 months. That act of judicial factfinding would comply with the Guidelines and the Sixth Amendment so long as the sentencing judge then selected a sentence between 151-to-162 months—the lower number (151) being the bottom of offense level 30 and the higher number (162) being the maximum sentence under level 28, which is the upper limit of the range supported by the jury findings alone. This type of overlap between sentencing ranges is the rule, not the exception, in the Guidelines as currently constituted. See 1 Practice Under the Federal Sentencing Guidelines §6.01[B], p. 7 (P. Bamberger & D. Gottlieb eds. 4th ed. 2003 Supp.) (noting that nearly all Guidelines ranges overlap and that “because of the overlap, the actual sentence imposed can theoretically be the same no matter which guideline range is chosen”). Trial courts have developed considerable expertise in employing overlapping provisions in such a manner as to avoid unnecessary resolution of factual disputes, see §7.03[B][2], at 34 (2004 Supp.), and lower courts have shown themselves capable of distinguishing proper from improper applications of sentencing enhancements under Blakely, see, e.g., United States v. Mayfield, 386 F. 3d 1301 (CA9 2004) (upholding a two-level enhancement for firearm possession from offense level 34 to 36 because the sentencing judge selected a sentence within the overlapping range between the two levels). The interaction of these various Guidelines provisions demonstrates the fallacy in the assumption that judicial factfinding can never be constitutional under the Guidelines. The majority’s answer to the fact that the vast majority of applications of the Guidelines are constitutional is that “we must determine likely intent, not by counting proceedings, but by evaluating the consequences of the Court’s constitutional requirement” on every imaginable case. Ante, at 5 (opinion of Breyer, J.). That approach ignores the lessons of our facial invalidity cases. Those cases stress that this Court is ill suited to the task of drafting legislation and that, therefore, as a matter of respect for coordinate branches of Government, we ought to presume whenever possible that those charged with writing and implementing legislation will and can apply “the statute consistently with the constitutional command.” Time, Inc. v. Hill, 385 U. S. 374, 397 (1967). Indeed, this Court has generally refused to consider “every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,” Barrows v. Jackson, 346 U. S. 249, 256 (1953), because “[t]he delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined,” United States v. Raines, 362 U. S. 17, 22 (1960). The Government has already shown it can apply the Guidelines constitutionally even as written, and Congress is perfectly capable of redrafting the statute on its own. Thus, there is no justification for the extreme judicial remedy of total invalidation of any part of the SRA or the Guidelines. In sum, it is indisputable that the vast majority of federal sentences under the Guidelines would have complied with the Sixth Amendment without the Court’s extraordinary remedy. Under any reasonable reading of our precedents, in no way can it be said that the Guidelines are, or that any particular Guidelines provision is, facially unconstitutional. Severability: Even though a statute is not facially invalid, a holding that certain specific provisions are unconstitutional may make it necessary to invalidate the entire statute. See generally Stern, Separability and Separability Clauses in the Supreme Court, 51 Harv. L. Rev. 76 (1937) (hereinafter Stern). Our normal rule, however, is that the “unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234 (1932) (emphasis added).[Footnote 6] Our “severability” precedents, however, cannot support the Court’s remedy because there is no provision of the SRA or the Guidelines that falls outside of Congress’ power. See Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). Accordingly, severability analysis simply does not apply. The majority concludes that our constitutional holding requires the invalidation of §§3553(b)(1) and 3742(e). The first of these sections uses the word “shall” to make the substantive provisions of the Guidelines mandatory. See Mistretta v. United States, 488 U. S. 361, 367 (1989). The second authorizes de novo review of sentencing judges’ applications of relevant Guidelines provisions. Neither section is unconstitutional. While these provisions can in certain cases, when combined with other statutory and Guidelines provisions, result in a violation of the Sixth Amendment, they are plainly constitutional on their faces. Rather than rely on traditional principles of facial invalidity or severability, the majority creates a new category of cases in which this Court may invalidate any part or parts of a statute (and add others) when it concludes that Congress would have preferred a modified system to administering the statute in compliance with the Constitution. This is entirely new law. Usually the Court first declares unconstitutional a particular provision of law, and only then does it inquire whether the remainder of the statute can be saved. See, e.g., Regan v. Time, 468 U. S., at 652; Alaska Airlines, 480 U. S., at 684. Review in this manner limits judicial power by minimizing the damage done to the statute by judicial fiat. There is no case of which I am aware, however, in which this Court has used “severability” analysis to do what the majority does today: determine that some unconstitutional applications of a statute, when viewed in light of the Court’s reading of “likely” legislative intent, justifies the invalidation of certain statutory sections in their entirety, their constitutionality notwithstanding, in order to save the parts of the statute the Court deemed most important. The novelty of this remedial maneuver perhaps explains why no party or amicus curiae to this litigation has requested the remedy the Court now orders. In addition, none of the federal courts that have addressed Blakely’s application to the Guidelines has concluded that striking down §3553(b)(1) is a proper solution. Most importantly, the Court simply has no authority to invalidate legislation absent a showing that it is unconstitutional. To paraphrase Chief Justice Marshall, an “act of the legislature” must be “repugnant to the constitution” in order to be void. Marbury v. Madison, 1 Cranch 137, 177 (1803). When a provision of a statute is unconstitutional, that provision is void, and the Judiciary is therefore not bound by it in a particular case. Here, however, the provisions the majority has excised from the statute are perfectly valid: Congress could pass the identical statute tomorrow and it would be binding on this Court so long as it were administered in compliance with the Sixth Amendment.[Footnote 7] Because the statute itself is not repugnant to the Constitution and can by its terms comport with the Sixth Amendment, the Court does not have the constitutional authority to invalidate it. The precedent on which the Court relies is scant indeed. It can only point to cases in which a provision of law was unconstitutionally extended to or limited to a particular class; in such cases it is necessary either to invalidate the provision or to require the legislature to extend the benefit to an excluded class.[Footnote 8] Given the sweeping nature of the remedy ordained today, the majority’s assertions that it is proper to engage in an ex ante analysis of congressional intent in order to select in the first instance the statutory provisions to be struck down is contrary to the very purpose of engaging in severability analysis—the Court’s remedy expands, rather than limits, judicial power. There is no justification for extending our severability cases to cover this situation. The SRA and the Guidelines can be read—and are being currently read—in a way that complies with the Sixth Amendment. If Congress wished to amend the statute to enact the majority’s vision of how the Guidelines should operate, it would be perfectly free to do so. There is no need to devise a novel and questionable method of invalidating statutory provisions that can be constitutionally applied. II Rather than engage in a wholesale rewriting of the SRA, I would simply allow the Government to continue doing what it has done since this Court handed down Blakely—prove any fact that is required to increase a defendant’s sentence under the Guidelines to a jury beyond a reasonable doubt. As I have already discussed, a requirement of jury factfinding for certain issues can be implemented without difficulty in the vast majority of cases. See supra, at 6–10. Indeed, this already appears to be the case. “[T]he Department of Justice already has instituted procedures which would protect the overwhelming majority of future cases from Blakely infirmity. The Department of Justice has issued detailed guidance for every stage of the prosecution from indictment to final sentencing, including alleging facts that would support sentencing enhancements and requiring defendants to waive any potential Blakely rights in plea agreements.” Hearings on Blakely 1–2.[Footnote 9] Given this experience, I think the Court dramatically overstates the difficulty of implementing this solution. The majority advances five reasons why the remedy that is already in place will not work. First, the majority points to the statutory text referring to “the court” in arguing that jury factfinding is impermissible. While this text is no doubt evidence that Congress contemplated judicial factfinding, it does not demonstrate that Congress thought that judicial factfinding was so essential that, if forced to choose between a system including jury determinations of certain facts in certain cases on the one hand, and a system in which the Guidelines would cease to restrain the discretion of federal judges on the other, Congress would have selected the latter. As a textual matter, the word “court” can certainly be read to include a judge’s selection of a sentence as supported by a jury verdict—this reading is plausible either as a pure matter of statutory construction or under principles of constitutional avoidance. Ordinarily, “ ‘where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.’ ” Jones v. United States, 526 U. S. 227, 239 (1999) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909)). This principle, which “has for so long been applied by this Court that it is beyond debate,” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988), is intended to show respect for Congress by presuming it “legislates in the light of constitutional limitations,” Rust v. Sullivan, 500 U. S. 173, 191 (1991). The Court, however, reverses the ordinary presumption. It interprets the phrase “[t]he court … shall consider” in 18 U. S. C. A. §3553(a) (Supp. 2004) to mean: the judge shall consider and impose the appropriate sentence, but the judge shall not be constrained by any findings of a jury. See ante, at 5 (opinion of Breyer, J.) (interpreting the word “court” to mean “ ‘the judge without the jury’ ”). The Court’s narrow reading of the statutory text is unnecessary. Even assuming that the word “court” should be read to mean “judge, and only the judge,” a requirement that certain enhancements be supported by jury verdicts leaves the ultimate sentencing decision exclusively within the judge’s hands—the judge, and the judge alone, would retain the discretion to sentence the defendant anywhere within the required Guidelines range and within overlapping Guidelines ranges when applicable. See supra, at 8–9. The judge would, no doubt, be limited by the findings of the jury in certain cases, but the fact that such a limitation would be required by the Sixth Amendment in those limited circumstances is not a reason to adopt such a constrained view of an Act of Congress.