In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-4225

UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                v.

FREDDIE J. BOOKER,
                                             Defendant-Appellant.

                         ____________
            Appeal from the United States District Court
               for the Western District of Wisconsin.
            No. 03-CR-026-S-01—John C. Shabaz, Judge.
                         ____________
         ARGUED JULY 6, 2004—DECIDED JULY 9, 2004
                         ____________
                    AMENDED JULY 12, 2004
                         ____________



  Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
   POSNER, Circuit Judge. A jury found the defendant guilty
of possessing with intent to distribute at least 50 grams of
cocaine base, for which the statute prescribes a minimum
sentence of 10 years in prison and a maximum sentence of
life. 21 U.S.C. § 841(b)(1)(A)(iii). At sentencing, the judge
found by a preponderance of the evidence that the defen-
dant (1) had distributed 566 grams over and above the 92.5
grams that the jury had to have found (for the defendant
2                                                 No. 03-4225

did not contest that it was the amount of crack in his duffel
bag—he just claimed he hadn’t put it there) and (2) had
obstructed justice. Under the federal sentencing guidelines,
the additional quantity finding increased the defendant’s
base offense level from 32 to 36. U.S.S.G. §§ 2D1.1(c)(2), (4).
The effect, together with that of the enhancement that the
guidelines prescribe for obstruction of justice, U.S.S.G.
§ 3C1.1, was to place the defendant in a sentencing range of
360 months to life. The judge sentenced him to the bottom
of the range. The appeal challenges the sentence on the
ground that the sentencing guidelines violate the Sixth
Amendment insofar as they permit the judge to find facts
(other than facts relating to a defendant’s criminal history)
that determine the defendant’s sentencing range. There is
also a challenge to the conviction, based on the judge’s
limiting the scope of cross-examination, but so obviously
harmless was that error (if it was an error) that we will
move immediately to the sentencing issue.
  We have expedited our decision in an effort to provide
some guidance to the district judges (and our own court’s
staff), who are faced with an avalanche of motions for re-
sentencing in the light of Blakely v. Washington, 

(U.S. June 24, 2004), which has cast a long shadow
over the federal sentencing guidelines. We cannot of course
provide definitive guidance; only the Court and Congress
can do that; our hope is that an early opinion will help
speed the issue to a definitive resolution.
  Blakely invalidates under the Sixth Amendment (which
has of course long been held applicable to state criminal
proceedings by an interpretation of the Fourteenth
Amendment) a statute of the State of Washington that au-
thorizes the sentencing judge to impose a sentence above
the “standard range” set forth in the statute punishing the
offense if he finds any aggravating factors that justify such
No. 03-4225                                                      3

a departure; pursuant to this grant of authority, the judge
had imposed a sentence of 90 months on the defendant,
which exceeded the standard range of 49 to 53 months for
his offense, second-degree kidnapping.
   The Supreme Court had already held that “other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 

, 490 (2000). In
Blakely the Court let the other shoe drop and held over pointed
dissents that “the ‘statutory maximum’ for Apprendi purposes
is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely v. 

, at *4. “In other words,
the relevant ‘statutory maximum’ is not the maximum sen-
tence a judge may impose after finding additional facts,
but the maximum he may impose without any additional
findings. 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.” 

ted). “[W]ithout” is italicized in the original; we have
italicized “relevant” to underscore the difference between
the maximum sentence in the statute, and the maximum
sentence—what the Supreme Court regards as the “relevant
statutory maximum”—that the judge can impose without
making his own findings above and beyond what the jury
found or the defendant admitted or, as here, did not contest.
  The maximum sentence that the district judge could have
imposed in this case (without an upward departure), had he
not made any findings concerning quantity of drugs
or obstruction of justice, would have been 262 months,
given the defendant’s base offense level of 32, U.S.S.G.
§ 2D1.1(c)(4) (32 is the base offense level when the defen-
4                                                 No. 03-4225

