UNITED STATES V. BOOKER (2024)

Thomas, J., dissenting inpart

SUPREME COURT OF THE UNITEDSTATES

Nos. 04—104 and04—105

ON WRIT OF CERTIORARI TO THE UNITED STATESCOURT OF
APPEALS FOR THE SEVENTH CIRCUIT

ON WRIT OF CERTIORARI BEFORE JUDGMENT TO THEUNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

[January 12, 2005]

Justice Thomas, dissenting in part.

I join Justice Stevens’ opinionfor the Court, but I dissent from Justice Breyer’s opinionfor the Court.While I agree with Justice Stevens’proposed remedy and much of his analysis, I disagree with hisrestatement of severability principles and reliance onlegislative history, and thus write separately.

The Constitution prohibits allowing ajudge alone to make a finding that raises the sentence beyondthe sentence that could have lawfully been imposed by referenceto facts found by the jury or admitted by the defendant. Application of the Federal Sentencing Guidelines resulted inimpermissible factfinding in Booker’s case, but not inFanfan’s.Thus Booker’s sentence isunconstitutional, but Fanfan’s is not. Rather thanapplying the usual presumption in favor of severability, andleaving the Guidelines standing insofar as they may be appliedwithout any constitutional problem, the remedial majorityconverts the Guidelines from a mandatory system to adiscretionary one. The majority’s solution fails totailor the remedy to the wrong, as this Court’s precedentsrequire.

I

When a litigant claims that a statuteis unconstitutional as applied to him, and the statute is infact unconstitutional as applied, we normally invalidate thestatute only as applied to the litigant in question. We do notstrike down the statute on its face. In the typical case,“we neither want nor need to provide relief to nonpartieswhen 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 Amendmentoverbreadth, we will facially invalidate a statute only if theplaintiff establishes that the statute is invalid in all of itsapplications. United States v. Salerno, 481 U.S. 739, 745(1987).

Booker’s case presents anas-applied challenge. Booker challenges Guidelinesenhancements that, based on factfinding by a judge alone,raised his sentence above the range legally mandated for hisbase offense level, determined by reference to the juryverdict. In effect, he contends that the Guidelines supportingthe enhancements, and the Sentencing Reform Act of 1984 (SRA)that makes the Guidelines enhancements mandatory, wereunconstitutionally applied to him. (Fanfan makes no similarcontention, as he seeks to uphold the District Court’sapplication of the Guidelines.)

A provision of the SRA, 18U.S.C. A. §3553(b)(1) (Supp. 2004), commands that thecourt “shall impose a sentence of the kind, andwithin the range, referred to in subsection (a)(4),” whichin turn refers to the Guidelines. (Emphasis added.) The Courtreasons that invalidating §3553(b)(1) would render theGuidelines nonbinding and therefore constitutional. Hence, itconcludes, §3553(b)(1) must fall on its face.1

The majority’s excision of§3553(b)(1) is at once too narrow and too broad. It istoo narrow in that it focuses only on §3553(b)(1), whenBooker’s unconstitutional sentence enhancements stemmednot from §3553(b)(1) alone, but from the combination of§3553(b)(1) and individual Guidelines. Specifically, inBooker’s case, the District Court increased the baseoffense level2under these Guidelines3: USSG §1B1.3(a)(2), which instructs thatthe base offense level shall (for certain offenses) take intoaccount all acts “that were part of the same course ofconduct or common scheme or plan as the offense ofconviction”; §2D1.1(c)(2), which sets the offenselevel for 500g to 1.5kg of cocaine base at 36; and §3C1.1,which provides for a two-level increase in the offense levelfor obstruction of justice. The court also implicitly applied§1B1.1, which provides general instructions for applyingthe Guidelines, including determining the base offense leveland applying appropriate adjustments; §1B1.11(b)(2), whichrequires that “[t]he Guidelines Manual in effect on aparticular date shall be applied in its entirety”;§6A1.3(b) p. s.,4 which provides that “[t]he court shallresolve disputed sentencing factors at a sentencing hearing inaccordance with Rule 32(c)(1), Fed. R. Crim. P.”; and Rule32(c)(1),5which in turn provided:

“At the sentencing hearing, the court … must rule onany unresolved objections to the presentencereport… . For each matter controverted, the courtmust make either a finding on the allegation or a determinationthat no finding is necessary because the controverted matterwill not be taken into account in, or will not affect,sentencing.”

