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IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING GUIDELINES

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

FEBRUARY 10, 2005

Serial No. 109–1

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://www.house.gov/judiciary 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

ADAM SMITH, Washington 

CHRIS VAN HOLLEN, Maryland

PHILIP G. KIKO, Chief of Staff-General Counsel 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

JAY APPERSON, Chief Counsel 

ELIZABETH SOKUL, Counsel 

KATY CROOKS, Counsel 

JASON CERVENAK, Full Committee Counsel 

MICHAEL VOLKOV, Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

FEBRUARY 10, 2005

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 3

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4

WITNESSES 

The Honorable Christopher A. Wray, Assistant Attorney General, Criminal 

Division, United States Department of Justice 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 8

The Honorable Ricardo H. Hinojosa, Chairman, United States Sentencing 

Commission 

Oral Testimony ..................................................................................................... 14

Prepared Statement ............................................................................................. 17

Mr. Daniel P. Collins, Partner, Munger, Tolles, and Olson LLP 

Oral Testimony ..................................................................................................... 24

Prepared Statement ............................................................................................. 25

Mr. Frank O. Bowman, III, M. Dale Palmer Professor of Law, Indiana University School of Law 

Oral Testimony ..................................................................................................... 28

Prepared Statement ............................................................................................. 31

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Howard Coble, a Representative in 

Congress from the State of North Carolina, and Chairman, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 59

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 59

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas .................................................................. 60

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 61

Prepared Statement of the Honorable Adam B. Schiff, a Representative in 

Congress from the State of California ................................................................ 62

Material submitted for the record by Rep. Scott ................................................... 63

Letter from the Association of Corporate Counsel (formerly the American 

Corporate Counsel Association), the Business Civil Liberties, Inc., the Business Roundtable, the National Association of Manufacturers, and the U.S. 

Chamber of Commerce ......................................................................................... 101

Page

IV

Letter from Keith Darcy, Acting Executive Director, Ethics Officer Association 

(EOA) ..................................................................................................................... 104

Letter from Robert Evans, Director, Governmental Affairs Office, the American Bar Association (ABA), dated February 9, 2005 ....................................... 112

Letter from Robert Evans, Director, Governmental Affairs Office, the American Bar Association (ABA), dated February 17, 2005 ..................................... 115

Letter from Edwin Meese, III, and Philip Heymann, Co-Chairs, Sentencing 

Initiatives, The Constitution Project .................................................................. 131

Prepared Statement of Lawrence Piersol, President, the Federal Judges Association, and Chief Judge of the District of South Dakota ................................. 140

Letter from Kent Scheidegger, Legal Director and General Counsel, Criminal 

Justice Legal Foundation .................................................................................... 141

Letter from Robert L. Wilkins, and Karl A. Racine, Partners, Veneable LLP ... 145

(1)

IMPLICATIONS OF THE BOOKER/FANFAN DECISIONS FOR THE FEDERAL SENTENCING 

GUIDELINES 

THURSDAY, FEBRUARY 10, 2005

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 10 a.m., in Room 

2141, Rayburn House Office Building, Hon. Howard Coble (Chair 

of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. Welcome to the 

Judiciary hearing room. 

Let me think aloud for a moment or two. This sentencing guidelines is very significantly important, as all of you know. We will 

have the border security bill, which came from this Committee, on 

the floor for debate around 11:30. I am hoping we can finish examining you witnesses by that time. I hate to inconvenience you all. 

If, however, we come to 11:30 and additional examination may be 

done, we may have to have you fellows go get a bite to eat and just 

keep your eye on the TV monitor. I am thinking, however, that if 

luck is with us, we can probably finish this on or about the time 

when we have to suspend. 

I want to welcome everyone to this very important oversight 

hearing before the Subcommittee on Crime, Terrorism, and Homeland Security to examine the implication of two recent Supreme 

Court decisions in United States v. Booker and United States v. 

Fanfan to the Federal sentencing guidelines. 

The Supreme Court’s rulings eliminated two critical provisions of 

the Federal sentencing guidelines. First, the Court ruled the sentencing guidelines were no longer mandatory but are advisory. Second, the Court eliminated the de novo appellate review standard 

for downward departures which was passed by Congress as part of 

the PROTECT Act in the 108th Congress and replaced it with a 

vague and unspecific reasonableness standard for appellate review. 

It is an understatement, in my opinion, to say that the Supreme 

Court’s decisions have had a dramatic impact on the Federal criminal justice system. Some have characterized the impact as resulting in complete disarray, and even other characterize the decision 

as posing a direct and significant threat to public safety, thereby 

jeopardizing dramatic reductions in the crime rate in our country. 

2

As this Committee examines this issue, we must be mindful of 

the fact that the Sentencing Reform Act of 1984 which created the 

mandatory Federal sentencing guideline system was a bipartisan 

measure designed to provide certainty and fairness in meeting the 

purposes of sentencing, avoiding unwarranted disparities among 

defendants with similar records who have been found guilty of 

similar criminal conduct. 

In the short time since the Supreme Court issued its rulings in 

the Booker and Fanfan decisions, there have been reported instances of judges deviating from the guideline sentencing ranges, 

relying on varying rationales for such departures. 

It is the Congress’s role to ensure that the original purposes of 

the Sentencing Reform Act of 1984 are adhered to by the Federal 

Judiciary. We all can agree that disparities among similarly situated defendants are unfair and undermine the Federal criminal 

justice system. Justice Breyer in his majority opinion in Booker

made it clear as to our institutional responsibility when he wrote 

of the Court’s decision, ‘‘Ours, of course, is not the last word. The 

ball lies in Congress’s court.’’ In order to fulfill our constitutional responsibilities, today’s hearing is the first step to ensuring that the Federal sentencing system 

continues to promote fairness, eliminate disparities, and protect the 

public safety so that law-abiding citizens can live in freedom without fear of crime and defendants receive fair and equal treatment 

in the Federal judicial system. 

I am looking forward to hearing from our distinguished panel of 

witnesses, and now I am pleased to recognize the distinguished 

gentleman from Virginia, the Ranking Member of this Subcommittee, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman, and I thank you for convening this hearing. This is our first Subcommittee meeting and I 

look forward to working with you during this session of Congress. 

I am pleased to join you in convening this hearing on the implications of the United States Supreme Court’s Booker and Fanfan

decisions and the Federal sentencing guidelines. Since the Blakely 

v. Washington decision last June, the viability of the Federal and 

many State sentencing systems have been in jeopardy. That decision made it clear that sentences based on facts found by the court 

after the trial that were not admitted by the defendant or established during the trial deprived the defendant of their constitutional right to a jury trial. 

We contemplated a range of options or approaches after the decision. They ranged from doing nothing to enacting an entire system 

of statutory minimums and maximums. However, we wisely, I believe, listened to the Council of Sentencing Experts and others suggesting that we give the courts a chance to further clarify the impact of the decision on the Federal system. 

That further clarification came in the decision by a strangely divided Court in January through the Booker/Fanfan decision. That 

decision clarified that Blakely, indeed, was applicable to the Federal sentencing guideline system and found the system unconstitutional as applied. However, the Court delineated the aspects of the 

system that caused it to be unconstitutional, thereby excising the 

applicability of those factors, leaving the remainder of the system 

3

intact. Yet, the Court, as it properly tends to do, only answered the 

questions it considered to be properly before it at the time. Therefore, we are left with the issue of how the remaining system can 

operate consistent with its aims and purposes and the Court’s decisions. Again, sentencing experts and others are advising that we 

await further clarification from the courts on the impact of Booker/

Fanfan.

The early indications of this post-Booker/Fanfan/Blakely context 

is that the sky is not falling. The criminal defendants are being 

prosecuted and sentenced, and the sentencing guideline system is 

directing those sentences to essentially the same extent as it was 

before. So for those who found the sentencing guideline system acceptable as applied before Blakely, Booker, and Fanfan should still 

find the situation reasonably acceptable now. There are quirks and 

imperfections before the recent upheavals that required appellate 

court correction or clarification, and that is the situation we have 

today. 

For others, including myself, the Federal sentencing guidelines 

as applied were not satisfactory. I am concerned about the growing 

minority percentage of a rapidly increasing Federal prison population serving excessively long sentences for minor roles in non-violent crimes due in large part to unfair application of mandatory 

minimums and other reasons. These problems are detailed in two 

recent reports from the Sentencing Project entitled ‘‘Racial Disparity in Sentencing: A Review of the Literature,’’ and ‘‘The Federal Prison Population: A Statistical Analysis,’’ along with a recently completed 15-year study of the U.S. Sentencing Commission, 

of which I have an executive summary and I would ask unanimous 

consent that those be introduced into the record of this hearing. 

Mr. COBLE. Without exception, it will be done. 

[The material referred to is located in the Appendix.] 

Mr. SCOTT. All of the credible data shows that minorities are less 

likely than whites to use illegal drugs of virtually all types, including crack cocaine, yet a grossly disproportionate percentage of the 

enforcement of the war against drugs falls on minorities, many of 

whom are bit players in the end stage of the drug trade whose involvement is based more on addiction than profit. Eighty percent 

of the crack prosecutions are against African-American defendants, 

while drug use data reflects that 60 percent of the crack is used 

by whites. 

All of the research and demonstrations show that drug treatment 

and other alternatives to incarceration are much more effective and 

much cheaper than incarceration. Yet we continue to greatly increase our resources to lock people up, and more of these bit players get locked up for longer and longer periods while making no 

consideration to effective and less costly alternatives and only minimally increasing drug treatment as compared to the increases in 

enforcement and incarceration. 

Report after report, including these by the Sentencing Commission and others, have pointed to these gross disparities in application of the drug enforcement and sentencing policies against minorities, and while we address the atrocities before us in Blakely

and Booker and Fanfan, it is certainly time to look at these sentencing policies as they affect minorities. 

4

So, Mr. Chairman, as we carefully contemplate what needs to be 

fixed in the Federal guideline system, I would invite consideration 

of this longstanding and shameful problem in our Federal law enforcement and sentencing applications and look forward to our witnesses’ testimony for any guidance they may give us as we contemplate these and other challenges in our criminal justice system, 

particularly as it pertains to sentencing. 

I yield back. 

Mr. COBLE. I thank the gentleman, and I, too, Mr. Scott, look forward to working with you during this 109th Congress. 

We have been joined by the Ranking Member of the full Committee, the distinguished gentleman from Michigan, Mr. Conyers. 

Did you have an opening statement you wanted to make? 

Mr. CONYERS. Thank you, Mr. Chairman. I wanted to commend 

you and Ranking Member Scott for reviewing Booker/Fanfan, and 

the impact on Federal guidelines. I think it is very timely and I am 

looking forward to the witnesses spelling out some of the directions 

we now may be able to look at. 

The Federal sentencing guidelines weren’t originally enacted to 

address many of the problems that are facing us today. In fact, 

their original purpose was simply to make sentencing more certain 

and predictable. One of the things that has happened, of course, is 

the only thing more certain and predictable is that racial minorities are disproportionately punished under the guidelines, so we 

have a great challenge here in front of us. 

The question might occur, how did this come about? Several reasons serve as the source of blame for the current state of affairs, 

but the greatest responsibility lies with those who rely stubbornly 

on mandatory minimums and Congressional directives to enact 

misguided policies all in the name of being tougher on crime. The 

crack-powder disparity has already been referred to. So why the 

disparity, even though experts firmly agree that there is no logic 

about it? 

One look today at these sentencing guidelines provides us with 

a unique opportunity to consider these issues, and here is where 

it starts, in this Subcommittee in this room. I think it is a great 

opportunity for us to move forward. 

We also have some probable suggestions as to really what do 

these new decisions really mean. They are not spelled out with any 

great particularity, and I think this gives us a chance with our witnesses and among ourselves to begin this dialogue, as well. So I 

thank you for this opportunity. 

Mr. COBLE. I thank the gentleman. 

We are pleased to be joined by the distinguished gentleman from 

Arizona, Mr. Flake, the distinguished gentleman from Massachusetts, Mr. Delahunt, and if you all have opening statements, gentlemen, they will be put into the record, as is the case of the 

gentlelady from Texas, Ms. Sheila Jackson Lee. 

We have four distinguished witnesses with us today. Our first 

witness is Mr. Christopher Wray, Assistant Attorney General at 

the Criminal Division of the U.S. Department of Justice. Prior to 

this position, Mr. Wray served as the Principal Associate Deputy 

Attorney General and as an Assistant U.S. Attorney for the Northern District of Georgia. As a prosecutor in Atlanta, he prosecuted 

5

cases involving racketeering, arson, bank robbery, gun trafficking, 

counterfeiting, and immigration issues, among other things. Mr. 

Wray earned both his undergraduate degree and his J.D. from Yale 

University. 

Our second witness is Judge Ricardo Hinojosa. Judge Hinojosa 

was nominated by Ronald Reagan and serves as the U.S. District 

Court Judge for the Southern District of Texas. In addition, Judge 

Hinojosa is the Chairman of the United States Sentencing Commission. He joined the Commission in 2003 and has been Chairman 

since January 31, 2004. Previously, Judge Hinojosa served as a law 

clerk for the Texas Supreme Court as well as working in private 

practice in McAllen, Texas. Judge Hinojosa is a graduate of the 

University of Texas and earned his J.D. at Harvard University. 

Third, we have Mr. Daniel Collins, a partner at Munger, Tolles, 

and Olson in Los Angeles. Mr. Collins has represented clients in 

various appellate cases at the Ninth Circuit, the United States Supreme Court, and the California appellate courts. He served previously at the Department of Justice as an Associate Deputy Attorney General and Chief Privacy Officer. During his tenure at DOJ, 

Mr. Collins worked extensively on the PROTECT Act, as well as on 

the establishment of the Terrorist Screening Center. Additionally, 

Mr. Collins was an Assistant U.S. Attorney in the Criminal Division in Los Angeles. He received his undergraduate degree from 

Harvard University and his J.D. from Stanford University. 

Our final witness today, Mr. Frank O. Bowman III, is a professor 

at the Indiana University School of Law in Indianapolis. Prior to 

serving in his current position, he served as an academic advisor 

to the Criminal Law Committee of the U.S. Judicial Conference 

and as Special Counsel to the U.S. Sentencing Commission in 

Washington, D.C. He further served as a Deputy District Attorney 

for Denver, Colorado, and was Deputy Chief of the Southern Criminal Division in the U.S. Attorney’s Office for the Southern District 

of Florida. Mr. Bowman received his law degree from Harvard University. 

Now, for those in the audience, I apologize for my verbose introduction, but I feel that you all, in the event that you did not know 

it, you need to know the credentials that these witnesses bring to 

the table and I think that is significant and important for all of us. 

It is good to have you all with us. 

Gentlemen, we operate here under the 5-minute rule. Now, you 

won’t be drawn and quartered when that red light appears, but 

when the red light appears, that is your information that the ice 

has become awfully thin on which you are skating. The amber 

light, when the amber light appears, I think that will give you 

about 30 to 60 seconds to wrap it up. 

We have your written testimony. It has been examined and will 

be reexamined. We impose the 5-minute rule against ourselves 

when we question you all, if you could make your responses as 

brief as possible so we can beat the red light, as well. 

Mr. Wray, why don’t we start with you. 

6

STATEMENT OF THE HONORABLE CHRISTOPHER A. WRAY, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, UNITED 

STATES DEPARTMENT OF JUSTICE 

Mr. WRAY. Thank you, Mr. Chairman, and thank you for holding 

this hearing. 

Mr. Chairman and Ranking Member Scott, distinguished members of this Subcommittee, in Booker the Supreme Court held that 

the mandatory nature of the Federal sentencing guidelines violated 

a defendant’s sixth amendment right to a jury trial. The Court 

then severed the two provisions that make the guidelines mandatory, rendering the guidelines only advisory. 

The Supreme Court, however, did not contemplate that advisory 

guidelines would be a permanent solution and anticipated that the 

Congress would consider legislation in the wake of Booker. And Mr. 

Chairman, as you noted, Justice Breyer himself stated that the ball 

lies in Congress’s court. 

In considering Booker’s consequences, this Subcommittee has the 

benefit of a substantial body of evidence. The long and troubled history of sentencing before the Sentencing Reform Act demonstrates 

the problems of disparity and unfairness that resulted from fully 

discretionary sentencing. Almost two decades of experience then 

under the Sentencing Reform Act have also shown that the mandatory system of guidelines enacted by Congress led to consistency, 

transparency, and fairness and helped to bring about historic declines in crime. 

Since Booker, the actions of several courts have already raised 

concerns about the consequences of a return to greater discretion 

in sentencing. Based on this record, this Committee can predict the 

long-term implications of Booker and can assess the need for legislative action. 

The Justice Department is committed to working with Congress, 

with the Judiciary, with the Sentencing Commission and with 

other interested parties to ensure that the resulting sentencing regime is just and lasting and carries out the purposes of sentencing. 

Before the passage of the Sentencing Reform Act in 1984, our 

country had experimented with different sentencing schemes: early 

release on parole, rehabilitation in place of incarceration, and unfettered judicial discretion. Those policies did not work. They failed 

to prevent crime and promote safe streets and they contributed to 

the high crime periods of the 1960’s, 1970’s, and 1980’s. There was 

no coherent sentencing policy and judges enjoyed almost unlimited 

discretion in sentencing. That discretion was largely unreviewable 

and it resulted in unwarranted disparity. 

In the late 1970’s and early 1980’s, a bipartisan Congress passed 

the Act. It guiding principle was consistency so that similar defendants who committed similar crimes and had similar records would 

receive similar sentences. Another guiding principle was transparency, so that the parties and the public would know the factual 

and legal basis for a sentence, providing accountability. 

As one court has recently noted in a post-Booker opinion, it 

would be startling to discover that while Congress had created an 

expert agency, and—I am quoting now—‘‘approved the agency’s 

members, directed the agency to promulgate the guidelines, allowed those guidelines to go into effect, and adjusted those guideVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
7

lines over a period of 15 years, that the resulting guidelines did not 

well serve the Congressional purposes. On the contrary, the more 

likely conclusion is that the guidelines reflect precisely what Congress believes is the punishment that will achieve its purposes in 

passing criminal statutes.’’ That is from a recent Utah case decided 

since Booker. We believe that the Sentencing Reform Act has been successful 

in achieving Congress’s goal of reducing unwarranted disparity. 

Statistical studies bear that out. 

Another significant impact of sentencing reform has been the 

steep decline of crime in the United States, which is currently at 

a 30-year low. Following Congress’s lead, many States have adopted similar guideline systems and an expanding body of literature 

suggests that incarceration of dangerous persons in recent years 

has demonstrably reduced crime. 

As Congress crafts the policies which will guide Federal sentencing, we urge you to keep in mind that the ultimate goals are 

to promote fair sentencing by minimizing unwarranted disparity 

and to ensure the public safety through tough sentencing. 

Since Blakely, the Department has closely studied various sentencing proposals, and although we are not here today to endorse 

a particular option, we are here to say that the resulting system 

must retain the strengths that existed in the mandatory guideline 

system without suffering from its constitutional weakness. We 

agree with those experts who predict that a purely advisory system 

will undoubtedly lead to greater disparity, and that over time, this 

disparity will likely increase. I note that at a Sentencing Commission hearing last November that a number of us attended, there 

was widespread agreement from professors to defense attorneys 

that advisory guidelines were not appropriate for the Federal justice system. 

My written testimony identifies a number of particular 

vulnerabilities, Mr. Chairman, and I see I am coming up on that 

thin ice period. If I could just beg the chair’s indulgence for just 

a minute, briefly, the vulnerabilities that I think are of particular 

note and should be of particular concern to this Subcommittee. 

One, it is essential to have consistent sentencing procedures at the 

hearings themselves. We have already seen in the wake of Booker

some courts that have actually adopted procedures that were rejected in Booker by the Supreme Court, and that raises, I think, 

a very sobering thought. If lower courts don’t feel constrained by 

a decision of the Supreme Court of the United States, then it is certainly fair to ask whether they will ever be constrained by guidelines that are merely advisory. 

Also, the guidelines had prohibited factors that were deemed by 

the Sentencing Commission to be inappropriate factors upon which 

to reduce a sentence, for example, and in the wake of Booker, some 

courts have already taken prohibited factors into account in sentencing defendants to lower sentences. 

Third, one consequence of the advisory guidelines that we are 

very concerned about is the effect on cooperation. Mr. Chairman, 

Mr. Ranking Member, as you know, in order to make cases in terrorism, organized crime, drug cases, corporate fraud cases, cooperation of lower-level participants is absolutely essential to make 

8

1 United States v. Booker, 125 S.Ct. 738 (2005). 2 Id. at 768. 3 Brief of Amici Curiae Senators Kennedy, Feinstein, and Hatch, United States v. Booker, 125 

S.Ct. 738 (2005) (Nos. 04–104, 04–105). 

those cases and the ability for us to control that cooperation credit 

is critical to be able to assure that we get the complete truth from 

the people who seek cooperation. So we would not support any proposal that did not adequately address that issue in the appropriate 

ways. 

Mr. COBLE. Your time is about up, Mr. Wray. 

Mr. WRAY. Thank you, Mr. Chairman. I would be happy to answer any further questions. 

Mr. COBLE. Thank you. 

[The prepared statement of Mr. Wray follows:]

PREPARED STATEMENT OF THE HONORABLE CHRISTOPHER A. WRAY

INTRODUCTION

Chairman Coble, Ranking Member Scott, distinguished members of the Subcommittee—

On January 12, 2005, the Supreme Court of the United States in United States 

v. Booker 1 held that the mandatory nature of the federal sentencing guidelines, promulgated pursuant to the Sentencing Reform Act of 1984, violated defendant’s Sixth 

Amendment right to a jury trial. The Court remedied this problem by severing and 

invalidating the two provisions that made the Guidelines mandatory, thereby rendering the guidelines advisory. A majority of the Supreme Court contemplated that 

advisory guidelines would not be a permanent solution and anticipated that Congress would consider legislation in the wake of the Booker decision. Indeed, Justice 

Breyer stated in his majority opinion that ‘‘the ball lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice.’’ 2

In considering the consequences of Booker for the future of sentencing, this Subcommittee has the benefit of a substantial body of evidence. The long and troubled 

history of discretionary sentencing prior to the Sentencing Reform Act demonstrates 

the problems of disparity and unfairness that resulted from fully discretionary sentencing. Almost two decades of experience under the Sentencing Reform Act have 

shown that the mandatory system of guidelines enacted by Congress led to consistency, transparency and fairness, and helped to bring about historic declines in 

crime. In the three weeks since Booker, the actions of several federal courts have 

already raised concerns about the consequences of a return to greater discretion in 

sentencing. Based on that record, this Subcommittee can begin to predict the longterm implications of the Supreme Court’s decisions in Booker and Blakely,3 and can 

begin to assess the need for legislative action to address those implications. The Department of Justice is committed to working with Congress, the judiciary, and other 

interested parties, to ensure that the resulting sentencing regime is just and lasting 

and carries out the fundamental purposes of sentencing. 

