Booker reconsidered

University of Chicago Law Review

Volumn 77, Issue SPEC. ISSUE, 2010, Pages 1091-1109

  Masur, Jonathan S ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 78649974999     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (138)

1. -375 F3d 508 (7th Cir 2004).
2. -542 US 296 (2004).
3. Id at 302-05.
4. Booker, 375 F3d at 510-13 ("[I]f a legislature cannot evade what the Supreme Court deems the commands of the Constitution by a multistage sentencing scheme neither, it seems plain, can a regulatory agency.").
5. -543 US 220, 243-44 (2005) (concluding that the Sentencing Guidelines ran afoul of the Sixth Amendment's requirement that "[a]ny fact... necessary to support a sentence ... must be admitted by the defendant or proved to a jury beyond a reasonable doubt").
6. See, for example, Nelson v United States, 129 S Ct 890,892 (2009) (holding that the Sentencing Guidelines should not be presumed reasonable by sentencing courts);
7. Spears v United States, 129 S Ct 840,843-44 (2009) (holding that the district court was entitled to reject the 100-to-1 ratio in the crack-cocaine sentencing guidelines);
8. Oregon v Ice, 129 S Ct 711, 716-20 (2009) (holding that the decision to impose sentences consecutively, rather than concurrently, was not traditionally considered to fall within the "domain of the jury," and allowing judges to do so);
9. Greenlaw v United States, 128 S Ct 2559, 2562 (2008) (holding that the court of appeals could not, on its own initiative, increase a defendant's sentence when the original sentence was fifteen years less than the applicable law required);
10. Irizarry v United States, 128 S Ct 2198, 2202-04 (2008) (holding that FRCrP 32(h) does not apply to variances from the recommended Sentencing Guidelines range);
11. Kimbrough v United States, 552 US 85, 91 (2007) (holding that district court judges can sentence below the Sentencing Guidelines for drug trafficking purely based on a policy disagreement with the Guidelines' disparate treatment of crack and powder cocaine offenses);
12. Gall v United States, 552 US 38, 51-53 (2007) (holding that, under Booker, a sentence must be reviewed under an abuse of discretion standard, regardless of whether it falls within the Sentencing Guidelines range);
13. Rita v United States, 551 US 338, 347-51 (2007) (holding that an appellate court can presume that a sentence is reasonable when it falls within the Sentencing Guidelines range).
14. See, for example, Miller v Civil City of South Bend, 904 F2d 1081,1120-35 (7th Cir 1990) (Easterbrook dissenting) (arguing that Indiana was free to regulate public nudity even though the regulation had the inadvertent effect of also regulating expressive dancing), revd,
15. Barnes v Glen Theatre, Inc, 501 US 560 (1991) (holding that a valid governmental interest allowed restrictions on nude dancing without violating the First Amendment);
16. International Union, UAW v Johnson Controls, Inc, 886 F2d 871, 908-15 (7th Cir 1989) (Easterbrook dissenting) (noting that courts regularly see sex, race, and age discrimination for the purpose of protecting members of the public as disparate treatment requiring a "bona fide occupational qualification" and asserting that there is no reason why this requirement should be any different for fetuses), revd, 499 US 187, 206-07 (1991) (holding that Johnson Controls could not establish a bona fide occupational qualification and that Judge Easterbrook correctly observed that the welfare of the next generation cannot be considered a part of the essence of Johnson's business).
17. Blakely, 542 US at 302-05 ("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' and the judge exceeds his proper authority").
18. Id at 298-99 (clarifying that Blakely pleaded guilty only to second-degree kidnapping, domestic violence, and use of a firearm, resulting in a sentence within the forty-nine to fifty-three month Guidelines range, which included a thirty-six month enhancement for use of a firearm).
19. Id at 299.
20. Id.
21. Wash Rev Code Ann §9.94A. 120(2) (West 1998), recodified at §9.94A.505(2) (West).
22. Blakely 542 US at 300.
23. Id.
24. Id at 301,
25. quoting Apprendi v New Jersey, 530 US 466,490 (2000) (quotation marks omitted).