Section 3553(b)(1), the listedGuidelines and policy statement, and Rule 32(c)(1) areunconstitutional as applied to Booker.Under their authority,the judge, rather than the jury, found the facts necessary toincrease Booker’s offense level pursuant to the listedprovisions; the judge found those facts by a preponderance ofthe evidence, rather than beyond a reasonable doubt; and, onthe basis of these findings, the judge imposed a sentence abovethe maximum legally permitted by the jury’s findings. Thus, in Booker’s case, the concerted action of§3553(b)(1) and the operative Guidelines andthe relevant Rule of Criminal Procedure resulted inunconstitutional judicial factfinding.The majority cannotpinpoint §3553(b)(1) alone as the source of theviolation.

At the same time, the majority’sremedy is far too broad. We have before us only a singleunconstitutional application of §3553(b)(1) (andaccompanying parts of the sentencing scheme). In such a case,facial invalidation is unprecedented. It is particularlyinappropriate 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 theGuidelines to the extent supported by the jury’s findings. This application of §3553(b)(1) was constitutional. Totake another example, when the Government seeks a sentencewithin the Guidelines range supported by the jury’sverdict, applying §3553(b)(1) to restrict the judge’sdiscretion to that Guidelines range is constitutional.

Section 3553(b)(1) is alsoconstitutional when the Government seeks a sentence above theGuidelines range supported by the jury’s verdict, butproves the facts supporting the enhancements to a jury beyond areasonable doubt. Section 3553(b)(1) provides that “thecourt shall impose a sentence of the kind, and withinthe range,” set by the Guidelines. (Emphasis added.) Itsays nothing, however, about the procedures the court mustemploy to determine the sentence it ultimately“impose[s].”It says nothing about whether, beforeimposing a sentence, the court may submit sentence-enhancingfacts to the jury; and it says nothing about the standard ofproof.Because it does not address at all the procedures forGuidelines sentencing proceedings, §3553(b)(1) comfortablyaccommodates cases in which a court determines adefendant’s Guidelines range by way of jury factfinding oradmissions rather than judicial factfinding.

The Constitution does not prohibitwhat §3553(b)(1) accomplishes–binding district courtsto the Guidelines. It prohibits allowing a judge alone to makea finding that raises the sentence beyond the sentence thatcould have lawfully been imposed by reference to facts found bythe 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 theseunobjectionable applications of the statute and thereby ignoresthe longstanding distinction between as-applied and facialchallenges.

Just as there is no reason to strike§3553(b)(1) on its face, there is likewise no basis forstriking any Guideline at issue here on its face. Respondentshave not established that USSG §1B1.3(a)(2),§2D1.1(c)(2), §3C1.1, or §1B1.11(b)(2) isinvalid in all its applications, as Salerno requires. To the contrary, numerous applications of these provisions arevalid.Such applications include cases in which the defendantadmits the relevant facts or the jury finds the relevant factsbeyond 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 supportingenhancements, or what standard of proof the prosecution mustsatisfy. They simply attach effects to certain facts; they donot prescribe procedures for determining those facts. Even§1B1.1, which provides instructions for applying theGuidelines, directs an order in which the various provisionsare to be applied (“[d]etermine the base offenselevel,” §1B1.1(b), then “[a]pply theadjustments,” §1B1.1(c)), but says nothing about thespecific procedures a sentencing court may employ indetermining the base offense level and applyingadjustments.

Moreover, there is no basis forfacially invalidating §6A1.3 or Rule 32(c)(1). To besure, §6A1.3(b) and Rule 32(c)(1) prescribe procedure:They require the judge, acting alone, to resolve factualdisputes. When Booker was sentenced, §6A1.3(b) providedthat “[t]he court shall resolve disputed sentencingfactors at a sentencing hearing in accordance with Rule32(c)(1), Fed. R. Crim. P.” At the time, the relevantportions of Rule 32(c)(1) provided:

“At the sentencing hearing, the court … mustrule on any unresolved objections to the presentencereport… . For each matter controverted, the courtmust make either a finding on the allegation or a determinationthat no finding is necessary because the controverted matterwill 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 resolvefactual disputes as necessary.This Rule of CriminalProcedure, as applied at Booker’s sentencing hearing,required the judge to make findings that increasedBooker’s offense level beyond the Guidelines rangeauthorized by the jury. The application of the Rule to Bookertherefore was unconstitutional.

Nonetheless, the Rule has other validapplications. For example, the Rule is valid when it requiresthe sentencing judge, without a jury, to resolve a factualdispute in order to decide where within the jury-authorizedGuidelines range a defendant should be sentenced. The Rule isequally valid when it requires the judge to resolve a factualdispute in order to support a downward adjustment to thedefendant’s offense level.6

Given the significant number of validapplications of all portions of the current sentencing scheme,we should not facially invalidate any particular section of theFederal Rules of Criminal Procedure, the Guidelines, or theSRA. Instead, we should invalidate only the application toBooker, 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 Rule32(c)(1).