dant possessed at least 50 grams but less than 150 grams of
crack), and the defendant’s criminal history. U.S.S.G.
§§ 4A1.1(a)-(e), 2(c)(1). True, that maximum is imposed not
by the words of a federal statute, but by the sentencing
guidelines. Provisions of the guidelines establish a standard
range for possessing with intent to distribute at least 50
grams of cocaine base, and other provisions of the guide-
lines establish aggravating factors that if found by the judge
jack up the range. The pattern is the same as that in the
Washington statute, and it is hard to believe that the fact
that the guidelines are promulgated by the U.S. Sentencing
Commission rather than by a legislature can make a differ-
ence. The Commission is exercising power delegated to it by
Congress, and if 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. In its decision upholding the guide-
lines against delegation and separation of powers chal-
lenges, the Supreme Court had stated that “although
Congress granted the Commission substantial discretion in
formulating the guidelines, in actuality it legislated a full
hierarchy of punishment—from near maximum imprison-
ment, to substantial imprisonment, to some imprisonment,
to alternatives—and stipulated the most important offense
and offender characteristics to place defendants within these
categories” and that “in contrast to a court’s exercising
judicial power, the Commission is fully accountable to
Congress, which can revoke or amend any or all of the
Guidelines as it sees fit either within the 180-day waiting
period or at any time.” Mistretta v. United States, 

, 377, 393-94 (1989) (citation omitted).
  It would seem to follow, therefore, as the four dissenting
Justices in Blakely warned, Blakely v. 

, at
*16-17 (O’Connor, J., dissenting); 

(Breyer, J., dis-
senting); and several district judges have already ruled, e.g.,
No. 03-4225                                                     5

United States v. Croxford, 

, at *7, *13 (D.
Utah July 7, 2004); United States v. Medas, 

,
at *1 (E.D.N.Y. July 1, 2004); United States v. Shamblin, 

, at *8 (S.D.W. Va. June 30, 2004), that Blakely
dooms the guidelines insofar as they require that sentences
be based on facts found by a judge. The majority in Blakely,
faced with dissenting opinions that as much as said that the
decision doomed the federal sentencing guidelines, might
have said, no it doesn’t; it did not say that.
  The qualification “based on facts found by a judge” is
critical. Nothing in Blakely suggests that Congress cannot
delegate to the Sentencing Commission the authority to
decree that possession with intent to distribute 658.5 grams
of cocaine base shall be punished by a sentence of at least
360 months though the statutory minimum is only 10 years.
All it cannot do under Blakely is take away from the defen-
dant the right to demand that the quantity be determined by
the jury rather than by the judge, and on the basis of proof
beyond a reasonable doubt. The government argues that all
the guidelines do is regularize the discretion that judges
would exercise in picking a sentence within a statutory
range. Mistretta v. United 

, 488 U.S. at 395. If that
were indeed all, that would be fine. And indeed to a great
extent the system of the guidelines, with its sentencing
ranges and upward and downward departures, limits rather
than extinguishes sentencing discretion. But the issue in
Blakely was not sentencing discretion—it was the authority
of the sentencing judge to find the facts that determine how
that discretion shall be implemented and to do so on the
basis of only the civil burden of proof. The vices of the
guidelines are thus that they require the sentencing judge to
make findings of fact (and to do so under the wrong
standard of proof), e.g., 18 U.S.C. §§ 3553(a)(4), (5); U.S.S.G.
§§ 1B1.1, .3(a), 6A1.3(b); Edwards v. United States, 

, 513-14 (1998); United States v. Bequette, 

,
6                                                  No. 03-4225

450-51 (7th Cir. 2002); United States v. Jackson, 

,
749 (7th Cir. 2002); United States v. Guzman, 

,
1197-98 (10th Cir. 2003); United States v. Lopez, 

,
348 (4th Cir. 2000), and that the judge’s findings largely
determine the sentence, given the limits on upward and
downward departures. 18 U.S.C. §§ 3553(b), (e), (f); U.S.S.G.
§ 5K2.0; Koon v. United States, 

, 92, 96 (1996);
United States v. Sherman, 

, 788-89 (7th Cir. 1995);
United States v. Lafayette, 

, 1052 (D.C. Cir. 2003);
cf. United States v. Cruz, 

, 766 (7th Cir. 2003). The
finding of facts (other than the fact of the defendant’s
criminal history) bearing on the length of the sentence is just
what the Supreme Court in Blakely has determined to be the
province of the jury.
  Of course, under almost any sentencing regime some re-
sidual discretion is vested in the sentencing judge; and to
the extent that his exercise of discretion is influenced by the
facts of the case—if only the facts that he may have gleaned
concerning the defendant’s character, remorse, health, and
so on—judicial factfinding enters the sentencing process.
But there is a difference between allowing a sentencing
judge to consider a range of factors that may include facts
that he informally finds—the pre-guidelines regime, under
which “once it [was] determined that a sentence [was] within
the limitations set forth in the statute under which it [was]
imposed, appellate review [was] at an end,” Dorszynski
v. United States, 