26. Blakely, 542 US at 303-05.
27. See Edwards v United States, 523 US 511,513-14 (1998). To be clear, the Seventh Circuit Booker majority may have been within its rights to overturn the Sentencing Guidelines even taking Edwards into account. As a rule, an appellate court may not overturn an existing Supreme Court decision in light of a newer one unless the latter explicitly overruled the former.
28. State Oil Co v Khan, 522 US 3, 20 (1997) ("[I]t is this Court's prerogative alone to overrule one of its precedents."). However, it is at least arguable that the Booker decision did not require overruling Edwards because the Court in Edwards never addressed the Sixth Amendment argument raised in Booker. Compare Booker, 375 F3d at 513-14 (noting that the Edwards opinion did not address the constitutional right to a jury trial, and the Edwards petitioners never even mentioned the Sixth Amendment) with id at 516-17 (Easterbrook dissenting) (arguing that constitutional issues were raised in Edwards, and the Edwards Court still upheld the Sentencing Guidelines). The point that follows here is not that the majority violated the Supreme Court's rules in striking down the Sentencing Guidelines, but that it would have been well advised to have stayed its hand.
29. Booker, 375 F3d at 510.
30. Blakely was decided June 24, 2004;
31. Booker was argued before a panel of the Seventh Circuit on July 6,2004, and decided on July 9,2004.
32. Booker, 375 F3d at 510-13.
33. Id at 516 (Easterbrook dissenting) (arguing that, for the majority to reach its result, it "must conclude that Edwards v United States was wrongly decided," a decision that is inappropriate for "intermediate judges in a hierarchical system").
34. Id (noting that while Blakely may suggest that Edwards is "on its last legs[,]... [i]t does not imply that we are entitled to put it in a coffin while it is still breathing").
35. Id,
36. citing Lemon v Kurtzman, 411 US 192 (1973);
37. Almendarez-Torres v United States, 523 US 224 (1998).
38. Booker, 375 F3d at 516 (Easterbrook dissenting).
39. United States v Booker, 542 US 956 (2004) (granting certiorari).
40. The federal courts stayed nearly every sentencing proceeding in the wake of Blakely and the Seventh Circuit's decision in Booker pending the Supreme Court's decision in that case. See, for example, United States v Love, 2004 WL 2011445, *2 (WD Wis) (staying the defendant's motion for reduction of his sentence).
41. -93 F3d 1358, 1363-64 (7th Cir 1996) (noting the "increasingly wobbly, moth-eaten foundations" of the Court's precedent, arguing that the precedent should be overruled, but concluding that it was not within the authority of the court of appeals to do so), vacd and remd, State Oil Co v Khan, 522 US 3, 20 (1997) (expressing approval of the court of appeals' decision to follow precedent, despite its disagreement with the result). It is notable that both the majority and dissent in Booker cited to the Supreme Court's decision in Khan, but neither explicitly mentioned the alternative course of action it suggested. Compare Booker, 375 F3d at 513 (discussing that although Khan does not allow the court to overrule Supreme Court precedent, Edwards does not discuss the constitutional questions and therefore no overruling would be necessary) with id at 516 (Easterbrook dissenting) (explaining that the majority decision would essentially overrule the Sentencing Guidelines, replacing them with the court's interpretation). Another possibility for this court would have been to invoke the rarely used Supreme Court Rule 19, also allowed under 28 USC §1254, and certify the question to the Supreme Court for resolution. The Fifth Circuit recently used this procedure.
42. See United States v Seale, 511 F3d 566, 567 (5th Cir 2009) (certifying the question of a statute of limitations for a kidnapping that occurred in 1964, but was indicted in 2007). However, the Supreme Court dismissed the certified question.
43. United States v Seale, 130 S Ct 12, 12 (2009). In fact, the Supreme Court has said that in most cases the courts of appeals should decide the issues in front of them, except for "in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business."