[Footnote 10] In adopting its constrictive reading of “court,” the majority has manufactured a broader constitutional problem than is necessary, and has thereby made necessary the extraordinary remedy it has chosen. I pause, however, to stress that it is not this Court’s holding that the Guidelines must be applied consistently with the Sixth Amendment that has made the majority’s remedy necessary. Rather, it is the Court’s miserly reading of the statutory language that results in “constitutional infirmities.” See ante, at 11 (opinion of Breyer, J.) Second, the Court argues that simply applying Blakely to the Guidelines would make “real conduct” sentencing more difficult. While that is perhaps true in some cases, judges could always consider relevant conduct obtained from a presentence report pursuant to 18 U. S. C. A. §3661 (main ed.) and USSG §6A1.1 in selecting a sentence within a Guidelines range, and of course would be free to consider any such circumstances in cases in which the defendant pleads guilty and waives his Blakely rights. Further, in many cases the Government could simply prove additional facts to a jury beyond a reasonable doubt—as it has been doing in some cases since Apprendi—or, the court could use bifurcated proceedings in which the relevant conduct is proved to a jury after it has convicted the defendant of the underlying crime. The majority is correct, however, that my preferred holding would undoubtedly affect “real conduct” sentencing in certain cases. This is so because the goal of such sentencing—increasing a defendant’s sentence on the basis of conduct not proved at trial—is contrary to the very core of Apprendi. That certain applications of “relevant conduct” sentencing are unconstitutional should not come as a complete surprise to Congress: The House Report recognized that “real offense” sentencing could pose constitutional difficulties. H. R. Rep. No. 98–1017, p. 98 (1984). In reality, the majority’s concerns about relevant conduct are nothing more than an objection to Apprendi itself, an objection that this Court rejected in Parts I–III, ante (opinion of Stevens, J.). Further, the Court does not explain how its proposed remedy will ensure that judges take real conduct into account. While judges certainly may do so in their discretion under §3553(a), there is no indication as to how much or to what extent “relevant conduct” should matter under the majority’s regime. Nor is there any meaningful standard by which appellate courts may review a sentencing judge’s “relevant conduct” determination—only a general “reasonableness” inquiry that may discourage sentencing judges from considering such conduct altogether. The Court’s holding thus may do just as much damage to real conduct sentencing as would simply requiring the Government to follow the Guidelines consistent with the Sixth Amendment. Third, the majority argues that my remedy would make sentencing proceedings far too complex. But of the very small number of cases in which a Guidelines sentence would implicate the Sixth Amendment, see supra, at 5–7, most involve drug quantity determinations, firearm enhancements, and other factual findings that can readily be made by juries. I am not blind to the fact that some cases, such as fraud prosecutions, would pose new problems for prosecutors and trial judges. See ante, at 7–10 (opinion of Breyer, J.). In such cases, I am confident that federal trial judges, assisted by capable prosecutors and defense attorneys, could have devised appropriate procedures to impose the sentences the Guidelines envision in a manner that is consistent with the Sixth Amendment. We have always trusted juries to sort through complex facts in various areas of law. This may not be the most efficient system imaginable, but the Constitution does not permit efficiency to be our primary concern. See Blakely v. Washington, 542 U. S., at ___ (slip op., at 17–18). Fourth, the majority assails my reliance on plea bargaining. The Court claims that I cannot discount the effect that applying Blakely to the Guidelines would have on plea-bargained cases, since the specter of Blakely will affect those cases. However, the majority’s decision suffers from the same problem to a much greater degree. Prior to the Court’s decision to strike the mandatory feature of the Guidelines, prosecutors and defendants alike could bargain from a position of reasonable confidence with respect to the sentencing range into which a defendant would likely fall. The majority, however, has eliminated the certainty of expectations in the plea process. And, unlike my proposed remedy, which would potentially affect only a fraction of plea bargains, the uncertainty resulting from the Court’s regime change will infect the entire universe of guilty pleas which occur in 97% of all federal prosecutions. The majority also argues that applying Blakely to the Guidelines would allow prosecutors to exercise “a power the Sentencing Act vested in judges,” see ante, at 14 (opinion of Breyer, J.), by giving prosecutors the choice whether to “charge” a particular fact. Under the remedy I favor, however, judges would still be able to reject factually false plea agreements under USSG §6B1.2(a), and could still consider relevant information about the offense and the offender in every single case. Judges could consider such characteristics as an aid in selecting the appropriate sentence within the Guidelines range authorized by the jury verdict, determining the defendant’s criminal history level, reducing a defendant’s sentence, or justifying discretionary departures from the applicable Guidelines range. The Court is therefore incorrect when it suggests that requiring a supporting jury verdict for certain enhancements in certain cases would place certain sentencing factors “beyond the reach of the judge entirely.” See ante, at 14 (opinion of Breyer, J.). Moreover, the premise on which the Court’s argument is based—that the Guidelines as currently written prevent fact bargaining and therefore diminish prosecutorial power—is probably not correct. As one commentator has noted, “prosecutors exercise nearly as much control when guidelines tie sentences to so-called ‘real-offense’ factors… . One might reasonably assume those factors are outside of prosecutors’ control, but experience with the Federal Sentencing Guidelines suggests otherwise; when necessary, the litigants simply bargain about what facts will (and won’t) form the basis for sentencing. It seems to be an iron rule: guidelines sentencing empowers prosecutors, even where the guidelines’ authors try to fight that tendency.” Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548, 2559–2560 (2004) (footnote omitted). Not only is fact bargaining quite common under the current system, it is also clear that prosecutors have substantial bargaining power.[Footnote 11] And surely, contrary to the Court’s response to this dissent, ante, at 13–14 (opinion of Breyer, J.), a prosecutor who need only prove an enhancing fact by a preponderance of the evidence has more bargaining power than if required to prove the same fact beyond a reasonable doubt. Finally, the majority argues that my solution would require a different burden of proof for enhancements above the maximum authorized by the jury verdict and for reductions. This is true because the requirement that guilt be established by proof beyond a reasonable doubt is a constitutional mandate. However, given the relatively few reductions available in the Guidelines and the availability of judicial discretion within the applicable range, this is unlikely to have more than a minimal effect. In sum, I find unpersuasive the Court’s objections to allowing Congress to decide in the first instance whether the Guidelines should be converted from a mandatory into a discretionary system. Far more important than those objections is the overwhelming evidence that Congress has already considered, and unequivocally rejected, the regime that the Court endorses today. III Even under the Court’s innovative approach to severability analysis when confronted with unconstitutional applications of a statute, its opinion is unpersuasive. It assumes that this Court’s only inquiry is to “decide whether we would deviate less radically from Congress’ intended system (1) by superimposing the constitutional requirement announced today or (2) through elimination of some provisions of the statute.” Ante, at 3 (opinion of Breyer, J.). I will assume, consistently with the majority, that in this exercise we should never use our “remedial powers to circumvent the intent of the legislature,” Califano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part), and that we must not create “a program quite different from the one the legislature actually adopted,” Sloan v. Lemon, 413 U. S. 825, 834 (1973). In the context of this framework, in order to justify “excising” 18 U. S. C. A. §§3553(b)(1) (Supp. 2004) and 3742(e) (main ed. and Supp. 2004), the Court has the burden of showing that Congress would have preferred the remaining system of discretionary Sentencing Guidelines to not just the remedy I would favor, but also to any available alternative, including the alternative of total invalidation, which would give Congress a clean slate on which to write an entirely new law. The Court cannot meet this burden because Congress has already considered and overwhelmingly rejected the system it enacts today. In doing so, Congress revealed both an unmistakable preference for the certainty of a binding regime and a deep suspicion of judges’ ability to reduce disparities in federal sentencing. A brief examination of the SRA’s history reveals the gross impropriety of the remedy the Court has selected. History of Sentence Reform Efforts: In the mid-1970’s, Congress began to study the numerous problems attendant to indeterminate sentencing in the federal criminal justice system. After nearly a decade of review, Congress in 1984 decided that the system needed a comprehensive overhaul. The elimination of sentencing disparity, which Congress determined was chiefly the result of a discretionary sentencing regime, was unquestionably Congress’ principal aim. See Feinberg, Federal Criminal Sentencing Reform: Congress and the United States Sentencing Commission, 28 Wake Forest L. Rev. 291, 295–296 (1993) (“The first and foremost goal of the sentencing reform effort was to alleviate the perceived problem of federal criminal sentencing disparity… . Quite frankly, all other considerations were secondary”); see also Breyer, Federal Sentencing Guidelines Revisited, 2 Fed. Sentencing Rptr. 180 (1999) (“In seeking ‘greater fairness,’ Congress, acting in bipartisan fashion, intended to respond to complaints of unreasonable disparity in sentencing—that is, complaints that differences among sentences reflected not simply different offense conduct or different offender history, but the fact that different judges imposed the sentences” (emphases added)). As Senator Hatch, a central participant in the reform effort, has explained: “The discretion that Congress had conferred for so long upon the judiciary and the parole authorities was at the heart of sentencing disparity.” The Role of Congress in Sentencing: The United States Sentencing Commission, Mandatory Minimum Sentences, and the Search for a Certain and Effective Sentencing System, 28 Wake Forest L. Rev. 185, 187 (1993) (hereinafter Hatch) (emphasis added). Consequently, Congress explicitly rejected as a model for reform the various proposals for advisory guidelines that had been introduced in past Congresses. One example of such legislation was the bill introduced in 1977 by Senators Kennedy and McClellan, S. 1437, 95th Cong., 1st Sess. (as reported by the Senate Judiciary Committee on Nov. 15, 1977) (hereinafter S. 1437), which allowed judges to impose sentences based on the characteristics of the individual defendant and granted judges substantial discretion to depart from recommended guidelines sentences. See Stith & Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223, 238 (1993) (hereinafter Stith & Koh). That bill never became law and was refined several times between 1977 and 1984: Each of those refinements made the regime more, not less, restrictive on trial judges’ discretion in sentencing.[Footnote 12] Passage of the Sentencing Reform Act of 1984: Congress’ preference for binding guidelines was evident in the debate over passage of the SRA itself, which was predicated entirely on the move from a discretionary guidelines system to the mandatory system the Court strikes down today. The SRA was the product of competing versions of sentencing reform legislation: the House bill, H. R. 6012, 98th Cong., 2d Sess., authorized the creation of discretionary guidelines whereas the Senate bill, S. 668, 98th Cong., 2d Sess., provided for binding guidelines and de novo appellate review. The House was splintered regarding whether to make the Guidelines binding on judges, but the vote in the Senate was an overwhelming 85 to 3 in favor of binding Guidelines. 