, 431 (1974), though sentences
would occasionally be reversed because the district judge
had relied on an impermissible consideration, e.g., United
States v. Maples, 

(4th Cir. 1974), failed to
exercise discretion, or based the sentence on false informa-
tion, e.g., Townsend v. Burke, 

, 741 (1948)—and
commanding him to make factfindings and base the sen-
tence (within a narrow band) on them. The latter is what
Washington’s sentencing guidelines did, and there is no
No. 03-4225                                                  7

basis for thinking that Blakely would have been decided
differently had the identical guidelines been promulgated,
with the identical effect on sentences, by the Washington
Sentencing Commission. The Court in Blakely was well
aware of the difference, stating that factfinding by judges
and parole boards under indeterminate sentencing regimes
are permissible because “the facts do not pertain to whether
the defendant has a legal right to a lesser sentence—and that
makes all the difference insofar as judicial impingement
upon the traditional role of the jury is concerned.” Blakely v.

, at *7 (emphasis in original).
   It is tempting to think that maybe the guidelines can be
saved by imagining the Sentencing Commission as a kind of
superjudge who elaborates a code of sentencing principles
much as a thoughtful real judge, operating in a regime of
indeterminate sentencing, might do informally in an effort
to make his sentences consistent. But the same reasoning
would if accepted have saved Washington’s sentencing
guidelines, unless an administrative agency is to be deemed
a more responsible, a more authoritative, fount of criminal
law than a legislature. The four dissenting Justices in Blakely
were unable to identify a meaningful difference between the
Washington sentencing guidelines and the federal sentencing
guidelines. A fifth Justice—Justice Scalia, the author of the
majority opinion in Blakely—had dissented in Mistretta on
the ground that the federal sentencing guidelines were
indeed laws, not judicial pronouncements. Mistretta v.
United 

, 488 U.S. at 413-27. And Justice Scalia,
now speaking for a majority of the Court, in Blakely, though
he replied to the dissenting Justices at length, did not say
that they were wrong to suggest that the federal sentencing
guidelines could not be distinguished from the Washington
sentencing guidelines. Instead he said: “By reversing the
judgment below, we are not, as the State would have it,
‘find[ing] determinate sentencing schemes unconstitutional.’
8                                                 No. 03-4225

This case is not about whether determinate sentencing is
constitutional, only about how it can be implemented in a
way that respects the Sixth Amendment.” Blakely v. Wash-

, at *7. No distinction between the Washington
statute and other schemes of determinate sentencing, such
as the federal sentencing guidelines on which the dissenting
Justices had dwelled at such length, is suggested.
  As an original matter, then, we think that the guidelines,
though only in cases such as the present one in which they
limit defendants’ right to a jury and to the reasonable-doubt
standard, and thus the right of defendant Booker to have a
jury determine (using that standard) how much cocaine
base he possessed and whether he obstructed justice, violate
the Sixth Amendment as interpreted by Blakely. We cannot
be certain of this. But we cannot avoid the duty to decide an
issue squarely presented to us. If our decision is wrong, may
the Supreme Court speedily reverse it.
  We are mindful of the Supreme Court’s ukase that the
lower federal courts are not to overrule a Supreme Court
decision even if it seems manifestly inconsistent with a sub-
sequent decision, unless the subsequent decision explicitly
overruled the earlier one. State Oil Co. v. Khan, 

, 20
(1997). The government argues that the guidelines were
upheld against a Sixth Amendment challenge in Edwards v.
United 

, 523 U.S. at 515, and if this is right we
shall have to affirm Booker’s sentence whatever our inde-
pendent view of the guidelines’ consistency with Blakely.
(The government also mentions United States v. Watts, 

(1997) (per curiam), a double-jeopardy case, and
other Supreme Court decisions that rebuff various consti-
tutional challenges to the guidelines—but not a Sixth
Amendment challenge. Pre-Blakely decisions by lower fed-
eral courts rebuffing a Sixth Amendment challenge are of
course no longer authoritative.) We do not think it is right.
No. 03-4225                                                 9

None of the opinions in Blakely cites Edwards. The majority
opinion states that “the Federal Guidelines are not before us,
and we express no opinion on them,” Blakely v. 