44. Wisniewski v United States, 353 US 901, 902 (1957).
45. See Richard A. Posner, Federal Courts: Crisis and Reform 230 (Harvard 1985) (noting the existence of a large audience for judicial opinions beyond the immediate litigants to the case).
46. See also id at 251-52.
47. See Yair Listokin, Learning through Policy Variation, 118 Yale L J 480, 524-29 (2008).
48. Of course, there are systemic advantages to "guessing" what the Supreme Court will decide. If an appellate court stubbornly adheres to old Supreme Court precedent that may be outdated, and the Court eventually overturns that precedent, the appellate court may be forced to revisit the decisions it made in the interim. This can be costly. However, the lower court can avoid these costs by simply staying all related cases while the case is pending before the Supreme Court. Indeed, this is precisely what occurred after the Seventh Circuit's decision in Booker.
49. See, for example, United States v McKee, 389 F3d 697, 701 (7th Cir 2004).
50. For the purposes of this model, I assume that the interests of the principal and agent are aligned.
51. Policy A is 60 percent likely to yield a benefit of 10 and 40 percent likely to yield a benefit of 6 (10 after the principal switches to Policy B minus 4 in switching costs), for an expected benefit of 8.4. Policy B is 50 percent likely to yield a benefit of 10 and 50 percent likely to yield a benefit of 7 (10 after the principal switches to Policy A minus 3 in switching costs), for an expected benefit of 8.5.
52. As an example, Judge Easterbrook cites Lemon.
53. See Booker, 375 F3d at 516 (Easterbrook dissenting) (remarking that Lemon, though inconsistent with later decisions and criticized by several justices, has not been overruled).
54. Both Blakely and Booker were decided by 5-4 votes, and the Booker Court was so divided over the result that Justice Ruth Bader Ginsburg switched sides and formed a different majority when deciding the remedy.
55. See, for example, Frank H. Easterbrook, Textualism and the Dead Hand, 66 Geo Wash L Rev 1119, 1121 (1998) (arguing that contractarian models, which provide "[t]he fundamental theory of political legitimacy in the United States," require formalism);
56. Frank H. Easterbrook, Formalism, Functionalism, Ignorance, Judges, 22 Harv J L & Pub Pol 13, 20 (1998) (arguing for formalism in constitutional interpretation)
57. Kham & Nate's Shoes No 2, Inc v First Bank of Whiting, 908 F2d 1351, 1357 (7th Cir 1990) (Easterbrook) (calling for greater formality in contract doctrine);
58. Daniel A. Farber, Do Theories of Statutory Interpretation Matter? A Case Study, 94 Nw U L Rev 1409, 1409 (2000) (classifying Judge Posner as a pragmatist and Judge Easterbrook as a formalist). Compare Richard A. Posner, Law, Pragmatism, and Democracy 1 (Harvard 2003) (classifying himself as a pragmatist).
59. See, for example, Easterbrook, 22 Harv J L & Pub Pol at 17-18 (cited in note 35) (remarking that "there is no good argument for judges," rather than the legislature, "to have the final word").
60. See Farber, 94 Nw U L Rev at 1410, 1416-23 (cited in note 35)
61. (noting that Easterbrook's dissent in Adams v Plaza Finance Co, 168 F3d 932, 937-43 (7th Cir 1999), is "much more pragmatic than one might have expected" and that his opinion "does not quite fit his own description of formalism").
62. Blakely, 542 US at 301.
63. Booker, 375 F3d at 511-12.
64. Id.
65. Id.
66. Nonetheless, Judge Easterbrook rejected this argument out of hand, noting that the majority had cited nothing for this proposition. Id at 519 (Easterbook dissenting) ("Phrases such as 'it seems plain' are poor substitutes for authority in the Constitution's text or interpretive history.").