PRE-SENTENCING REFORM ERA

Prior to the passage of the Sentencing Reform Act in 1984, the United States experimented with different sentencing schemes: early release on parole, rehabilitation in place of incarceration, and unfettered judicial discretion. Those policies failed 

to prevent crime and promote safe streets, and contributed to the high crime periods 

of the 1960’s, 1970’s, and 1980’s. In spite of ample criminal laws, adequate levels 

of federal investigators, and vigorous prosecutions, there was no coherent sentencing 

policy. Judges enjoyed almost unlimited discretion at sentencing. This discretion 

was largely unreviewable and the exercise of it by judges throughout the nation resulted in unwarranted disparity in sentencing. Senators Edward Kennedy, Dianne 

Feinstein and Orrin Hatch characterized the disparity that existed before the Sentencing Reform Act as ‘‘shameful’’ and ‘‘astounding.’’ 3 This past summer, during 

Senate hearings, Senator Patrick Leahy referred to the time before the Sentencing 

Reform Act as ‘‘the bad old days of fully indeterminate sentencing when improper 

9

4 Blakely v. Washington and the Future of Federal Sentencing Guidelines: Hearing Before the 

Senate Judiciary Comm, 108th Cong. 8573 (2004), available at http://judiciary.senate.gov/testimony.cfm?id=1260&wit—id=2629. 5 U.S. SENTENCING COMMISSION, FIFTEEN YEARS OF GUIDELINES SENTENCING 80 (2004) [hereinafter Fifteen Year Report] (studies cited therein). 

factors such as race, geography and the predilections of the sentencing judge could 

drastically affect a defendant’s sentence.’’ 4

This disparity is well-known and has been documented in a number of studies 

which demonstrated that sentences varied significantly depending on the judge to 

whom an offender was assigned.5 In one study, judges in the Second Circuit were 

sent presentence reports based upon 20 actual federal cases and asked what sentences they would impose. Judges considering the same offense and the same defendant often gave those defendants vastly different sentences. In one case the defendant’s sentence differed by 9 years, in another by 13 years, and in a third case 

17 years separated the most severe from the most lenient sentence. Data also 

showed that handfuls of judges were consistently more severe or more lenient than 

their colleagues. This fact may not be surprising. But the fact that a defendant’s sentence could vary by 9, 13, or even 17 years depending solely on the judge assigned to the case, or that two defendants with similar characteristics who committed the same crime in the same Circuit would be sentenced to two such different 

sentences, underscored the need for mandatory guidelines. 

Another study analyzed the role played by each judge’s sentencing philosophy by 

providing 264 judges with hypothetical cases. The study found that judges who were 

oriented toward the goals of incapacitation and deterrence gave sentences at least 

ten months longer on average than judges who emphasized other goals. 

This type of disparity, coupled with the fact that many sentences were not sufficiently punitive, undermined the public’s confidence in the federal criminal justice 

system and had far reaching consequences. Congress, the Department, and other 

analysts recognized that such inconsistency and uncertainty in federal sentencing 

practices was incompatible with effective crime control and with a fair system of justice. And they demanded change. 

SENTENCING REFORM ACT OF 1984

In the late 1970’s and early 1980’s, policymakers in Washington came to a consensus view that a determinate sentencing system was necessary. Leaders of both 

parties came together to pass the Sentencing Reform Act of 1984. Its guiding principle was consistency, so that defendants who committed similar crimes and had 

similar criminal records would receive similar sentences. Another guiding principle 

was transparency, so that the parties and the public would know the factual and 

legal basis for a sentence, providing accountability. Finally, Congress articulated the 

purposes of punishment, which are codified in 18 U.S.C. § 3553(a)(2) and in 28 

U.S.C. § 991(b), and directed the Commission to promulgate policies and practices 

to assure that they be achieved. All sentences must reflect the seriousness of the 

offense, promote respect for the law, provide just punishment for the offense, afford 

adequate deterrence to criminal conduct, protect the public from further crimes of 

the defendant, and provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the most effective manner. 

Under this congressional mandate, the Sentencing Commission established a uniform system of guidelines, structured to provide fairness, predictability, and consistency for similarly situated defendants. At the same time, the guidelines require 

each sentence to be individualized to fit the offender and the offense, and require 

the court to state the reasons for each sentence. The guidelines also require longer 

sentences for especially dangerous or recidivist criminals. Under this system, sentences no longer depended on the district where the offenders committed the offense 

or the judge who imposed the sentence, so the likelihood of unwarranted disparity 

was greatly minimized. 

As directed by Congress, the Commission drafted the original guidelines based 

upon the averages of actual sentences imposed by judges throughout the United 

States and it has continued to refine the guidelines based upon actual sentencing 

practice. In addition to these empirical data, the Commission collaborates with all 

of the major stakeholders in the federal criminal justice system, advisory groups, 

interested observers, and the general public. Thus, the Commission ensures that the 

guidelines achieve congressionally-mandated purposes, and Congress reviews those 

guidelines and all proposed amendments to them to ensure that those purposes are 

met before allowing them to take on the force and effect of law. On occasion, Congress has directed the Sentencing Commission to alter existing punishment levels. 

Congress has also approved legislation which mandates minimum punishments for 

10

6 United States v. Wilson, 2005 WL 78552, at *4 (D. Utah 2005). 7 Id. at *12. 8See FIFTEEN YEAR REPORT, supra note 6, at 140. 9See id. at 97–98. 10 BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATIONS IN THE UNITED STATES (NOV. 

1997). 11 BUREAU OF PRISONS, OFFICE OF RESEARCH AND EVALUATION (NOV. 2004). 12Wilson, 2005 WL 78552, at *7. 

certain offenses. Because Congress and the Sentencing Commission have made judgments about the appropriate penalties for federal crimes, part of our Executive 

Branch enforcement responsibility is to ensure that this policy is translated into actual sentences for defendants. 

As United States District Judge Paul Cassell of the District of Utah recently 

noted in a post-Booker opinion, ‘‘It would be startling to discover that while Congress had created an expert agency, approved the agency’s members, directed the 

agency to promulgate the Guidelines, allowed those Guidelines to go into effect, and 

adjusted those Guidelines over a period of fifteen years, that the resulting Guidelines did not well serve the congressional purposes. The more likely conclusion is 

that the Guidelines reflect precisely what Congress believes is the punishment that 

will achieve its purposes in passing criminal statutes.’’ 6 The Department was 

pleased to see that Judge Cassell adopted in that opinion an approach of adhering 

insofar as is possible post-Booker to the Sentencing Guidelines, stating that ‘‘in all 

future sentencings, the court will give heavy weight to the Guidelines in determining an appropriate sentence. In the exercise of its discretion, the court will only 

depart from those Guidelines in unusual cases for clearly identified and persuasive 

reasons.’’ 7 The Department will urge the federal courts to adhere to the guidelines 

as far as possible within the limits of Booker, as we await prompt enactment of legislation in response to the Booker decision. 

THE IMPACT OF SENTENCING REFORM

The Sentencing Reform Act has been successful in achieving Congress’ goal of reducing unwarranted disparity in sentencing. The Sentencing Commission’s Fifteen 

Year Report completed in November noted that ‘‘[r]igorous statistical study both inside and outside the Commission confirm that the guidelines have succeeded at the 

job they were principally designed to do: reduce unwarranted disparity arising from 

differences among judges.’’ 8 In fact, according to the Fifteen Year Report, the reduction of unwarranted judicial disparity has been reduced by approximately one third 

to one half by implementation of the Guidelines.9

Another significant impact of sentencing reform has been the steep decline of 

crime in the United States, currently at a 30-year low. Congress, through the Sentencing Reform Act of 1984, instituted determinate sentences, the elimination of parole, truth in sentencing, limited judicial discretion, and appropriate consistency. 

Following Congress’ lead, many states adopted similar guidelines systems. Congress 

also used mandatory minimum sentences such as those contained in the Anti-Drug 

Abuse Act of 1986, to incarcerate drug dealers and reduce the violence associated 

with the drug trade, and once again, many states followed suit. Further, in 1994, 

Congress passed the Violent Crime Control and Law Enforcement Act which provided incentives to states to pass truth in sentencing laws requiring violent offenders to serve at least 85% of their sentences. This also is an example of a matter 

on which the states followed Congress’ lead. The new sentencing systems adopted 

by Congress and many states recognized the need to place the public’s safety from 

crime first and to further that end through adequate deterrence, incapacitation of 

violent offenders, and just punishment. The overall drop in the violent crime rate 

of 26% in the last decade is proof of the success of Congress’ policies. 

A few critics have said that our sentencing system has been a failure and that 

our prisons are filled with non-violent first-time offenders. But the facts tell us otherwise. Focusing exclusively on the federal prison population, approximately 66% of 

all federal prisoners are in prison for violent crimes or had a prior criminal record 

before being incarcerated.10 Again looking only at federal inmates, 79% of federal 

inmates classified as non-violent offenders released from prison have a prior arrest. 

The rap sheets of federal prisoners incarcerated for non-violent offenses indicate an 

average of 6.4 prior arrests with an average of at least 2.0 prior convictions.11 Given 

the active criminal careers and the propensity for recidivism of most prisoners, incapacitation works. 

As noted by Judge Paul Cassell and others, ‘‘an expanding body of literature suggests that incarceration of dangerous persons in recent years has demonstrably reduced crime, through both incapacitation and deterrence.’’ 12 These incapacitative 

11

13Felman, James, How Should the Congress Respond if the Supreme Court Strikes Down the 

Federal Sentencing Guidelines?, 17 Federal Sentencing Reporter 97 (Dec. 2004). 14Letter from Practitioners Advisory Group to the United States Sentencing Commission 12 

(Nov. 4, 2004), available at http://www.usscpag.com/index.asp. 15 Jon Sands, Submitted Testimony before Sentencing Commission 4 (Nov. 17, 2004), available 

at http://www.ussc.gov/hearings/11—16—04/Porter1.pdf. 16Professor Stephanos Bibas, Submitted Testimony before Sentencing Commission 5 (Nov. 17, 

2004), available at: http://www.ussc.gov/hearings/11—16—04/Bibas.pdf. 17 United States v. Crosby, 2005 WL 240916 (2nd Cir. 2005); United States v. Hughes, 2005 

WL 147059 (4th Cir. 2005). 

and deterrent effects arise from a sentencing guidelines system which is tough, fair, 

and predictable. As Congress crafts the sentencing policies which will guide the federal criminal justice system, we urge you to keep in mind that the ultimate goals 

are to promote fair sentencing, by minimizing unwarranted disparity, and to ensure 

the public’s safety through tough sentencing, especially sentencing that incorporates 

a person’s prior criminal history and real offense conduct. 

VULNERABILITIES OF ADVISORY GUIDELINES

Since Blakely, the Department has closely studied various sentencing proposals. 

Today we reaffirm our commitment to support a sentencing regime that advances 

the principles of consistency, fairness, transparency, accountability, and the other 

statutory purposes of punishment. Though we are not here today to endorse a particular option, we are here to say that the resulting system must retain the 

strengths of the mandatory guideline system without suffering from its constitutional weakness. 

We agree with experts who predict that a purely advisory system will undoubtedly 

lead to greater disparity and that, over time, this disparity is likely to increase.13

At a hearing before the Sentencing Commission last November, there was widespread agreement among all of the panelists, from professors to public defenders, 

that advisory guidelines were not appropriate for the federal justice system. For example, the Practitioners Advisory Group stated that ‘‘rules that are mandatory are 

valuable in controlling unwarranted disparity, and in providing certainty so that defendants can make rational decisions in negotiating plea agreements and in trial 

strategy.’’ 14 Testimony of a witness appearing on behalf of the Federal Public Defenders stated: ‘‘We view advisory guidelines as another means of simply evading 

rather than embracing the principles of Blakely.’’ 15 And a law professor testified 

that ‘‘[g]iven the fact that Congress has repeatedly expressed its commitment to uniformity (most recently in the Feeney Amendment), these solutions [advisory guidelines] ignore the will of the ultimate decision-maker in this area.’’ 16 Further, those 

who would cite to state advisory systems as models for the federal system often disregard the fact that, unlike the states, the federal system casts a wide net over far 

flung geographical areas, with diverse legal cultures. 

As we have analyzed an advisory guideline system, we have identified 

vulnerabilities that are inherent in advisory guidelines, which we consider serious 

impediments to law enforcement. We urge you to give serious consideration to these 

vulnerable areas and to ensure that they are addressed by whatever legislation is 

enacted. 

SENTENCING PROCEEDINGS

The first area is the sentencing hearing itself. In order to have consistent sentences, it is essential that sentencing hearings have consistent form and substance. 

Although there are currently statutes and Criminal Rules of Procedure controlling 

sentencing proceedings (e.g., 18 U.S.C. §§ 3552, 3553(a); Fed. R. Crim P. 32(d)), 

these procedures don’t necessarily ensure that courts ‘‘consult the guidelines and 

take them into account when sentencing’’ as explicitly required by the Court in 

Booker. In order to comply with these requirements, the Department has issued 

guidance to the field instructing prosecutors to recommend guideline sentences in 

all but the rarest cases, and to recommend guideline departures only when justified 

by the facts and the law. We will also ask the sentencing court to consult the guidelines and to calculate a guideline sentence prior to any other considerations as several courts, including the Second and Fourth Circuits, have directed.17

We have, however, already encountered judges who have exercised their newfound discretion to fashion sentencing procedures which were considered and explicitly rejected by Booker. In both Oklahoma and Nebraska, courts have declared that 

the appropriate remedy is that suggested by Justice Stevens’s dissent in Booker—

to require prosecutors to charge and prove all sentencing facts to a jury beyond a 

12

18The two remedies considered at length in Booker were whether to render the guidelines advisory or to require proof of sentencing facts to a jury. The Supreme Court chose the former 

and the federal courts must apply it until the Congress enacts a more appropriate remedy. But, 

in United States v. Barkley, Case No. 04–CR–119–H (N.D. Okla. Jan. 24, 2005), the district 

court did not follow the Booker decision on the remedy. In Barkley, the district court said ‘‘for 

purposes of determining the viability of the new, advisory system now legislated by the Supreme 

Court, Congress was never called upon to choose between such an advisory system and a modified mandatory system. Nevertheless, the Supreme Court amended the federal statute to reflect 

its belief as to what Congress would have done if presented with these alternatives. This Court 

believes that Congress will be motivated to reimpose a mandatory sentencing system which, 

under Booker, must reflect such modifications as are necessary to accommodate the Sixth 

Amendment rights described in Blakely.’’ Id,. slip op. at 8–9. The district court ultimately concluded in Barkley that ‘‘as a matter of history, policy and common sense, a mandatory sentencing system that accommodates the Sixth Amendment rights described in Blakely and Booker

is preferable to an advisory application of the Guidelines. The Court believes that applying the 

guidelines, modified to satisfy Blakely, will have the additional benefit of contributing to the 

public debate when Congress determines whether to reimpose the mandatory components of federal sentencing.’’ Id., slip op. at 32. In United States v. Jose Huerta-Rodriguez, No. 8:04CR365 

(D. Neb. Feb. 1, 2005), the district court concluded that ‘‘it will continue to require that facts 

that enhance a sentence are properly pled in an indictment or information, and either admitted, 

or submitted to a jury (or to the court if the right to a trial by jury is waived) for determination 

by proof beyond a reasonable doubt. The court finds that although Booker’s Sixth Amendment 

holding may not require such a procedure, it is not precluded.’’ Id., slip op. at 12. These district 

court opinions cannot be squared with the statement of the majority of the Supreme Court in 

Booker that ‘‘we must apply today’s holdings—both the Sixth Amendment holding and our remedial interpretation of the Sentencing Act—to all cases on direct review.’’ Booker, 125 S. Ct. at 

769. 19 Huerta-Rodriguez, Case No. 8:04 CR365 (D. Neb. Feb. 1 2005); United States v. Barkley,

Case No. 04–CR–119 (N.D. Okla. Jan. 24, 2005). 20 Crosby, 2005 WL 240916, at *7. 21 18 U.S.C. §§ 3553(a)(4), (a)(5), and (a)(6). 22 USSG §§ 5H1.10, 5H.12. See generally USSG § 5K2.0. 23 USSG § 5H1.4

reasonable doubt.18 In Nebraska, the court used a system of its own making to impose a sentence of 36 months for an aggravated illegal reentry after deportation, 

when the guideline range was 57–71 months.19

These examples reflect a sobering thought: if lower courts are not constrained by 

a clear and explicit holding of the Supreme Court of the United States, it is fair 

to ask whether they will be constrained by guidelines that are merely advisory. 

Similarly, if lower courts exercise their discretion to ignore the law concerning matters as large as what sentencing system applies in federal courts, surely courts will 

exercise their discretion even more freely when applying individual guidelines. 

The fact is that although the guidelines are now advisory, they are still an integral part of federal sentencing. As the Second Circuit recently noted, ‘‘the Guidelines 

are not casual advice, to be consulted or overlooked at the whim of the sentencing 

judge.’’ 20 Although the law still requires that courts consider the ‘‘applicable category of offense and . . . defendant as set forth in the guidelines,’’ and ‘‘any pertinent policy statement’’ and ‘‘the need to avoid unwarranted sentence disparities’’ among similarly situated defendants,21 these requirements may, like the Booker

opinion itself, be ignored under a purely advisory system. 

PROHIBITED FACTORS

With the current system of advisory guidelines, courts may believe they can consider sentencing factors that are prohibited by the guidelines. Under the mandatory 

guidelines system, courts were prohibited from considering certain grounds for departure which were considered improper by the Sentencing Commission, and in 

some cases are impermissible under the Constitution. Such grounds include the defendant’s race, sex, national origin, creed, religion, and socio-economic status.22 The 

Commission also prohibited consideration of other factors—such as the defendant’’s dependence on alcohol, drugs, or gambling, lack of guidance as a youth, disadvantaged upbringing and others—and discouraged consideration of other factors.23

Clearly, whether under the former mandatory guidelines system, or under the postBooker advisory guidelines system, no court may consider grounds for departure 

that are impermissible under the Constitution. 

Soon after the Court’s decision in Booker, a number of courts sentenced defendants to sentences significantly below the applicable guideline range, relying on factors that the Sentencing Commission considered improper when imposing sentences. 

In Wisconsin, a judge sentenced a white collar bank officer in a bank fraud case 

to one year and one day when the guidelines provided for 36–47 months, explicitly 

basing the sentence on considerations such as the defendant’s motivation to keep 

13

24 United States v. Ranum, 2005 WL 161223 (E.D. Wis. Jan, 19, 2005). 25Soto, Onell R., Four Colombians Get Light Sentences, Judge Cites Threats, at http://

SignOnSanDiego.com/news/metro/20050128–9999–7m28fast.html. 26 Booker, 125 S.Ct. at 745. 

the client’s business afloat and the fact that the conviction resulted in financial distress for the defendant.24 In California, a judge sentenced four men, convicted of 

smuggling more than a ton of cocaine from Colombia, to 41 months, when the guidelines provided for a sentence of at least 235–293 months. Among the reasons the 

court cited for the sentence was the defendants’ poverty. A newspaper reporting the 

case quoted the court as stating that the guideline sentence recommended by the 

government was ‘‘extremely harsh’’ and that the ‘‘the government is being absolutely 

and totally unfair.’’ 25 Meanwhile, other defendants in the same district in California 

received sentences of 20 and 30 years for the same conduct—smuggling tons of cocaine from Colombia on the high seas. 

As these decisions make clear, there is a need for courts to be consistent in their 

application of what factors are proper to consider at sentencing. Failing to do so will 

result in greater disparity. We urge Congress, in whatever sentencing system it implements, to prohibit certain factors so that judges may not consider in sentencing 

grounds which would be improper to consider or which would create sentencing disparity based upon inappropriate characteristics of a defendant. 

COOPERATION AND ACCEPTANCE OF RESPONSIBILITY

Another consequence of the advisory guidelines is the reduced incentive for defendants to enter early plea agreements or cooperation agreements with the government, since defendants may request and obtain the same benefit from the court 

without such an agreement. Under the mandatory guideline system, a defendant 

could obtain an additional third point reduction in his guideline range as consideration for an early acceptance of responsibility only upon the Department’s motion. 

The Department is in the best position to determine whether a defendant’s early 

plea has save prosecutorial resources, and should retain control of who receives that 

consideration. 

Similarly, it is essential that the Department retain control over whether consideration at sentencing will be given for cooperation. Cooperation agreements are an 

essential component of law enforcement and are necessary to penetrate criminal organizations and to obtain convictions in court. First, the Department is in the best 

position to evaluate the truthfulness and value of a cooperator’s assistance, by evaluating it within the context of the entire body of investigative information and by 

determining whether it is consistent and corroborated by other evidence. But there 

is a more important reason—the Department needs the leverage in order to insist 

that cooperating defendants testify to the complete truth, rather than half-truths. 

The integrity of the judicial system depends upon the prosecutor’s ability, in good 

faith, to present only truthful testimony. The Department’s ability to insist on complete and truthful testimony is undercut if a cooperating defendant can tell halftruths and then, himself, seek a sentence reduction based upon partial cooperation. 

In a number of circumstances, there will be less of an incentive for cooperating 

defendants to assume the risks of cooperation if they can seek sentencing benefits 

without risk. The implications of the status quo are particularly troubling for the 

Department in those cases in which defendants and targets are not charged with 

an offense involving a mandatory minimum sentence. This will have grave effects 

on the Department’s ability to prosecute a wide variety of crimes which are difficult, 

if not impossible, to investigate without cooperators, such as drug trafficking, gangs, 

corporate fraud and terrorism offenses. Moreover, it may impair the Department’s 

ability to obtain timely information. If defendants or targets of an investigation believe a district judge will impose minimal punishment or reward the defendant’s 

representations regarding his cooperation and its value, defendants may defer attempts to cooperate with the Department. This could have a very disruptive effect 

on on-going investigations. 

The potential problem created by these issues is serious enough that the Department will not support any proposal that does not appropriately address this issue. 

APPELLATE REVIEW

The Supreme Court in Booker excised 3742(e), which sets forth the standard of 

review on appeal for departures from the applicable guideline range, and announced 

that henceforth appellate courts would review sentences for ‘‘unreasonableness.’’ 26

The Department believes that guideline sentences are presumptively reasonable, 

and that sentences outside the guidelines become less reasonable the more they 

14

27 Id. at 767. 28 United States v. May, 359 F.3d 683 (4th Cir. 2004). 29 United States v. Mallon, 345 F.3d 943 (7th Cir. 2004). See also United States v Tucker, 386 

F.3d 273 (DC Cir. 2004); United States v. Mandhai, 375 F.3d 1243 (11th Cir. 2004). 

vary from the guideline range. It is, however, unclear how courts will define ‘‘rea- sonableness’’ and it is foreseeable that courts around the country will define it differently, opening another window through which disparity can infiltrate the system. 

