July/August 2004 VOICE FOR THE DEFENSE 1

If a sentence within the statutory range can constitute an Apprendi
violation, then indeed the federal sentencing guidelines
suffer the same defects found in Blakely. It is the rigidity of the
sentencing guidelines that renders them constitutionally infirm.
There are so many factors, irrelevant to a jury determination
of guilt, that mandate an increase in the guideline range of
punishment. No need to review them all here, but one factor,
obstruction of justice, merited special mention in footnote 11
of the majority opinion:
Another example of conversion from separate
crime to sentence enhancement that
Justice O’Connor evidently does not consider
going “too far” is the obstruction of justice
enhancement ... Why perjury during trial
should be grounds for a judicial sentence enhancement
on the underlying offense, rather
than an entirely separate offense to be found
by a jury beyond a reasonable doubt (as it
has been for centuries, See 4 W. Blackstone,
Commentaries on the Laws of England 136-
138 (1769)), is unclear.
It is interesting to recall that the lone dissenter in Mistretta
v. United States, 488 U.S. 361 (1989), the case that upheld the
federal sentencing guidelines in the face of a challenge under
the separation of powers doctrine, was Justice Scalia. His dissent
argued that Congress had improperly delegated the power to
make laws to the Sentencing Commission. In the dissent he also
raised the concern of delegation of judicial power:
Henceforth there may be agencies “within
the Judicial Branch” (whatever that means),
exercising governmental powers, that are
neither courts nor controlled by courts, nor
even controlled by judges. If an “independent
agency” such as this can be given the power to
fix sentences previously exercised by district
courts, I must assume that a similar agency
can be given the powers to adopt rules of
procedure and rules of evidence previously
exercised by this Court. The bases for distinction
would be thin indeed.
Now, 15 years after Mistretta, a separation of powers argument
against guideline sentencing, relying, not on the power of
Congress or Judges, but on the power of the jury, may prevail. G
July/August 2004 VOICE FOR THE DEFENSE 11