67. See, for example, Horn Farms, Inc v Johanns, 397 F3d 472, 476 (7th Cir 2005) (Easterbrook) ("If agencies and legislators read ambiguous language differently, the agency wins under Chevron. When Congress delegates to the Executive Branch a power of interpretation, it surrenders any opportunity to rule the outcome via statements in committee.");
68. Flores v Ashcroft, 350 F3d 666, 671 (7th Cir 2003) (Easterbrook) ("Yet Chevron deference depends on delegation.").
69. Booker, 375 F3d at 519 (Easterbrook dissenting).
70. Id at 511.
71. Consider Blakely, 542 US at 309 (implying that parole boards raise no constitutional concerns). See also United States v Addonizio, 442 US 178, 182 (1979) (explaining that the United States Parole Commission took into consideration the "gravity of the offense," among other factors, when deciding whether to grant parole).
72. See Addonizio, 442 US at 180-82 (describing the impact of these guidelines on one prisoner who, despite expecting to serve only one-third of his sentence, was denied parole twice because of the Parole Commission's new policies). The Federal Parole Board and the practice of paroling federal prisoners were abolished by the Sentencing Reform Act of 1984, at the time of the Guidelines' creation. See Sentencing Reform Act of 1984 §§218(a) (5), 235, Pub L No 98-473, 98 Stat 1837, 2027, 2031 (repealing the federal parole laws, effective as of November 1,1987).
73. See Booker, 375 F3d at 520 (Easterbrook dissenting) (providing an example of the type of system the Parole Commission might create in order "to ensure consistent treatment of offenders": "Hold bank robbers in prison for 10 years; hold armed bank robbers for 20; hold armed bank robbers who discharge their weapons or take hostages for 30....").
74. See Blakely, 542 US at 309 (explaining that the facts considered by a parole board "do not pertain to whether the defendant has a legal right to a lesser sentence - and that makes all the difference").
75. Booker, 375 F3d at 519 (Easterbrook dissenting) (noting that there would be no issue, under Blakely, if a defendant was convicted of a crime with an open-ended sentence, and the judge relied on a common law rule- "10 years unless the burglar uses a gun; if a gun, then 40 years" - to determine the length of the sentence).
76. See 18 USC §3742 (stating that sentences must be reasonable).
77. Booker, 375 F3d at 519-20 (Easterbrook dissenting) (explaining that both Apprendi and Blakely apply only to statutes, and posing the question: "[i]f parole regulations are valid, why not the federal Sentencing Guidelines?").
78. Or, as Judge Easterbrook put it, "Today's decision will discombobulate the whole criminallaw docket."
79. Id at 521 (predicting that the Supreme Court would respond quickly to the decision).
80. In fact, when the Seventh Circuit's Booker opinion was appealed to the Supreme Court, the justices who dissented from the Court's remedial opinion argued for exactly this result. See United States v Booker, 543 US 220,284-85 (2005) (Stevens dissenting).
81. Id at 244-45 (Breyer) (requiring courts to consider the Guidelines, but allowing them to consider additional factors).
82. -18 USC §3553 (listing the relevant factors, including the "nature and circumstances of the offense," the defendant's history, the types of sentences available, the need to demonstrate the seriousness of the crime, and the sentence's potential deterrent effects).
83. -18 USC §3742 (allowing the court of appeals to consider whether the sentence appears to be "unreasonable" in light of the Guidelines range and the factors listed in §3553).
84. See also Booker, 543 US at 261-63 (Breyer) (requiring appellate courts to consider the §3553 factors to determine whether a sentence is "reasonable").
85. See Booker, 543 US at 251. See also 18 USC §3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.").
86. David Alan Sklansky, Anti-Inquisitorialism, 122 Harv L Rev 1634, 1659 n 153 (2009) (explaining that sentencing judges have never needed to rely solely on the "facts and arguments put forward by the parties," and that Blakely and Booker did not lessen judges' abilities to inquire into additional facts when determining a sentence).
87. See Mistretta v United States, 488 US 361, 363-70 (1989) (describing the history and creation of the Guidelines, and the duties of the Sentencing Commission).
88. See, for example, Ryan Scott Reynolds, Note, Equal Justice under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity between Codefendants' Sentences?, 109 Colum L Rev 538, 559 n 148 (2009) (citing sources);
89. Kate Stith and José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 95-103 (Chicago 1998) (arguing that the Guidelines "rob the traditional sentencing rite of much of its moral force and significance").