II

Invalidating §3553(b)(1), theGuidelines listed above, and Rule 32(c)(1) as applied toBooker by the District Court leaves the question whether thescheme’s unconstitutional application to Booker can besevered from the scheme’s many other constitutionalapplications to defendants like Fanfan. Severability doctrineis grounded in a presumption that Congress intends statutes tohave effect to the full extent the Constitution allows.7Regan v.Time, Inc., 468U.S. 641, 652 (1984); Vermeule, SavingConstructions, 85 Geo. L. J. 1945, 1959—1963 (1997)(hereinafter Vermeule). The severability issue may arise whena court strikes either a provision of a statute or anapplication of a provision. Severability of provisions isperhaps more visible than severability of applications in ourcase law. See, e.g., Alaska Airlines, Inc. v.Brock, 480 U.S.678, 684—697 (1987) (severing unconstitutionallegislative veto provision from other provisions).8

However, severability questions arisefrom unconstitutional applications of statutes as well. Congress often expressly provides for severance ofunconstitutional applications.9 This Court has acknowledged the severabilityof applications in striking down some applications of a statutewhile leaving others standing.In Brockett, 472 U.S.,at 504—507, the Court invalidated a state moral nuisancestatute only insofar as it reached constitutionally protectedmaterials, 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 touse “ ‘all the necessarymeans to effect [an] arrest.’ ”The Court held the statute unconstitutionalinsofar as it allowed the use of deadly force against anunarmed, nondangerous suspect; but it declined to invalidatethe statute on its face, specifically noting that the statutecould be applied constitutionally in other circ*mstances. Id., at 11—12. In Brockett andGarner, then, the Court recognized that theunconstitutional applications of the statutes were severablefrom the constitutional applications. The Court fashioned theremedy narrowly, in keeping with the usual presumption ofseverability.

I thus disagree with Justice Stevensthat severability analysis does not apply. Ante, at 11,and n. 6 (opinion dissenting in part).10 I acknowledge that, as ageneral matter, the Court often disposes of as-appliedchallenges to a statute by simply invalidating particularapplications of the statute, without saying anything at allabout severability. See United States v. Grace,461 U.S. 171, 183(1983) (concluding that statute that prohibited carryingbanners in the United States Supreme Court Building and on itsgrounds was unconstitutional as applied to the sidewalkssurrounding the building); Edenfield v. Fane, 507 U.S. 761, 763(1993) (striking down a solicitation ban on certified publicaccountants 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 honorariaban should be tailored to unconstitutional applications).

Such decisions (in which the Court issilent as to applications not before it) might be viewed ashaving conducted an implicit severability analysis. Seeid., at 485—489 (O’Connor, J., concurring injudgment in part and dissenting in part). A better view isthat the parties in those cases could have raised the issue ofseverability, but did not bother, because (as is often thecase) there was no arguable reason to defeat the presumption ofseverability. The unconstitutional applications of the statutewere fully independent of and severable from the remainingconstitutional applications. Here, the question is squarelypresented: the parties press it, and there is extraordinaryreason to clarify the remedy, namely, that our decisionpotentially affects every sentencing by the federal courts.

I therefore proceed to theseverability question–whether the unconstitutionalapplication of §3553(b)(1); USSG §§1B1.3,2D1.1(c)(2), 3C1.1, 1B1.1, 1B1.11(b)(2), and 6A1.3; and Rule32(c)(1) to Booker is severable from the constitutionalapplications of these provisions. That is, even though we haveinvalidated the application of these provisions to Booker, mayother defendants be sentenced pursuant to them? We presumethat the unconstitutional application is severable. See,e.g., Regan, 468 U.S., at 653. This presumptionis a manifestation of Salerno’s general rule thatwe should not strike a statute on its face unless it is invalidin all its applications. Unless the Legislature clearly wouldnot have enacted the constitutional applications independentlyof the unconstitutional application, the Court leaves theconstitutional applications standing. 468 U.S., at 653.

Here, the presumption of severabilityhas not been overcome.In light of the significant number ofconstitutional applications of the scheme, it is far from clearthat Congress would not have passed the SRA or allowed Rule 32to take effect, or that the Commission would not havepromulgated the particular Guidelines at issue, had either bodyknown that the application of the scheme to Booker wasunconstitutional. Ante, at 5—10 (Stevens, J.,dissenting in part). As noted above, many applications of theGuidelines are constitutional: The defendant may admit thenecessary facts; the Government may not seek enhancementsbeyond the offense level supported by the jury’s verdict;the judge may find facts supporting an enhancement but (takingadvantage of the overlap in Guidelines ranges) sentence thedefendant within the jury-authorized range; or the jury mayfind the necessary facts.