Both the majority and dissenting opinions in Booker noted point. In response to Justice Scalia’s dissent that the ‘‘reasonableness’’ standard will lead to sentencing disparities, the majority noted that ‘‘we cannot claim that use of a ’reasonableness’ standard will provide the uniformity that Congress originally sought to secure.’’ 27

The Department is disappointed that the de novo standard established by the 

PROTECT Act for sentences outside the applicable guideline range is no longer the 

law. This standard proved invaluable in the re-sentencing of a number of cases. For 

example, the Fourth Circuit reviewed de novo a district courts one-month sentence 

in a cross-burning case, based upon the victim’s conduct and the defendant’s aberrant behavior. The Circuit concluded that the departures were unwarranted and 

clearly erroneous.28 The Seventh Circuit reviewed de novo a district court’s decision 

to grant a downward departure to a defendant convicted of child molestation on the 

grounds of national origin and health. Again, the Circuit court found that the departures were not warranted.29

We are concerned that the ‘‘reasonableness’’ standard may not be sufficiently rigorous to reduce unwarranted disparity. A rigorous and consistent appellate standard 

is essential to any guideline system since appellate review will be an important 

means for the parties to obtain consistent sentencing. 

REVIEW OF SENTENCING DATA

Finally, under any regime, it is important that Congress and the Sentencing Commission monitor the sentences being imposed throughout the country to determine 

whether the guidelines are being properly considered and applied. The impact of the 

Supreme Court’s ruling can only be assessed with accurate, real-time information 

on sentencing, which is necessary to play an appropriate and effective role in the 

public debate. This information remains vital to determine whether it is necessary 

to make adjustments to the guidelines, or to impose mandatory minimum sentences 

for certain types of crimes. This review is also necessary to ensure that the sentences imposed in the federal system are proportionate to the crime and provide 

adequate punishment, incapacitation and deterrence. 

CONCLUSION

The Department of Justice is committed to ensuring that the federal criminal justice system continues to impose just and appropriate sentences that meet the goals 

of sentencing reform, which has so well served the United States. We look forward 

to working with Congress and others to create a lasting system that advances these 

goals. We are confident that Congress will act in the near term to ensure that federal sentencing policy continues to play its vital role in bringing justice to the communities of this country. 

I would be happy to try to answer any questions that the Subcommittee may 

have.

Mr. COBLE. And in the sense of equity and fairness, since I gave 

you an extra minute, I will give you all 6 minutes if you need it. 

If you can do it in five, that will make the Chairman real happy. 

Judge, good to have you with us. Thank you. 

STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA, 

CHAIRMAN, UNITED STATES SENTENCING COMMISSION 

Judge HINOJOSA. Thank you, Chairman Coble and Ranking 

Member Scott and distinguished Members of the Committee. I 

thank you for this opportunity to be able to address you on the 

aftermath of Booker and its possible effect on the Federal sentencing guidelines. 

As you know, the Booker decision leaves the Sentencing Reform 

Act intact with the exception of two excised provisions and mainVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
15

tains all of the Sentencing Commission’s statutory obligations. My 

statement today presents some initial observations regarding Booker, provides early data regarding the impact of the decision, and 

outlines actions we are taking to ensure that the guidelines continue to be an effective sentencing tool. 

After Booker, the guidelines remain an important and essential 

factor in the imposition of Federal sentences. Under the approach 

set forth by the Court, district courts must consult the guidelines 

and take them into account when sentencing, subject to review by 

the courts of appeal for unreasonableness. The Commission believes that the Booker decision makes clear that the sentencing 

court must consider the guidelines and that such consideration necessarily requires the sentencing court to calculate the guideline 

sentencing range and consider the departure policy statements of 

the Federal sentencing guidelines. 

Significantly, Title 18, U.S. Code Section 3553(a) was left wholly 

intact and still instructs that in determining the particular sentence to impose, the court shall consider the kinds of sentence and 

the sentencing range as set forth in the guidelines. Of course, sentencing courts cannot consider the sentencing guideline range if 

one is not determined by the court. Appellate case law is already 

developing on this point. 

The Booker decision does not expressly address the question of 

how much weight the guidelines should be accorded by the sentencing court. There are a number of district court decisions with 

varying opinions regarding the precise weight that should be given 

to the guidelines. The Commission believes that the courts should 

give substantial weight to the guidelines in determining the appropriate sentence because as mandated by the Sentencing Reform 

Act, the Commission has considered the factors listed in section 

3553(a) during the process of promulgating and refining the guidelines. 

The factors the Commission has considered are a virtual mirror 

image of the factors sentencing courts are required to consider pursuant to section 3553(a). In addition, Congressional action through 

the history of the Federal sentencing guidelines indicates 

Congress’s belief that they generally achieve the statutory purposes 

of sentencing as they are submitted for Congressional review before 

they become effective, and Congressional approval can only be interpreted as a sign that Congress believes the guidelines have done 

so. Accordingly, sentencing courts should give the guidelines substantial weight. 

After Booker, sentencing courts also continue to be required by 

Title 28 U.S. Code Section 994(w) to submit to the Commission five 

specific sentencing documents. Judge Sim Lake, Chair of the Criminal Law Committee of the Judicial Conference of the United States, 

and I have issued a joint memorandum to all United States district 

judges and other court personnel reminding them of this ongoing 

statutory obligation. The submission of these sentencing documents 

is of utmost importance because without them, the Sentencing 

Commission cannot generate the sentencing data that Congress, 

the Commission, and others need to evaluate the impact of Booker. 

The Commission is sensitive to the need for timely and thorough 

post-Booker data and has prioritized and reconfigured its data colVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
16

lection in order to analyze and disseminate post-Booker data in as 

close to real time as possible. As of February 4, 2005, we have received and analyzed sentencing documents from 74 Federal districts for 733 cases sentenced on or after January 12, 2005. These 

courts have been highly compliant with their statutory requirements to submit sentencing documentation to the Commission. The 

data we have compiled is preliminary in nature and not necessarily 

representative of the nation as a whole. I would urge extreme caution in making firm conclusions based on these figures. 

The percent of cases sentenced within the guideline sentencing 

range post-Booker does not appear to be noticeably different from 

previous practice. Of the 692 cases for which complete sentencing 

information was available, 63.9 percent were sentenced within the 

applicable guideline sentencing range, which is almost identical to 

the data we have for the last three fiscal years of published data, 

which range from 64 to 65 percent. 

One-third of the cases were sentenced below the applicable 

guideline sentencing range, which also is almost identical to the 

data we have for the last three fiscal years of published data. Almost two-thirds, 63.2 percent of the sentences below the applicable 

guideline range since Booker were based on an agreement with the 

Government either for substantial assistance, an early disposition 

or fast track program, or otherwise pursuant to a plea agreement. 

Also noteworthy is that 2.7 percent of the post-Booker cases were 

sentenced above the sentencing guideline range, which is a relatively small number but represents more than a three-fold increase above the average upward departure rate of 0.7 percent for 

the last three fiscal years. 

This very preliminary post-Booker data indicates that courts appear to be sentencing pursuant to the guidelines in the overwhelming majority of cases. Only 7.8 percent of cases appear to be 

sentenced below, and only 1.3 percent appear to be sentenced above 

the applicable guideline sentencing range based upon sentencing 

authority established in Booker. Therefore, courts sentenced pursuant to the guideline system as a whole, including upward and 

downward departure policy statements contained in the guideline 

manual, in 90.9 percent of the cases. 

Next week, we have planned a 2-day hearing to continue building 

a record of informed discussion of Booker and we are scheduled to 

vote to publish for comment proposed guideline amendments that 

would implement Congressional directives and other legislation 

concerning identity theft and antitrust offenses. In short, our core 

work continues uninterrupted. 

In closing, the Commission recognizes that Booker presents new 

potentially significant challenges to Federal sentencing and we are 

aware proposals to respond to the decision are being discussed. If 

Congress decides at some point to pursue legislation, we hope that 

it will preserve the core principles of the Sentencing Reform Act, 

and to the extent possible, avoid a wholesale rewriting of the system that has operated well for nearly two decades. We believe the 

Sentencing Reform Act was a landmark piece of legislation and the 

resulting guidelines have made significant strides in furthering the 

goals of the Act. 

17

1 United States v. Booker, 125 S. Ct. 738 (2005). 2 Blakely v. Washington, 542 U.S. (2004) (holding that any fact (other than a prior conviction) 

which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a 

jury beyond a reasonable doubt). 3 Booker, 125 S. Ct. at 767 (opinion of BREYER, J.). 4Mistretta v. United States, 488 U.S. 361 (1989). 5 Booker, 124 S. Ct. at 767 (opinion of BREYER, J.) (emphasis added). 

As we move forward, the Commission is ready to assist Congress 

in any way it deems appropriate, and I thank you so much for giving me the time to be here today and for going over my alloted 

time, Mr. Chairman. As a judge for 22 years, I know that bothers 

the person at the helm, so I appreciate it very much. 

Mr. COBLE. Thank you, Your Honor. I appreciate that. 

[The prepared statement of Judge Hinojosa follows:]

PREPARED STATEMENT OF THE HONORABLE RICARDO H. HINOJOSA

Chairman Coble, Ranking Member Scott, and Distinguished Members of the Committee, thank you for inviting me to testify today on behalf of the United States 

Sentencing Commission regarding the impact of the Supreme Court’s decision in 

United States v. Booker 1 on the Federal Sentencing Guidelines. 

After the Court’s decision in Blakely v. Washington,2 the federal criminal justice 

system experienced a period of uncertainty regarding whether the Federal Sentencing Guidelines would remain valid. The Sentencing Commission, in testimony 

before Congress and in its own amicus brief, vigorously asserted that the holding 

in Blakely did not apply to the Federal Sentencing Guidelines. Although the Court 

ultimately extended Blakely to the Federal Sentencing Guidelines, the Booker decision resolved the uncertainty in a manner that leaves the Sentencing Reform Act 

intact with the exception of two excised provisions. The opinion maintains all of the 

Sentencing Commission’s statutory obligations under the Act. In fact, the Court 

noted the Commission’s important role in the federal criminal justice system, stating that ‘‘the Sentencing Commission remains in place, writing Guidelines, collecting information and actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly.’’ 3

There is no doubt, however, that the Booker decision is the most significant case 

affecting the federal guidelines system since the Supreme Court upheld the Sentencing Reform Act in Mistretta.4 While it is impossible to evaluate fully the impact 

of Booker after less than one 

month, the Sentencing Commission and its staff are committed to assisting Congress in any way it deems appropriate as you assess and respond to the decision. 

The Sentencing Commission is uniquely positioned to assist all three branches of 

government in ensuring the continued security of the public while providing fair and 

just sentences. An independent agency housed in the judicial branch, the Sentencing 

Commission is an expert bipartisan body of federal judges, individuals with varied 

experience in the federal criminal justice system, and ex-officio representatives of 

the Executive branch whose work on sentencing guidelines must be reviewed by 

Congress. In short, the Sentencing Commission is at the crossroads where the three 

branches of government intersect to determine federal sentencing policy. 

My testimony today presents some of the Sentencing Commission’s initial observations regarding Booker, provides early data regarding the impact of the decision, 

and outlines actions we are taking to ensure that the guidelines continue to be an 

effective sentencing tool. 

Guidelines Still Must Be Calculated and Considered 

After Booker the Federal Sentencing Guidelines remain an important and essential consideration in the imposition of federal sentences. The decision severed and 

excised two statutory provisions, 18 U.S.C. § 3553(b)(1), which made the Federal 

Guidelines mandatory, and 18 U.S.C. § 3742(e), an appeals provision. Under the approach set forth by the Court, ‘‘district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing,’’

subject to review by the courts of appeal for ‘‘unreasonableness.’’ 5

The Sentencing Commission firmly believes that the Court’s decision makes clear 

that the sentencing court must consider the guidelines and that such consideration 

necessarily requires the sentencing court to calculate the guideline sentencing 

range. It is significant that 18 U.S.C. § 3553(a), which was left wholly intact by the 

decision, still instructs that sentencing courts 

18

6 18 U.S.C. § 3553(a)(4) (emphasis added). 7See, e.g., United States v. Crosby, F.3d , 2005 WL 240916 (2nd Cir Feb. 2, 2005), at *5 (emphasis added). 8 United States v. Hughes, F.3d , 2005 WL 147059 (4th Cir. Jan. 24, 2005), at *3. (emphasis 

added). 9 United States v. Wilson, 2005 WL 78552 (D. Utah Jan 13, 2005); United States v. Ranum,

2005 WL 161223 (E.D. Wis. Jan 19, 2005). 10 Booker, 125 S. Ct. at 757 (opinion of BREYER. J.). 11There is considerable pre-Booker case law supporting the proposition that the Sentencing 

Guidelines take into account the factors set forth at 18 U.S.C. § 3553(a)(2). See, e.g., United 

States v. Davern, 970 F.2d 1490 (6th Cir. 1992); United States v. Mogel, 956 F.2d 1555 (5th Cir. 

‘‘. . . in determining the particular sentence to be imposed, shall consider . . . 

the kinds of sentence and the sentencing range established for . . . the applicable 

category of offense committed by the applicable category of defendant as set forth 

in the guidelines . . . issued by the Sentencing Commission...’’.6

Sentencing courts of course cannot consider the sentencing guideline range if one 

has not been determined. Therefore, probation officers should continue preparing 

presentence reports with 

guideline calculations, pursuant to 18 U.S.C. § 3552 and Rule 32 of the Federal 

Rules of Criminal Procedure, both of which were unchanged by the decision. 

Appellate case law is already developing on this point. The Second Circuit has 

held that in order to comply with the duty to ‘‘consider’’ the guidelines: 

A judge cannot satisfy this duty by a general reference to the entirety of the Guidelines Manual, followed by a decision to impose a ‘‘non-Guidelines sentence.’’ Subsection 3553(a)(4) contemplates consideration of the Guidelines range applicable to 

the defendant, and subsection 3553(a)(5) contemplates consideration of policy statements issued by the Sentencing Commission, including departure authority. The applicable Guidelines range is normally to be determined in the manner as before Booker/Fanfan.7

The Fourth Circuit similarly has held that ‘‘[c]onsistent with the remedial scheme 

set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall 

consider that range as well as other relevant factors set forth in the guidelines and 

those factors set forth in § 3553(a) before imposing the sentence.’’ 8 Therefore, prior 

to imposing a sentence sentencing courts must consider the guideline range calculations and departure policy statements, pursuant to Booker and 18 U.S.C. § 3553(a). 

Sentencing Guidelines Should be Given Substantial Weight 

Although the Booker decision makes clear that the guidelines must be consulted 

and taken into account, it does not expressly address the question of how much 

weight they should be accorded by the sentencing court. There are a number of district court decisions with varying opinions regarding the precise weight that should 

be given to the guidelines. For example, a case in the District of Utah has held that 

the Federal Sentencing Guidelines should be given ‘‘heavy weight’’ and deviated 

from only in ‘‘unusual cases for clearly identified and persuasive reasons,’’ while a 

case in the Eastern District of Wisconsin has held that ‘‘courts must treat the guidelines as just one of a number of sentencing factors’’ enumerated at 18 U.S.C. 

§ 3553(a).9 The appellate courts ultimately can be expected to address this issue. 

The Sentencing Commission firmly believes that sentencing courts should give 

substantial weight to the Federal Sentencing Guidelines in determining the appropriate sentence to impose, and that Booker should be read as requiring such weight. 

The Booker sentencing scheme ‘‘requires a sentencing court to consider Guidelines 

ranges, see 18 U.S.C.A. § 3553(a)(4) (Supp. 2004), but it permits the court to tailor 

the sentence in light of other statutory concerns as well, see § 3553(a) (Supp. 

2004).’’ 10

During the process of developing the initial set of guidelines and in refining them 

throughout the ensuing years, the Sentencing Commission has considered the factors listed at section 3553(a) and cited with approval in Booker. The Sentencing Reform Act, in fact, mandates such consideration by the Sentencing Commission. Section 991(b) of title 28, United States Code, expressly states that the very purposes 

of the Sentencing Commission are, among other things: to assure the purposes of 

sentencing, as set forth in section 3353(a)(2), are met; to provide certainty and fairness in sentencing; to avoid unwarranted disparities among defendants with similar 

records who have been found guilty of similar conduct; and to maintain sufficient 

flexibility to permit individualized sentences when warranted. In short, the factors 

the Sentencing Commission has been required to consider in developing the Sentencing Guidelines are a virtual mirror image of the factors sentencing courts are 

required to consider pursuant to 18 U.S.C. § 3553(a) and the Booker decision.11 As 

a result, sentencing courts should give the guidelines substantial weight. 

19

1992); United States v. Hefferman, 43 F.3d 1144 (7th Cir. 1994); United States v. Breeding, 109 

F.3d 308 (6th Cir. 1997). 

In addition, congressional action throughout the history of the Federal Sentencing 

Guidelines indicates Congress’s belief that they generally achieve the statutory purposes of sentencing. Pursuant to 28 U.S.C. § 994(p), the Commission is required to 

submit all guidelines and guideline amendments for congressional review before 

they become effective. To date, the initial set of guidelines and 672 amendments 

have withstood congressional scrutiny, and many guideline amendments were promulgated in response to congressional directives. Such congressional approval can 

only be interpreted as a sign that Congress believes the Federal Sentencing Guidelines adequately achieve the statutory purposes of sentencing, providing further 

support for the Sentencing Commission’s position that sentencing courts should give 

the guidelines substantial weight in imposing sentences. 

Sentencing Documentation Must be Completed and Submitted 

Sentencing courts also continue to be required by 18 U.S.C. § 3553(c) (statement 

of reasons for imposing a sentence) and 28 U.S.C. § 994(w) to submit to the Commission within 30 days of entry of judgment five specific sentencing documents: the 

judgment and commitment order, the statement of reasons (including the specific 

reasons for any departure), any plea agreement, the indictment or other charging 

document, and the presentence report. Booker makes no changes in the document 

submission requirements imposed by the PROTECT Act, and it is imperative that 

all districts continue to make these submissions to the Commission in a timely and 

complete manner. 

In order to emphasize this point, on January 21, 2004, Judge Sim Lake, Chair 

of the Criminal Law Committee of the Judicial Conference of the United States and 

I issued a joint memorandum to all United States District Judges and other court 

personnel reminding them of the duty to continue fulfilling this ongoing statutory 

requirement (Attachment A). I also appeared earlier this week on a television broadcast to the courts sponsored by the Federal Judicial Center and again reiterated this 

point. 

The statutorily required submission of sentencing documents is of utmost importance because without these documents the Sentencing Commission cannot generate 

the sentencing data that Congress, the Commission, and others need to evaluate the 

impact of Booker on federal sentencing. As a result, we intend to continue coordinating with the Criminal Law Committee, the Administrative Office of the United 

States Courts, and the Federal Judicial Center to ensure that the courts provide us 

with the documentation and information we need, and this effort could include either revisions or supplements to forms currently in use. 

Sentencing Commission’s Actions in Response to Booker 

The Sentencing Commission conducted a two day hearing on November 16 and 

17, 2004, at which it heard testimony from the Department of Justice, defense attorneys, and academics, and the Commission and its staff have attended various conferences and meetings since the Blakely decision. Based on these interactions, the 

Sentencing Commission is aware that a number of proposals to respond to Booker

are being discussed. These proposals include, among others, a ‘‘wait and see’’ approach, statutory implementation in some form of the Booker sentencing scheme, 

providing a jury trial mechanism for sentencing guideline enhancements, ‘‘simplification’’ of the guidelines either by reducing the number of guideline adjustments 

and/or by expanding the sentencing guideline ranges, equating the maximum of the 

guideline sentencing ranges with the statutory maximum for the offense of conviction, and broader reliance on statutory mandatory minimum penalties. 

If Congress decides at some point to pursue legislation, we hope that it will preserve the core principles of the Sentencing Reform Act and, to the extent possible, 

avoid a wholesale rewriting of a system that has operated well for nearly two decades. We believe the Sentencing Reform Act was a landmark piece of legislation and 

the resulting guidelines have made significant strides in furthering the goals of the 

Act. 

The Sentencing Commission will continue fulfilling its many statutory duties and 

in furtherance of its ongoing mission already is taking several steps in response to 

Booker. The Sentencing Commission is sensitive to the need for timely and thorough 

post-Booker data on federal sentencing. As stated earlier, the Sentencing Commission already has communicated with the courts regarding their continuing statutory 

duties regarding completion and submission of sentencing documentation. In addition, the Sentencing Commission has prioritized and reconfigured its data collection 

modules in order to collect, analyze, and disseminate post-Booker data in as close 

to ‘‘real time’’ as possible. 

20

12Of the 733 cases analyzed, in 41 cases the Commission was unable to determine whether 

the sentence was within the guideline sentencing range, including for example class A misdemeanors for which there was no applicable guideline range or immigration offenses in which 

the presentence report was waived and the sentence imposed was ‘‘time served.’’ 13See, Table 26 of the 2002, 2001, and 2000 Sourcebook of Federal Sentencing Statistics. 14 Id. 15 Id. 

As of February 4, 2005, the Sentencing Commission has received and analyzed 

sentencing documents for 733 cases sentenced on or after January 12, 2005, the 

date of the Booker decision. The data we have compiled is preliminary in nature and 

not necessarily representative of the nation as whole and, therefore, I would urge 

extreme caution in making firm conclusions based on these figures. 

The Sentencing Commission has received sentencing documents from 74 of the 94 

federal districts, and these courts have been highly compliant with the documentation submission requirements of 18 U.S.C. § 3553(c) and the PROTECT Act, which 

remain unchanged by Booker. The sentencing documentation for these cases included 99.6% of the Judgment and Commitment Orders, 98.8% of the Presentence 

Reports, 97.3% of the Indictments or other charging documents, and 95.8% of the 

Statements of Reasons. These figures indicate that courts are continuing to take 

their statutorily required documentation and submission requirements seriously. 

The percent of cases sentenced within the guideline sentencing range post-Booker

does not appear to differ noticeably from previous practice. Of the 692 cases for 

which complete sentencing information was available,12 63.9 percent (442) were sentenced within the applicable guideline sentencing range. During the last three fiscal 

years of published data, the proportion of cases sentenced within the applicable 

guideline sentencing range remained between 64 and 65 percent.13

Also similar to prior sentencing practice, approximately one-third of the cases—

33.4 percent (231)—were sentenced below the applicable guideline sentencing range. 

Between 33.9 percent and 35.4 percent of the federal caseload in fiscal years 2000–

2002 were sentenced below the applicable guideline sentencing range.14

The majority of the sentences below the applicable guideline range since Booker

were based on an agreement with the government. Of the 231 cases sentenced below 

the applicable guideline sentencing range, 105 (45.5%) were pursuant to a substantial assistance motion made by the government under USSG 6 5K1.1 (Substantial 

Assistance), 32 (13.9%) were pursuant to an early disposition or fast track motion 

made by the government under USSG § 5K3.1 (Early Disposition Programs), and 9 

(3.9%) were otherwise pursuant to a plea agreement. Therefore, the government initiated or plea bargained for almost two thirds (63.2%) of the sentences below the 

applicable guideline sentencing range. 