90. See, for example, United States v Green, 436 F3d 449, 456-57 (4th Cir 2006) (noting the difficulty of assessing the district court's sentencing decision as such review involves applications of binding law, consideration of advisory guidelines, factual findings, and judgments made to give effect to congressional policies);
91. United States v Mykytiuk, 415 F3d 606, 607-08 (7th Cir 2005) (concluding that, because Booker requires district courts to take the Guidelines into consideration, a rebuttable presumption of reasonableness is a useful tool when the sentence falls within the Guidelines range).
92. See, for example, United States v Claiborne, 439 F3d 479, 481 (8th Cir 2006) (finding that a fifteen-month sentence, twenty-two months less than the bottom of the advisory guideline range, constituted an extraordinary reduction and was not justified by "comparably extraordinary circumstances"). However, a sentence outside of the Guidelines range would not be presumptively unreasonable.
93. See, for example, United States v Howard, 454 F3d 700, 703 (7th Cir 2006) ("[A] sentence outside the range ... does not warrant a presumption of unreasonableness.");
94. United States v Matheny, 450 F3d 633, 642 (6th Cir 2006) (same);
95. United States v Myers, 439 F3d 415,417 (8th Cir 2006) (same).
96. Rita v United States, 551 US 338,347-51 (2007) (stressing, however, that the presumption was nonbinding, and that it was relevant only during appellate review).
97. Gall v United States, 552 US 38,45-47 (2007).
98. Id at 45,
99. quoting United States v Gall, 446 F3d 884,889 (8th Cir 2006).
100. Gall, 552 US at 47 (rejecting, in addition, the use of a formula to calculate the strength of the required justifications). The Court did note that "[i]n reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may therefore take the degree of variance into account and consider the extent of a deviation from the Guidelines."
101. Id.
102. See also id at 46 ("It is also clear that a district judge must give serious consideration to the extent of any departure from the Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications."). It is not entirely clear how to reconcile these competing statements, but they are most likely best understood as an admonition that the Sentencing Guidelines are not irrelevant but may not receive anything approaching the deference they previously commanded.
103. Consider Gall, 552 US at 47 ("[T]he approaches we reject come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.").
104. See Kimbrough v United States, 552 US 85, 110-12 (2007) (allowing the district court to consider criticisms of the 100-to-1 ratio when deciding to impose a sentence outside of the Guidelines range for crack cocaine offenses);
105. Rita, 551 US at 351 (allowing a judge to deviate from the Guidelines "because the Guidelines sentence itself fails properly to reflect §3553(a) considerations"). See also Spears v United States, 129 S Ct 840,843-44 (2009) (allowing the "categorical rejection and replacement" of the 100-to-1 ratio suggested by the Guidelines for crack cocaine violations).
106. Consider Kimbrough, 552 US at 110-12 (suggesting, in contrast, that the Guidelines for crack cocaine violations are often too high). But see id at 109 (noting that a district court judge may be subject to additional scrutiny if she sentences outside of the Guidelines range because she believes the range does not reflect the policy considerations described in §3553(a)). This is not to say that the result in Kimbrough is unbeneficial. The 100-to-1 powder-to-crack cocaine disparity at issue in that case was likely misguided and ineffective, and the Sentencing Commission had attempted to alter it on several occasions. See id at 99 (noting a proposed amendment to change the 100-to-1 ratio to a 1-to-1 ratio in 1995, as well as reports issued by the Commission recommending change in 1997,2002, and 2007).
107. See also Amendments to the Sentencing Guidelines for United States Courts, 60 Fed Reg 25074, 25075-77 (1995) (recommending equal sentences for crack and powder cocaine offenses).
108. Special verdict forms are already commonly used in civil cases. See FRCP 49. For instance, juries in tort cases are often called upon to decide what proportion of fault is attributable to the plaintiff and what proportion to each of multiple defendants. Special verdict forms in criminal cases would present no unique challenges.