130 Cong. Rec. 1649 (1984); see generally Stith & Koh 261–266. Eventually, the House substituted the Senate version for H. R. 6012, and the current system of mandatory Guidelines became law. 130 Cong. Rec. 29730 (1984). The text of the law that actually passed Congress (including §§3553(b)(1) and 3742(e)) should be more than sufficient to demonstrate Congress’ unmistakable commitment to a binding Guidelines system. That text requires the sentencing judge to impose the sentence dictated by the Guidelines (“the court shall impose a sentence of the kind, and within the range” provided in the Guidelines unless there is a circumstance “not adequately taken into consideration by the” Guidelines), and §3742(e) gives §3553(b)(1) teeth by instructing judges that any sentence outside of the Guidelines range without adequate explanation will be overturned on appeal.[Footnote 13] Congress’ chosen regime was carefully designed to produce uniform compliance with the Guidelines. Congress surely would not have taken the pains to create such a regime had it found the Court’s system of discretionary guidelines acceptable in any way. The accompanying Senate Report and floor debate make plain what should be obvious from the structure of the statute: Congress refused to accept the discretionary system that the Court implausibly deems most consistent with congressional intent.[Footnote 14] In other words, given the choice between the statute created by the Court today or a clean slate on which to write a wholly different law, Congress undoubtedly would have selected the latter. Congress’ Method of Reducing Disparities: The notion that Congress had any confidence that judges would reduce sentencing disparities by considering relevant conduct—an idea that is championed by the Court, ante, at 10–11 (opinion of Breyer, J.)—either ignores or misreads the political environment in which the SRA passed. It is true that the SRA instructs sentencing judges to consider real offense and offender characteristics, 28 U. S. C. A. §994 (main ed. and Supp. 2004), but Congress only wanted judges to consider those characteristics within the limits of a mandatory system.[Footnote 15] The Senate Report on which the Court relies, see ante, at 6, clearly concluded that the existence of sentencing disparities “can be traced directly to the unfettered discretion the law confers on those judges … responsible for imposing and implementing the sentence.” S. Rep. No. 98–225, p. 38 (1983). Even in a system in which judges could not impose sentences based on “relevant conduct” determinations (absent a plea agreement or supporting jury findings), sentences would still be every bit as certain and uniform as in the status quo—at most, the process for imposing those sentences would be more complex. The same can hardly be said of the Court’s chosen system, in which all federal sentencing judges, in all cases, regain the unconstrained discretion Congress eliminated in 1984. The Court’s conclusion that Congress envisioned a sentencing judge as the centerpiece of its effort to reduce disparities is remarkable given the context of the broader legislative debate about what entity would be responsible for drafting the Guidelines under the SRA. The House version of the bill preferred the Guidelines to be written by the Judicial Conference of the United States—the House Report accompanying that bill argued that judges had vast experience in sentencing and would best be able to craft a system capable of providing sentences based on real conduct without excessive disparity. See H. R. Rep. No. 98–1017, at 93–94. Those in the Senate majority, however, favored an independent commission. They did so, whether rightly or wrongly, based on a belief that federal judges could not be trusted to impose fair and uniform sentences. See, e.g., 130 Cong. Rec. 976 (1984) (remarks of Sen. Laxalt) (“The present problem with disparity in sentencing … stems precisely from the failure of [f]ederal judges—individually and collectively—to sentence similarly situated defendants in a consistent, reasonable manner. There is little reason to believe that judges will now begin to do what they have failed to do in the past”). And, at the end of the debate, the few remaining Members in the minority recognized that the battle to empower judges with more discretion had been lost. See, e.g., id., at 973 (remarks of Sen. Mathias) (arguing that “[t]he proponents of the bill … argue in essence that judges cannot be trusted. You cannot trust a judge … you must not trust a judge”). I find it impossible to believe that a Congress in which these sentiments prevailed would have ever approved of the discretionary sentencing regime the Court enacts today. Congressional Activity Since 1984: Congress has not wavered in its commitment to a binding system of Sentencing Guidelines. In fact, Congress has rejected each and every attempt to loosen the rigidity of the Guidelines or vest judges with more sentencing options. See Hatch 189 (“In ensuing years, Congress would maintain its adherence to the concept of binding guidelines by consistently rejecting efforts to make the guidelines more discretionary”). Most recently, Congress’ passage of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. 108–21, 117 Stat. 650, reinforced the mandatory nature of the Guidelines by expanding de novo review of sentences to include all departures from the Guidelines and by directing the Commission to limit the number of available departures. The majority admits that its holding has made the PROTECT Act irrelevant. See ante, at 18 (opinion of Breyer, J.) (admitting that after the Court’s remedy, the PROTECT Act’s provisions “have ceased to be relevant”). Even a cursory reading of the legislative history of the PROTECT Act reveals the absurdity of the claim that Congress would find acceptable, under any circumstances, the Court’s restoration of judicial discretion through the facial invalidation of §§3553(b)(1) and 3742(e).[Footnote 16] In sum, despite Congress’ unequivocal demand that the Guidelines operate as a binding system, and in the name of avoiding any reduction in the power of the sentencing judge vis-ŕ-vis the jury (a subject to which Congress did not speak), the majority has erased the heart of the SRA and ignored in their entirety all of the Legislative Branch’s post-enactment expressions of how the Guidelines are supposed to operate. The majority’s answer to this overwhelming history is that retaining a mandatory Guidelines system “is not a choice that remains open” given our holding that Blakely applies to the Guidelines. Ante, at 22. This argument—essentially, that the Apprendi rule makes determinate sentencing unconstitutional—has been advanced repeatedly since Apprendi. See, e.g., 530 U. S., at 549–554 (O’Connor, J., dissenting); Blakely, 542 U. S., at ___ (slip op., at 1) (O’Connor, J., dissenting); id., at ___ (slip op., at 18–19) (Breyer, J., dissenting). These prophecies were self fulfilling. It is not Apprendi that has brought an end to determinate sentencing. This Court clearly had the power to adopt a remedy that both complied with the Sixth Amendment and also preserved a determinate sentencing regime in which judges make regular factual determinations regarding a defendant’s sentence. It has chosen instead to exaggerate the constitutional problem and to expand the scope of judicial invalidation far beyond that which is even arguably necessary. Our holding that Blakely applies to the Sentencing Guidelines did not dictate the Court’s unprecedented remedy. IV As a matter of policy, the differences between the regime enacted by Congress and the system the Court has chosen are stark. Were there any doubts about whether Congress would have preferred the majority’s solution, these are sufficient to dispel them. First, Congress’ stated goal of uniformity is eliminated by the majority’s remedy. True, judges must still consider the sentencing range contained in the Guidelines, but that range is now nothing more than a suggestion that may or may not be persuasive to a judge when weighed against the numerous other considerations listed in 18 U. S. C. A. §3553(a). The result is certain to be a return to the same type of sentencing disparities Congress sought to eliminate in 1984. Prior to the PROTECT Act, rates of departure from the applicable Guidelines sentence (via upward or downward departure) varied considerably depending upon the Circuit in which one was sentenced. See Sourcebook 53–55 (Table 26) (showing that 76.6% of sentences in the Fourth Circuit were within the applicable Guidelines range, whereas only 48.8% of sentences in the Ninth Circuit fell within the range). Those disparities will undoubtedly increase in a discretionary system in which the Guidelines are but one factor a judge must consider in sentencing a defendant within a broad statutory range. Moreover, the Court has neglected to provide a critical procedural protection that existed prior to the enactment of a binding Guidelines system. Before the SRA, the sentencing judge had the discretion to impose a sentence that designated a minimum term “at the expiration of which the prisoner shall become eligible for parole.” 18 U. S. C. §4205(b) (1982 ed.) (repealed by Pub. L. 98–473, §218(a)(5), 98 Stat. 2027). Sentencing judges had the discretion to reduce a minimum term of imprisonment upon the recommendation of the Bureau of Prisons. §4205(g) (1982 ed.). Through these provisions and others, see generally §§4201–4215, all of which were effectively repealed in 1984, it was the Parole Commission—not the sentencing judge—that was ultimately responsible for determining the length of each defendant’s real sentence. See, e.g., S. Rep. No. 98–225, at 38. Prior to the Guidelines regime, the Parole Commission was designed to reduce sentencing disparities and to provide a check for defendants who had received excessive sentences. Today, the Court reenacts the discretionary Guidelines system that once existed without providing this crucial safety net. Other concerns are likely to arise. Congress’ demand in the PROTECT Act that departures from the Guidelines be closely regulated and monitored is eviscerated—for there can be no “departure” from a mere suggestion. How will a judge go about determining how much deference to give to the applicable Guidelines range? How will a court of appeals review for reasonableness a district court’s decision that the need for “just punishment” and “adequate deterrence to criminal conduct” simply outweighs the considerations contemplated by the Sentencing Commission? See 18 U. S. C. A. §§3553(a)(2)(A)–(B) (main ed.). What if a sentencing judge determines that a defendant’s need for “educational or vocational training, medical care, or other correctional treatment in the most effective manner,” §3553(a)(2)(D), requires disregarding the stiff Guidelines range Congress presumably preferred? These questions will arise in every case in the federal system under the Court’s system. Regrettably, these are exactly the sort of questions Congress hoped that sentencing judges would not ask after the SRA. The consequences of such a drastic change—unaided by the usual processes of legislative deliberation—are likely to be sweeping. For example, the majority’s unnecessarily broad remedy sends every federal sentence back to the drawing board, or at least into the novel review for “reasonableness,” regardless of whether those individuals’ constitutional rights were violated. It is highly unlikely that the mere application of “prudential doctrines” will mitigate the consequences of such a gratuitous change. The majority’s remedy was not the inevitable result of the Court’s holding that Blakely applies to the Guidelines. Neither Apprendi, nor Blakely, nor these cases made determinate sentencing unconstitutional.[Footnote 17] Merely requiring all applications of the Guidelines to comply with the Sixth Amendment would have allowed judges to distinguish harmless error from error requiring correction, would have required no more complicated procedures than the procedural regime the majority enacts today, and, ultimately, would have left most sentences intact. Unlike a rule that would merely require judges and prosecutors to comply with the Sixth Amendment, the Court’s systematic overhaul turns the entire system on its head in every case, and, in so doing, runs contrary to the central purpose that motivated Congress to act in the first instance. Moreover, by repealing the right to a determinate sentence that Congress established in the SRA, the Court has effectively eliminated the very constitutional right Apprendi sought to vindicate. No judicial remedy is proper if it is “not commensurate with the constitutional violation to be repaired.” Hills v. Gautreaux, 425 U. S. 284, 294 (1976). The Court’s system fails that test, frustrates Congress’ principal goal in enacting the SRA, and violates the tradition of judicial restraint that has heretofore limited our power to overturn validly enacted statutes. I respectfully dissent.