, at *6 n. 9; it does not state that they were upheld
against a Sixth Amendment challenge in Edwards or any
other case. (They were not, as we’ll see.) When the Supreme
Court says that it is not resolving an issue, it perforce
confides the issue to the lower federal courts for the first
pass at resolution.
   The Court could have said in footnote 9 that the question
whether to overrule Edwards was not before it. It did not say
that. That is not surprising. The opinion in Edwards does not
mention the Sixth Amendment or the constitutional right to
a jury trial, and indeed states that “we need not, and we do
not, consider the merits of petitioners’ statutory and consti-
tutional 

. The Court did say that
“petitioners’ statutory and constitutional claims would make
a difference if it were possible to argue, say, that the sen-
tences imposed exceeded the maximum that the statutes
permit for cocaine,” 

which may mean that their
constitutional claims (a mishmash of claims under different
provisions of the Constitution, including however the Sixth
Amendment) did not matter because the sentences did not
exceed the statutory maximum. This was of course the
understanding before Blakely, but Blakely redefined “statu-
tory maximum.” An assumption is not a holding.
  The Court in Edwards was affirming a decision by this
court, reported at 

(7th Cir. 1997), which does
not mention the Sixth Amendment or the constitutional
right to a jury trial or any other constitutional issue. That
would hardly have been oversight on the part of the opin-
ion’s author. The Supreme Court said that it was granting
certiorari in Edwards to resolve a conflict over the question
whether “the Sentencing Guidelines require the sentenc-
10                                                 No. 03-4225

ing judge, not the jury, to determine both the kind and the
amount of the drugs at issue in a drug 

. None of the other cases it cited for the existence of
the conflict mentions the Constitution either. United States v.
Bounds, 

, 194-95 (5th Cir. 1993); United States v.
Pace, 

, 1128-30 (10th Cir. 1992); United States v.
Owens, 

(8th Cir. 1990).
  And, finally, the petitioners in Edwards did not argue that
the sentencing guidelines are unconstitutional. They did not
say that the guidelines establish a sentencing structure that
violates the Sixth Amendment. The most that can be dug out
of their briefs, so far as bears on that issue, is that they were
urging a statutory interpretation that would avoid a Sixth
Amendment issue. The Court did not opine on the guide-
lines’ consistency with the amendment because that consis-
tency was not challenged. It did not rebuff a Sixth Amend-
ment challenge to the guidelines because there was no Sixth
Amendment challenge to the guidelines. We are obligated
therefore to make our own constitutional determination.
  We conclude that Booker has a right to have the jury
determine the quantity of drugs he possessed and the facts
underlying the determination that he obstructed justice. The
judgment must therefore be reversed and the case re-
manded for resentencing. If the government does not object,
the judge can simply sentence Booker to 262 months, since
the choice of that sentence would not require any judicial
factfinding. But if the government wants a higher sentence
or unless, as explained below, the guidelines are not
severable, then Booker, unless he strikes a deal with the
government, will be entitled to a sentencing hearing at
which a jury will have to find by proof beyond a reasonable
doubt the facts on which a higher sentence would be pre-
mised. There is no novelty in a separate jury trial with regard
to the sentence, just as there is no novelty in a bifurcated
No. 03-4225                                                 11

jury trial, in which the jury first determines liability and
then, if and only if it finds liability, determines damages.
Separate hearings before a jury on the issue of sentence is
the norm in capital cases.
  Of course this will not work if the facts that the gov-
ernment would seek to establish in the sentencing hearing
are elements of a statutory offense, for they would then
have to be alleged in the indictment, and to re-indict at
this stage would present a double-jeopardy issue. We can
hardly attempt to resolve such issues on this appeal; the
parties have not briefed or argued them. It would be doubly
premature to address them, in light of the recent announce-
ment by the Department of Justice that it believes that if
Blakely is applicable to the guidelines, the “entire system” of
the guidelines “must fall.” “Departmental Legal Positions
and Policies in Light of Blakely v. Washington,” Memoran-
dum to All Federal Prosecutors from James Comey, Deputy
Attorney General of the United States, p. 3 (July 2, 2004).
The Department may be right; the aspect of the guidelines
that we believe to be unconstitutional, namely the require-
ment that the sentencing judge make certain findings that
shall operate as the premise of the sentence and that he
make them on the basis of the preponderance of the evi-
dence, may not be severable from the substantive provisions
of the guidelines. That is a question of legislative intent.
Minnesota v. Mille Lacs Band of Chippewa Indians, 

, 191 (1999). The practical effect just of upping the
burden of persuasion in sentencing hearings will be to
reduce the average sentence, and Congress might prefer a
return to indeterminate sentencing (within the statutory
ranges). In that event the guidelines would be invalid in
their entirety, except, of course, as information that some
judges would continue to give great weight to. But sever-
ability is another issue that has not been briefed or argued
to us.
12                                                No. 03-4225

