A Remedy but Not a Cure: Reevaluating the Status of the Booker Remedial Holding

In a line of cases culminating in United States v. Booker, the Supreme Court identified a Sixth Amendment problem with mandatory sentencing guidelines that used judge-found facts in ways that increased a defendant’s sentence. The Court’s solution for the federal system was to sever and remove the statutory provisions that made the federal Guidelines mandatory and binding on sentencing judges, thus creating a “discretionary” sentencing system.

Despite the key role judicial discretion plays in the constitutionality of our federal sentencing scheme, the Court has never defined what features are necessary for a sentencing guidelines system to be discretionary, and few academics have considered the question. This Note takes up this issue by considering what features could distinguish mandatory and discretionary sentencing systems. It proposes two models for what makes sentencing guidelines discretionary—a “bundle” model and a “default sentence” model—that most closely adhere to what the Court said about the discretion remedy around the time of Booker.

The Note then considers a number of the Court’s recent Guidelines decisions in light of the discretion issue. On their own and in aggregate, these cases enact legal rules, such as procedural requirements and appellate presumptions, that act as nudges towards within-Guidelines sentences. The Note argues that these rules risk violating Booker’s mandate that judges have discretion at sentencing and identifies grounds on which a new Booker-style challenge could be brought if these lines of cases were extended further.