Downward departures were granted for other reasons identified in the Guidelines 

Manual in 31 cases, which represents 13.4 percent of the cases sentenced below the 

applicable sentencing guideline range. The remaining 54 cases sentenced below the 

applicable guideline sentencing range appear to be based upon sentencing authority 

established in Booker, which represents 23.4 percent of the cases sentenced below 

the applicable guideline sentencing range. 

Also noteworthy is the fact that 19 cases were sentenced above the applicable 

guideline sentencing range. These sentences were divided almost evenly between 

sentence increases pursuant to upward departure provisions contained in the Guidelines Manual and increases based upon sentencing authority established in Booker.

Combined they comprise 2.7 percent of the post-Booker cases, which represents more 

than a three-fold increase above the average upward departure rate of 0.7 percent 

for fiscal years 2000–2002.15

This very early preliminary data since Booker seems to indicate that courts are 

sentencing pursuant to the Federal Sentencing Guidelines in the overwhelming majority of cases. Only 7.8 percent of the cases appear to be sentenced below, and only 

1.3 percent appeal to be sentenced above, the applicable guideline sentencing range 

based upon sentencing authority established in Booker. Therefore, courts sentenced 

pursuant to the Federal Sentencing Guidelines system as a whole, including upward 

and downward departure policy statements contained in the Guidelines Manual, in 

90.9 percent of the cases analyzed for this period. 

In addition to its timely data collection and analysis, the Commission has scheduled another two-day hearing on February 15 and 16, 2005, to gauge the impact of 

Booker and continue building a record of informed discussion. We expect several witnesses representing a broad spectrum of parties interested in the federal criminal 

justice system to testify. 

As evidenced by our testimony today, the Commission is monitoring closely 

emerging case law to see how district courts rely on the Federal Sentencing GuideVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
21

16See, United States v. Crosby, F.3d. , 2005 WL 240916 (2nd Cir.) (recognizing that ‘‘reasonableness’’ is ‘‘inherently a concept of flexible meaning, generally lacking precise boundaries’’ and 

declining to establish per se standards of reasonableness). 17See, Braxton v. United States, 500 U.S. 344 (1991). 18 Crosby, 2005 WL 240916, at *7. 19 Booker, 125 S. Ct. at 767 (opinion of BREYER, J) (quoting 28 U.S.C. § 991(b)(1)(B)). 

lines in the post-Booker era, how appellate courts interpret what is an ‘‘unreasonable’’ sentence,16 and whether the Sentencing Commission must resolve any new resulting conflicts among the circuit courts.17

The Commission also is continuing to train judges, probation officers, prosecutors, 

and defense attorneys on guideline application and the extensive provisions of the 

Sentencing Reform Act that remain in full force and effect. 

As further evidence of the Sentencing Commission’s continued vitality and our belief in the continued relevance and importance of the Sentencing Guidelines, next 

week the Sentencing Commission is scheduled to vote to publish for comment proposed guideline amendments that would implement congressional directives and 

other legislation concerning identity theft and antitrust offenses. In short, our core 

work continues uninterrupted. 

Conclusion 

In closing, the Sentencing Commission recognizes that the Booker decision presents new, potentially significant challenges to federal sentencing. The Sentencing 

Commission concurs with a recent admonishment to sentencing courts, however, 

‘‘that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body 

of casual advice, to be consulted or overlooked at the whim of a sentencing judge.’’ 18

The Sentencing Commission firmly believes that Booker requires that sentencing 

courts calculate the applicable guideline sentencing range. We are noticing in some 

case law that different sentencing courts are giving the Federal Sentencing Guidelines varying weights. In addition, we are unsure of how appellate review for 

‘‘unreasonableness’’ will work in practice, or how the courts of appeal will resolve 

the issue of how much weight sentencing courts should accord the guidelines. 

The Sentencing Commission and its staff are closely monitoring these and other 

issues. We are dedicated to our mission to carry out the goals of sentencing reform 

and, as the Booker decision itself says, ‘‘to provide certainty and fairness in meeting 

the purposes of sentencing [while] avoiding unwarranted sentencing disparities . . . 

[and] maintaining sufficient flexibility to permit individualized sentences when warranted.’’ 19

As we move forward in the wake of Booker, we are ready to assist Congress in 

any way it deems appropriate. Mr. Chairman, Ranking Member Scott, and Members 

of the Committee, thank you again for holding this very important hearing. I will 

be glad to answer any questions you may have.

22


Hino1.eps
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24

Mr. COBLE. Mr. Collins? 

STATEMENT OF DANIEL P. COLLINS, PARTNER,

MUNGER, TOLLES, AND OLSON LLP 

Mr. COLLINS. Good morning, Chairman Coble, Ranking Member 

Scott, and Members of the Subcommittee. I appreciate the opportunity to testify here today. 

By declaring the U.S. sentencing guidelines to be merely advisory, the United States Supreme Court’s decision in Booker effectively demolishes in one stroke the entire edifice of Federal sentencing reform that had been carefully built over the course of the 

last 20 years. The Court has invited the Congress explicitly to rebuild a, quote, ‘‘sentencing system compatible with the Constitution 

that Congress judges best for the Federal system of justice.’’ I applaud you, Mr. Chairman, for moving quickly to hold hearings on 

this important task. 

I would like to begin my remarks by emphasizing the importance 

of the issue before you. Federal sentencing policy is not some abstract matter about the mechanics and details of court procedure. 

It is a grave matter that goes to the heart of one of the Government’s first and foremost responsibilities, the protection of public 

safety. 

In my view, it is no accident that the unprecedented and historic 

declines in crime rates in America have coincided with the rise of 

determinate sentencing under the Federal sentencing guidelines 

and analogous systems at the State level. Common sense suggests 

that if you lock up criminals for longer periods of time and lock up 

the very worst for very long periods of time, there will be less 

crime. 

We simply cannot be sure that if we heed recent calls for less severity, for smaller prison populations, or for greater flexibility, we 

will not again see a spike in crime rates. To accede to such measures would be to engage in an irresponsible experiment that would 

literally gamble with the lives of this nation’s citizens. 

Accordingly, it is my strong recommendation that Congress act, 

and act promptly, to rebuild the Federal sentencing system so that 

it can function most nearly as it did before Booker. If Federal sentencing policy wasn’t broke before Booker, don’t fix it into something entirely different. The invalidation of the guidelines in Booker does not call into question any of the ultimate values or objectives of Federal sentencing policy. It simply found fault with the 

mechanisms by which those values were achieved in certain cases. 

What, then, is the source of the flaw that was identified in Booker? Blakely and Booker are quite clear on that point. In Blakely, the 

Court stated that the crucial factor that distinguished Washington’s sentencing system from an admittedly constitutional system 

of complete judicial discretion was the fact that in the absence of 

additional factual findings beyond those admitted by the defendant 

or found by the jury, the defendant has a legal right to a lesser 

sentence, and the word ‘‘right’’ is italicized in the Court’s opinion. 

Accordingly, the flaw in the guidelines under Booker and Blakely

is that in the absence of particular findings, the guidelines set a 

legally enforceable maximum sentence that is below the theoretical 

statutory maximum. By contrast, the Supreme Court has squarely 

25

held that basing a minimum sentence on additional facts found 

solely by the judge does not violate the sixth amendment as construed in Apprendi. 

If the goal is, as I think it should be, to preserve the practical 

substance of the guidelines system to the greatest extent possible 

and with as little alteration as possible, the question about what 

Congress should do almost answers itself. If the problem is created 

only by the guidelines’ use of ranges with legally enforceable maxima below the statutory maximum, then the solution is to get rid 

of those maxima. In other words, the sentencing guidelines would 

be fully restored exactly as they were before with the sole exception 

that in every case, the top of the authorized range would be the 

statutory maximum. Booker leaves little doubt that under current 

Supreme Court doctrine, such a system would be perfectly constitutional. 

The only objection that I can perceive to this approach is the policy argument that it eliminates the protections the guidelines previously conferred against a ‘‘hanging judge,’’ but this objection is 

wide of the mark. We now have accumulated 15 years of empirical 

data of the experience under the sentencing guidelines and that 

practical experience confirms that there is very little need to worry 

about this sort of excessive severity. In the last fiscal year for 

which data are publicly available, upward departures occurred in 

only 457 out of nearly 59,000 cases, a grand total of 0.8 percent. 

In this system, the hanging judge is a myth. We should not make 

fundamental structural changes solely to accommodate a problem 

that does not occur in more than 99 percent of the cases. 

On the contrary, as I have testified in my previous appearances 

before this Committee, the problems with disparity have all been 

in the other direction. With the guidelines now being purely advisory, we can only expect these problems to reappear and to worsen. 

We should not abandon a highly successful system of guideline sentencing. 

Finally, there is one additional aspect that I think ought to be 

addressed in any legislation. As I have noted, the Supreme Court 

has held in Harris that Apprendi did not apply to minima. It has 

also held in Almendarez/Torres that the Apprendi rule does not 

apply to the mere fact of a prior conviction. Those decisions were 

5–4 and the Congress may wish to address the issue of severability 

and what should go into effect were the Court to reverse itself on 

those decisions. 

I would be pleased to answer any questions the Committee may 

have. 

Mr. COBLE. Thank you, Mr. Collins. 

[The prepared statement of Mr. Collins follows:]

PREPARED STATEMENT OF DANIEL P. COLLINS

Chairman Coble and Members of the Subcommittee, I appreciate the opportunity 

to testify here today. By declaring the U.S. Sentencing Guidelines to be mere advisory, the United States Supreme Court’s decision in United States v. Booker, 125 

S. Ct. 738 (2005), effectively demolishes in one stroke the entire edifice of federal 

sentencing reform that has been carefully built over the last 20 years. As the Court 

made clear, ‘‘[t]he ball now lies in Congress’ court.’’ 125 S. Ct. at 768. I applaud you, 

Mr. Chairman, for moving quickly to holding hearings on this important issue, so 

that the Congress can promptly move to rebuild a ‘‘sentencing system, compatible 

26

with the Constitution, that Congress judges best for the federal system of justice.’’

Id. 

My perspective on federal sentencing policy is informed by my service over a total 

of nearly eight years in various capacities in the Justice Department. During the 

1990s, I served three and one-half years as a federal prosecutor in the U.S. Attorney’ Office in Los Angeles. More recently, I served from June 2001 until September 

2003 as an Associate Deputy Attorney General (‘‘ADAG’’) in the office of Deputy Attorney General Larry Thompson. During my time as an ADAG, I had the privilege 

of testifying before this Committee several times concerning a variety of provisions 

that were ultimately enacted into law in the Prosecutorial Remedies and Other 

Tools to end the Exploitation of Children Today (‘‘PROTECT’’) Act of 2003. The 

PROTECT Act enacted some of the most significant reforms in federal sentencing 

policy since the original enactment of the Sentencing Reform Act of 1984. I also 

helped to develop the Administration’s 2002 proposal to strengthen federal sentencing of identity theft crimes, a proposal that I was pleased to see ultimately enacted into law as the Identity Theft Penalty Enhancement Act. I also helped coordinate the Department’s 2003 review and revision of its policies on charging of criminal offenses, plea bargaining, sentencing recommendations, and sentencing appeals. 

While my views on federal sentencing policy are influenced by my prior experiences 

working on such matters in the Government, I am now back in private practice in 

Los Angeles, and I wish to emphasize that the views I offer today are solely my own. 

WHAT IS AT STAKE

I would like to begin my remarks by emphasizing the importance of the issue before you. Federal sentencing policy is not some abstract matter about the mechanics 

and details of court procedure; it is a grave matter that goes to the heart of one 

of the Government’s first and foremost responsibilities: the protection of public safety. 

In my view, it is no accident that the unprecedented and historic declines in crime 

rates in America have coincided with the rise of determinate sentencing under the 

federal Sentencing Guidelines and analogous systems at the state level. I recognize 

that correlation does not necessarily equal causation, but I do not think it is just 

a coincidence—common sense suggests that if you lock up criminals for longer periods of time, and lock up the very worst for very long periods of time, there will be 

less crime. 

In any event, I think the burden of doubt must be cast on the critics of the Sentencing Guidelines. We simply cannot be sure that the decisive move towards more 

determinate sentencing at the federal and state levels has not been an important 

factor in lowering crime rates. Put another way, we simply cannot be sure that, if 

we heed recent calls for less severity, for smaller prison populations, or for greater 

flexibility, we will not again see a spike in crime rates. To accede to such measures 

would be to engage in an irresponsible experiment that would literally gamble with 

the lives of this Nation’s citizens. 

Moreover, the ultimate measure for evaluating sentencing policy is not whether 

individual sentences can be said to meet some pre-conceived notion of a ‘‘proportionate’’ sentence. Proportionality is an important value, to be sure, and it is taken 

into account in the many gradations made within the guidelines system. But the 

vast diversity of competing views as to what constitutes a proportionate sentence 

is precisely what led to the enactment of the Sentencing Reform Act and the creation of the Sentencing Guidelines in the first place, and congressional consideration 

about how to rebuild the federal sentencing system should not get side-tracked into 

ultimately irresolvable debates about subjective notions of proportionality. Rather, 

sentencing policy must ultimately be evaluated in terms of its ability to accomplish 

the core goal of ensuring public safety and reducing crime. By that measure, the 

Sentencing Guidelines have been a unqualified success. That they have done so 

while simultaneously respecting and fostering important values of proportionality, 

consistency, and fairness, makes them all the more worth preserving and restoring. 

REBUILDING THE EDIFICE OF FEDERAL SENTENCING

Accordingly, it is my strong recommendation that the Congress act—and act 

promptly—to rebuild the federal sentencing system so that it can function most 

nearly as it did before Booker. If federal sentencing policy wasn’t broke before Booker, don’t fix it into something entirely different. The invalidation of the Guidelines 

in Booker does not call into question any of the ultimate values or objectives of federal sentencing policy; it simply found fault with the mechanisms by which those 

values were achieved in certain cases. 

27

In determining how to go about rebuilding the Guidelines system, it is essential 

to identify precisely what it was about the prior system that led to the constitutional defect identified by the Supreme Court. In Blakely v. Washington, 124 S. Ct. 

2531 (2004), which addressed Washington State’s sentencing system, the Court was 

explicit in stating that it was not ‘‘find[ing] determinate sentencing schemes unconstitutional.’’ Id. at 2540. On the contrary, the Court stated that the issue was how 

determinate sentencing ‘‘can be implemented in a way that respects the Sixth Amendment’’ as construed under the Court’s landmark decision in Apprendi v. New Jersey,

530 U.S. 466 (2000). See Blakely, 124 S. Ct. at 2540. 

What, then, is the source of the flaw? Blakely and Booker are quite clear on that 

point. In Blakely, the Court stated that the crucial factor that distinguished Washington’s sentencing system from an admittedly constitutional system of complete judicial discretion was the fact that, in the absence of additional factual findings beyond those admitted or found by the jury, ‘‘the defendant has a legal right to a lesser sentence.’’ 124 S. Ct. at 2540 (emphasis in original). Indeed, the Court gave an 

example in order to illustrate its point:

‘‘In a system that says the judge may punish burglary with 10 to 40 years, 

every burglar knows he is risking 40 years in jail. In a system that punishes 

burglary with a 10-year sentence, with another 30 added for use of a gun, the 

burglar who enters a home unarmed is entitled to no more than a 10-year sentence—and by reason of the Sixth Amendment the facts bearing upon that entitlement must be found by a jury.’’

Id. (emphasis in original). Likewise, in extending Blakely to the Sentencing Guidelines, the Booker Court emphasized that the defect in the Guidelines is that ‘‘[i]t 

became the judge, not the jury, that determined the upper limits of sentencing, and 

the facts determined were not required to be raised before trial or proved by more 

than a preponderance.’’ 125 S. Ct. at 751 (emphasis added). 

Accordingly, the flaw in the Guidelines under Booker and Blakely is that, in the 

absence of particular findings, the Guidelines set a legally enforceable maximum

sentence that is below the theoretical statutory maximum. 

By contrast, the Supreme Court has squarely held that basing a minimum sentence on additional facts found solely by the judge does not violate the Sixth Amendment as construed in Apprendi. See Harris v. United States, 536 U.S. 545, 568 

(2002). 

If the goal is, as I think it should be, to preserve the practical substance of the 

Guidelines system to the greatest extent possible and with as little alteration as 

possible, the question about how to do that almost answers itself: if the problem is 

created only by the Guideline’s use of ranges with legally enforceable maxima below 

the statutory maximum, then the solution is to get rid of those maxima. In other 

words, the Sentencing Guidelines would be fully restored exactly as they were before, with the sole exception that, in every case, the top of the authorized range 

would be the statutory maximum. Because Booker is unambiguously clear in stating 

that the Court has ‘‘never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range,’’ 125 S. Ct. at 750, there can 

be little doubt that this revised system would satisfy Booker and Blakely. 

The only objection that I can perceive to this approach is the policy argument that 

the revised system would eliminate the ability to ensure sentencing uniformity and 

fairness at the top as well as at the bottom of the Guidelines. Put simply, it eliminates the protection the Guidelines had previously conferred against a ‘‘hanging’’

judge. For a number of reasons, this objection cannot carry the day. As an initial 

matter, this objection ignores the obvious fact that, as matters currently stand, a defendant has no protection against a hanging judge other than the Court’s newly 

fashioned appellate review of sentences for ‘‘reasonableness.’’ Booker, 125 S. Ct. at 

765–67, But the objection is wide of the mark for a more fundamental reason. We 

now have accumulated 15 years of experience under the Sentencing Guidelines, and 

that practical experience confirms that there is very little need to worry about this 

sort of excessive severity. For example, in the last fiscal year for which data are 

publicly available, upward departures occurred in only 457 of 58,684 cases sentenced nationwide—a grand total of 0.8%. In this system, the hanging judge is a 

myth. We should not make fundamental structural changes solely to accommodate 

a problem that does not occur in 99.2% of the cases. 

On the contrary, as I have testified before in my previous appearances before this 

Committee, the problems with disparity have all been in the other direction. With 

the Guidelines now being purely advisory, we can only expect these problems to reappear and to worsen. It is therefore urgent that the Congress act promptly to restore the Guidelines system so that, as before, judges will at least be bound by the 

28

highly reticulated and carefully tailored system of minimum sentences that it contains. We should not abandon the highly successful system of Guidelines sentencing. 

ENSURING THAT A REBUILT SYSTEM SURVIVES

There is one additional aspect that I think ought to be addressed in any legislation that seeks to rebuild the Guidelines system after Booker and Blakely. 

As I have noted, the Supreme Court held in Harris that Apprendi does not apply 

to mandatory minima. The Court has also continued to state that it does not apply 

to the mere fact of a prior conviction. Blakely, 124 S. Ct. at 2536; cf. AlmendarezTorres v. United States, 523 U.S. 224 (1998). Both Harris and Almendarez-Torres

were 5–4 decisions, and Justice Breyer’s concurrence in Harris and Justice Thomas’ concurrence in Apprendi are alone enough to raise a question whether a future 

Court might, despite the force of stare decisis, see these matters differently. Were 

the Court to do so, it would be a travesty to have a replay of Booker in which a 

future Court might decide, once again, to ‘‘sever’’ the mandatory nature of the 

Guidelines so as to eliminate the constitutional difficulty. 

Accordingly, I urge the Congress to give serious consideration to adding a title to 

whatever legislation emerges that would specifically address the severability issue. 

In other words, the Congress should add language that would have the effect of providing what system would go into effect if either Harris or Almendarez-Torres are overruled. There are a variety of options Congress could choose. For example, you 

might provide for a graded system of statutorily prescribed mandatory minima for 

all offenses (if Harris were overruled) or for submission of prior convictions to the 

jury (in the event Apprendi were extended to prior convictions). There is recent 

precedent, in the McCain-Feingold Act, for taking a more proactive approach toward 

the issue of possible severability. The Congress should likewise act to ensure that 

the system it puts in place here will survive for the long term. Indeed, the case for 

being proactive on severability is uniquely compelling here, because the Ex Post 

Facto Clause will prevent Congress from retroactively fixing the problem for the 

many thousands of cases decided in the interim. 

I would be pleased to answer any questions the Committee may have.

Mr. COBLE. We have been joined by the distinguished gentleman 

from Texas, Mr. Gohmert, and Judge Hinojosa, as you know, he is 

a former judge, so we have two judges in our presence today. 

Mr. Bowman, good to have you with us. 

I stand corrected. I didn’t see the gentlelady from California, Ms. 

Waters, has joined us, as well. 

STATEMENT OF FRANK O. BOWMAN, III, M. DALE PALMER 

PROFESSOR OF LAW, INDIANA UNIVERSITY SCHOOL OF LAW 

Mr. BOWMAN. Thank you, Mr. Chairman, Ranking Member Scott, 

distinguished Members of the Committee. Thank you for giving me 

an opportunity to appear before you today. 

The Federal criminal justice system has been in a state of some 

excitement since the Supreme Court decided Blakely v. Washington

last summer. Blakely cast the constitutional validity of the Federal 

sentencing guidelines into uncertainty, an uncertainty that was resolved, at least sort of, by the Court’s decision less than a month 

ago in Booker. We now know that the guidelines as they were are 

unconstitutional, but we find, perhaps a little bit to our surprise, 

that the guidelines are with a stilt, albeit in a form that few anticipated and no one yet entirely understands. So the questions before 

us are, one, what does Booker mean, and two, what should Congress do about it? 

I appear today in a dual capacity. On the one hand, I appear on 

behalf of the Sentencing Initiative of the Constitution Project, a bipartisan nonprofit organization that seeks solutions to difficult 

legal and constitutional problems. Shortly after Blakely was decided last summer, the Constitution Project launched its Sentencing Initiative and drew together a remarkably talented, experiVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
29

enced, and bipartisan group to study the Federal sentencing system 

generally and the impact of Blakely in particular. 

The group, which is headed by former Attorney General Edwin 

Meese and Harvard Professor Philip Heymann, who is formerly the 

Deputy Attorney General of the United States, has sent a letter to 

the Committee urging that Congress respond to Booker with caution. I have the honor to serve along with Professor David Yellen 

as co-reporter of the Constitution Project and I fully endorse the 

call for caution expressed in its letter. 

My personal message today is also a counsel of caution and a recommendation against at least immediate major legislation. In particular, I recommend that Congress not enact so-called ‘‘topless 

guidelines’’ as an immediate response to Booker. Those who have 

been aboard the Blakely to Booker roller coaster from the beginning 

will recognize that this recommendation puts me as the original 

author of the topless guidelines proposal, ably described by Mr. 

Collins, in the somewhat peculiar position of recommending that 

you not do now precisely what I said you should do last summer. 

At a minimum, as Ricky used to say to Lucy, ‘‘it looks like I’ve got 

some ’splaining to do,’’ so let me do it. 

When Blakely was decided last summer, several things seemed 

clear. First, Blakely was going to create a God-awful mess in the 

Federal courts. On the one hand, the rationale of the opinion 

seemed plainly applicable to the Federal guidelines, and on the 

other hand, the Supreme Court reserved ruling on the Federal 

guidelines, so the lower courts were left in the position of some confusion until a new case brought the Federal guidelines before the 

Court. 