Certainly it is not obvious thatCongress would have preferred the entirely discretionary systemthat the majority fashions. The text and structure of the SRAshow that Congress meant the Guidelines to bind judges. One ofthe purposes of the Commission, as set forth in the SRA, wasto

“provide certainty and fairness in meeting thepurposes of sentencing, avoiding unwarranted sentencingdisparities among defendants with similar records who havebeen found guilty of similar criminal conduct while maintainingsufficient flexibility to permit individualized sentences whenwarranted by mitigating or aggravating factors not taken intoaccount in the establishment of general sentencingpractices.” 28U.S.C. § 991(b)(1)(B) (emphases added).

Accordingly, Congress made the Guidelines mandatory andclosely circ*mscribed courts’ authority to depart from theGuidelines range. 18 U.S.C. A. §3553(b)(1) (Supp.2004).Congress also limited appellate review of sentencesimposed pursuant to the Guidelines to instances in which thesentence was (1) in violation of law, (2) a result of anincorrect application of the Guidelines, (3) outside theapplicable Guidelines range, or (4) in the absence of anapplicable Guideline, plainly unreasonable. §3742(e)(main ed. and Supp. 2004). Striking down §3553(b)(1) andthe Guidelines only as applied to Booker (and other defendantswho have received unconstitutional enhancements) would leave inplace the essential framework of the mandatory system Congresscreated. Applying the Guidelines in a constitutional fashionaffords some uniformity; total discretion, none. To suggest,as Justice Breyer does, that a discretionary system would dootherwise, ante, at 7—11, 21—22 (opinion ofthe Court), either supposes that the system is discretionary inname only or overlooks the very nature of discretion. Eitherassumption is implausible.

The majority says that retaining theSRA and the Guidelines “engraft[s]” a jury trialrequirement onto the sentencing scheme. Ante, at 3(opinion of Breyer, J.). I am, of course, aware that,though severability analysis may proceed “by striking outor disregarding words [or, here, applications] that are in the[challenged] section,” it may not proceed “byinserting [applications] that are not now there”; thatwould 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 ontothe statute than we do every time we invalidate a statute insome of the applications that the statute, on its face, appearsto authorize. See, e.g., Brockett v. SpokaneArcades, Inc., 472U.S. 491 (1985). I therefore do not find the“engraftment” label helpful as a means of judging thecorrectness of our severability analysis.

Granted, part of the severabilityinquiry is “whether the statute [as severed] will functionin a manner consistent with the intent ofCongress.” Alaska Airlines, Inc., 480 U.S., at685. Applying the Guidelines constitutionally (for instance,when admissions or jury findings support all upwardenhancements) might seem at first glance to violate thisprinciple. But so would the Government’s proposal ofapplying the Guidelines as a whole to some defendants, but notothers. The Court’s solution violates it even moreclearly by creating a system that eliminates the mandatorynature of the Guidelines. In the end, nothing except theGuidelines as written will function in a manner perfectlyconsistent with the intent of Congress, and the Guidelines aswritten are unconstitutional in some applications. While allof the remedial possibilities are thus, in a sense,second-best, the solution Justice Stevens and I would adoptdoes the least violence to the statutory and regulatoryscheme.

* **

I would hold that §3553(b)(1),the provisions of the Guidelines discussed above, and Rule32(c)(1) are unconstitutional as applied to Booker, but thatthe Government has not overcome the presumption ofseverability. Accordingly, the unconstitutional application ofthe scheme in Booker’s case is severable from theconstitutional applications of the same scheme to otherdefendants. I respectfully dissent from the Court’scontrary conclusion.

Notes

1. Because the majority invalidates 18U.S.C. A. §3553(b)(1) (Supp. 2004) on its face, it isdriven also to invalidate 18 U.S.C. A. §3742(e) (mained. and Supp. 2004), which establishes standards of review forsentences and is premised on the binding nature of theGuidelines. See, e.g., §3742(e)(2) (main ed.)(directing the court of appeals to determine whether thesentence “was imposed as a result of an incorrectapplication of the sentencing guidelines”);§3742(e)(3) (Supp. 2004) (directing the court of appealsto determine whether the sentence “is outside theapplicable guideline range” and satisfies other factors). Given that (as I explain) there is no warrant for striking§3553(b)(1) on its face, striking §3742(e) as wellonly does further needless violence to the statutory scheme.