109. See Stuart F. Schaffer, Comment, Informing the Jury of the Legal Effect of Special Verdict Answers in Comparative Negligence Actions, 1981 Duke L J 824, 828-29 ("[T]he use of special verdicts enables both trial and appellate courts to monitor closely the jury's performance of its designated task. By permitting full disclosure of the findings of fact, special verdict submission fits neatly into the comparative negligence regime."). Such a system would have placed greater control in the hands of prosecutors, who would have the authority to decide what conduct to charge. Booker, 543 US at 256 (Breyer dissenting) (using verdict forms "would prohibit the judge from basing a sentence upon any conduct other than the conduct the prosecutor chose to charge"). But this might well have been an improvement over a system that allows judges to sentence based on conduct that prosecutors could never have proven beyond a reasonable doubt, whether or not they chose to charge it.
110. This has been the case with drug quantities that have continued to be submitted to juries after Blakely.
111. 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 Am Crim L Rev 217,229 (2004).
112. Alternatively, the Supreme Court could simply have required that juries determine sentences, presumably with regard to the Guidelines. The Guidelines would have maintained much- perhaps all-of their force, the Sixth Amendment violation would have ceased to exist, and the hassle of employing special verdict forms would have been avoided. Yet the Court eschewed this option as well.
113. See, for example, Thomas N Whiteside, The Realities of Federal Sentencing: Beyond the Criticism, 91 Nw U L Rev 1574, 1576 (1997) (noting that much of the early criticism of the Guidelines focused on their severity, especially in the drug context).
114. I do not mean to take a position on whether it was in fact a negative feature of the prior system. I mean only to illustrate that the structural problem Blakely and Booker meant to address has survived those cases largely intact.
115. See James M. Anderson, Jeffrey R. Kling, and Kate Stith, Measuring Interjudge Sentencing Disparity: Before and after the Federal Sentencing Guidelines, 42 J L & Econ 271, 272 (1999) (noting the "unusual coalition of liberals and conservatives" that worked together to pass the Sentencing Reform Act of 1984).
116. See Richard A. Posner, How Judges Think 140-41 (Harvard 2008) (noting that, even in the absence of financial incentives, judges are likely to be concerned about how their quarterly statistics will affect their reputations). This threat is probably fairly low; since Booker was decided, very few sentences have been reversed as substantively unreasonable.
117. See David C. Holman, Note, Death by a Thousand Cases: After Booker, Rita, and Gall, the Guidelines Still Violate the Sixth Amendment, 50 Wm & Mary L Rev 267,279 (2008) (stating that courts rarely overturn within-range and above-range sentences as unreasonable, although they are much more likely to reverse below-range sentences). Nonetheless, the prospect of reversal remains salient for district court judges, and it is of course possible that this threat is itself responsible for the prevalence of within-Guidelines sentences and the low number of reversals. There are judicial incentives to sentence within the Guidelines,
118. see note 67, and judges will thus deviate from the Guidelines only in selected cases where the incentives to do so are higher.
119. See Kimbrough, 552 US at 110-12 (permitting judges to deviate from the Guidelines based on disagreements with the policies embedded within them).
120. See, for example, id (noting that the district court came to its decision, in part, because of the Commission's "consistent and emphatic" criticisms of the crack-powder disparity).
121. Consider Max M. Schanzenbach and Emerson H. Tiller, Strategic Judging under the Sentencing Guidelines: Positive Political Theory and Evidence, 23 J L, Econ, & Org 24, 47-52 (2007) (finding similar effects even under the mandatory Sentencing Guidelines regime).
122. See also Stephanos Bibas, Max M. Schanzenbach, and Emerson H. Tiller, Policing Politics at Sentencing, 103 Nw U L Rev 1371, 1388-91 (2009) (demonstrating how the sentencing disparities based on policy and political affiliation will develop further in light of post-Booker Supreme Court decisions);
123. Max M. Schanzenbach and Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U Chi L Rev 715, 732-40 (2008) (demonstrating sentencing disparities based on the political affiliation of the judge and the particular circuit, and discussing the implications of these disparities post-Booker).