Second, if Blakely was found to apply to the Federal guidelines, 

only two remedies seemed available to the Court. First, keep the 

guideline rules intact but require that all sentencing-enhancing 

guidelines facts be tried to juries or admitted in a guilty plea, or 

two, invalidate the guidelines rules, thus rendering them either 

completely void or advisory in the ordinary sense of the term, that 

is to say, a set of useful but legally non-binding suggestions. 

The first of these remedies, taking judges out of guidelines fact 

finding and running the guidelines through juries and pleas, would 

be complex to the point of unworkability. The second possible remedy, voiding the guidelines altogether or making them merely nonbinding suggestions, would work, but would abandon the accomplishments of the Sentencing Reform Act in favor of transferring 

unprecedented, unchecked sentencing power to judges. 

In short, the prospect in July 2004 seemed to be a period of turmoil while the question of Blakely’s applicability worked its way up 

to the Supreme Court, followed by a Supreme Court ruling mandating either an unworkably complex system of Blakely-ized guidelines or an intolerable abandonment of constraint on judicial setting. In that setting, it seemed appropriate to suggest legislation 

that would restore order to the Federal courts and effectively restore the guideline system almost unchanged. 

Now, how has the passage of time and the decision in Booker

changed this assessment? First, the post-Blakely turmoil happened. 

It is water over the dam and no legislation passed today can undo 

it. 

30

Second, I was wrong about the remedies available to the Court. 

Justice Breyer has crafted a third way. The nature of his remedial 

opinion alters the legislative equation in at least two ways. First, 

advisory guidelines in the Booker sense are not unworkable, as 

running the Federal guidelines through juries would have been. 

Nor are they an intolerable abandonment of constraint on judicial 

discretion in the sense that advisory guidelines as mere suggestions would be. Instead, Booker has given us a system that is workable in the near term and that will meaningfully constrain judicial 

discretion even though we don’t yet know by how much. 

I don’t suggest that Booker created an ideal system. Congress 

may well want to alter it or replace it. I do suggest that the Booker

system will work pretty well while we study it and consider alternatives. 

Second, though Booker has created a system that will work, what 

Booker means as a constitutional matter is still unclear. We still 

don’t yet know exactly what advisory means and we don’t yet know 

how binding or presumptive guidelines can be before they will offend the Constitution. Thus, we can’t be certain how much Bookerized guidelines will differ in practice from the old system and we 

can’t be sure how to draft any replacement without falling afoul of 

the undefined limits of the Booker doctrine. 

My own sense is that Booker is not simply an application of the 

Blakely doctrine to the Federal guidelines. In this sense, Justices 

Scalia and Stevens are correct, I think, in their complaint that the 

Booker remedy is inconsistent with the Blakely principle. It appears that this Court is deeply split between Justice Scalia’s formalistic emphasis on jury fact finding and Justice Breyer’s effort 

to create constitutional space for sentencing guidelines based on judicial fact finding. Booker creates, but does not resolve, this doctrinal split. 

And the outcome of the settle over the split will turn, in part, 

on unknown, unpredictable factors. Justice Ginsberg’s reasons for 

joining the Booker remedial majority, the state of the Chief Justice’s health, the identity of his successor, should he retire, and lots 

of other things, we cannot know. 

Therefore, in an environment of such profound constitutional uncertainty, Congress should exercise the greatest caution before legislating. The last thing we need is a brand new sentencing regime 

that will itself be found unconstitutional within months of its enactment. 

Thank you, Mr. Chairman. 

Mr. COBLE. Mr. Bowman, you do not have a corner on the market of having some explaining to do. Each of us finds ourselves in 

that position from time to time. 

[The prepared statement of Mr. Bowman follows:]

31

* M. Dale Palmer Professor of Law, Indiana University School of Law—Indianapolis. Formerly 

Trial Attorney for the Criminal Division of the U.S. Department of Justice (1979–82); Deputy 

District Attorney, Denver, Colorado (1983–87); Assistant U.S. Attorney for the Southern District 

of Florida (Miami) (1989–96); Special Counsel, U.S. Sentencing Commission (1995–96) (on detail 

from U.S. Department of Justice). 1Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection 

Act of 2004, Hearing on H.R. 4547 Before the Subcommittee on Crime, Terrorism, and Homeland 

Security, House Comm. on the Judiciary, 108th Cong. (2004) (testimony of Frank O. Bowman, 

III), available at http://www.house.gov/judiciary/bowman070604.pdf. 2 Blakely v. Washington and the Future of the Federal Sentencing Guidelines, Hearing Before 

the Senate Comm. on the Judiciary, 108th Cong. (2004) (testimony of Frank O. Bowman, III), 

available at http://judiciary.senate.gov/testimony.cfm?id=1260&wit—id=647. 3The most completely developed version of the proposal appears in my written Senate testimony, id. See also, Frank O. Bowman, III, A Proposal for Bringing the Federal Sentencing 

Guidelines Into Conformity with Blakely v. Washington, 16 FED. SENT. REP. 364 (2004). For critiques of the proposal, see Blakely v. Washington and the Future of the Federal Sentencing 

Guidelines, Hearing Before the Senate Comm. on the Judiciary, 108th Cong. (July 13, 2004) (testimony of Rachel Barkow), available at http://judiciary.senate.gov/testimony.cfm?id=1260&wit—

id=3684; Id. (testimony of Ronald Weich), available at http://judiciary.senate.gov/testimony.cfm?id=1260&wit—id=3685. See also, Douglas Berman, ‘‘The ‘Bowman Proposal’: White 

Knight or Force of Darkness?,’’ available at http://sentencing.typepad.com/sentencing—law—

and—policy/2004/07/white—knight—or.html, and other critiques posted or referenced on Professor Berman’s invaluable blog, Sentencing Law & Policy, http://www.sentencing.typepad.com. 

PREPARED STATEMENT OF FRANK O. BOWMAN, III* 

A COUNSEL OF CAUTION

I. Introduction

I am grateful to the Subcommittee for the opportunity to testify today regarding 

the impact on the federal sentencing system of the U.S. Supreme Court’s recent decision in United States v. Booker, llU.S.ll, 125 S.Ct. 738 (Jan. 12, 2005), and 

the nature of an appropriate congressional response to that decision. I appear today 

primarily in my individual capacity, but also as a representative of the Sentencing 

Initiative of the Constitution Project. 

The Constitution Project is a bipartisan, nonprofit organization that seeks consensus-based solutions to difficult legal and constitutional issues through study, consultation, and policy advocacy. Last summer, in response to the Supreme Court’s decision in Blakely v. Washington, llU.S.ll, 124 S.Ct. 2531 (June 24, 2004), the 

Constitution Project created the Sentencing Initiative, a group co-chaired by former 

Attorney General Edwin Meese, now of the Heritage Foundation, and Philip 

Heymann, James Barr Ames Professor of Law at Harvard and former Deputy Attorney General of the United States. The members of the group represent a broad 

cross-section of institutional interests and political views. Professor David Yellen of 

Hofstra University and I are reporters to the Sentencing Initiative. Attorney General Meese and Professor Heymann have already forwarded a letter to Chairman 

Sensenbrenner expressing the consensus of the Constitution Project group that Congress should respond to the Booker opinion with caution. The Constitution Project 

anticipates issuing a more detailed report addressing the state of the federal sentencing system, the impact of Blakely and Booker, and recommendations about how 

the system might be improved. 

I agree wholeheartedly with the position expressed in the Constitution Project letter and will be happy to answer any questions about the letter and the ongoing 

work of the Constitution Project’s Sentencing Initiative. That said, the particulars 

of the analysis contained in the remainder of this testimony represent my personal 

views and not those of the Constitution Project’s Sentencing Initiative or any of its 

members. 

II. From Blakely to Booker

This is the second time in the past seven months that I have had the honor of 

appearing before this Subcommittee. On July 6, 2004, I testified about H. 4547, a 

bill involving drug crime, and about the impact of the immediate predecessor to the 

Booker decision, Blakely v. Washington, llU.S.ll, 124 S.Ct. 2531 (June 24, 

2004).1 On that occasion, and again the following week in the Senate Judiciary 

Committee,2 I analyzed the Blakely opinion, concluded that it probably rendered the 

Federal Sentencing Guidelines unconstitutional as then applied, and offered a proposal to cure the apparent constitutional defect.3 That proposal, sometimes referred 

to colloquially as ‘‘topless guidelines,’’ and other suggested responses to Blakely have 

been the subject of ongoing debate. Today, in the wake of Booker, I find myself in 

the curious position of recommending that Congress not do what I recommended 

that it should do after Blakely. In short, along with the other members of the ConVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
32

4 Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004) (emphasis in the original). 

stitution Project, I urge Congress to be cautious, to monitor the effects of the Booker

decision on the operation of federal sentencing, and not to legislate unless and until 

it is clear that legislation is absolutely necessary and that any proposed legislation 

will withstand constitutional scrutiny. 

My views on what Congress should do have changed because the Booker decision 

changed the legal landscape in ways that virtually no one anticipated. The balance 

of this testimony is devoted to explaining Booker’s surprising outcome and its implications for sentencing policy. 

A. Blakely v. Washington

The legal tempest that brings us here today began on June 24, 2004, with Blakely 

v. Washington. The case involved a challenge to the Washington state sentencing 

guidelines. In Washington, a defendant’s conviction of a felony produced two immediate sentencing consequences—first, the conviction made the defendant legally subject to a sentence within the upper boundary set by the statutory maximum sentence for the crime of conviction, and second, the conviction placed the defendant 

in a presumptive sentencing range set by the state sentencing guidelines. This 

guideline range was within the statutory minimum and maximum sentences. Under 

the Washington state sentencing guidelines, a judge was entitled to adjust this 

range upward, but not beyond the statutory maximum, if after conviction the judge 

found certain additional facts. For example, Blakely was convicted of second degree 

kidnapping with a firearm, a crime that carried a statutory maximum sentence of 

ten years. The fact of conviction generated a ‘‘standard range’’ of 49–53 months; 

however, after conviction, the judge found that Blakely had committed the crime 

with ‘‘deliberate cruelty,’’ a statutorily enumerated factor that permitted imposition 

of a sentence above the standard range, and imposed a sentence of ninety months. 

The U.S. Supreme Court found that imposition of the enhanced sentence violated 

the defendant’s Sixth Amendment right to a trial by jury. 

In reaching its result, the Court relied on a rule it had announced four years before in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): ‘‘Other than the fact of 

a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’’ In the years following Apprendi, most observers assumed that 

Apprendi’s rule applied only if a post-conviction judicial finding of fact could raise 

the defendant’s sentence higher than the maximum sentence allowable by statute 

for the underlying offense of conviction. For example, in Apprendi itself, the maximum statutory sentence for the crime of which Apprendi was convicted was ten 

years, but under New Jersey law the judge was allowed to raise that sentence to 

twenty years if, after the trial or plea, he found that the defendant’s motive in committing the offense was racial animus. The Supreme Court held that increasing 

Apprendi’s sentence beyond the ten-year statutory maximum based on a post-conviction judicial finding of fact was unconstitutional. 

In Blakely, however, the Supreme Court found that the Sixth Amendment can be 

violated even by a sentence below what we had always thought of as the statutory 

maximum. Writing for a five-member majority, Justice Scalia held 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.’’ 4 Any fact that had the effect of increasing this newly defined ‘‘statutory maximum’’ must be found by a jury. 

Accordingly, the Federal Sentencing Guidelines seemed to violate the Blakely rule. 

A defendant convicted of a federal offense is nominally subject to any sentence between the minimum and maximum sentences provided by statute; however, under 

the Guidelines, the actual sentence which a judge may impose can only be 

ascertained after a series of post-conviction findings of fact. The maximum guideline 

sentence applicable to a defendant increases as the judge finds more facts triggering 

upward adjustments of the defendant’s offense level. In their essentials, therefore, 

the Federal Sentencing Guidelines are indistinguishable from the Washington 

guidelines struck down by the Court. 

Although in Blakely the Supreme Court reserved ruling on the applicability of its 

holding to the federal guidelines, the obvious implications of the opinion for the 

guidelines caused immediate consternation. Within weeks after Blakely, dozens of 

federal trial and appellate courts issued opinions on whether it affected the federal 

sentencing system, and if so how. A legion of commentators added their voices to 

33

5For discussion of the Blakely opinion and lower federal court opinions construing it, see 

Frank O. Bowman, III, Train Wreck? Or Can the Federal Sentencing System Be Saved’’ A Plea 

for Rapid Reversal of Blakely v. Washington, 41 AMER. CRIM. L. REV. 217 (2004) 

the conversation.5 From this cascade of analysis, three basic possibilities seemed to 

emerge. 

First, the Department of Justice and a number of courts of appeals contended that 

the federal sentencing system should survive Blakely intact. They attempted to distinguish the federal system from the Washington state system at issue in Blakely

because Washington’s guideline sentencing ranges were set by statute while the federal guidelines were drafted by a sentencing commission. 

Second, some courts and commentators suggested that the Supreme Court could ‘‘Blakely-ize’’ the federal guidelines by holding that their sentencing rules survive, 

but requiring substitution of a system of jury trials and jury waivers for the structure of post-conviction judicial fact-finding and appellate review created by the Sentencing Reform Act. 

Third, other courts and commentators argued that the Guidelines’ sentencing 

rules cannot be severed from the procedure of post-conviction judicial fact-finding 

contemplated by the Sentencing Reform Act and formalized in the Guidelines. In 

this view, Blakely rendered the Guidelines unconstitutional in toto. The practical effect of such a ruling was thought to be that the Guidelines would become either 

wholly void and legally nugatory or at most advisory. 

My reaction to these three apparent options was that the first was logically 

unsupportable and the latter two were practically undesirable. First, it seemed unlikely that the Supreme Court would distinguish the federal system from the Washington state system based on the institution that drafted the sentencing rules. 

Second, judicial ‘‘Blakely-ization’’ of the existing federal guidelines was not an attractive prospect. It would require the courts, the Sentencing Commission, and Congress to reconfigure the entire process of adjudicating and sentencing criminal cases, 

from the Guidelines themselves to indictment and grand jury practice, discovery, 

plea negotiation practice, trial procedure, evidence rules, and appellate review. The 

simple fact is that the current Guidelines were never meant to be administered 

through jury trials. Trying to engraft them onto the jury system would be both a 

practical and theoretical nightmare. 

Finally, the possibility that the Court would void the Guidelines entirely or declare them in some sense advisory seemed equally unattractive. Having no guidelines at all would confer even more discretion on sentencing judges than was true 

before the Sentencing Reform Act. Prior to the SRA, judges had largely unconstrained discretion to impose sentences, while the Parole Commission retained substantial authority over actual release dates. But the SRA abolished parole, and in 

a world with neither sentencing guidelines nor a Parole Commission, judicial sentencing authority would be absolute. Alternatively, ‘‘advisory guidelines’’ produced 

by constitutional invalidation of mandatory guidelines seemed almost indistinguishable from no guidelines at all. I, at least, could not see how the guidelines, once 

declared unconstitutional, could be anything more than useful, but legally nonbinding, suggestions. 

B. ‘‘Topless Guidelines’’

Faced with these three unappealing possibilities and the prospect of a long period 

of turmoil in the federal criminal courts, I suggested an interim legislative alternative. I proposed that the Guidelines structure could be brought into compliance 

with Blakely and preserved essentially unchanged by amending the sentencing 

ranges on the Chapter 5 Sentencing Table to increase the top of each guideline 

range to the statutory maximum of the offense(s) of conviction. 

This proposal depended on a peculiarity of the constitutional structure erected in 

Blakely. As written, Blakely necessarily affects only cases in which post-conviction 

judicial findings of fact mandate or authorize an increase in the maximum of the 

otherwise applicable sentencing range. Prior to Blakely, the Supreme Court had 

held in McMillan v. Pennsylvania, 477 U.S. 79, 89–90 (1986), and reaffirmed in 

Harris v. United States, 536 U.S. 545 (2002), that a post-conviction judicial finding 

of fact could raise the minimum sentence, so long as that minimum was itself within the legislatively authorized statutory maximum. Therefore, so long as facts found 

by judges applying the sentencing guidelines increase only the minimum sentence 

to be served by a defendant, and not the maximum sentence to which he was exposed, there would be no constitutional violation. In effect, the ‘‘topless guidelines’’

approach would convert the Guidelines into a system of permeable mandatory minimums. That is, the Guidelines would continue to function exactly in the way they 

always have, except that the sentencing range produced by guidelines calculations 

34

6The proposal in its original form would have made any sentence above the guideline minimum appealable on an abuse of discretion standard. The fact that a judge imposed a sentence 

higher than that suggested by the policy statement for a typical case would be a factor in the 

determination of whether the judge had abused his or her discretion. I also recommended that 

the legislation creating ‘‘topless guidelines’’ sunset after eighteen months. 7Only Justice Ginsburg joined both halves of the Court’s opinion. 8 18 U.S.C. § 3553(b)(1) and 18 U.S.C. § 3742(e). 9 Booker, 2005 WL 50108, at *16. 

in any given case would have the same lower value now specified by the Chapter 

Five sentencing table, while the upper value would be set at the statutory maximum. Judges would still be able to depart downwards using the existing departure 

mechanism, but would not have to formally ‘‘depart’’ to impose a sentence higher 

than the top of the ranges now specified in the sentencing table. 

This proposal would require legislation because the expanded sentencing ranges 

produced by the proposal would fall afoul of the so-called ‘‘25% rule,’’ 28 U.S.C. 

§ 994(b)(2), which mandates that the top of any guideline range be no more than 

six months or 25% greater than its bottom.6

The proposal for ‘‘topless guidelines’’ was subject to a number of criticisms. The 

idea suffers from the notable disadvantage to defendants of imposing enforceable 

limits on judges’ ability to sentence below the bottom of guideline ranges, while removing restrictions on judges’ power to impose sentences above the top of the guideline range. Moreover, whatever its substantive merits, the constitutionality of this 

approach depends on the continued viability of Harris v. United States. Following 

the Blakely decision, many observers questioned the continued viability of Harris,

a 5–4 decision about which even Justice Breyer (a member of the Harris majority) 

has expressed some doubt. 

Thus far, of course, Congress has responded to Blakely with caution and has not 

adopted either ‘‘topless guidelines’’ or any other legislative approach. The question 

before the Subcommittee today is whether, now that Booker has found the Guidelines unconstitutional as formerly applied, Congress should act 

C. Booker v. United States

The principle thrust of my testimony is that the Booker decision has altered the 

landscape in at least three critical respects, all of which suggest that Congress 

should respond with caution. 

1. The meaning of Booker is not yet clear 

As the Subcommittee is aware, in Booker, a five-member majority found that the 

Guidelines process of post-conviction judicial fact-finding was unconstitutional under 

the Sixth Amendment, but an almost completely different five-member majority 

wrote the opinion describing the proper remedy for the constitutional violation.7

Justice Breyer, writing for the remedial majority, did not require juries to find all 

sentencing-enhancing guidelines facts, nor did he invalidate the Guidelines in toto.

Instead, he merely excised two short sections of the Sentencing Reform Act,8 leaving 

the remainder of the SRA intact, and thus keeping the guidelines intact but rendering them ‘‘effectively advisory.’’ 9 Perhaps even more importantly, the remedial 

opinion found that both the government and defendants retained a right to appeal 

sentences, and that appellate courts should review sentences for ‘‘reasonableness.’’ The remedial opinion lends itself to different interpretations. Some have read ‘‘advisory’’ to mean that the Guidelines are no longer legally binding on trial judges and 

that the Guidelines are now merely useful advice to sentencing courts. However, a 

closer reading of the opinion suggests something quite different. First, because the 

opinion leaves virtually the entire SRA and all of the Guidelines intact, the requirement that judges find facts and making guideline calculations based on those facts 

survives. Second, because the remedies opinion retains a right of appeal of sentences 

and imposes a reasonableness standard of review, appellate courts will have to determine what is reasonable. The remedies opinion left undisturbed 18 U.S.C. 

§ 3553(a), which lists the factors a judge must consider in imposing a sentence and 

includes on that list the type and length of sentence called for by the guidelines. 

Thus, the determination of ‘‘reasonableness’’ under the statute will necessarily include consideration of whether a sentence conforms to the Guidelines. The unresolved question is the weight that will be accorded to the guidelines sentence—will 

it be considered at least presumptively correct or will it be reduced to the status 

of only one among many other factors? 

We do not know how the courts will resolve this critical question. Still, there are 

good reasons to think that the vast majority of judges will accord great weight to 

the sentencing guidelines. For example, in a thoughtful decision issued the day after 

Booker was announced, Judge Paul Cassell examined Booker and concluded that he 

35

10 United States v. Wilson, Case No. 2:03–CR–00882 PGC (D. Utah). 11See, e.g., United States v. Nellum, 2005 US Dist LEXIS 1568 (N.D. Ind. Feb. 3, 2005). 12 United States v. Crosby, 2005 WL 240916 (2d Cir. Feb. 2, 2005). See also, United States 

v. Hughes, llF.3dll, 2005 WL 147059 at *3 (4th Cir. Jan. 24, 2005) (holding that 

‘‘[c]onsistent with the remedial scheme set forth in Booker, a district court shall first calculate

(after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the 

court shall consider that range as well as other relevant factors set forth in the guidelines and 

those factors set forth in § 3553(a) before imposing the sentence.’’) (emphasis added). 

was obliged to continue to sentence within the applicable guidelines range unless 

there were exceptional aggravating or mitigating circumstances.10 Other judges 

have concluded that they have more flexibility after Booker,11 but no court has held 

that the guidelines could be ignored. Appellate courts have just begun addressing 

Booker, but there is every reason to think that they will move expeditiously to resolve the questions it presents and that they will give adherence to the Guidelines 

a prominent place in their analysis of sentence reasonableness. For example, the 

United States Court of Appeals for the Second Circuit recently held in that judges 

do not have ‘‘unfettered discretion’’ after Booker and that the congressionally-mandated factors set forth in the Sentencing Reform Act, prominently including the 

Guidelines, still constrain the imposition of criminal sentences.12

In short, we don’t yet know what the post-Booker sentencing regime will look like. 

At a minimum, Congress should abstain from legislative intervention long enough 

for the courts to clarify what Booker means in practice. If Congress is to legislate, 

it should have a clear understanding of the situation it is setting out to correct. 