  It might seem that if the substantive portions of the guide-
lines are not severable from the requirement that the judge
find the facts relevant to the sentence, a 262-month sentence
would be illegal. We do not think so. If the guidelines fall,
the judge is free as he was before the guidelines were
promulgated to fix any sentence within the statutory range,
and the range for Booker, remember, is 10 years to life. Since
the fall of the guidelines is a quite possible outcome, it
would be prudent for the judge in any event to select a fall-
back sentence.
  To summarize: (1) The application of the guidelines in this
case violated the Sixth Amendment as interpreted in Blakely;
(2) in cases where there are no enhancements—that is, no
factual findings by the judge increasing the sentence— there
is no constitutional violation in applying the guidelines
unless the guidelines are invalid in their entirety; (3) we do
not decide the severability of the guidelines, and so that is
an issue for consideration on remand should it be made an
issue by the parties; (4) if the guidelines are severable, the
judge can use a sentencing jury; if not, he can choose any
sentence between 10 years and life and in making the latter
determination he is free to draw on the guidelines for
recommendations as he sees fit; (5) as a matter of prudence,
the judge should in any event select a nonguidelines
alternative sentence.
  Because the government does not argue that Booker's
Sixth Amendment challenge to the guidelines was forfeited
by not being made in the district court, we need not con-
sider the application of the doctrine of plain error, e.g.,
United States v. Olano, 

, 731 (1993), to challenges
inspired by the Blakely decision.
                                  REVERSED AND REMANDED.
No. 03-4225                                                  13

  EASTERBROOK, Circuit Judge, dissenting. My colleagues
hold that, after Blakely v. Washington, No. 02-1632 (U.S. June
24, 2004), judicial application of the Sentencing Guidelines
violates the defendant’s right to trial by jury under the sixth
amendment. I disagree with that holding on both pro-
cedural and substantive grounds. This is the wrong forum
for such a conclusion; and whatever power we may possess
should not be exercised to set at naught a central component
of federal criminal practice.
  Procedure first. The Supreme Court alone is entitled to
declare one of its decisions defunct. Even if later decisions
wash away the earlier one’s foundation, still the power to
administer the coup de grâce belongs to our superiors. See,
e.g., State Oil Co. v. Khan, 

, 20 (1997); Rodriguez de
Quijas v. Shearson/American Express, Inc., 

, 484
(1989). The alternative is bedlam—which is the likely con-
sequence of today’s decision. A court of appeals cannot
replace the Guidelines with something else; the list of non-
exclusive options at the end of the majority’s opinion is our
home-brewed formula, and other courts are bound to favor
different recipes as 900 district and circuit judges fumble for
solutions. The Supreme Court alone can make a definitive
judgment.
  In order to reach the result they do, my colleagues must
conclude that Edwards v. United States, 

(1998),
was wrongly decided. Our portfolio as intermediate judges
in a hierarchical system does not include the authority to
make such declarations. True enough, Edwards does not con-
tain the phrase “sixth amendment.” But an argument based
on the sixth amendment was made to the Court: defendants
insisted that, if the Guidelines and statutes were read as the
United States and the Justices themselves did, that would
deprive them of their right to a jury trial. The Court’s opinion
in Edwards acknowledged that constitutional contentions
14                                                  No. 03-4225

had been advanced. Edwards held that a judge nonetheless
may ascertain (using the preponderance standard) the type
and amount of drugs involved, and impose a sentence
based on that conclusion, as long as the sentence does not
exceed the statutory maximum. According to my colleagues:
“This was of course the understanding before Blakely, but
Blakely redefined ‘statutory maximum.’ ” Slip op. 8. Maybe
so, but if so it is just a reason why Edwards is on its last legs.
It does not imply that we are entitled to put it in a coffin
while it is still breathing.
  Just as opera stars often go on singing after being shot,
stabbed, or poisoned, so judicial opinions often survive
what could be fatal blows. Think of Lemon v. Kurtzman, 

(1973), which is incompatible with later decisions,
has been disparaged by most sitting Justices, yet has not
been overruled. Closer to the mark is Almendarez-Torres v.
United States, 

(1998), decided one month before
Edwards and, like it, in tension with Apprendi v. New Jersey,

(2000), on which Blakely rests. Almendarez-
Torres holds that juries need not be asked to determine a
defendant’s criminal history even for purposes of recidivist
statutes that use convictions to increase the maximum sen-
tence. Four Justices, dissenting in Almendarez-Torres, made
the arguments that were to carry the day two years later
in Apprendi, when they were joined by Justice Thomas, who
had been in the Almendarez-Torres majority. 