THOMAS, J., DISSENTING IN PART
UNITED STATES V. BOOKER
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 04-104 AND 04-105
UNITED STATES, PETITIONER 04–104 v. FREDDIE J. BOOKER on writ of certiorari to the united states court of appeals for the seventh circuit UNITED STATES, PETITIONER 04–105 v. DUCAN FANFAN on writ of certiorari before judgment to the united states court of appeals for the first circuit [January 12, 2005] Justice Thomas, dissenting in part. I join Justice Stevens’ opinion for the Court, but I dissent from Justice Breyer’s opinion for the Court. While I agree with Justice Stevens’ proposed remedy and much of his analysis, I disagree with his restatement of severability principles and reliance on legislative history, and thus write separately. The Constitution prohibits allowing a judge alone to make a finding that raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant. Application of the Federal Sentencing Guidelines resulted in impermissible factfinding in Booker’s case, but not in Fanfan’s. Thus Booker’s sentence is unconstitutional, but Fanfan’s is not. Rather than applying the usual presumption in favor of severability, and leaving the Guidelines standing insofar as they may be applied without any constitutional problem, the remedial majority converts the Guidelines from a mandatory system to a discretionary one. The majority’s solution fails to tailor the remedy to the wrong, as this Court’s precedents require. I When a litigant claims that a statute is unconstitutional as applied to him, and the statute is in fact unconstitutional as applied, we normally invalidate the statute only as applied to the litigant in question. We do not strike down the statute on its face. In the typical case, “we neither want nor need to provide relief to nonparties when a narrower remedy will fully protect the litigants.” United States v. Treasury Employees, 513 U. S. 454, 478 (1995); see also Renne v. Geary, 501 U. S. 312, 323–324 (1991); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 484–485 (1989); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 501–504 (1985). Absent an exception such as First Amendment overbreadth, we will facially invalidate a statute only if the plaintiff establishes that the statute is invalid in all of its applications. United States v. Salerno, 481 U. S. 739, 745 (1987). Booker’s case presents an as-applied challenge. Booker challenges Guidelines enhancements that, based on factfinding by a judge alone, raised his sentence above the range legally mandated for his base offense level, determined by reference to the jury verdict. In effect, he contends that the Guidelines supporting the enhancements, and the Sentencing Reform Act of 1984 (SRA) that makes the Guidelines enhancements mandatory, were unconstitutionally applied to him. (Fanfan makes no similar contention, as he seeks to uphold the District Court’s application of the Guidelines.) A provision of the SRA, 18 U. S. C. A. §3553(b)(1) (Supp. 2004), commands that the court “shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4),” which in turn refers to the Guidelines. (Emphasis added.) The Court reasons that invalidating §3553(b)(1) would render the Guidelines nonbinding and therefore constitutional. Hence, it concludes, §3553(b)(1) must fall on its face.[Footnote 1] The majority’s excision of §3553(b)(1) is at once too narrow and too broad. It is too narrow in that it focuses only on §3553(b)(1), when Booker’s unconstitutional sentence enhancements stemmed not from §3553(b)(1) alone, but from the combination of §3553(b)(1) and individual Guidelines. Specifically, in Booker’s case, the District Court increased the base offense level[Footnote 2] under these Guidelines[Footnote 3]: USSG §1B1.3(a)(2), which instructs that the base offense level shall (for certain offenses) take into account all acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction”; §2D1.1(c)(2), which sets the offense level for 500g to 1.5kg of cocaine base at 36; and §3C1.1, which provides for a two-level increase in the offense level for obstruction of justice. The court also implicitly applied §1B1.1, which provides general instructions for applying the Guidelines, including determining the base offense level and applying appropriate adjustments; §1B1.11(b)(2), which requires that “[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety”; §6A1.3(b) p. s.,[Footnote 4] which provides that “[t]he court shall resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(c)(1), Fed. R. Crim. P.”; and Rule 32(c)(1),[Footnote 5] which in turn provided: “At the sentencing hearing, the court … must rule on any unresolved objections to the presentence report… . For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.” Section 3553(b)(1), the listed Guidelines and policy statement, and Rule 32(c)(1) are unconstitutional as applied to Booker. Under their authority, the judge, rather than the jury, found the facts necessary to increase Booker’s offense level pursuant to the listed provisions; the judge found those facts by a preponderance of the evidence, rather than beyond a reasonable doubt; and, on the basis of these findings, the judge imposed a sentence above the maximum legally permitted by the jury’s findings. Thus, in Booker’s case, the concerted action of §3553(b)(1) and the operative Guidelines and the relevant Rule of Criminal Procedure resulted in unconstitutional judicial factfinding. The majority cannot pinpoint §3553(b)(1) alone as the source of the violation. At the same time, the majority’s remedy is far too broad. We have before us only a single unconstitutional application of §3553(b)(1) (and accompanying parts of the sentencing scheme). In such a case, facial invalidation is unprecedented. It is particularly inappropriate here, where it is evident that §3553(b)(1) is entirely constitutional in numerous other applications. Fanfan’s case is an example: The judge applied the Guidelines to the extent supported by the jury’s findings. This application of §3553(b)(1) was constitutional. To take another example, when the Government seeks a sentence within the Guidelines range supported by the jury’s verdict, applying §3553(b)(1) to restrict the judge’s discretion to that Guidelines range is constitutional. Section 3553(b)(1) is also constitutional when the Government seeks a sentence above the Guidelines range supported by the jury’s verdict, but proves the facts supporting the enhancements to a jury beyond a reasonable doubt. Section 3553(b)(1) provides that “the court shall impose a sentence of the kind, and within the range,” set by the Guidelines. (Emphasis added.) It says nothing, however, about the procedures the court must employ to determine the sentence it ultimately “impose[s].” It says nothing about whether, before imposing a sentence, the court may submit sentence-enhancing facts to the jury; and it says nothing about the standard of proof. Because it does not address at all the procedures for Guidelines sentencing proceedings, §3553(b)(1) comfortably accommodates cases in which a court determines a defendant’s Guidelines range by way of jury factfinding or admissions rather than judicial factfinding. The Constitution does not prohibit what §3553(b)(1) accomplishes—binding district courts to the Guidelines. It prohibits allowing a judge alone to make a finding that raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant. Many applications of §3553(b)(1) suffer from no such vice. Yet the majority, by facially invalidating the statute, also invalidates these unobjectionable applications of the statute and thereby ignores the longstanding distinction between as-applied and facial challenges. Just as there is no reason to strike §3553(b)(1) on its face, there is likewise no basis for striking any Guideline at issue here on its face. Respondents have not established that USSG §1B1.3(a)(2), §2D1.1(c)(2), §3C1.1, or §1B1.11(b)(2) is invalid in all its applications, as Salerno requires. To the contrary, numerous applications of these provisions are valid. Such applications include cases in which the defendant admits the relevant facts or the jury finds the relevant facts beyond a reasonable doubt. Like §3553(b)(1), USSG §§1B1.3(a)(2), 2D1.1(c)(2), 3C1.1, and 1B1.11(b)(2) say nothing about who must find the facts supporting enhancements, or what standard of proof the prosecution must satisfy. They simply attach effects to certain facts; they do not prescribe procedures for determining those facts. Even §1B1.1, which provides instructions for applying the Guidelines, directs an order in which the various provisions are to be applied (“[d]etermine the base offense level,” §1B1.1(b), then “[a]pply the adjustments,” §1B1.1(c)), but says nothing about the specific procedures a sentencing court may employ in determining the base offense level and applying adjustments. Moreover, there is no basis for facially invalidating §6A1.3 or Rule 32(c)(1). To be sure, §6A1.3(b) and Rule 32(c)(1) prescribe procedure: They require the judge, acting alone, to resolve factual disputes. When Booker was sentenced, §6A1.3(b) provided that “[t]he court shall resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(c)(1), Fed. R. Crim. P.” At the time, the relevant portions of Rule 32(c)(1) provided: “At the sentencing hearing, the court … must rule on any unresolved objections to the presentence report… . For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.” (Emphasis added.) The natural meaning of “the court … must rule” is that the judge, without the jury, must resolve factual disputes as necessary. This Rule of Criminal Procedure, as applied at Booker’s sentencing hearing, required the judge to make findings that increased Booker’s offense level beyond the Guidelines range authorized by the jury. The application of the Rule to Booker therefore was unconstitutional. Nonetheless, the Rule has other valid applications. For example, the Rule is valid when it requires the sentencing judge, without a jury, to resolve a factual dispute in order to decide where within the jury-authorized Guidelines range a defendant should be sentenced. The Rule is equally valid when it requires the judge to resolve a factual dispute in order to support a downward adjustment to the defendant’s offense level.