2. The post-Booker system may be preferable to the uncertainties of legislating 

a new sentencing system 

If Booker produces a system in which the federal sentencing guidelines are strongly presumptive, that may be a satisfactory outcome for many, at least in the short 

to medium term. Such a system would operate very much as the Guidelines always 

have, with the undoubted difference that judges would have somewhat greater freedom to sentence outside the guideline range. So long as the judges do not employ 

the increased flexibility to excess, and so long as both the Department of Justice 

and Congress are prepared to view some modest increase in judicial variance from 

the guidelines with a wary but tolerant eye, the system could work surprisingly 

well. At a minimum, it could work well enough to give all the institutional actors 

time to study and consider thoroughgoing reform of the Guideline system in the 

post-Booker era. With respect to ‘‘topless guidelines’’ in particular, I suggested them in July 2004 

because I was troubled by the prospect of prolonged turmoil in the federal courts 

following Blakely, and because neither of the seemingly likely results of applying 

Blakely to the federal system—‘‘Blakely-ized’’ guidelines run through juries or purely 

advisory guidelines-as-non-binding-suggestions—was desirable. Both of these considerations have altered. First, a good deal of the disruption I hoped might be avoided 

through rapid legislation in July 2004 has already happened, cannot be undone, and 

may be compounded by over-hasty legislation. Second, in Booker, the Court adopted 

neither ‘‘Blakely-ized’’ nor purely advisory guidelines, but a system that in the vast 

majority of cases will probably work just like the pre-Booker guidelines. At worst, 

Booker seems to have created a system that is not an obvious disaster in need of 

immediate legislation, but a workable system whose strengths and weaknesses have 

yet to be determined. 

3. Booker creates tremendous uncertainty about the basic constitutional rules 

governing sentencing and thus raises doubts about the constitutional viability of legislative responses to that decision. 

As noted in the Constitution Project’s letter, ‘‘If Congress decides to act, the most 

basic requirement for a new system is reasonable certainty that it will survive constitutional challenge.’’ Booker throws the basic constitutional rules governing criminal sentencing into even greater confusion than did Blakely. Blakely laid out a simple, almost mechanical, rule: Any fact that increases a defendant’s maximum sentencing exposure must be found by a jury. This rule seemed so absolute that it 

would render unconstitutional any structured sentencing system in which judicial 

fact-finding could raise the top of a defendant’s guideline sentencing range, even if 

as was the case under the Washington guidelines, that range was only strongly presumptive. 

However, Booker seems to take an entirely different approach. The federal guidelines survive. Judges must find facts and use those fact findings to determine guidelines ranges with both tops and bottoms. Some courts have interpreted Booker to 

mean that the guideline ranges—including their tops—are at least presumptively 

36

13For a more complete outline of how this constitutional model of sentencing might work, see 

Frank O. Bowman, III, Function Over Formalism: A Provisional Theory of the Constitutional 

Law of Crime and Punishment, 17 FEDERAL SENTENCING REPORTER 1 (October 2004). 14See, e.g., Id.; Frank O. Bowman, III, Fear of Law: Thoughts on ‘Fear of Judging’ and the 

State of the Federal Sentencing Guidelines, 44 ST. LOUIS L.J. 299 (2000) (defending the federal 

sentencing guidelines as a beneficial set of constraints on judicial sentencing authority). 15See Frank O. Bowman, III, The Failure of the Federal Sentencing Guidelines: A Functional 

Analysis,—Columbia L. Rev. ll(forthcoming Spring 2005). 

reasonable. It would appear that Justice Breyer is trying to shift this line of cases 

away from Justice Scalia’s narrow focus on the role of juries toward a world in 

which guidelines setting presumptive sentencing ranges are constitutionally valid. 

At a minimum, the Court is struggling mightily to define its direction and until it 

speaks more definitively, it will be difficult, if not impossible, for Congress to enact 

any remedial legislation with real confidence in its constitutionality. 

Even more particularly, I think the Booker decision casts additional doubt on the 

continued viability of Harris v. United States and thus on the desirability of turning 

immediately to ‘‘topless guidelines.’’ We know that Booker authorizes guideline 

ranges, with tops, determined by post-conviction judicial fact-finding. If the Court 

ultimately accords those ranges at least some measure of legally presumptive effect, 

then the distinction between constitutional and unconstitutional guideline systems 

becomes the degree of presumptiveness of the tops of the guideline ranges. Put another way, the constitutional distinction between a ‘‘statutory maximum’’ which 

must be determined by a jury under Blakely and the top of a presumptive guideline 

range that can be determined by a judge under Booker can only be the degree of 

discretion afforded the judge to sentence above the top of the range. If the Court 

decides that presumptive limits on maximum sentences are constitutionally acceptable, it is hard to see why the same reasoning should not apply to minimum sentences. 

Those who doubted the continued viability of Harris have noted that Justice 

Breyer was the fifth vote for preserving statutes that set minimum sentences 

through post-conviction judicial fact-finding, and that he expressed doubt about how 

Harris could be squared with Apprendi. Before Booker, it seemed plausible that Justice Breyer and other members of the Court who favor keeping the Constitution hospitable to structured sentencing systems would hold on to Harris because it provided at least one tool of structured sentencing. A system that constrains judicial 

discretion only by setting minimums is awkward and asymmetrical, but not wholly 

useless. After Booker, it is no longer clear that the weird asymmetry of Blakely and 

Harris is necessary. It would make far greater sense for the Court to hold that real, 

hard, impermeable statutory maximum and minimum sentences can only result 

from facts found by juries or admitted by plea, while at the same time permitting 

structured sentencing systems that use judicial fact-finding to generate sentencing 

ranges, presumptive at both top and bottom, inside the statutory limits. Such an 

approach would appeal to many members of the Court because it treats minimum 

and maximum sentences consistently, gives a meaningful role to juries in setting 

the actual minimum sentences that matter more to defendants than theoretical 

maximums, preserves the accomplishments of the structured sentencing movement, 

and confers constitutional status on judicial sentencing discretion.13 If this is the 

direction the Court is heading, then Harris is in danger and ‘‘topless guidelines’’ could be found unconstitutional in short order. 

III. Beyond Booker—the Future of Federal Sentencing

The Federal Sentencing Guidelines have been immensely controversial since their 

advent in 1987. They have actually enjoyed many successes, but the chorus of criticism has grown over the years. As my professional biography suggests, I believe 

that vigorous law enforcement and the imposition of meaningful terms of incarceration on serious criminal violators are crucial tools in the fight against crime. Likewise, I am not a proponent of unchecked judicial sentencing discretion. My practice 

experience, my time with the Sentencing Commission, and my subsequent work in 

the academy have convinced me of the importance of sentencing guidelines and 

other mechanisms of structured sentencing in achieving just, equitable, and effective 

criminal sentences. More particularly, I have been a vocal advocate of the federal 

sentencing guidelines.14 Nonetheless, even I have reluctantly concluded that the federal sentencing system has in recent years developed in such unhealthy and dysfunctional ways that serious rethinking of the guidelines is now called for.15 The 

Blakely and Booker decisions have provided the crisis that public institutions sometimes require before they engage in careful self-examination. I enlisted as reporter 

to the Constitution Project because it seemed an ideal forum for considering the 

state of federal sentencing working with a remarkably diverse and talented group 

37

of people. Our work so far has confirmed what I, and I think all of us, suspected—

that the difficulties with federal sentencing are serious and can be seen and agreed 

upon by well-informed legal professionals of widely divergent political and institutional perspectives. 

My counsel to the Subcommittee is a counsel of caution. Do not act precipitously 

because doing so may make an uncertain situation worse. Instead, study what Booker has wrought. Direct others, notably the Sentencing Commission and the Department of Justice, to gather the information and perform the analysis that will assist 

you in your study. And take the opportunity created by Blakely and Booker to work 

together with all the many people of goodwill who are eager to work with Congress, 

with the Justice Department, with the judiciary, and with the Sentencing Commission to improve the administration of federal criminal justice.

Mr. COBLE. Gentlemen, thank you very much for your contribution. Keep in mind, the 5-minute rule applies to us, as well, so if 

you could keep your responses as terse as possible, we would be appreciative. 

Mr. Wray, from a law enforcement perspective, would you outline 

for the Subcommittee in a little greater depth how an advisory system of guidelines will hamper a prosecutor’s ability to gain cooperation from criminal defendants? 

Mr. WRAY. Yes, Mr. Chairman. I think you have put your finger 

on what I would consider one of the most important vulnerabilities 

in the post-Booker environment. 

First, we think that under the guidelines as they existed before 

Booker, a defendant could only obtain consideration for his cooperation at sentencing based on a motion by the Government. In the 

post-Booker world, that is no longer the case. The reason why that 

is a problem is because the Department is in the best position to 

evaluate the truthfulness and value of the cooperator’s assistance, 

by putting it in the context of the entire body of the investigation 

to determine whether it is consistent, corroborated by other evidence. And that is critical because we all want to ensure that people who cooperate in criminal investigations are telling not halftruths, but complete truth. 

Second, the Booker environment creates less of an incentive for 

cooperating defendants because they can seek to assume some of 

the benefits of cooperation without the risks. That is, they can tell 

part of the story, but not the whole story, and that is particularly 

troubling for the Government’s effort to try to secure cooperation 

in organized criminal cases, terrorism, corporate fraud, drugs, 

gangs, and that sort of thing. That may be particularly critical 

where timeliness of information for cooperators, as all the members 

of this Subcommittee know, can be critical to advancing cases 

against CEOs in corporate fraud cases, drug leaders in big drug 

cartel cases, and so forth. 

Mr. COBLE. Thank you, sir. 

Mr. Collins, what impact did the de novo standard of review have 

on judges who granted downward departures after the PROTECT 

Act, and if any, those who imposed enhanced sentences? 

Mr. COLLINS. Mr. Chairman, the Sentencing Commission’s 15-

year report specifically notes that the Department had indicated— and it cites a number of cases in the report where immediately 

after the enactment of PROTECT and the application of the de 

novo standard of review—there were a notable increase in the 

number of instances of appellate reversals of downward departures, 

suggesting that the change in the standard of review did have a 

38

positive effect on curing a problem that Congress was concerned 

with. 

Mr. COBLE. Mr. Wray, again I am going to ask you, do you have 

examples of courts that have sentenced defendants to unreasonable 

sentences or based sentences upon factors prohibited by the guidelines? 

Mr. WRAY. Yes, Mr. Chairman. We have a couple of examples 

that are mentioned a little bit in my written statement. I would 

mention in particular a California case, I think it was in Southern 

California, where four men were convicted of smuggling more than 

a ton of cocaine from Colombia. They were sentenced to 41 months 

when the guidelines provided for a sentence of 235 to 293 months. 

That is a situation where you are going to have defendants—in 

fact, we have had defendants in the same State engaged in the 

same conduct receiving sentences of 20 or 30 years, whereas those 

defendants got 41 months for no principled reason. 

In Wisconsin, we had a bank fraud involving an officer where the 

guidelines provided for a 36 to 47 month sentence and the judge 

reduced it in the wake of Booker, based on considerations like the 

defendant’s motivation to keep the client’s business afloat and the 

fact that the conviction resulted in financial distress for the defendant. So there are examples that are starting to emerge that make 

that point. 

Mr. COBLE. Thank you. 

Judge Hinojosa, in your testimony at page four, you indicate you 

believe that sentencing courts should give substantial weight to the 

Federal sentencing guidelines in determining the appropriate sentence to impose. Explain your position on whether or not there is 

support for such a standard under Booker. Judge HINOJOSA. The Court was silent on that issue, as far as 

I can tell. However, I think the support exists, as I indicated in the 

written and the oral statement that I have made here, in the fact 

that the Sentencing Commission in promulgating and refining the 

guidelines has made determinations based on statutorily directed 

factors that are used under 3553(a). In fact, the Commission was 

directed in promulgating and refining the guidelines to take those 

into consideration, in addition to the fact that Congress itself has 

the right to review the guidelines as they are presented by the 

Commission and it must indicate to us that Congress’ approval of 

the guidelines indicates that Congress itself feels strongly that the 

goals of the Sentencing Reform Act are met by the guidelines. 

Therefore, they should be given substantial weight. 

Mr. COBLE. My red light illuminates in my eye. Mr. Bowman, I 

will get to you later. 

Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Wray, I was intrigued by your statement that the Federal 

guidelines have reduced crime. What portion of the violent criminals that are sentenced in America today are sentenced in Federal 

court? 

Mr. WRAY. Ranking Member Scott, I don’t have that percentage. 

I can tell you that—and I believe what I meant to say, I am not 

sure if I said this or not, is that sentencing regimes like the Federal sentencing guidelines—in other words, I think I pointed out 

39

that a number of States have followed Congress’s lead in adopting 

similar systems and it is our view that the combination of the Federal guidelines in the Federal system, and in the State systems 

which track in many ways the Federal system, have resulted in 

that reduction in violent crime. 

Mr. SCOTT. And do you have some studies that show the pattern 

that those States that actually increase sentences had a larger reduction in crime than the general reduction that was going on all 

over the country? 

Mr. WRAY. I don’t have that information for you today. I would 

be happy to try to provide that in supplemental questions. I do 

think there is information, if I recall correctly, that shows, for example, in California that there have been significant reductions in 

the wake of their adoption of a system like that. 

Mr. SCOTT. I am saying I know there are reductions. We had 

Project Exile in Richmond, Virginia. When it went into effect, the 

crime rate went down. When you look at other cities similarly situated that didn’t have Project Exile, the crime rate went down more. 

So my question is whether or not you see any pattern that there 

is a real effect on longer sentences and reduced crime. Just in some 

States did it go down. But in all States, the crime rate went down. 

There are plenty of studies that show there is no pattern at all and 

I was just wondering, in abolishing parole and all that kind of 

stuff, do you have any credible studies that back up what you said? 

Mr. WRAY. I do believe we have information that shows that the 

implementation of so-called truth-in-sentencing regimes across the 

country, both in the Federal system and in the majority of the 

States, have contributed to a significant reduction in violent crime. 

I would be happy to respond in supplemental written questions to 

provide more information if that would be helpful. 

Mr. SCOTT. It would be helpful, and I would hope it would be in 

the form that would show a pattern, not just that you did it and 

crime went down, but you did it but crime went down in a pattern 

that suggests that the longer sentences had something to do with 

the reduction. So I look forward to that information. 

Judge Hinojosa, you tried a lot of cases and I am sure you would 

recognize that the seriousness of a crime isn’t always conveyed by 

the code section that was violated. Some people can violate the 

same code section and common sense tells you that one crime was 

much more serious than the other and that ought to be reflected 

in the sentence. 

You still have the guidelines. In the present system with them 

being advisory and not mandatory, is it more likely or less likely 

that the defendant will get an intelligent sentence in the present 

system or with the mandatory guidelines? 

Judge HINOJOSA. I guess Congressman Coble pointed out how 

long I have been on the bench, more or less, by indicating who appointed me to the bench, so I have actually done sentencing both 

under pre-guideline system for close to 5 years and after the guidelines. I have to say that the guideline system was of great benefit 

to the sentencing process, which is the most difficult thing that a 

judge has to do. 

Prior to the guidelines, you wanted to be consistent, you wanted 

to treat like defendants for like criminal law offenses more or less 

40

the same, but it was very difficult without having a guideline system and you spent a lot of your time trying to determine what you 

had done in a similar case with someone with a similar prior history with regard to their particular sentence because you wanted 

to be consistent, you wanted to be fair, and you wanted to give the 

type of sentence you were giving on a regular basis, but that was 

just you individually as opposed to all the other judges. 

The guideline system under the Sentencing Reform Act was created to try to prevent those kind of problems and it had its effect. 

It is a difficult process, but I do think that the Federal guideline 

system provides the considerations under the Sentencing Reform 

Act. As they are now, as advisory, the Commission’s position as 

well as my position continues to be that the Booker decision, and 

I may have misspoken with regard to Congressman Coble’s question, does indicate that the guidelines have to be consulted and 

considered with regard to every sentence, which would therefore 

mean substantial weight should be given to them, and I do think 

that it is important to do that. 

As a judge, you have to make the findings on the record within 

the guideline system, or if not, you cannot just generally say, I 

have considered the guidelines but I have decided to proceed with 

this sentence because we will go right back to the situation we 

were beforehand. 

Mr. SCOTT. The present situation gives you flexibility. Is that 

helpful in assessing an intelligent situation? I mean, some people 

similarly situated actually come into your court charged under different code sections, and you look at it and it is exactly the same 

behavior. 

Judge HINOJOSA. There is flexibility, obviously, under the Booker

decision, but I strongly believe after the number of years that I 

have sentenced individuals under the guidelines system that there 

was flexibility within the guidelines system. I did not have to proceed with relevant conduct unless I made a finding that I was convinced that that was the individual’s relevant conduct. With regard 

to role in the offense, I can make adjustments upward or downward depending on what I saw the evidence is like with regard to 

every single finding under the guidelines. 

I do have to say those were decisions I would make without ever 

telling an individual when I would sentence somebody before the 

guidelines system whether there was a firearm involved, what kind 

of drugs were involved, the amount of the drugs involved. Those 

were all factors with no transparency in the pre-guidelines system. 

But I do think there was some discretion within the guidelines system that we have failed to state within the past in the system itself 

because the judge still had to make those findings. 

Mr. COBLE. The gentleman’s time has expired. 

The gentleman from Arizona, Mr. Flake, is recognized for 5 minutes. 

Mr. FLAKE. Thank you, Mr. Chairman, and I thank the witnesses. 

While this hearing is focusing on sentencing, that is kind of the 

tail end of the criminal justice system. Some argue that we need 

to look much broader, at the front end, the criminal laws that we 

have on the books. I think Attorney Generals Meese and ThornVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
41

burg have criticized the rapid expansion of the code. Last year, the 

Federalist Society published a study noting there are more than 

4,000 Federal offenses that carry criminal penalties. 

My question is this, and I will go to Mr. Wray first. Why does 

it not make sense to take a year and to see how Booker plays out, 

and during that time, have a commission to look at the code itself 

and then come back, if we need to, and make changes to both the 

code and the sentencing guidelines? 

Mr. WRAY. Congressman, I think we believe that while Congress 

should certainly not act rashly, that we do believe that there are 

certain vulnerabilities that exist in the post-Booker world that we 

already know are there and that are already problematic and that 

already require attention. We also know, with a considerable body 

of experience, we have the landscape that existed in the years before the Sentencing Reform Act as well as the experience under the 

sentencing guidelines under the Sentencing Reform Act, as Judge 

Hinojosa has described, and I think that tells us certain things 

about how judicial discretion works in our system. 

So I think that is a reason why we think there are certain things 

that Congress ought to tend to in a prompt fashion. 

Mr. FLAKE. I understand, and I don’t think anybody is looking 

to return to a pre-guideline period. You have mentioned there are 

certain problematic things already. What are those? 

Mr. WRAY. The ones that I would point to in particular are the 

ability for courts to consider prohibited factors that they couldn’t 

consider under the guidelines as they existed before Booker, factors 

that the Commission, based on its diversified experience and so 

forth over the years have already identified as things that 

shouldn’t be considered as a basis in this, so that is one. 

The second is its effect on cooperation, which is absolutely a critical tool for law enforcement in everything from terrorism to corporate fraud to any kind of organized criminal activity. 

The third would be the appellate standard, this reasonableness 

standard that we have already talked about a little bit. We are 

very concerned that this will produce greater disparity because different courts are going to have different definitions of what reasonableness means and that won’t provide the kind of rigorous, consistent review that the Congress, I think, intended with the Sentencing Reform Act and that we so badly need to keep in the system. 

Mr. FLAKE. Judge Hinojosa, returning to the code, 4,000 Federal 

offenses, do you see a need to go into that? 

Judge HINOJOSA. I think for a long time, people have seen a need 

for that, Congressman. Whether that can be done quickly with all 

the policy issues that that brings up, it would be something you 

would be better equipped to answer than a Federal judge or a 

Chair of the Sentencing Commission. 

I will say that if there was an interest on the part of Congress 

to do so, the Commission, with the diversity of the members of the 

Commission, from our experience standpoint, and the staff, would 

be willing to help in any way that we could and to provide any information or service to the Congress that you would be interested 

in us doing. 

42

Mr. FLAKE. Judge, I take from your testimony that you think 

that we could go a year and gather some evidence and see where 

we are after Booker to be better informed about what we need to 

do in the future. Is that the case? 

Judge HINOJOSA. That is ultimately your decision, but I will say 

that if you are going to wait a year in order to gather this information, what would be important during this period of a year is that 

we make sure that the sentencing courts during this period of time, 

so we can compare apples and apples rather than apples and oranges, are still making the findings on the record with regard to 

the sentencing guidelines and departure policy within the guidelines, and then if they are sentencing varying from the guidelines, 

stating the reasons for varying from the guidelines, because if not, 

if we are just paying lip service to, ‘‘I considered the guidelines,’’ but without going through the findings, we will not be able to compare that data to the previous years’ data when the guidelines were 

actually mandatory. 

And I think also it would be important with regard to this potential weight that is given, or the weight that is given to the guidelines, for that to be uniform across the country in order for you and 

for the Commission and every other interested party to have valuable information to be able to compare the system, because if not, 

during that 1-year period, we will be comparing apples and oranges 

with different situations possibly in different parts of the country, 

or depending on the appellate decisions or sentencing court decisions. 

Mr. FLAKE. Thank you, Mr. Chairman. 

Mr. COBLE. The gentleman’s time has been expired. 

We have been joined by the distinguished gentleman from Ohio, 

Mr. Chabot. 

The chair recognizes the gentlelady from Texas, Ms. Jackson Lee, 

for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. Let me 

thank both you and the Ranking Member for both a timely and 

what I believe to be a crucial hearing that I hope will lead us to 

answering the call of Mr. Wray, which is that the Congress acts in 

a reasonable, responsible manner that takes into account what I 

think is a very concise and, as well, very clear mandate from the 

United States Supreme Court. 

I am not sure what arguments one would make to thwart a pronouncement that says that the sentencing guidelines violate a constitutional amendment. So, therefore, I believe it is imperative that 

we act and I welcome your advice and counsel. 

Let me have you succinctly state the position of the Department 

of Justice at this time, in light of the recent Supreme Court decision. Mr. Wray, I am sorry. 

Mr. WRAY. Congresswoman, I just want to be sure that in order 

to be succinct that I am clear on our position on which aspect of 

the entire—— Ms. JACKSON LEE. The sixth amendment aspect, the mandatory 

sentencing violating the sixth amendment. 

Mr. WRAY. Well, we obviously argued to the Supreme Court that 

the Federal sentencing guidelines were distinct and different—distinguishable and different from the Washington State system, but 

43

in the wake of the decision, the Supreme Court obviously disagreed 

with us on that point. 

We do think it is possible to have, for example, a system, the socalled topless system that a couple of the other witnesses have described, we do think that would be constitutional even after Booker. Ms. JACKSON LEE. The topless system? 

Mr. WRAY. The proposal that Professor Bowman would no longer 

like to have his name attached to, but that Mr. Collins described, 

and that is a system where the minimum, if you will, the floor can 

be set by the judge, but the top is determined by the statutory 

maximum that the Congress has imposed and the judge has discretion in that range. So, therefore, you no longer have to acquire jury 

findings—— Ms. JACKSON LEE. You would be open to that? 

Mr. WRAY. We would be open to the topless system, yes. 

Ms. JACKSON LEE. Mr. Collins, I know you have seen the numbers, excessive numbers of minorities in State and Federal prisons. 

In fact, I am looking at a number in the State of Texas, and we 

are talking about Federal prisons, Federal law now, 70 percent of 

the inmate population in the State of Texas happens to be African 

Americans. 