(Scalia, J., joined by Stevens, Souter & Ginsburg, JJ.,
dissenting). Justice Thomas wrote that he now considers
Almendarez-Torres wrongly decided. 

(Thomas, J., concurring). One might think Almendarez-
Torres doomed, but it has not been overruled, and Blakely
repeats a formula that carves out recidivist enhancements.
We routinely apply Almendarez-Torres, saying that its fate
rests with the Supreme Court alone. Edwards should receive
the same treatment.
No. 03-4225                                                  15

  To support the view that Edwards no longer is authorita-
tive, the majority notes that none of the opinions in Blakely
cited it. Why would it pass without mention if it is a (logical)
casualty of Blakely? Well, one reason could be that Edwards
is not a logical casualty; that’s the substantive question I
discuss later. The other is that the question was left unde-
cided. Blakely tells us: “The United States, as amicus curiae,
urges us to affirm. It notes differences between Washington’s
sentencing regime and the Federal Sentencing Guidelines
but questions whether those differences are constitutionally
significant. See Brief for United States as Amicus Curiae
25-30. The Federal Guidelines are not before us, and we ex-
press no opinion on them.” Slip op. 9 n.9. Having dis-
claimed views about the Guidelines, the Justices had no
occasion to parse Edwards. I find it odd that my colleagues
should focus on what the Court did not do (cite Edwards)
while slighting what it did do (declare that analysis of the
federal Guidelines is a different kettle of fish). What’s more,
although the Court did not attend to Edwards in Blakely, it
did so in Apprendi itself, writing:
    The principal dissent . . . treats us to a lengthy disquisi-
    tion on the benefits of determinate sentencing schemes,
    and the effect of today’s decision on the federal
    Sentencing Guidelines. Post, at 544-552. The Guidelines
    are, of course, not before the Court. We therefore express
    no view on the subject beyond what this Court has al-
    ready held. See, e.g., Edwards v. United States, 

, 515 (1998) (opinion of Breyer, J., for a unanimous
    court) (noting that “[o]f course, petitioners’ statutory and
    constitutional claims would make a difference if it were
    possible to argue, say, that the sentences imposed
    exceeded the maximum that the statutes permit for a
    cocaine-only conspiracy. That is because a maximum
    sentence set by statute trumps a higher sentence set forth
16                                                No. 03-4225

     in the Guidelines. [United States Sentencing Commission,
     Guidelines Manual § 5G1.1 (Nov. 

n.21. So the Justices see the links connecting
the sixth amendment, Apprendi, Edwards, statutory maxi-
mums, and the federal Sentencing Guidelines. It is for them,
not us, to say that as a result of Blakely this linkage scuttles
Edwards. (Other casualties of the majority’s approach are
United States v. Watts, 

(1997), which holds that
a judge may increase a sentence based on relevant conduct
of which the defendant had been acquitted by the jury, and
United States v. Dunnigan, 

(1993), which holds
that to decide whether the defendant receives a higher
sentence for obstructing justice the judge may (indeed must)
decide independently of the jury whether the defendant
committed perjury at trial. See also McMillan
v. Pennsylvania, 

(1986), which Blakely distin-
guished, but which on my colleagues’ view is a dead letter.)
  Now to substance. Apprendi 

,
and Blakely reiterates, slip op. 5, this rule: “Other than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable
doubt.” Shortly after Apprendi was released, we held that the
“statutory maximum” means whatever statutory criteria
make a person eligible for a given punishment. Consider 21
U.S.C. §841, which establishes three maximums for cocaine-
distribution offenses: distribution of any quantity permits a
sentence up to 20 years (§841(b)(1)(C)); distribution of more
than 500 grams (or 5 grams of cocaine base) raises the
maximum to 40 years (§841(b)(1)(B)(i), (iii)); distribution of
more than 5 kilograms (or 50 grams of cocaine base) raises
the statutory maximum to life (§841(b)(1)(A)(i), (iii)). In
United States v. Nance, 

, 824-25 (7th Cir. 2000),
we held that the thresholds (500 grams and 5 kilograms)
No. 03-4225                                                 17

must be charged in the indictment and established beyond
a reasonable doubt to the jury’s satisfaction (if the defendant
does not waive jury trial or admit the quantities). Otherwise
the maximum is 20 years. Once the trier of fact has deter-
mined that the defendant distributed at least 500 grams or
5 kilograms, the sixth amendment has been satisfied and
choosing a sentence below the statutory limit is for the
judge alone, on the preponderance of the evidence. See, e.g.,
Talbott v. Indiana, 