[Footnote 6] Given the significant number of valid applications of all portions of the current sentencing scheme, we should not facially invalidate any particular section of the Federal Rules of Criminal Procedure, the Guidelines, or the SRA. Instead, we should invalidate only the application to Booker, at his previous sentencing hearing, of §3553(b)(1); USSG §§1B1.3(a)(2), 2D1.1(c)(2), 3C1.1, 1B1.1, 1B1.11(b)(2), and 6A1.3(b); and Rule 32(c)(1). II Invalidating §3553(b)(1), the Guidelines listed above, and Rule 32(c)(1) as applied to Booker by the District Court leaves the question whether the scheme’s unconstitutional application to Booker can be severed from the scheme’s many other constitutional applications to defendants like Fanfan. Severability doctrine is grounded in a presumption that Congress intends statutes to have effect to the full extent the Constitution allows.[Footnote 7] Regan v. Time, Inc., 468 U. S. 641, 652 (1984); Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1959–1963 (1997) (hereinafter Vermeule). The severability issue may arise when a court strikes either a provision of a statute or an application of a provision. Severability of provisions is perhaps more visible than severability of applications in our case law. See, e.g., Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684–697 (1987) (severing unconstitutional legislative veto provision from other provisions).[Footnote 8] However, severability questions arise from unconstitutional applications of statutes as well. Congress often expressly provides for severance of unconstitutional applications.[Footnote 9] This Court has acknowledged the severability of applications in striking down some applications of a statute while leaving others standing. In Brockett, 472 U. S., at 504–507, the Court invalidated a state moral nuisance statute only insofar as it reached constitutionally protected materials, relying on the statute’s severability clause. And in Tennessee v. Garner, 471 U. S. 1, 4 (1985), the Court considered a state statute that authorized police to use “ ‘all the necessary means to effect [an] arrest.’ ” The Court held the statute unconstitutional insofar as it allowed the use of deadly force against an unarmed, nondangerous suspect; but it declined to invalidate the statute on its face, specifically noting that the statute could be applied constitutionally in other circumstances. Id., at 11–12. In Brockett and Garner, then, the Court recognized that the unconstitutional applications of the statutes were severable from the constitutional applications. The Court fashioned the remedy narrowly, in keeping with the usual presumption of severability. I thus disagree with Justice Stevens that severability analysis does not apply. Ante, at 11, and n. 6 (opinion dissenting in part).[Footnote 10] I acknowledge that, as a general matter, the Court often disposes of as-applied challenges to a statute by simply invalidating particular applications of the statute, without saying anything at all about severability. See United States v. Grace, 461 U. S. 171, 183 (1983) (concluding that statute that prohibited carrying banners in the United States Supreme Court Building and on its grounds was unconstitutional as applied to the sidewalks surrounding the building); Edenfield v. Fane, 507 U. S. 761, 763 (1993) (striking down a solicitation ban on certified public accountants as applied “in the business context”); Treasury Employees, 513 U. S., at 501–503 (Rehnquist, C. J., joined by Scalia and Thomas, JJ., dissenting) (expressing view that injunction against honoraria ban should be tailored to unconstitutional applications). Such decisions (in which the Court is silent as to applications not before it) might be viewed as having conducted an implicit severability analysis. See id., at 485–489 (O’Connor, J., concurring in judgment in part and dissenting in part). A better view is that the parties in those cases could have raised the issue of severability, but did not bother, because (as is often the case) there was no arguable reason to defeat the presumption of severability. The unconstitutional applications of the statute were fully independent of and severable from the remaining constitutional applications. Here, the question is squarely presented: the parties press it, and there is extraordinary reason to clarify the remedy, namely, that our decision potentially affects every sentencing by the federal courts. I therefore proceed to the severability question—whether the unconstitutional application of §3553(b)(1); USSG §§1B1.3, 2D1.1(c)(2), 3C1.1, 1B1.1, 1B1.11(b)(2), and 6A1.3; and Rule 32(c)(1) to Booker is severable from the constitutional applications of these provisions. That is, even though we have invalidated the application of these provisions to Booker, may other defendants be sentenced pursuant to them? We presume that the unconstitutional application is severable. See, e.g., Regan, 468 U. S., at 653. This presumption is a manifestation of Salerno’s general rule that we should not strike a statute on its face unless it is invalid in all its applications. Unless the Legislature clearly would not have enacted the constitutional applications independently of the unconstitutional application, the Court leaves the constitutional applications standing. 468 U. S., at 653. Here, the presumption of severability has not been overcome. In light of the significant number of constitutional applications of the scheme, it is far from clear that Congress would not have passed the SRA or allowed Rule 32 to take effect, or that the Commission would not have promulgated the particular Guidelines at issue, had either body known that the application of the scheme to Booker was unconstitutional. Ante, at 5–10 (Stevens, J., dissenting in part). As noted above, many applications of the Guidelines are constitutional: The defendant may admit the necessary facts; the Government may not seek enhancements beyond the offense level supported by the jury’s verdict; the judge may find facts supporting an enhancement but (taking advantage of the overlap in Guidelines ranges) sentence the defendant within the jury-authorized range; or the jury may find the necessary facts. Certainly it is not obvious that Congress would have preferred the entirely discretionary system that the majority fashions. The text and structure of the SRA show that Congress meant the Guidelines to bind judges. One of the purposes of the Commission, as set forth in the SRA, was to “provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.” 28 U. S. C. §991(b)(1)(B) (emphases added). Accordingly, Congress made the Guidelines mandatory and closely circumscribed courts’ authority to depart from the Guidelines range. 18 U. S. C. A. §3553(b)(1) (Supp. 2004). Congress also limited appellate review of sentences imposed pursuant to the Guidelines to instances in which the sentence was (1) in violation of law, (2) a result of an incorrect application of the Guidelines, (3) outside the applicable Guidelines range, or (4) in the absence of an applicable Guideline, plainly unreasonable. §3742(e) (main ed. and Supp. 2004). Striking down §3553(b)(1) and the Guidelines only as applied to Booker (and other defendants who have received unconstitutional enhancements) would leave in place the essential framework of the mandatory system Congress created. Applying the Guidelines in a constitutional fashion affords some uniformity; total discretion, none. To suggest, as Justice Breyer does, that a discretionary system would do otherwise, ante, at 7–11, 21–22 (opinion of the Court), either supposes that the system is discretionary in name only or overlooks the very nature of discretion. Either assumption is implausible. The majority says that retaining the SRA and the Guidelines “engraft[s]” a jury trial requirement onto the sentencing scheme. Ante, at 3 (opinion of Breyer, J.). I am, of course, aware that, though severability analysis may proceed “by striking out or disregarding words [or, here, applications] that are in the [challenged] section,” it may not proceed “by inserting [applications] that are not now there”; that would constitute legislation beyond our judicial power. United States v. Reese, 92 U. S. 214, 221 (1876). By allowing jury factfinding in some cases, however, we are no more “engrafting” a new requirement onto the statute than we do every time we invalidate a statute in some of the applications that the statute, on its face, appears to authorize. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U. S. 491 (1985). I therefore do not find the “engraftment” label helpful as a means of judging the correctness of our severability analysis. Granted, part of the severability inquiry is “whether the statute [as severed] will function in a manner consistent with the intent of Congress.” Alaska Airlines, Inc., 480 U. S., at 685. Applying the Guidelines constitutionally (for instance, when admissions or jury findings support all upward enhancements) might seem at first glance to violate this principle. But so would the Government’s proposal of applying the Guidelines as a whole to some defendants, but not others. The Court’s solution violates it even more clearly by creating a system that eliminates the mandatory nature of the Guidelines. In the end, nothing except the Guidelines as written will function in a manner perfectly consistent with the intent of Congress, and the Guidelines as written are unconstitutional in some applications. While all of the remedial possibilities are thus, in a sense, second-best, the solution Justice Stevens and I would adopt does the least violence to the statutory and regulatory scheme. *** I would hold that §3553(b)(1), the provisions of the Guidelines discussed above, and Rule 32(c)(1) are unconstitutional as applied to Booker, but that the Government has not overcome the presumption of severability. Accordingly, the unconstitutional application of the scheme in Booker’s case is severable from the constitutional applications of the same scheme to other defendants. I respectfully dissent from the Court’s contrary conclusion.