2. Booker’s base offense level(supported by the facts the jury found) was 32. See UnitedStates Sentencing Commission, Guidelines Manual§2D1.1(c)(4) (Nov. 2003) (USSG) (setting the base offenselevel for the crime of possession with intent to sell 50 to 150grams of cocaine base at 32).

3. The District Court applied the versionof the Guidelines effective November 1, 2003.

4. I take no position on whether USSG§6A1.3, a policy statement, bound the District Court. Cf.Stinson v. United States, 508 U.S. 36,42—43 (1993); Williams v. United States, 503 U.S. 193,200—201 (1992). In any case, Rule 32(c)(1), which had thesame effect as §6A1.3, certainly bound the court.

5. In 2002, Rule 32(c)(1) was amended andreplaced with Rule 32(i)(3). The new Rule provides, insubstantially similar fashion, that at sentencing, the court“must–for any disputed portion of the presentencereport or other controverted matter–rule on the dispute ordetermine that a ruling is unnecessary either because thematter will not affect sentencing, or because the court willnot consider the matter in sentencing.” Fed. Rule Crim.Proc. 32(i)(3)(B) (2003).

6. The commentary to §6A1.3 statesthat “[t]he Commission believes that use of apreponderance of the evidence standard is appropriate to meetdue process requirements and policy concerns in resolvingdisputes regarding application of the guidelines to the factsof a case.” The Court’s holding today corrects thismistaken belief. The Fifth Amendmentrequires proof beyond a reasonable doubt, not by apreponderance of the evidence, of any fact that increases thesentence beyond what could have been lawfully imposed on thebasis of facts found by the jury or admitted by the defendant.

7. I assume, without deciding, that ourseverability precedents–which require a nebulous inquiryinto hypothetical congressional intent–are valid, a pointthe parties do not contest. I also assume that our doctrine onseverability and facial challenges applies equally toregulations as to statutes. See Reno v. Flores,507 U.S. 292,300—301 (1993).

8. See also 2 U.S.C. § 454(“If any provision of this Act, or the applicationthereof to any person or circ*mstance, is held invalid, thevalidity of the remainder of the Act and the applicationof such provision to other persons and circ*mstances shall notbe affected thereby” (emphasis added)); 5 U.S.C. § 806(b)(similar); 6 U.S.C.§ 102 (2000 ed., Supp. II) (similar); 7 U.S.C. § 136x(similar); 15 U.S.C.§ 79z—6 (similar); 29 U.S.C. § 114(similar); 21 U.S.C.§ 901 (“If a provision of this chapter is heldinvalid, all valid provisions that are severable shall remainin effect”).

9. See 2 U.S.C. § 454(“If any provision of this Act, or the applicationthereof to any person or circ*mstance, is held invalid, thevalidity of the remainder of the Act and the application ofsuch provision to other persons and circ*mstances shall notbe affected thereby” (emphasis added)); 5 U.S.C. § 806(b)(similar); 6 U.S.C.§ 102 (2000 ed., Supp. II) (similar); 7 U.S.C. § 136x(similar); 15 U.S.C.§ 79z—6 (similar); 29 U.S.C. § 114(similar); 21 U.S.C.§ 901 (in relevant part, “[i]f a provision ofthis chapter is held invalid in one or more of itsapplications, the provision shall remain in effect in all itsvalid applications that are severable”); see also Vermeule1950, n. 26 (“There is a common misconception thatseverability analysis refers only to the severance ofprovisions or subsections enumerated or labeled independentlyin the official text of the statute. In fact, however,severability problems arise not only with respect to differentsections, clauses or provisions of a statute, but also withrespect to applications of a particular statutory provisionwhen some (but not all) of those applications areunconstitutional”); Stern, Separability and SeparabilityClauses in the Supreme Court, 51 Harv. L. Rev. 76,78—79 (1937) (“One [type of severability question]relates to situations in which some applications of thesame language in a statute are valid and other applicationsinvalid”).

10. I do, however, agree with JusticeStevens that Justice Breyer grossly distorts severabilityanalysis by using severability principles to determine whichprovisions the Court should strike as unconstitutional. Ante, at 12—14 (Stevens, J., dissenting in part). Justice Breyer’s severability analysis asks whichprovisions must be cut from the statute to fix theconstitutional problem. Ante, at 2—6, 15—16(opinion of the Court). Normally, however, a court (1)declares a provision or application unconstitutional, usingsubstantive constitutional doctrine (not severabilitydoctrine), and only then (2) asks (under severabilityprinciples) whether the remainder of the act can be leftstanding. Justice Breyer skips the first step, which is anecessary precursor to proper severability analysis.

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