The FSG are dead, long live the FSG!!

I am trying to come up with a simple take on Booker, and here it is: five Justices (the Apprendi/Blakely five) say the federal sentencing guidelines can no longer operate as mandatory sentencing rules (which is clearly how they were designed and intended to operate), but five Justices (the Apprendi/Blakely dissenters + Justice Ginsburg) have crafted the only possible remedy that would operate in a manner as close to the old system as possible.

Particularly significant, in my view, is Justice Breyer’s repeated statement that, even as an advisory system, the Act still “requires judges to consider the Guidelines,” Breyer for Court at 16-17, and that “district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.”  Id. at 21-22.  Thus, it appears that the FSG must continue to operate as a (shadow?) sentencing system, with presentence reports prepared (and fully litigated?) as in the past, and perhaps even with sentencing judges having to make on the record findings of what the FSG would provide. 

(Indeed, as I read Justice Breyer’s opinion for the Court, I think there is an argument that a district judge who fails to make (shadow?) rulings about the applicable guideline range could perhaps be subject to per se reversal.  I also suppose that defendants and prosecutors might still be able to, and actually need to, appeal the (shadow?) guideline rulings because the reasonableness of the impose sentence on appeal would depend on the proper applicable guideline range.)

Also noteworthy, Justice Breyer describes a largely unchanged role for the Sentencing Commission in our new advisory world, since it “remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly.”  Id. at 21.  But what if appellate courts start finding various of the USSC guidelines unreasonable?  What good would new guidelines do?  (Indeed, I wonder if (when?) some circuit panels will have ocassion to address the reasonableness of existing provisions prohibiting or greatly restricting the consideration of various potential mitigating offender characteristics like medical conditions and family circumstances.)

To put all this analysis in a much hipper way, I actually think that swing voter Justice Ginsburg must have been listening to The Who in chambers a lot.  It is almost scary how fittingly the lyrics to Won’t Get Fooled Again capture the Booker decision:

I’ll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I’ll get on my knees and pray
We don’t get fooled again

The change, it had to come
We knew it all along
We were liberated from the fold, that’s all
And the world looks just the same
And history ain’t changed
‘Cause the banners, they are flown in the next war…

Meet the new boss
Same as the old boss