BREYER, J., DISSENTING IN PART
UNITED STATES V. BOOKER
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 04-104 AND 04-105
UNITED STATES, PETITIONER 04–104 v. FREDDIE J. BOOKER on writ of certiorari to the united states court of appeals for the seventh circuit UNITED STATES, PETITIONER 04–105 v. DUCAN FANFAN on writ of certiorari before judgment to the united states court of appeals for the first circuit [January 12, 2005] Justice Breyer, with whom The Chief Justice, Justice O’Connor, and Justice Kennedy join, dissenting in part. The Court today applies its decisions in Apprendi v. New Jersey, 530 U. S. 466 (2000), and Blakely v. Washington, 542 U. S. ___ (2004), to the Federal Sentencing Guidelines. The Court holds that the Sixth Amendment requires a jury, not a judge, to find sentencing facts—facts about the way in which an offender committed the crime—where those facts would move an offender from lower to higher Guidelines ranges. I disagree with the Court’s conclusion. I find nothing in the Sixth Amendment that forbids a sentencing judge to determine (as judges at sentencing have traditionally determined) the manner or way in which the offender carried out the crime of which he was convicted. The Court’s substantive holding rests upon its decisions in Apprendi, supra, and Blakely, supra. In Apprendi, the Court held that the Sixth Amendment requires juries to find beyond a reasonable doubt the existence of “any fact that increases the penalty for a crime” beyond “the prescribed statutory maximum.” 530 U. S., at 490 (emphasis added). In Blakely, the Court defined the latter term as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at ___ (slip op., at 7) (emphasis in original). Today, the Court applies its Blakely definition to the Federal Sentencing Guidelines. I continue to disagree with the constitutional analysis the Court set forth in Apprendi and in Blakely. But even were I to accept that analysis as valid, I would disagree with the way in which the Court applies it here. I The Chief Justice, Justice O’Connor, Justice Kennedy, and I have previously explained at length why we cannot accept the Court’s constitutional analysis. See Blakely, 542 U. S., at ___ (O’Connor, J., dissenting); id., at ___ (Kennedy, J., dissenting); id., at ___ (Breyer, J., dissenting); Harris v. United States, 536 U. S. 545, 549–550 (2002) (Kennedy, J., opinion of the Court); id., at 569–572 (Breyer, J., concurring in part and concurring in judgment); Apprendi, 530 U. S., at 523–554 (O’Connor, J., dissenting); id., at 555–556 (Breyer, J., dissenting); Jones v. United States, 526 U. S. 227, 264–272 (1999) (Kennedy, J., dissenting); Monge v. California, 524 U. S. 721, 728–729 (1998) (O’Connor, J., opinion of the Court); McMillan v. Pennsylvania, 477 U. S. 79, 86–91 (1986) (Rehnquist, C. J., opinion of the Court). For one thing, we have found the Court’s historical argument unpersuasive. See Blakely, supra, at ___ (slip op., at 10) (O’Connor, J., dissenting); Apprendi, supra, at 525–528 (O’Connor, J., dissenting). Indeed, the Court’s opinion today illustrates the historical mistake upon which its conclusions rest. The Court reiterates its view that the right of “ ‘trial by jury has been understood to require’ ” a jury trial for determination of “ ‘the truth of every accusation.’ ” Ante, at 14 (opinion of Stevens, J.) (quoting Apprendi, supra, at 477) (emphasis in original). This claim makes historical sense insofar as an “accusation” encompasses each factual element of the crime of which a defendant is accused. See, e.g., United States v. Gaudin, 515 U. S. 506, 509–510, 522–523 (1995). But the key question here is whether that word also encompasses sentencing facts—facts about the offender (say, recidivism) or about the way in which the offender committed the crime (say, the seriousness of the injury or the amount stolen) that help a sentencing judge determine a convicted offender’s specific sentence. History does not support a “right to jury trial” in respect to sentencing facts. Traditionally, the law has distinguished between facts that are elements of crimes and facts that are relevant only to sentencing. See, e.g., Almendarez-Torres v. United States, 523 U. S. 224, 228 (1998); Witte v. United States, 515 U. S. 389, 399 (1995); United States v. Watts, 519 U. S. 148, 154 (1997) (per curiam); United States v. Dunnigan, 507 U. S. 87, 97 (1993); Mistretta v. United States, 488 U. S. 361, 396 (1989). Traditionally, federal law has looked to judges, not to juries, to resolve disputes about sentencing facts. See, e.g., Fed. Rule Crim. Proc. 32(a). Traditionally, those familiar with the criminal justice system have found separate, postconviction judge-run sentencing procedures sensible given the difficulty of obtaining relevant sentencing information before the moment of conviction. They have found those proceedings practical given the impracticality of the alternatives, say, two-stage (guilt, sentence) jury procedures. See, e.g., Judicial Conference of the United States, Committee on Defender Services, Subcommittee on Federal Death Penalty Cases, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation 9–10 (May 1998). And, despite the absence of jury determinations, they have found those proceedings fair as long as the convicted offender has the opportunity to contest a claimed fact before the judge, and as long as the sentence falls within the maximum of the range that a congressional statute specifically sets forth. The administrative rules at issue here, Federal Sentencing Guidelines, focus on sentencing facts. They circumscribe a federal judge’s sentencing discretion in respect to such facts, but in doing so, they do not change the nature of those facts. The sentencing courts continue to use those facts, not to convict a person of a crime as a statute defines it, but to help determine an appropriate punishment. Thus, the Court cannot ground today’s holding in a “constitutional tradition assimilated from the common law” or in “the Magna Carta.” Ante, at 14 (opinion of Stevens, J.). It cannot look to the Framers for support, for they, too, enacted criminal statutes with indeterminate sentences, revealing their own understanding and acceptance of the judge’s factfinding role at sentencing. See Act of Apr. 30, 1790, ch. 9, 1 Stat. 112–118. Indeed, it is difficult for the Court to find historical support other than in two recent cases, Apprendi and Blakely—cases that we, like lower courts, read not as confirming, but as confounding a pre-Apprendi, pre-Blakely legal tradition that stretches back a century or more. See, e.g., Williams v. New York, 337 U. S. 241, 246 (1949); cf., e.g., 375 F. 3d 508, 514 (CA7 2004) (case below) (“Blakely redefined ‘statutory maximum’ ”); United States v. Ameline, 376 F. 3d 967, 973 (CA9 2004) (“Blakely court worked a sea change in the body of sentencing law”); United States v. Pineiro, 377 F. 3d 464, 468–469 (CA5 2004) (same); see also United States v. Penaranda, 375 F. 3d 238, 243, n. 5 (CA2 2004) (same, collecting cases). For another thing, applied in the federal context of mandatory guidelines, the Court’s Sixth Amendment decision would risk unwieldy trials, a two-tier jury system, a return to judicial sentencing discretion, or the replacement of sentencing ranges with specific mandatory sentences. Cf. Blakely, 542 U. S., at ___ (slip op., at 3–13) (Breyer, J., dissenting). The decision would pose a serious obstacle to congressional efforts to create a sentencing law that would mandate more similar treatment of like offenders, that would thereby diminish sentencing disparity, and that would consequently help to overcome irrational discrimination (including racial discrimination) in sentencing. See id., at ___ (slip op., at 3) (O’Connor, J., dissenting). These consequences would seem perverse when viewed through the lens of a Constitution that seeks a fair criminal process. The upshot is that the Court’s Sixth Amendment decisions—Apprendi, Blakely, and today’s—deprive Congress and state legislatures of authority that is constitutionally theirs. Cf. Blakely, supra, at ___ (Kennedy, J., dissenting); Apprendi, 530 U. S., at 544–545 (O’Connor, J., dissenting); id., at 560–564 (Breyer, J., dissenting). The “sentencing function long has been a peculiarly shared responsibility among the Branches of Government.” Mistretta, supra, at 390. Congress’ share of this joint responsibility has long included not only the power to define crimes (by enacting statutes setting forth their factual elements) but also the power to specify sentences, whether by setting forth a range of individual-crime-related sentences (say, 0 to 10 years’ imprisonment for bank robbery) or by identifying sentencing factors that permit or require a judge to impose higher or lower sentences in particular circumstances. See, e.g., Almendarez-Torres, 523 U. S., at 228; McMillan, 477 U. S., at 85. This last mentioned power is not absolute. As the Court suggested in McMillan, confirmed in Almendarez-Torres, and recognized but rejected in Blakely, one might read the Sixth Amendment as permitting “legislatures” to “establish legally essential [judge-determined] sentencing factors within [say, due process] limits.” Blakely, supra, at ___ (slip op., at 11) (emphasis in original); cf. Almendarez-Torres, supra, at 228 (distinguishing between “elements” and “factors relevant only to … sentencing,” and noting that, “[w]ithin limits, the question of which factors are which is normally a matter for Congress”) (citation omitted); McMillan, supra, at 88 (upholding a Pennsylvania statute in part because it gave “no impression of having been tailored to permit the [sentencing factor] finding to be a tail which wags the dog of the substantive offense”). But the power does give Congress a degree of freedom (within constraints of fairness) to choose to characterize a fact as a “sentencing factor,” relevant only to punishment, or as an element of a crime, relevant to guilt or innocence. The Court has rejected this approach apparently because it finds too difficult the judicial job of managing the “fairness” constraint, i.e., of determining when Congress has overreached. But the Court has nowhere asked, “compared to what?” Had it done so, it could not have found the practical difficulty it has mentioned, Blakely, supra, at ___ (slip op., at 11), sufficient to justify the severe limits that its approach imposes upon Congress’ legislative authority. These considerations—of history, of constitutionally relevant consequences, and of constitutional authority—have been more fully discussed in other opinions. See, e.g., Blakely, supra, at ___ (O’Connor, J., dissenting); id., at ___ (Kennedy, J., dissenting); id., at ___ (Breyer, J., dissenting); Harris, 536 U. S., at 549–550, 569–572; Apprendi, supra, at 523–554, 555–556; McMillan, supra, at 86–91. I need not elaborate them further. II Although the considerations just mentioned did not dissuade the Court from its holdings in Apprendi and Blakely, I should have hoped they would have dissuaded the Court from extending those holdings to the statute and Guidelines at issue here. See Sentencing Reform Act of 1984, as amended, 18 U. S. C. §3551 et seq., 28 U. S. C. §991 et seq.; United States Sentencing Commission, Guidelines Manual (Nov. 2003) (USSG). Legal logic does not require that extension, for there are key differences. First, the Federal Guidelines are not statutes. The rules they set forth are administrative, not statutory, in nature. Members, not of Congress, but of a Judicial Branch Commission, wrote those rules. The rules do not “establis[h] minimum and maximum penalties” for individual crimes, but guide sentencing courts, only to a degree, “fetter[ing] the discretion of sentencing judges to do what they have done for generations—impose sentences within the broad limits established by Congress.” Mistretta, 488 U. S., at 396; see also USSG §5G1.1; cf. Witte, 515 U. S., at 399 (explaining that the Guidelines range “still falls within the scope of the legislatively authorized penalty”). The rules do not create a new set of legislatively determined sentences so much as they reflect, organize, rationalize, and modify an old set of judicially determined pre-Guidelines sentences. See 28 U. S. C. §994(a); USSG §1A1.1, editorial note, §3, pp. 2–4 (describing the Commission’s empirical approach). Thus, the rules do not, in Apprendi’s words, set forth a “prescribed statutory maximum,” 530 U. S., at 490 (emphasis added), as the law has traditionally understood that phrase. I concede that Blakely defined “prescribed statutory maximum” more broadly as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542 U. S., at ___ (slip op., at 7) (emphasis omitted). But the Court need not read this language as extending the scope of Apprendi. Blakely purports to follow, not to extend, Apprendi. 