124. Consider Bibas, Schanzenbach, and Tiller, 103 Nw U L Rev at 1377-80 (cited in note 80) (arguing, based on the behavior of judges with particular political affiliations in different districts, that clear, binding rules are necessary to prevent "evasion and manipulation" in sentencing).
125. Of course, even the mandatory Guidelines never specified a precise sentence, only a range. Accordingly, the fact that the Guidelines are now advisory will only aid judges in sentencing properly in those cases where the appropriate sentence-by some proper metric-is outside of the Guidelines range.
126. See Kate Stith, The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 Yale L J 1420, 1481-82 (2008) (describing Booker as having "recharged" the sentencing judge).
127. See Joshua B. Fischman and Max M. Schanzenbach, Do Standards of Review Matter? The Case of Federal Criminal Sentencing * 16-21 (unpublished manuscript, 2009), online at http://ssrn.com/abstract=1434123 (visited Feb 14, 2010).
128. See, for example, Ronald J. Krotoszynski, Jr, Why Deference? Implied Delegations, Agency Expertise, and the Misplaced Legacy of Skidmore, 54 Admin L Rev 735, 737 (2002) (arguing that administrative expertise provides the best rationale for judicial deference to administrative agencies).
129. See, for example, Richard J. Pierce, Jr, Reconciling Chevron and Stare Decisis, 85 Georgetown L J 2225, 2239 (1997) (noting the superiority of the notice-and-comment procedure over judicial decisionmaking procedures);
130. Colin S. Diver, Statutory Interpretation in the Administrative State, 133 U Pa L Rev 549, 575 (1985) (noting that agency members are often involved in creating legislation, and therefore have a better understanding of legislative intent).
131. This is not to say that the Commission has always performed this role faithfully or effectively. For instance, despite a statutory mandate, the Sentencing Commission never used data on the rate and degree of Guidelines departures to modify the Guidelines to better reflect judicial views on their accuracy. See Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act) §401(a)(2), Pub L No 108-21,117 Stat 650,667. Of course, this is only one example; in other domains the Sentencing Commission has engaged in the technocratic study of sentencing much as its creators presumably intended. See, for example, Kimbrough, 552 US at 97-99 (describing the Sentencing Commission's work to analyze and restructure the crack cocaine Guidelines).
132. See Rita, 551 US at 349: The result is a set of Guidelines that seek to embody the §3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of §3553(a)'s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives.
133. See, for example, William N Eskridge, Jr and Kevin S. Schwartz, Chevron and Agency Norm-Entrepreneurship, 115 Yale L J 2623, 2626 (2006) (arguing that agencies are more democratically accountable than judges);
134. Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 Yale L J 2580, 2587 (2006) (noting the executive branch's political responsiveness and accountability);
135. Charles H. Koch, Jr, Judicial Review of Administrative Discretion, 54 Geo Wash L Rev 469, 485 (1986) (arguing that agencies are better than courts at distilling public opinion).
136. By which I mean greater than necessary to promote any reasonable social objective, be it utilitarian or retributivist. See generally John Bronsteen, Christopher Buccafusco, and Jonathan Masur, Happiness and Punishment, 76 U Chi L Rev 1037 (2009) (discussing the purposes of punishment and hypothesizing that contrary to expectations, longer prison sentences and greater fines do not significantly impact happiness).
137. There is some evidence that Booker has led to reduced sentences by comparison with the standard Guideline ranges.
138. See United States Sentencing Commission, U.S. Sentencing Commission Preliminary Quarterly Data Report 1 (2009), online at http://www.ussc.gov/sc- cases/USSC-2009-Quarter-Report-4th.pdf (visited Feb 14,2010) (reporting that through the first nine months of 2009, approximately 14 percent of all sentences were lower than the applicable Guidelines ranges based on §3553(a) factors, while only slightly more than 1 percent of sentences were higher than the relevant Guidelines due to §3553(a) factors).