The system that we had before, or the concept that many of us 

in Congress had thought would be reasonable, is giving well-qualified judges, a well-qualified judiciary the bare opportunity of using 

discretion in some cases. The ones that come to mind in particular 

are the so-called conspiracy drug cases where you are standing on 

the street corner with another person and you are caught up in a 

conspiracy. Your mandatory is 25 years. 

What is your interpretation of the latitude the Congress now has 

under Booker? 

Mr. COLLINS. Well, obviously you have very wide latitude under 

Booker. Ms. JACKSON LEE. And I hope it is wise latitude. 

Mr. COLLINS. And hopefully it is wise. The Sentencing Commission—you raise a very serious question. The Sentencing Commission carefully looked at this issue in its 15-year report, had an entire chapter on the subject. Its conclusion was that very little of the 

racial disparity that exists in terms of outcomes and results in the 

Federal system is attributable to the guidelines itself. Some of it 

may be due to disparate impacts of particular provisions of law, 

particularly with respect to drug amount, et cetera. Also, the Commission cited in its report studies that indicated that introducing 

discretion actually had the effect of introducing racial disparity——

Ms. JACKSON LEE. That was some original thought, you are 

right. I think that was one of the basis of mandatory sentencing, 

but go ahead. It is turned around on the wrong end because of the 

impact on certain sentencing in certain populations being in those 

certain offenses. 

Mr. COLLINS. Well, one of the goals of the Sentencing Reform 

Act, and I think the Commission’s 15-year report shows that it was 

achieved, is to try and do as much as you could to take out improper and irrelevant facts that had no business being a part of 

sentencing, having even an implicit role in it, and I think the report indicates that with respect to the issue of racial disparities 

44

1The letter from Burton I. Cohen was not available at the time this hearing was printed. 

that the guidelines are not a source of racial disparity and, indeed, 

probably——

Ms. JACKSON LEE. Mr. Bowman—thank you. Mr. Bowman, would 

you comment, and as I do that, Mr. Chairman, I would like to submit into the record H.R. 256, which is a bill entitled ‘‘A Good Time 

Relief Bill’’ and a letter from Mr. Burton I. Cohen 1 writing in support of that bill. It was filed last year, an individual that has sat 

on several disciplinary committees. But it deals with numbers of 

individuals incarcerated for long periods of time under the mandatory and the release of those individuals for good time behavior. I 

would ask unanimous consent to have these submitted into the 

record. 

Mr. COBLE. Without objection, they will be received. 

[The bill, H.R. 256, follows.]

45


HR256_1.eps
46


HR256_2.eps
47

Ms. JACKSON LEE. May I allow Mr. Bowman just to answer what 

his interpretation of Booker is in terms of the latitude that we now 

have in Congress? 

Mr. COBLE. If you will do that as quickly as you can, Mr. Bowman. 

Mr. BOWMAN. I confess, Congresswoman, I am not entirely sure 

of your question. I think that—— Ms. JACKSON LEE. Let me be clear. Just give me your assessment 

of the Booker case with respect to the latitude of Congress in mandatory sentencing. 

Mr. BOWMAN. I think that that is pretty unclear. I think that, 

as I said in my testimony, I think that Booker casts the rationale 

of Blakely into some doubt and that it is somewhat unclear exactly 

what the Court, a majority of the Court thinks about the proper 

constitutional limits on structured sentencing. And it is for precisely that reason that I have suggested—inconsistently, frankly, 

with what I had said 7 months ago when I didn’t anticipate Booker—that we need some time to figure out—let the courts help us 

find out what they need. 

Mr. COBLE. The gentlelady’s time has expired. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

Mr. COBLE. You are welcome. 

I overlooked the gentleman from California. We have been joined 

by Mr. Lungren. It is good to have you with us, sir. 

I recognize the gentleman from Texas, Mr. Gohmert, for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

If you will pardon me, I read the Booker opinion in total last 

night for the first time and it seemed to me that was a muddled 

mass of murky malarkey, I am telling you. 

Judge, you had indicated at one point in your opening statement 

that one thing that seemed clear, I am telling you, I didn’t see anything that looked real clear. And when you have judges that come 

out with the Blakely decision, give indications of one thing, and 

then come back with a decision in which Stevens delivers the opinion for himself, Scalia, Souter, Thomas, Breyer delivers the opinion 

for O’Connor, Kennedy, Ginsberg, and himself, then Stevens delivers a dissenting opinion for himself and Souter and Scalia, and 

then Scalia gives a dissenting opinion, Thomas gives a dissenting 

opinion, and then Breyer gives a dissenting opinion in part for himself and Chief Justices O’Connor and Kennedy, it seems to me that 

if they wake up on a different side of the bed one morning, we have 

got a whole new decision come 6 months or a year from now and 

that is rather disappointing that Justices come down that way. 

Obviously, you are in favor—you say you appreciate the guidelines, in effect. Is there any polling data of where the Federal 

judges, the district judges stand on their support for the guidelines 

or wish they would go away back like they were 20 years ago when 

you first started? 

Judge HINOJOSA. Well, I guess that is a subject of discussion 

among judges on a pretty regular basis. Yes, I guess there have 

been studies in the past, and the support varies, I guess. But I will 

say that privately, judges probably express more support for a 

guidelines system than is the public aspect of the discussion, for 

48

the same reasons that I have stated. It is the most difficult part, 

as you know, that a judge does with regard to their job and you 

do want to be consistent. You want to be transparent with regard 

to due process and having the defendant, as well as the public, 

know what factors are being considered with regard to sentencing. 

And a guidelines system, whether it is a State or Federal system, 

provides that guidance and that public discussion with regard to 

the issues that are being considered by the judge in making the determination. 

You have mentioned something about the Booker case and I will 

say that there has been a quote of Ricky Ricardo, and I will say 

that sometime when I first read the Booker decision, I guess one 

comment I would have made would have been, ‘‘Ay carramba,’’ to 

quote Ricky Ricardo. But as you read it more, you do see the 

themes that come across with regard to at least that the guidelines 

need to be considered and certainly consulted with and determinations made in order for a judge to make the ultimate sentencing 

decision on a 3553(a). 

But as you well know, any decision—as a judge, the system, 

when it first came into effect, probably did not have widespread judicial support. But I do feel that there is more support for it than 

is sometimes evident in the public. 

Mr. GOHMERT. Dealing with the murkiness as we have it, or at 

least I see it in this opinion, I was curious, with regard to the 

guidelines and their apparent position that if it is a factor that 

takes it outside the range, then it has to be found beyond a reasonable doubt by a jury or agreed by the defendant, do you see the 

possibility of a system in which, like some States, like Texas has 

a bifurcated system. The defendant can waive a jury on sentencing 

so that that is when judges sentence, but not necessarily having a 

jury assess the sentence, but if there are factors of which the prosecutor is aware that may push it up beyond the guidelines, then 

as soon as a jury finding came back finding the defendant guilty, 

immediately move into a bifurcated portion in which the jury would 

determine then beyond a reasonable doubt any of those factors the 

prosecutor wished to pursue? Do you feel like that would be too 

troublesome? 

Judge HINOJOSA. Actually, some judges were doing this postBlakely but pre-Booker and there were some judges who were supportive of this. Judge Sven Holmes in Oklahoma is a prime example of that. And some judges felt that they could work with that. 

It is more cumbersome, as you know, Judge, having practiced in 

the State courts of Texas, to have the guilty-not guilty phase and 

then also the sentencing phase. It is something that could be 

worked with. Obviously, it would require rule changes with regard 

to the rules of criminal procedure. It would require changes with 

regard to how we do business on a daily basis. It would, in some 

cases where you have a heavy criminal load, maybe present some 

issues with regard to resources, including time resources. 

It does also create some other possibilities, which would mean 

that prosecutors and defense attorneys could probably control the 

sentences a lot more because they could make stipulations with regard to what they had agreed on, and then the judges and/or juries 

would have less to say about sentencing because there would be 

49

more stipulations between the prosecution and the defense attorneys. 

Mr. COBLE. The gentleman’s time——

Mr. GOHMERT. May I do one follow-up? 

Mr. COBLE. Very quickly, if you will, Mr. Gohmert. 

Mr. GOHMERT. To Mr. Wray, what the Judge got to was something I was wondering about, if you did have that threat of an additional part of the trial, if that might not lead to more agreements 

immediately after a finding of guilty, an agreement to waive the 

jury on the additional issue and give prosecutors yet another tool 

to bring about an agreement prior to sentencing. Do you see that 

as a possibility? 

Mr. WRAY. Congressman, I think we believe that the sort of bifurcated system that you are describing, as Judge Hinojosa mentioned, some judges were doing that and our offices were having to 

deal with that in some districts, is likely to, in a way, generate 

more disparity, because as he indicated, it puts control in the 

hands of the parties and you are having people making calculations 

about whether or not they want to run a risk with a jury pool in 

this State versus that State, and so I think you would probably end 

up with significant geographic disparities and major logistical and 

resource nightmares. 

Mr. GOHMERT. But would you support it or not? 

Mr. WRAY. Well, I am not in a position here today to be able to 

endorse a specific legislative proposal——

Mr. GOHMERT. Not on behalf of your office, but you personally. 

[Laughter.] 

Mr. COBLE. The gentleman’s time has expired. I will bail you out, 

Mr. Wray. [Laughter.] 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Mr. COBLE. The gentleman from Michigan is recognized for 5 

minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I wanted to extend a personal welcome to our newest colleague 

from Texas, Mr. Gohmert, who is reviewing the murkiness of Supreme Court decisions. But, sir, you are going to have a much bigger job in the Judiciary Committee trying to separate out what we 

are doing here, not only among the witnesses but among the members of this Committee, as well. So I wanted to extend my personal 

welcome to you and look forward to working with you in that regard. 

Mr. GOHMERT. Thank you. 

Mr. CONYERS. Now, in some respects, notwithstanding the very 

distinctive and well thought-out presentations that have been made 

this morning, we are further away from any agreement than we 

were before this hearing was called, gentlemen. We now have even 

larger schools of thought, wider ranges of disparity, and it is curious to me, and I didn’t hear all of the opening statements, but 

there hasn’t been one word mentioned throughout a couple of hours 

here about the crack cocaine-powder disparity. It is like—and we 

have mentioned it and none of you have even acknowledged that 

it exists. And then the whole question of racial disparity and the 

sentencing process. 

50

Now, I don’t know which legal literature you are reading, but the 

kind that my staff and I are looking at say that it is horrendous. 

And now I am treated this morning to all of the phrases and the 

support of the Sentencing Commission and that crime has gone 

down as a result of it, things are—we don’t want to rock the boat 

too much, we don’t want to override these decisions. 

But can you, Mr. Bowman, give me some clue as to why there 

is such a wide gulf that apparently exists between many members 

of this Committee and many in the criminal justice arena and what 

we are talking about today? 

Mr. BOWMAN. I am not sure I can attempt to plumb the minds 

of the Members of the Committee, but perhaps I can try to respond 

and connect the concern expressed by a number of members about 

crack-powder and racial disparity with the conversation that we 

are having here today. 

One of the—as I listened to my fellow witnesses, to a certain extent, the picture that emerges here is one in which the current 

guideline sentences, or for that matter, the statutory sentences for 

things like crack, are taken to a certain extent as a given and as 

a desirable one and any deviations from guideline levels or perhaps 

statutory ones are expressly or impliedly labeled as being undesirable, somehow disruptive or even undermining the system. 

I think that is probably the wrong approach to take. I think an 

approach that we should consider over the whatever period of time 

the Booker system of advisory or presumptive guidelines is allowed 

to persist, whether it is a short time or a long one, I think this 

Committee, and indeed Congress in general, should not look at 

what judges do when they deviate from the guidelines as some sort 

of weird aberration but consider and study whether or not there 

are some patterns in those deviations that suggest that some of the 

rules could be revised. 

And thus, if it were to happen that a good many of the deviations 

from the guidelines that appear post-Booker were in crack cases, 

this might strongly suggest that Congress should, as the Commission has often recommended, revisit the question of the crack-powder disparity. In short, I am suggesting——

Mr. CONYERS. The light just turned red and the bells are ringing. 

Let me just rudely interrupt you. This hearing, in my view, is nonrelevant to the most—the two most important issues that are bedeviling the criminal justice system in America for decades. I 

mean, these are interesting asides about the two decisions that 

have just come out and what they mean to discretion, but for us 

in this Committee, in this room, to hold a hearing for this long a 

period and not talk about the racial disparity and the crack cocaine-powder disparity means to me that they do not occupy a very 

important level of concern for discussion before the one Committee 

that has jurisdiction in the House of Representatives. 

I thank the Chairman for his—— Mr. COBLE. The gentleman’s time has expired. 

Let me think aloud for a minute. Mr. Lungren, I think you can 

be recognized for 5 minutes, and Ms. Waters, if you want to examine these witnesses, we will come back after the vote. Do you have 

a preference? 

Ms. WATERS. No, I don’t want you to have to come back for me. 

51

Mr. COBLE. I don’t mind doing it. 

Ms. WATERS. I don’t need to examine them, but I need to tell 

them something. 

Mr. COBLE. Let us go with Mr. Lungren first and then I will recognize you. 

Ms. WATERS. All right. Thank you. 

Mr. COBLE. Mr. Lungren, 5 minutes. 

Mr. LUNGREN. Thank you, Mr. Chairman. 

It is a pleasure to be here with these distinguished panelists. As 

one of the fathers of the sentencing guidelines, I originally got involved in the process when I was visited by a young woman who 

was a constituent of mine in my previous district who had been 

sentenced by a Federal judge to an extraordinary sentence for certain marijuana possession which was so out of sorts with what 

other people were getting and so out of sorts with what violent 

criminals were getting that I began to investigate this and worked 

with others to set up the sentencing guidelines system, which until 

the Supreme Court gave us its very clear decision, I thought was 

working relatively well, certainly in comparison to what we had before. The great disparities we saw in the Federal system were 

largely eliminated. There was some consistency. 

I just remarked to my friend from Michigan that the problem 

with respect to crack cocaine-powder disparity is really not one of 

the Sentencing Commission, it is complete direction by this Congress. I can recall when we made that decision brought to us by, 

with all due respect, members of the other side of the aisle, Congressman Bill Hughes of New Jersey and Congressman Rangel, 

who came together and said that crack cocaine was killing their 

communities, was a scourge on their communities, and we needed 

to do something about it and we needed to create far greater penalties for crack cocaine than we did for powder cocaine. 

We reacted in response to that direction given to us by Representatives in this institution who were representing people from 

those communities and listening to the cries of the people in those 

communities which were being devastated by it. So it ought to be 

Congress that revisits it after 15 years rather than putting this on 

the Sentencing Commission and any suggestion that that is one 

reason why the Sentencing Commission decision by the Supreme 

Court was a good thing, I think ought to be recalculated. 

Here is my question to the panel and it is a very simple one. The 

Sentencing Commission was specifically established for purposes, 

and the guidelines, for purposes of getting rid of disparity, giving 

a certainty to the system, giving some expectations that would be 

realized by those in the system, both those charged with crimes 

and the victims of crime. 

Given what we have now, that is, the result of the Supreme 

Court decision, other than the bifurcated system that we have dealt 

with in California and other States in capital cases, how are we 

really going to deal with this? The way I take it from the Supreme 

Court, they have said that we want the Federal judges to take the 

guidelines seriously, but not that seriously, because if they consider 

it that seriously, it is unconstitutional. So long as it is an 80 percent seriousness, it is constitutional, but if it is 100 percent seriousness, it is unconstitutional. 

52

Am I wrong on that? What do we have left? It reminds me of 

some people who—well, I won’t go into that. 

Let me just ask the four of you, and I know we have a short period of time, what can we do? I know you gave us time constraints 

or time imperatives, but essentially, in very short order, what can 

we in Congress do, or do we need to do anything now that the 

courts are at least trying to react to this? 

Mr. BOWMAN. Mr. Lungren, if I might respond to that, I don’t 

know if perhaps you are addressing it to someone else. 

Mr. LUNGREN. All four of you. 

Mr. BOWMAN. Congressman, I think that, in fact, there are a lot 

of smart people out there trying to figure out how to respond to 

this and I think that there are—including the folks on the Constitution Project, Attorney General Meese, Professor Heymann, and 

the judges and other folks on that group, and there are a lot of 

other groups out there thinking very hard about this. And I can tell 

you, although I can’t go into the details because of time, but there 

are a number of proposals being worked through that would combine the concerns—addressing the concerns of Congressman Flake 

about simplifying the Federal sentencing system and Federal criminal laws with meeting some of the concerns expressed by Justice 

Scalia in Blakely and also addressing the alternative constitutional 

model put forward in Booker. There are some folks out there working very hard who I think, 

if given some time, can actually present to you some reasonable 

proposals that can try to bring together and address a number of 

these problems. 

Mr. COLLINS. Congressman, I think the case for delay is a weak 

one. If we think of the Sentencing Commission and the sentencing 

guidelines as the vehicle for Congress’s accomplishing the goals of 

Federal sentencing policy, Booker is the equivalent of a flat tire. 

And while we stand by the side of the road, it is not time to argue 

about reupholstering the interior, painting the vehicle. We need to 

get it moving again, and it is very simple what to do. You simply 

remove the caps—that would make the system constitutional. If 

other issues want to be revisited, people can revisit those. But this 

system needs to get moving again in the direction of accomplishing 

what we all know from the pre-Booker period it was accomplishing 

what Congress wanted it to do. 

Judge HINOJOSA. Congressman Lungren, I guess in some ways 

Professor Bowman has been more successful than he thinks he is, 

because to a certain extent, the Booker decision gives us topless 

guidelines. 

Mr. COBLE. Judge, if you will suspend just one moment—again, 

I am thinking aloud. Ms. Waters, how long will it take you to make 

your comment? 

Ms. WATERS. Just a few minutes. 

Mr. COBLE. How long? 

Ms. WATERS. Just a couple of minutes. 

Mr. COBLE. I am just thinking, folks, in the interest of time, to 

give Ms. Waters due time and to let Mr. Lungren finish, the time 

is running down. Why don’t we suspend very briefly. We will go 

vote and then we will come back and Mr. Lungren can finish his 

line of questioning, and then we will recognize Ms. Waters. 

53

Ms. WATERS. Well, no, if you are going to come back anyway, I 

will just come back and take my whole 5 minutes. 

Mr. COBLE. That would be fine. 

Ms. WATERS. I was trying to do it out of consideration to the 

Committee. I think they had answered basically Mr. Lungren’s 

question in their presentations and talking about what they 

thought we could do. I have heard it over and over again. But if 

you want to do that—— Mr. COBLE. Well, to be sure none of us miss the vote, let us suspend and we will come back after the vote and then we will wrap 

it up with Mr. Lungren and then Ms. Waters. 

[Recess.] 

Mr. COBLE. We will resume our activity here. 

Mr. Lungren, I think you had the floor and you were examining 

the witnesses. You may continue. 

Mr. LUNGREN. The Chairman is very generous in his use of the 

word ‘‘examining.’’ I am being very nice. I am just asking. I think 

the Judge was responding. 

Judge HINOJOSA. That is correct, Congressman. What I was saying was that Professor Bowman has probably been more successful 

than he would like to admit in that under an advisory guideline 

system, if you consider the Sentencing Reform Act factors, you 

could go to the top, the statutory maximum. We also can go to the 

bottom. 

The Commission’s position has been that in considering and consulting the guidelines as Booker requires and as certainly the Sentencing Reform Act itself states, you should consider the guideline 

ranges, applicable guideline ranges, the policy statements as the 

Act itself requires, then make determinations under the guidelines 

system, and then determine in consideration of the Sentencing Reform Act 3553(a) factors if you are going to stay within the guidelines system, including the policy statements, or going outside of 

the system. 

But in many ways, we do have topless guidelines for those that 

are interested in that. The issue then becomes with regard to 

whether appellate review should be the same for guideline sentences versus non-guideline sentences since it is above the guidelines, below the guidelines, departures within the guidelines system, and that is certainly something that Congress will eventually 

decide. If not, the appellate courts are also going through that at 

the present time and we are already seeing some decisions at the 

appellate court level with regard to the review that is being used 

with regard to the sentence. 

Mr. WRAY. Congressman, I think, if I remember correctly, the 

question as you had posed it was sort of what can you do in the 

wake of Booker, and I think what I would say, in addition to what 

the other witnesses have already said, is a couple of things. 

You could address the courts’ ability that they now seem to have 

in the wake of Booker to consider what would otherwise be prohibited factors in sentencing, something I mentioned earlier in my testimony. You could address the cooperation issue, which is so important to areas of criminal enforcement that are very important to 

every member of this Committee and every member of this country. 

You could address the appellate review standard, this reasonableVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
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ness issue which we think will result in less rigorous and less consistent appellate review. You could—and I think that is a very important issue to cover. 

I think there are some other variations that have been discussed 

already by some of the other members of the panel. There are 

things that can be done like a topless guideline system, but that 

may not be the only way. There may be things that can be done 

as long as we work collaboratively together and the Department 

would like to work with the Congress on that in a way to come up 

with something that would lead to the best interest of the public. 

Mr. LUNGREN. Thank you very much. Mr. Chairman, my concern 

is that I thought that the guidelines within the large ranges that 

we gave from Congress were the best way to address the situation. 

Now the Court has put us in the situation where a response by 

Congress may be to increase the minimum ranges that we have 

statutorily as a way of making sure that the Federal system 

doesn’t do what we feared before, which I don’t think is a good 

thing. And so we are sort of in a dilemma now where I thought we 

had a system that worked pretty well to ensure that we had consistency but yet, with maybe some exceptions that ought to be examined by the Congress on due penalties attached. I am not sure 

the Supreme Court thinks about those things, that the reaction of 

Congress might be just exactly the opposite of what they are concerned about. Thanks very much. 

Mr. COBLE. I thank the gentleman. 

The gentlelady from California, Ms. Waters, is recognized for 5 

minutes. 

Ms. WATERS. Thank you very much, Mr. Chairman. I appreciate 

the opportunity to have this platform today to talk about an issue 

that troubles me and others on this Committee and obviously Mr. 

Conyers so much. 

Even though we are here to talk about Booker and to talk about 

the guidelines becoming advisory, that is not the major issue for 

me. As a matter of fact, I would submit to you without having 

talked to all of my colleagues, those of us who understand what 

racism and discrimination are all about, we would like to have 

clear rules that everybody would have to abide by. I think we are 

served better by that. 

So when you talk about the sentencing guidelines being advisory 

and you have the opportunity for judges to go up or down, et 

cetera, that is a little bit troubling because we know that we will 

suffer under that kind of discretion, for the most part. History has 

proven that and I don’t think it is going to change. 

So for me, it is not a big issue, but here is the issue for me: Mandatory minimum sentencing. As my colleague said on the opposite 

side of the aisle, that is our fault. What happened in the Congress 

of the United States led by two of the gentlemen that he identified, 

and I just asked Mr. Regula about it and he didn’t quite remember 

it, is what I am concerned about. 