542 U. S., at ___ (slip op., at 5). And Blakely, like Apprendi, involved sentences embodied in a statute, not in administrative rules. More importantly, there is less justification for applying an Apprendi-type constitutional rule where administrative guidelines, not statutes, are at issue. The Court applies its constitutional rule to statutes in part to avoid what Blakely sees as a serious problem, namely, a legislature’s ability to make of a particular fact an “element” of a crime or a sentencing factor, at will. See ante, at 5 (opinion of Stevens, J.). That problem—that legislative temptation—is severely diminished when Commission Guidelines are at issue, for the Commission cannot create “elements” of crimes. It cannot write rules that “bind or regulate the primary conduct of the public.” Mistretta, supra, at 396. Rather, it must write rules that reflect what the law has traditionally understood as sentencing factors. That is to say, the Commission cannot switch between “elements” and “sentencing factors” at will because it cannot write substantive criminal statutes at all. See 28 U. S. C. §994(a); cf. Blakely, supra, at ___ (slip op., at 2–3, 7–8). At the same time, to extend Blakely’s holding to administratively written sentencing rules risks added legal confusion and uncertainty. Read literally, Blakely’s language would include within Apprendi’s strictures a host of nonstatutory sentencing determinations, including appellate court decisions delineating the limits of the legally “reasonable.” (Imagine an appellate opinion that says a sentence for ordinary robbery greater than five years is unreasonably long unless a special factor, such as possession of a gun, is present.) Indeed, read literally, Blakely’s holding would apply to a single judge’s determination of the factors that make a particular sentence disproportionate or proportionate. (Imagine a single judge setting forth, as a binding rule of law, the legal proposition about robbery sentences just mentioned.) Appellate courts’ efforts to define the limits of the “reasonable” of course would fall outside Blakely’s scope. But they would do so, not because they escape Blakely’s literal language, but because they are not legislative efforts to create limits. Neither are the Guidelines legislative efforts. See Mistretta, supra, at 412. Second, the sentencing statutes at issue in Blakely imposed absolute constraints on a judge’s sentencing discretion, while the federal sentencing statutes here at issue do not. As the Blakely Court emphasized, the Washington statutes authorized a higher-than-standard sentence on the basis of a factual finding only if the fact in question was a new fact—i.e., a fact that did not constitute an element of the crime of conviction or an element of any more serious or additional crime. 542 U. S., at ___ (slip op., at 2–3, 7–8). A judge applying those statutes could not even consider, much less impose, an exceptional sentence, unless he found facts “ ‘other than those which are used in computing the standard range sentence for the offense.’ ” Id., at ___ (slip op., at 3) (quoting State v. Gore, 143 Wash. 2d 288, 315–316, 21 P. 3d 262, 277 (2001)). The federal sentencing statutes, however, offer a defendant no such fact-related assurance. As long as “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission,” 18 U. S. C. §3553(b)(1), they permit a judge to depart from a Guidelines sentence based on facts that constitute elements of the crime (say, a bank robbery involving a threat to use a weapon, where the weapon in question is nerve gas). Whether departure-triggering circumstances exist in a particular case is a matter for a court, not for Congress, to decide. Thus, as far as the federal statutes are concerned, the federal system, unlike the state system at issue in Blakely, provides a defendant with no guarantee that the jury’s finding of factual elements will result in a sentence lower than the statutory maximum. Rather, the statutes put a potential federal defendant on notice that a judge conceivably might sentence him anywhere within the range provided by statute—regardless of the applicable Guidelines range. See Witte, 515 U. S., at 399; see also Comment, Sixth Amendment—State Sentencing Guidelines, 118 Harv. L. Rev. 333, 339–340 (2004). Hence as a practical matter, they grant a potential federal defendant less assurance of a lower Guidelines sentence than did the state statutes at issue in Blakely. These differences distinguish these cases from Apprendi and Blakely. They offer a principled basis for refusing to extend Apprendi’s rule to these cases. III For these reasons, I respectfully dissent.
SCALIA, J., DISSENTING IN PART
UNITED STATES V. BOOKER
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NOS. 04-104 AND 04-105
UNITED STATES, PETITIONER 04–104 v. FREDDIE J. BOOKER on writ of certiorari to the united states court of appeals for the seventh circuit UNITED STATES, PETITIONER 04–105 v. DUCAN FANFAN on writ of certiorari before judgment to the united states court of appeals for the first circuit [January 12, 2005] Justice Scalia, dissenting in part. I join the portions of the opinion of the Court that are delivered by Justice Stevens. I also join Justice Stevens’s dissent, with the exception of Part III[Footnote 1] and footnote 17. I write separately mainly to add some comments regarding the change that the remedial majority’s handiwork has wrought (or perhaps—who can tell?—has not wrought) upon appellate review of federal sentencing. The remedial majority takes as the North Star of its analysis the fact that Congress enacted a “judge-based sentencing system.” Ante, at 22 (opinion of Breyer, J.). That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read “Congress reaffirms judge-based sentencing” rather than “Congress prescribes standardized sentences.” Justice Breyer’s opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity.[Footnote 2] Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity—that Congress was so attached to having judges determine “real conduct” on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time. See ante, at 10–11, 22. The majority’s remedial choice is thus wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing. That is the plain effect of the remedial majority’s decision to excise 18 U. S. C. A. §3553(b)(1) (Supp. 2004). See ante, at 16. District judges will no longer be told they “shall impose a sentence … within the range” established by the Guidelines. §3553(b)(1). Instead, under §3553(a), they will need only to “consider” that range as one of many factors, including “the need for the sentence … to provide just punishment for the offense,” §3553(a)(2)(A) (main ed.), “to afford adequate deterrence to criminal conduct,” §3553(a)(2)(B), and “to protect the public from the further crimes of the defendant,” §3553(a)(2)(C). The statute provides no order of priority among all those factors, but since the three just mentioned are the fundamental criteria governing penology, the statute—absent the mandate of §3553(b)(1)—authorizes the judge to apply his own perceptions of just punishment, deterrence, and protection of the public even when these differ from the perceptions of the Commission members who drew up the Guidelines. Since the Guidelines are not binding, in order to comply with the (oddly) surviving requirement that the court set forth “the specific reason for the imposition of a sentence different from that described” in the Guidelines, §3553(c)(2), the sentencing judge need only state that “this court does not believe that the punishment set forth in the Guidelines is appropriate for this sort of offense.”[Footnote 3] That is to say, district courts have discretion to sentence anywhere within the ranges authorized by statute—much as they were generally able to do before the Guidelines came into being. To be sure, factor (6) is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” §3553(a)(2)(6) (main ed.), but this would require a judge to adhere to the Guidelines only if all other judges had to adhere to the Guidelines (which they certainly do not, as the Court holds today) or if all other judges could at least be expected to adhere to the Guidelines (which they certainly cannot, given the notorious unpopularity of the Guidelines with many district judges). Thus, logic compels the conclusion that the sentencing judge, after considering the recited factors (including the Guidelines), has full discretion, as full as what he possessed before the Act was passed, to sentence anywhere within the statutory range. If the majority thought otherwise—if it thought the Guidelines not only had to be “considered” (as the amputated statute requires) but had generally to be followed—its opinion would surely say so.[Footnote 4] As frustrating as this conclusion is to the Act’s purpose of uniform sentencing, it at least establishes a clear and comprehensible regime—essentially the regime that existed before the Act became effective. That clarity is eliminated, however, by the remedial majority’s surgery on 18 U. S. C. A. §3742 (main ed. and Supp. 2004), the provision governing appellate review of sentences. Even the most casual reading of this section discloses that its purpose—its only purpose—is to enable courts of appeals to enforce conformity with the Guidelines. All of the provisions of that section that impose a review obligation beyond what existed under prior law[Footnote 5] are related to the district judge’s obligations under the Guidelines. If the Guidelines are no longer binding, one would think that the provision designed to ensure compliance with them would, in its totality, be inoperative. The Court holds otherwise. Like a black-robed Alexander cutting the Gordian knot, it simply severs the purpose of the review provisions from their text, holding that only subsection (e), which sets forth the determinations that the court of appeals must make, is inoperative, whereas all the rest of §3742 subsists—including, mirabile dictu, subsection (f), entitled “Decision and disposition,” which tracks the determinations required by the severed subsection (e) and specifies what disposition each of those determinations is to produce. This is rather like deleting the ingredients portion of a recipe and telling the cook to proceed with the preparation portion.