In a prior post, we explained that the Supreme Court's decision in United States v. Booker permits judge-found facts under an advisory Guidelines scheme, but that a recent dissent from the denial of certiorari, authored by Justice Scalia, arguably called into question this practice.
That post further discussed a recent Tenth Circuit decision (citing Justice Scalia's dissent) that suggested that judge-found facts used to increase a Guidelines range might actually violate the Sixth Amendment's right to a jury trial. But we suggested that the debate might have shifted away from a jury trial right to the substantive reasonableness of the sentence.
Enter United States v. Cassius. The case rejects the proposition that judge-found facts cannot increase a sentence beyond the applicable Guidelines range (and thus reaffirms the remedial holding in Booker). Instead, it is only improper for judge-found facts to increase a sentence beyond the statutory penalty range (whether it is a statutory minimum or maximum at issue). The Court rejected the defendant's reliance on the Supreme Court's recent decision in Alleyne v. United States (extending Apprendi beyond facts used to increase a statutory maximum to facts used to increase a mandatory minimum). In other words, our earlier hopes have been dashed (not a huge surprise).
Interestingly, Justice Scalia's dissent makes yet another appearance, this time in a footnote. In a parenthetical explanation of this dissent, the Court italicizes the word substantively, as in judge-found facts that increase a Guidelines range might result in a "substantively unreasonable" sentence.
We think this an obvious hint that the type of claims raised in Cassius might be better served as challenges to the substantive reasonableness of the sentence in light of judge-found facts that increase the Guidelines range. Practically speaking, then, when judge-found facts increase a Guidelines range, and you raise a challenge to this practice, remember to claim that the practice results in a substantively unreasonable sentence in your case (feel free to make the Apprendi argument as well, but, via Cassius, you'll lose it).