, 869-70 (7th Cir. 2000).
  Blakely is the Supreme Court’s analog to Nance. Just as
§841 provides a maximum of life imprisonment for distrib-
uting cocaine only if the defendant distributed at least 5
kilograms (or 50 grams of cocaine base)—otherwise the
maximum is 20 or 40 years—so Washington establishes a
10-year maximum sentence for second-degree kidnapping,
but (according to a second statute) only if the defendant
acted with “deliberate cruelty”—otherwise the maximum is
3 years. Washington contended that the relevant “statutory
maximum” was 10 years; this is equivalent to arguing that
the “statutory maximum” in all federal cocaine prosecutions
is life. The Court disagreed and held that the relevant
“statutory maximum” is the lowest of all arguably pertinent
statutory caps, unless the jury makes the finding that raises
the limit.
  According to my colleagues, Blakely goes beyond what
was necessary to decide the validity of Washington’s system
by giving this definition of “statutory maximum”:
    In other words, the relevant “statutory maximum” is not
    the maximum sentence a judge may impose after find-
    ing additional facts, but the maximum he may impose
    without any additional findings. 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                                                No. 03-4225

Slip op. 7 (emphasis in original). I do not see here the star-
tling consequences my colleagues find. This says exactly
what we held in Nance: one must start with the lowest stat-
utory maximum and ask the jury to make findings that raise
the sentence to which the defendant is exposed.
   Blakely arose from a need to designate one of two statutes
as the “statutory maximum”. Washington called its statutes
“sentencing guidelines,” but names do not change facts.
Nonetheless, the reading my colleagues give to this passage
is that it does not matter whether the maximum is statutory;
any legal rule, of any source (statute, regulation, guideline)
that affects a sentence must go to a jury. Certainly Blakely
does not hold that; it could not “hold” that given that it dealt
with statutes exclusively. Attributing to Blakely the view that
it does not matter whether a given rule appears in a statute
makes hash of “statutory maximum.” Why did the Justices
deploy that phrase in Apprendi and repeat it in Blakely (and
quite a few other decisions)? Just to get a chuckle at the
expense of other judges who took them seriously and
thought that “statutory maximum” might have something
to do with statutes? Why write “statutory maximum” if you
mean “all circumstances that go into ascertaining the proper
sentence”?
  Going Blakely one better, today’s majority says that as a
matter of constitutional law there cannot be any difference
between statutes and other sources of rules: “it is hard to
believe that the fact that the guidelines are promulgated
by the U.S. Sentencing Commission rather than by a legi-
slature can make a difference. The Commission is exercising
power delegated to it by Congress, and if 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.” Slip op.
3-4. For the vital proposition that anything functionally
No. 03-4225                                                  19

equivalent to a statute (from the perspective of a criminal
defendant) must be treated as a statute, the majority cites—
nothing. Phrases such as “it seems plain” are poor substi-
tutes for authority in the Constitution’s text or interpretive
history.
  The majority’s proposition is refuted by Blakely itself,
which tells us that legislatures may delegate such issues to
the judiciary and parole boards without offending the sixth
amendment. The Court considered whether there would be
a constitutional problem with open-ended sentencing, such
as a statute allowing any person convicted of burglary to be
sentenced to any term of years up to 40. Blakely, slip op.
12-14. If the law left that decision to the judiciary, the court
said, there would be no problem even if the sentencing judge
applied (as a matter of common law) the rule “10 years
unless the burglar uses a gun; if a gun, then 40 years.” Put
that algorithm in a statute and the sixth amendment com-
mits to the jury the question whether the burglar was armed;
put the same algorithm in a judicial opinion and the sixth
amendment allows the judge to make the decision. The
Court saw this not as an “evasion” but as a natural applica-
tion of the Constitution.
  ”Statutory” in the phrase “statutory maximum” is not an
inept shorthand. Apprendi and Blakely hold that the sixth
amendment allocates to the jury all elements of the offense,
plus all statutory details that are enough like elements that
differences in phraseology should not be allowed to affect
the defendant’s rights. Example: the statutory quantity
thresholds in §841 are not “elements” of that offense, see
United States v. Bjorkman, 