[Footnote 6] Until today, appellate review of sentencing discretion has been limited to instances prescribed by statute. Before the Guidelines, federal appellate courts had little experience reviewing sentences for anything but legal error. “[W]ell-established doctrine,” this Court said, “bars [appellate] review of the exercise of sentencing discretion.” Dorszynski v. United States, 418 U. S. 424, 443 (1974). “[O]nce it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.” Id., at 431–432 (citing cases). When it established the Guidelines regime, Congress expressly provided for appellate review of sentences in specified circumstances, but the Court has been appropriately chary of aggrandizement, refusing to treat §3742 as a blank check to appellate courts. Thus, in 1992, the Court recognized that Congress’s grant of “limited appellate review of sentencing decisions … did not alter a court of appeals’ traditional deference to a district court’s exercise of its sentencing discretion.” Williams v. United States, 503 U. S. 193, 205 (emphasis added). Notwithstanding §3742, much remained off-limits to the courts of appeals: “The selection of the appropriate sentence from within the guideline range, as well as the decision to depart from the range in certain circumstances, are decisions that are left solely to the sentencing court.” Ibid. (emphasis added). Similarly, in 1996, the Court took pains to note that the §3742 power to engage in “limited appellate review” of Guidelines departures did not “vest in appellate courts wide-ranging authority over district court sentencing decisions.” Koon v. United States, 518 U. S. 81, 97. The Court repeated its caution that “ ‘[t]he development of the guideline sentencing regime’ ” did not allow appellate review “ ‘except to the extent specifically directed by statute.’ ” Ibid. (quoting Williams, supra, at 205). Today’s remedial opinion does not even pretend to honor this principle that sentencing discretion is unreviewable except pursuant to specific statutory direction. The discussion of appellate review begins with the declaration that, “despite the absence of §3553(b)(1), the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range … ),” ante, at 17 (citing §§3742(a) and (b)); and the opinion later announces that the standard of review for all such appeals is “unreasonableness,” ante, at 18, 22. This conflates different and distinct statutory authorizations of appeal and elides crucial differences in the statutory scope of review. Section 3742 specifies four different kinds of appeal,[Footnote 7] setting forth for each the grounds of appeal permitted to the defendant and the Government (§§3742(a) and (b)), the manner in which each ground should be considered (§3742(e)), and the permissible dispositions (§3742(f)). There is no one-size-fits-all “unreasonableness” review. The power to review a sentence for reasonableness arises only when the sentencing court has departed from “the applicable guideline range.” §3742(f)(2); cf. United States v. Soltero-Lopez, 11 F. 3d 18, 19 (CA1 1993) (Breyer, C. J.) (“[T]he sentencing statutes … provide [a defendant] with only a very narrow right of appeal” because the power “to set aside a departure that is ‘unreasonable’ ” appears “in the context of other provisions that permit defendants to appeal only upward … departures”). This Court has expressly rejected the proposition that there may be a “reasonable[ness]” inquiry when a sentence is imposed as a result of an incorrect application of the Guidelines. See Williams, supra, at 201. The Court claims that “a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly.” Ante, at 17 (opinion of Breyer, J.). Perhaps so. But we have before us a statute that does explicitly set forth a standard of review. The question is, when the Court has severed that standard of review (contained in §3742(e)), does it make any sense to look for some congressional “implication” of a different standard of review in the remnants of the statute that the Court has left standing? Only in Wonderland. (This may explain in part why, as Justice Stevens’s dissent correctly observes, ante, at 12, none of the numerous persons and organizations filing briefs as parties or amici in these cases—all of whom filed this side of the looking-glass—proposed, or I think even imagined, the remedial majority’s wonderful disposition.) Unsurprisingly, none of the three cases cited by the Court used the power of implication to fill a gap created by the Court’s own removal of an explicit standard.[Footnote 8] The Court’s need to create a new, “implied” standard of review—however “linguistically” “fair,” ante, at 19—amounts to a confession that it has exceeded its powers. According to the “well established” standard for severability, the unconstitutional part of a statute “may be dropped if what is left is fully operative as a law.” Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) (emphasis added and internal quotation marks omitted). Severance is not possible “if the balance of the legislation is incapable of functioning independently.” Ibid. The Court’s need to supplement the text that remains after severance suggests that it is engaged in “redraft[ing] the statute” rather than just implementing the valid portions of it. United States v. Treasury Employees, 513 U. S. 454, 479, and n. 26 (1995); see also id., at 502, and n. 8 (Rehnquist, C. J., dissenting); Reno v. American Civil Liberties Union, 521 U. S. 844, 884–885 (1997). Even assuming that the Court ought to be inferring standards of review to stanch the bleeding created by its aggressive severance of §3742(e), its “unreasonableness” standard is not, as it claims, consistent with the “related statutory language” or with “appellate sentencing practice during the last two decades.” Ante, at 18, 19. As already noted, sentences within the Guidelines range have not previously been reviewed for reasonableness. Indeed, the very concept of having a unitary standard of review for all kinds of appeals authorized by §§3742(a) and (b) finds no support in statutory language or established practice of the last two decades. Although a “reasonableness” standard did appear in §3742(e)(3) until 2003, it never extended beyond review of deliberate departures from the Guidelines range. See 18 U. S. C. §3742(e)(3) (2000 ed.); see also §§3742(f)(2)(A), (B) (prescribing how to dispose on appeal of a sentence that is “outside the applicable guideline range and is unreasonable”). According to the statistics cited by the Court, that standard applied to only 16.7% of federal sentencing appeals in 2002, see ante, at 19, but the Court would now have it apply across the board to all sentencing appeals, even to sentences within “the applicable guideline range,” where there is no legal error or misapplication of the Guidelines. There can be no doubt that the Court’s severability analysis has produced a scheme dramatically different from anything Congress has enacted since 1984. Sentencing courts are told to “provide just punishment” (among other things), and appellate courts are told to ensure that district judges are not “unreasonable.” The worst feature of the scheme is that no one knows—and perhaps no one is meant to know—how advisory Guidelines and “unreasonableness” review will function in practice. The Court’s description of what it anticipates is positively Delphic: “These features of the remaining system … continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary. We can find no feature of the remaining system that tends to hinder, rather than to further, these basic objectives.” Ante, at 22 (citation omitted). As I have suggested earlier, any system which held it per se unreasonable (and hence reversible) for a sentencing judge to reject the Guidelines is indistinguishable from the mandatory Guidelines system that the Court today holds unconstitutional. But the remedial majority’s gross exaggerations (it says that the “practical standard of review” it prescribes is “already familiar to appellate courts” and “consistent with appellate sentencing practice during the last two decades,” ante, at 18, 19)[Footnote 9] may lead some courts of appeals to conclude—may indeed be designed to lead courts of appeals to conclude—that little has changed. Bear in mind that one of the most significant features of the remedial majority’s scheme of “unreasonableness” review is that it requires courts of appeals to evaluate each sentence individually for reasonableness, rather than apply the cookie-cutter standards of the mandatory Guidelines (within the correct Guidelines range, affirm; outside the range without adequate explanation, vacate and remand). A court of appeals faced with this daunting prospect might seek refuge in the familiar and continue (as the remedial majority invites, though the merits majority forbids) the “appellate sentencing practice during the last two decades,” ante, at 19 (opinion of Breyer, J.). At the other extreme, a court of appeals might handle the new workload by approving virtually any sentence within the statutory range that the sentencing court imposes, so long as the district judge goes through the appropriate formalities, such as expressing his consideration of and disagreement with the Guidelines sentence. What I anticipate will happen is that “unreasonableness” review will produce a discordant symphony of different standards, varying from court to court and judge to judge, giving the lie to the remedial majority’s sanguine claim that “no feature” of its avant-garde Guidelines system will “ten[d] to hinder” the avoidance of “excessive sentencing disparities.” Ante, at 22. In Blakely v. Washington, 542 U. S. ___ (2004), the four dissenting Justices accused the Court of ignoring “the havoc it is about to wreak on trial courts across the country.” Id., at ___ (opinion of O’Connor, J.) (slip op., at 12). And that harsh assessment, of course, referred to just a temporary and unavoidable uncertainty, until the Court could get before it a case properly presenting the constitutionality of the mandatory Guidelines. Today, the same Justices wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future. Will appellate review for “unreasonableness” preserve de facto mandatory Guidelines by discouraging district courts from sentencing outside Guidelines ranges? Will it simply add another layer of unfettered judicial discretion to the sentencing process? Or will it be a mere formality, used by busy appellate judges only to ensure that busy district judges say all the right things when they explain how they have exercised their newly restored discretion? Time may tell, but today’s remedial majority will not. I respectfully dissent.