Now, what do you have to do with that? I mean, you didn’t come 

here to talk about mandatory minimum sentencing as it relates to 

crack cocaine, et cetera. But we are watching all of these low-level 

drug persons with five grams of crack cocaine be sentenced to 5 

years in prison or more and the judge has no discretion in the 

55

issue. They are filling up the prisons and lives are being destroyed. 

Nineteen-year-olds, 20-year-olds are going to prison, some of them 

in college. They are not criminals, they are just stupid. They are 

not criminals and their lives should not be shut off in that manner. 

So here is what we are saying. While we are discussing these 

kinds of issues, can we use this as an opportunity to talk about not 

only what the Congress should be considering as we take a look at 

Booker, but what we should be thinking about and how we can encourage the Congress of the United States to look at these mandatory minimum sentences. 

I believe that the Sentencing Commission, and I have to—we 

have to accept blame for that on both sides of the aisle. I can recall 

when the Sentencing Commission came up with different guidelines and Bill Clinton vetoed it, as I remember, or didn’t do something which caused it to go into effect. 

So because you are listened to, because you are in the Justice Department, because you are people who deal with these issues, let 

us couple our discussion about mandatory minimum sentencing as 

we talk about these sentencing guidelines. Let me tell you, under 

these mandatory minimum sentences, not only do we have people 

being sentenced more harshly than we have people who commit 

real crimes being sentenced, we have people who are committing 

crimes of robbery and rape and other kinds of serious felonies who 

are not sentenced as harshly as a 19-year-old who is stupid enough 

to try to have five grams of crack cocaine in their possession. And 

they are disproportionately minority, even though the greater number who are involved with crack cocaine are not minority. 

So when you hear us talk about this, it is not because we are 

blaming you. It is not because we think you can fix it. But we think 

that you can couple the discussion so that we can try and move the 

Congress of the United States to correct mandatory minimum sentencing. I disagreed with all mandatory minimum sentences. I 

think judges should have some discretion. I think they should have 

the ability to look at the individual, to look at their past history, 

to look at the intent, everything. However, I am focused on mandatory minimum sentences as it relates to crack cocaine sentencing. 

So if you heard my colleague John Conyers today, what he is saying to you is, why aren’t any of you interested in discussing mandatory minimum sentencing, particularly as it relates to these drug 

offenses? You know in your heart that these sentences are excessive and that they are detrimental and that they are doing nothing 

to deter crime. As a matter of fact, criminals, real criminals, are 

getting away with much lighter sentencing. 

Having said that, I told my Chairman I had no questions, but I 

had something I wanted to tell you. I have told you. That is it. 

Thank you. I yield back the balance of my time. 

Mr. COBLE. I thank the gentlelady. 

Ladies and gentlemen, our border security bill is now on the floor 

and we need to adjourn, but I think the gentleman from Virginia 

may have a question or two. Mr. Scott, if you could, and then we 

will wrap it up. 

Mr. SCOTT. Thanks, Mr. Chairman. 

56

I had just a couple of technical questions if we do something. 

There is an old adage, slightly rephrased, that we might abide by 

and that is don’t just do something, stand there. [Laughter.] 

If we do something, what would happen to a pre-sentence report. 

Pre-sentence reports, under mandatory guidelines, would be useless, I would imagine. Is that right, Judge? 

Judge HINOJOSA. Well, under the present system, the pre-sentence report still, according to the rules, needs to be prepared as 

it was being prepared beforehand. 

Mr. SCOTT. And under the voluntary guidelines, you could still 

consider the pre-sentence report today. But if we had mandatory 

guidelines, it would be—the findings in the pre-sentence report, 

since they were not found by a judge, could not be used. 

Judge HINOJOSA. Well, they would always be found by a judge, 

Congressman, because these are just recommendations from our 

probation officers. The advantage to that system, when it was created, was we have always had pre-sentence reports. After the 

guidelines, obviously, they were geared toward recommendations of 

the guidelines findings. But eventually, it is the judge’s decision. 

The advantage to the present system is there is a report that is 

given to the prosecution and the defense. There is a period of time 

within which they can object to it. Then there is a period within 

which the probation office responds to it. And then there is an actual hearing before the court. But as most probation officers find 

out, it is the judge who makes the decision, not the probation officer. 

Mr. SCOTT. If the guidelines were made somehow mandatory, you 

couldn’t use the pre-sentence report without a finding by a jury 

along with the facts in the pre-sentence report. 

Judge HINOJOSA. It would depend on what the defendant had admitted at the time of the guilty plea or what the jury verdict had 

been with regard to the charge and the way it was worded in the 

instructions to the jury at the time of the conviction. And so it 

might very well be that the determinations would be made under 

Blakely and under Booker constitutionally. 

Mr. SCOTT. But if we don’t do anything, you can consider the information in a pre-sentence report today, if we don’t do anything? 

Judge HINOJOSA. Well, what it appears to me that Justice Breyer 

and the five members of that majority were doing was saying, yes, 

you the other majority have said Blakely applies to the Federal 

guidelines with regard to sixth amendment rights, but since they 

are now advisory, the judges can continue making the findings 

under the standards of proof that they have used in the past and 

under the same methods of determining the guidelines system 

without having to have a jury determine these because these are 

now advisory and are being considered as one of the factors within 

3553(a), although a very strong factor and one obviously that the 

Commission feels deserves substantial weight. 

Mr. SCOTT. If there is a guilty plea, obviously, you didn’t find 

anything by a jury beyond a reasonable doubt. How do you consider 

the various factors today without any findings? 

Judge HINOJOSA. In my case, as to what procedure I am following, I am following the same procedure and making the findings 

in the same fashion as I did beforehand. It is open. It is a discusVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
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sion of the factors that need to be considered, opportunity for both 

sides to come forward with whatever information they have so that 

the court can make the decision here. 

And I do have to say that under the old system, I made those 

decisions without ever having to tell a soul that I was doing that, 

and there was no standard with regard to beyond a reasonable 

doubt or a preponderance and those factors were all being considered. 

Mr. SCOTT. Mr. Bowman, did you want to comment on that, or 

on both of those questions, what do you do with the pre-sentence 

report and a guilty plea? 

Mr. COBLE. And, Mr. Bowman, if you would as quickly as you 

can because we do need to adjourn, but go ahead, Mr. Bowman. 

Mr. BOWMAN. Another way of putting what Judge Hinojosa is 

saying, which may help clarify this, is at least my understanding 

of what Booker has held, and I think this is what Judge Hinojosa 

is saying, as well, is that after Booker, everything essentially remains—in terms of procedure in the courts—everything remains 

exactly as it was before Booker. Factual determinations must be 

made. A sentencing hearing must be held. A guidelines determination must be made. Everything remains exactly as it was up to the 

point at which the guideline determination is made and the judge 

then has to decide whether to sentence inside that range or outside 

that range. 

So procedurally, if you leave things exactly as they are, if you 

don’t disturb Booker, the Booker mechanism seems to be one in 

which the fact-finding process is exactly the same as it was before. 

Mr. SCOTT. Mr. Chairman, could I ask one other quick question, 

and that is to Mr. Wray on the cooperation credit. Can you say a 

word about the policy implications of requiring defendants to waive 

attorney-client and other privileges? 

Mr. WRAY. Sure, Ranking Member Scott. The issue of attorneyclient privilege waiver comes up most typically, at least in my experience, in the context of corporate fraud cases. I am not aware 

of very many instances that I have seen where anyone is asking 

for such a waiver in the context of an individual defendant. But 

has not been the Department’s policy to insist on such a wavier. 

It is, however—there are cases where a defendant, typically a 

corporate defendant, that is, a company that is under investigation, 

will choose to do that to demonstrate how cooperative they are 

being and how helpful they are being, and we want to make sure 

that when companies and institutions do that, they get appropriate 

credit for doing that, because we recognize that is a very significant 

step that is not to be taken lightly. 

Mr. SCOTT. May I have unanimous consent to request documents 

be added to the record? 

Mr. COBLE. Without objection. 

I would also like unanimous consent with a number of documents, as well. 

Ladies and gentlemen, this has been a very productive hearing. 

I want to apologize for some of the Members of the Subcommittee 

who were not here. Their absence does not indicate lack of interest 

in this subject. We had other hearings and other Committee meetVerDate 0ct 09 2002 13:45 Apr 04, 2005 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\021005\98624.000 HJUD1 PsN: DOUGA
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ings that were in conflict, so I assure you, we will keep our eye on 

the ball on this. 

But I do thank you all for your testimony and your contribution. 

In order to ensure a full record and adequate consideration of this 

important issue, the record will be left open for an additional 7 

days for subsequent submissions if you all want to submit something further. Any written questions that a member wants to submit should be submitted within the same 7-day period. 

This concludes the oversight hearing on the ‘‘Implication of the 

Booker/Fanfan Decisions for the Federal Sentencing Guidelines.’’ Thank you all for your cooperation. The Subcommittee stands adjourned. 

[Whereupon, at 12:05 p.m., the Subcommittee was adjourned.] 

(59)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE HOWARD COBLE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA, AND CHAIRMAN, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Good morning. I want to welcome everyone to this very important oversight hearing before the Subcommittee on Crime, Terrorism and Homeland Security to examine the implications of two recent Supreme Court decisions, in United States v. 

Booker, and United States v. Fanfan, to the federal Sentencing Guidelines. 

The Supreme Court’s rulings eviscerated two critical aspects of the federal Sentencing Guidelines: first, the Court ruled the Sentencing Guidelines are no longer 

mandatory but are ‘‘advisory;’’ second, the Court eliminated the de novo appellate 

review standard for downward departures, which was passed by Congress as part 

of the PROTECT Act in the 108th Congress, and replaced it with a vague and 

unspecific ‘‘reasonableness’’ standard for appellate review. 

It is an understatement to say that the Supreme Court’s decisions have had a dramatic impact on the federal criminal justice system. Some have characterized the 

impact as resulting in complete disarray, and even others characterize the decisions 

as posing a direct and significant threat to public safety, thereby jeopardizing dramatic reductions in the crime rate in our country. 

As this Committee examines this issue, we must be mindful of the fact that the 

Sentencing Reform Act of 1984, which created the mandatory federal Sentencing 

Guideline system was a bi-partisan measure designed ‘‘to provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted disparities among 

defendants with similar records who have been found guilty of similar criminal conduct.’’

In the short time since the Supreme Court issued its rulings in the Booker/Fanfan 

decisions, there already have been reported instances of judges deviating from the 

guideline sentencing ranges, relying on varying rationales for such departures. It is 

Congress’ role to ensure that the original purposes of the Sentencing Reform Act of 

1984 are adhered to by the federal judiciary—we all can agree that disparities 

among similarly situated defendants are unfair and undermine the federal criminal 

justice system. 

Justice Breyer in his majority opinion in Booker made it clear as to our institutional responsibility when he wrote of the Court’s decision, ‘‘Ours, of course, is not 

the last word: The ball now lies in Congress’ court.’’

In order to fulfill our Constitutional responsibility, today’s hearing is the first step 

to ensuring that the federal sentencing system continues to promote fairness, eliminate disparities, and protect the public safety—so that law-abiding citizens can live 

in freedom without fear of crime, and defendants receive fair and equal treatment 

in the federal judicial system. 

I am anxious to hear from our distinguished panel of witnesses and now yield to 

the ranking Member of this Subcommittee, the gentleman from Virginia, Mr. Bobby 

Scott. 

PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman. I am pleased to join you in convening this hearing on 

the implications of the U.S. Supreme Court’s Booker/Fanfan decision on the federal 

sentencing guidelines. Since the Blakely v. Washington decision last June, the viability of the federal, and many state, sentencing systems have been in jeopardy. 

60

That decision made it clear that sentences based on facts found by the court after 

the trial, that were not admitted by the defendant or established during the trial, 

deprived the defendant of the constitutional right to a jury trial. We contemplated 

a range of options or approaches after the decision. They ranged from do nothing 

to enacting an entire system of statutory minimums and maximums. However, we 

wisely, I believe, listened to the counsel of sentencing experts, and others, suggesting that we give the courts a chance to further clarify the impact of the decision 

on the federal system. 

That further clarification came in a decision by a strangely divided Court in January through the Booker/Fanfan decision. That decision clarified that Blakely, indeed 

was applicable to the federal sentencing guidelines system, and found the system 

unconstitutional as applied. However, the court delineated the aspects of the system 

that caused it to be unconstitutional, thereby excising the applicability of those factors, leaving the remainder of the system intact. Yet, the Court, as it properly tends 

to do, only answered the questions it considered to be properly before it at the time. 

Therefore, we are left with the issue of how the remaining system can operate consistent with its aims and purposes and the Court’s decisions. And, again, sentencing 

experts and others are advising that we await further clarification from the courts 

on the impact of Booker/Fanfan. 

The early indications in this post Blakely/Booker/Fanfan context is that the sky 

is not falling; that criminal defendants are being prosecuted and sentenced and that 

the sentencing guidelines system is directing those sentences to essentially the same 

extent as it was before. So, for those who found the sentencing guidelines system 

acceptable as applied before Blakely and Booker/Fanfan should find it acceptable 

now. There were quirks and imperfections before the recent upheavals that required 

appellant court correction or clarification, and that’s the situation today. 

For others of us, including myself, the federal sentencing guidelines system as applied was not satisfactory. I am very concerned about the growing minority percentage of a rapidly increasing federal prison population serving excessively long sentences for minor roles in non-violent crimes, due in large part to unfair applications 

of mandatory minimum sentences and prosecutorial concentrations. These problems 

are detailed in these 2 recent reports from the Sentencing Project entitled ‘‘Racial 

Disparity in Sentencing: A Review of the Literature,’’ ‘‘The Federal Prison Population: A Statistical Analysis,’’ and the recently completed 15-year study report by 

the U.S. Sentencing Commission, of which I have the executive summary here. 

All the credible data shows that minorities are less likely than whites to use illegal drugs of virtually all types, including crack cocaine. Yet, a grossly disproportionate percentage of the enforcement war against drugs falls upon minorities, many 

of whom are bit players at the end stage of the drug trade whose involvement is 

based more on addiction than profit. For example over 80% of the crack prosecutions 

are against African American offenders while drug use data reflects that 60% of the 

use of crack is by Whites. 

And all the research and all the demonstrations show that drug treatment, and 

other alternatives to incarceration are much more effective and much cheaper than 

incarceration. Yet, we continue to greatly increase our resources to lock up more and 

more of these bit players for longer and longer periods while making no consideration to effective and less costly alternatives and only minimally increasing drug 

treatment as compared to the increases in enforcement. Report after report, including these by the Sentencing Commission and others, have pointed to these gross disparities in application of our drug enforcement and sentencing policies against minorities. It was high time that we addressed these atrocities before Blakely and 

Booker/Fanfan, and it is certainly time to do so now. 

So, Mr. Chairman, as we carefully contemplate what needs to be fixed in the federal sentencing guidelines system, I would invite consideration to this longstanding 

and shameful problem in our federal law enforcement and sentencing applications. 

I look forward to the testimony of our witnesses for any guidance they give us as 

we contemplate these and other challenges in our criminal justice system, and to 

working with you to meet the challenges. Thank you. 

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Chairman Coble and Ranking Member Scott, thank you for the opportunity that 

this body will have today to exercise oversight in such an important area of the 

criminal justice system that has so many stakeholders. The holding of the high 

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1 125 S. Ct. 738, 73 USLW 4056 (2005). 

court in U.S. v. Booker v. Fanfan 1 has given the Federal Sentencing Guidelines advisory weight rather than mandatory. 

Mr. Chairman, I agree with many of my colleagues as well as a good number of 

federal trial court judges that the guidelines are an instrument created by the 

United States Sentencing Commission to reduce negative trends and disparities in 

sentencing—on their face. 

However, my experience as Ranking Democrat of the Subcommittee on Immigration, Border Security, and Claims has shown me that strict application of the guidelines on a mandatory basis can preclude judges from exercising discretion as to 

whether or not to consider ‘‘history and characteristics of the defendant’’ under 18 

U.S.C. 3553, the Federal Sentencing Act. The Booker case that was decided on January 12 has the force and effect of severing the Federal Sentencing Act to excise the 

provision that makes the Sentencing Guidelines mandatory. 

While I am a proponent of making federal sentencing more uniform and consistent, I am not yet convinced that the Guidelines achieve this end. To date, certain 

serious crimes have led to minor sentences while more minor crimes have led to numerous years in prison. We must carefully balance the need to instill order, uniformity, and judicial efficiency into the criminal justice system while preserving judicial discretion. 

Application of the Guidelines in strict form has contributed to the exponential 

growth of the federal prison and justice systems. Since 1980, the number of federal 

prisoners has increased nearly seven-fold, rising from 24,000 in 1980 to 106,000 in 

1996 and to over 170,000 in 2003. 

Because of this rise in incarcerations, we have seen a rise in the number of federal nonviolent offenders who may have been victims of excessive sentencing under 

the Guidelines. 

This was the impetus for my introduction of the Federal Prison Bureau Nonviolent Offender Relief Act of 2005 which calls for the early release of nonviolent 

offenders under certain circumstances. 

Mr. Chairman, this body must explore this matter thoroughly and follow the path 

that has been made by the jurisprudence of Booker. 

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY

Let me begin by thanking Chairman Coble and Ranking Member Scott for convening this timely hearing on the Booker/FanFan decisions and their impact on the 

federal sentencing guidelines. 

With more than 2.1 million Americans currently in jail or prison—roughly quadruple the number of individuals incarcerated in 1985—it’s hard to deny that our 

criminal justice is facing a real crisis. 

Today, this country incarcerates its citizens at a rate 14 times that of Japan, 8 

times the rate of France and 6 times the rate of Canada. 

We spend an estimated $40 billion a year to imprison criminal offenders, we 

choose to build prisons over schools and we fail to provide inmates released from 

prison with the necessary tools and assistance for a successful re-entry into society. 

In short, we have turned a nation of peace-loving people who have come to this 

country in search of nothing more than freedom and equality into a nation of convicts. 

Admittedly, the federal sentencing guidelines were not originally enacted to address many of these problems. In fact, their primary purpose was to simply make 

sentencing more certain and predictable. Regrettably, two decades later, it’s sad to 

say that the only thing more ‘‘certain and predictable’’ is that the current system 

targets and punishes racial minorities in a disproportionately harsher manner. 

For instance, while the majority of federal offenders in the pre-guidelines era were 

White (60%), minorities dominate the federal criminal docket today. Moreover, while 

the gap in average sentences between White and Black offenders was relatively 

small in the preguidelines era, Blacks now receive sentences that are approximately 

70% longer than Whites. 

On average, Blacks now serve virtually as much time in prison for a drug offense 

(57.2 months) as Whites do for a violent offense (58.8 months). 

The current system may be certainly predictable, but it is undeniably unfair. 

Several reasons serve as the source of blame for our current state of affairs. However, the greatest responsibility lies with those who stubbornly rely on mandatory 

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minimums and congressional directives to enact misguided and ineffective policies 

all in the name of appearing tough on crime. 

For example, there currently exists a 1 to 100 disparity in the ratio in sentencing 

powder versus crack cocaine, even though all experts agree that the harms associated with the use of crack cocaine do not justify substantially harsher treatment. 

So, why the disparity? 

Our look today at the federal sentencing guidelines provides us with a unique opportunity to consider some of these issues and debate ways to bring about meaningful reform. 

Such reform has already taken place at the state level. For example, over the past 

couple of years, more than 25 states have passed laws eliminating some of their 

lengthy mandatory minimum sentences and have begun to divert non-violent drug 

offenders to treatment programs instead of incarceration. The day has come for us 

to follow their lead. 

Again, I would like to thank the Chairman and Ranking Member for convening 

this important hearing. And, I look forward to hearing the testimony of the witnesses. 

PREPARED STATEMENT OF THE HONORABLE ADAM B. SCHIFF, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

I would like to thank the distinguished Chairman, Mr. Coble and Ranking Member Scott for holding this important hearing on the implications of the recent Supreme Court decision in Booker/Fanfan on the Federal Sentencing Guidelines. 

The Booker/Fanfan decision brought about a far-reaching, if poorly reasoned result. The sentencing guidelines are no longer mandatory, but advisory, and yet they 

are still subject to a test of reasonableness. Justice Breyer noted that the ball now 

lies in Congress’ court. This is an understatement. 

Although the merits of the Court’s opinions are subject to legitimate criticism, 

Congress should use the opportunity to carefully consider the strengths and weaknesses of the sentencing guidelines and determine the best method of ensuring a 

sentencing regime that is tough, fair, and promotes public safety. 

As a former federal prosecutor, I had the opportunity to work in the criminal justice system both before and after the sentencing guidelines originally went into effect. The guidelines, although certainly imperfect, did have the laudable effect of 

eliminating some of the greatest disparities in sentencing. At the same time, they 

eliminated judicial discretion to an unprecedented degree. 

The challenge for the Congress is to revise the sentencing regime consistent with 

the Court’s opinion, establish a completely new process, or allow time to evaluate 

the effects of the advisory system and reasonableness standard. 

I look forward to working with Chairman Sensenbrenner and Chairman Coble 

and our other Judiciary Committee colleagues, the Department of Justice, federal 

judges, defense attorneys, the Sentencing Commission, and other experts and practitioners as we face this challenge.

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MATERIAL SUBMITTED FOR THE RECORD BY REP. SCOTT


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LETTER FROM THE ASSOCIATION OF CORPORATE COUNSEL (FORMERLY THE AMERICAN

CORPORATE COUNSEL ASSOCIATION), THE BUSINESS CIVIL LIBERTIES, INC., THE

BUSINESS ROUNDTABLE, THE NATIONAL ASSOCIATION OF MANUFACTURERS, AND

THE U.S. CHAMBER OF COMMERCE


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LETTER FROM KEITH DARCY, ACTING EXECUTIVE DIRECTOR,

ETHICS OFFICER ASSOCIATION (EOA)


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LETTER FROM ROBERT EVANS, DIRECTOR, GOVERNMENTAL AFFAIRS OFFICE,

THE AMERICAN BAR ASSOCIATION (ABA), DATED FEBRUARY 9, 2005


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LETTER FROM ROBERT EVANS, DIRECTOR, GOVERNMENTAL AFFAIRS OFFICE,

THE AMERICAN BAR ASSOCIATION (ABA), DATED FEBRUARY 17, 2005


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LETTER FROM EDWIN MEESE, III, AND PHILIP HEYMANN, CO-CHAIRS, SENTENCING

INITIATIVES, THE CONSTITUTION PROJECT


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PREPARED STATEMENT OF LAWRENCE PIERSOL, PRESIDENT, THE FEDERAL JUDGES

ASSOCIATION, AND CHIEF JUDGE OF THE DISTRICT OF SOUTH DAKOTA


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LETTER FROM KENT SCHEIDEGGER, LEGAL DIRECTOR AND GENERAL COUNSEL, 

CRIMINAL JUSTICE LEGAL FOUNDATION


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LETTER FROM ROBERT L. WILKINS, AND KARL A. RACINE, PARTNERS, VENEABLE LLP


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