(7th Cir. 2001), be-
cause a low quantity does not lead to acquittal; distributing
any detectable quantity is a criminal offense. But the statute
works much as if Congress had enacted multiple degrees of
a crime. Just as the distinctions between manslaughter and
20                                                No. 03-4225

first-degree murder (such as malice aforethought) must be
proved to a jury’s satisfaction, so the distinctions between
simple and aggravated distribution must be shown. Blakely
treated Washington as having established three degrees of
kidnapping: the distinction between second- and third-
degree kidnapping was deliberate cruelty. Having embed-
ded this distinction in its statute books, the Court held,
Washington could not cut the jury out of the process. This
understanding of the sixth amendment has nothing to do
with sentencing if there is only one degree of an offense (the
Court’s example of burglary with a 40-year maximum), or if
the defendant has been convicted of the highest degree.
Booker has been convicted of “cocaine distribution in the
first degree” and the jury’s verdict authorizes life impris-
onment. What happens after that is unrelated to the sixth
amendment. This is why the rule of Apprendi and Blakely
is confined to statutes, why they do not affect statutory min-
imum sentences, see Harris v. United States, 

(2002), why regulations and guidelines that affect sentenc-
ing after the “degree” of an offense has been fixed by the
jury do not transgress the limits set by the sixth amendment,
and why (capital punishment aside) Apprendi and Blakely
are irrelevant if the jury’s verdict authorizes life imprison-
ment. See United States v. Smith, 

(7th Cir. 2000).
  Think of the indeterminate sentence: zero-to-life with re-
lease in the discretion of parole officials. The federal Parole
Commission eventually developed a set of release guide-
lines designed to ensure consistent treatment of offenders.
See United States v. Addonizio, 

(1979). Parole-
release guidelines might say something like: “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; add (or subtract) time from these
presumptive numbers to reflect the size of the heist.” If my
colleagues are right, then such a system violates the sixth
No. 03-4225                                                  21

amendment. Yet the Justices do not think this a problem, as
parole and other forms of executive clemency don’t affect
the degree of the offense and therefore do not undercut the
jury’s role. See Blakely, slip op. 13. If parole regulations are
valid, why not the federal Sentencing Guidelines? How could
commissioners, but not judges, be free to apply regulations
that depend on how much cocaine the defendant distrib-
uted, or whether he pulled a gun on the teller? Once the jury
has determined the degree (and the statutory consequences)
of the offense, both judges and executive officials constitu-
tionally may take part in determining how much of the
statutory maximum the defendant serves in prison.
   One other point about the federal sentencing guidelines:
Given the matrix-like nature of the system and the possibil-
ity of departure, see 18 U.S.C. §3553(b); U.S.S.G. §5K2.0;
Koon v. United States, 

(1996), the only finding that
is indispensable to Booker’s sentence is the one specified by
statute: did he distribute more than 50 grams of cocaine
base? The jury found beyond a reasonable doubt that he
had. Where in the resulting statutory range of 10 years to
life the actual sentence falls depends on complex interac-
tions among drug quantity, gun use, violence, role in the
offense (was defendant the mastermind or just a courier?),
cooperation, obstruction of justice, criminal history, and
other factors, none of which is a sine qua non in the same
sense as the statutory thresholds. See U.S.S.G. §2D1.1 (21
pages long and just a starting point; later chapters provide
many adjustments). No answer to the question “what was
the total quantity?” gives any defendant a legal entitlement
to a particular sentence. Lower quantities of drugs can be
counterbalanced by a longer criminal history or a more
senior role in the offense, or the judge may decide that up-
ward departure is appropriate. Even if Blakely’s definition
reaches regulations adopted by a body such as the
22                                               No. 03-4225

Sentencing Commission, it requires an extra step (or three)
to say that the jury must make the dozens of findings that
matter to the Guidelines’ operation in each case.
  Apprendi and Blakely hold that the sixth amendment com-
mits to juries all statutory sentencing thresholds. Perhaps
the Court eventually will hold that some or all of the
additional determinations that affect sentences under the
federal Sentencing Guidelines also are the province of jur-
ors. But Blakely does not take that step, nor does its intel-
lectual framework support it—and Edwards holds that the
current structure is valid provided that juries make all de-
cisions that jack the maximum sentences. I would treat
Blakely as holding that, when there are multiple statutory
caps, the “statutory maximum” is the lowest one and the jury
must determine whether statutory thresholds to increased
ranges have been satisfied. To read more into Blakely is to
attribute to that opinion something beyond its holding, and
to overthrow the real holdings of other decisions.
  Today’s decision will discombobulate the whole crimi-
nal-law docket. I trust that our superiors will have some-
thing to say about this. Soon.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—7-20-04