Full opinion text
SENTENCING MEMORANDUM YOUNG, District Judge. “What is overlooked in post -Booker discussions is the fact that, for seventeen years, federal courts had been sentencing offenders unconstitutionally.” For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable' — thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional costs are equally enormous — for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words “burden of proof’, “evidence”, and “facts” of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history. Today, elements in the legislature, a monolithic executive, and courts below the Supreme Court all seem to be acting in concert to devise a sentencing system as close to unconstitutionality as possible. This Court has charted a different course — one that gives real meaning to the language of all the controlling decisions of the Supreme Court, yet scrupulously adheres to the rulings of that inferior court which controls the work of this one. It is a procedure that ensures significant protections for all litigants without added burden, wasted time, or cost to our system of justice. This Sentencing Memorandum maps the legal landscape and explains the Court’s procedures within it — all in the context of a well-tried case which required this Court to work through the implications of its own practices. I. The Prosecution — Opening Moves On December 15, 2004, a federal grand jury indicted Jess Siciliano (“Siciliano”), Michael Arco (“Arco”), and George Kandi-rakis (“Kandirakis”) for conspiracy and possession, with intent to distribute, oxyco-done — known commonly by one of its trade names, OxyContin. The government charged that Siciliano was an OxyContin supplier and that Arco and Kandirakis were OxyContin retailers who got their illicit supplies from Siciliano. The government conceded that Kandirakis was the least involved of the three. Siciliano and Arco quickly copped pleas. The plea deals, proffered to the Court pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), would result in a 46-month sentence for Siciliano and a 57-month sentence for Arco. The Court held an extensive plea colloquy with Siciliano and Arco, explaining the procedural protections it affords defendants who go to trial. See infra Part IV. From this colloquy, the Court concluded that both Siciliano and Arco had bargained down, for sentencing purposes, the quantity of OxyContin properly attributable to them, the government trading away provable facts in return for the certainty that comes from a plea. The First Circuit explicitly embraces such “fact bargaining”, even when relevant data is hidden from the Court. See United States v. Yeje-Cabrera, 430 F.3d 1, 23-30 (1st Cir.2005). While this is the ugly truth on which many plea-bargained sentences rest, so sweeping is our plea bargaining culture today, that it is a staple of criminal practice in this circuit and district. Those who deny it are sophists, engaging in what one of my colleagues calls “a massive exercise in hypocrisy”. Berthoff, 140 F.Supp.2d at 64. Fearing the vindictive moral quagmire that the government creates when it posits a more favorable, alternative factual universe for those who will plead guilty, but then proves the actual facts against those who go to trial, this Court entertained Siciliano’s and Arco’s proffered pleas, but declined to accept or reject them until KandiraMs had been tried and, if necessary, sentenced. This done, the government and Kandi-rakis, gearing up for trial, “set [their] faces to the stormy sea [and] bid the land farewell.” A necessary part of that preparation, for both the Court and counsel, involved significant legal analysis. II. A “Muddled” Legal Landscape: The Two Faces of Booker Eighteen months ago the Supreme Court issued its decision in United States v. Booker. 548 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The case had promised to be the culmination of a reinvigoration in the criminal defendant’s Sixth Amendment right to trial by jury, which the Court had begun several years before in Apprendi v. New Jersey. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi the Court held that, “[o]ther 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.” Id. at 490, 120 S.Ct. 2348. The consequences of Apprendi for the Federal Sentencing Guidelines were immediately apparent. See id. at 550-51, 120 S.Ct. 2348 (O’Connor, J., dissenting). Though the facts of Apprendi involved legislatively enacted statutes, the constitutional rule of that case seemed equally to apply to all judge-based, determinate sentencing schemes. This Court so held on June 18, 2004, in United States v. Green, 346 F.Supp.2d 259 (D.Mass.2004), which ruled the Guidelines unconstitutional. Green’s reasoning was confirmed days later in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which invalidated the State of Washington’s nearly identical sentencing apparatus. Though the Supreme Court officially reserved the question, id. at 305 n. 9, 124 S.Ct. 2531, after Blakely it was quite obvious to many other observers that the Guidelines were unconstitutional. As soon as “the [Supreme] Court could get before it a case properly presenting the constitutionality of the mandatory [federal] Guidelines”, they likewise were invalidated. Booker, 543 U.S. at 313, 125 S.Ct. 738 (Scalia, J., dissenting in part). Booker could have been the simple, logical extension of the Supreme Court’s Ap-prendi jurisprudence. Instead, the Court produced a fractured, 124-page decision with two majority opinions and four dissents. What remained after the verbal cannonades was this: • One majority opinion (“Constitutional Booker”) which ruled that the Guidelines violated the Sixth Amendment. This opinion was written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg. •Another majority opinion (“Remedial Booker”) which ruled that the way to rectify the constitutional infirmity was to make the Guidelines advisory rather than mandatory. This opinion was written by Justice Breyer and joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg. How logically to implement these two majority opinions has been a question with which the lower federal courts have been grappling ever since. A. Constitutional Booker The constitutional decision in Booker is quite succinct. A review of the Court’s Sixth Amendment jurisprudence — especially its Blakely decision — yielded but one conclusion: “[T]here is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case.” Booker, 543 U.S. at 233, 125 S.Ct. 738. As quoted above, the rule set forth in Apprendi is that, “[o]ther 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.” 530 U.S. at 490, 120 S.Ct. 2348. As further explicated in Blakely, “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” 542 U.S. at 303-04, 124 S.Ct. 2531. The mandatory nature of the Guidelines was crucial. “If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. ... Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [Sentencing Reform Act of 1984] the provisions that make the Guidelines binding on district judges----” Booker, 543 U.S. at 233, 125 S.Ct. 738. Therefore, after rejecting stare decisis and separation of powers arguments, the Court “reaffirmed [its] holding in Apprendi” and declared the Guidelines unconstitutional. Id. at 239-43, 244, 125 S.Ct. 738. B. Remedial Booker The second majority seized on the mandatory nature of the Guidelines in remedying their unconstitutionality. Booker, 543 U.S. at 244-71, 125 S.Ct. 738. Consequently, rather than grafting the Sixth Amendment’s jury right onto the Guidelines (the solution preferred by the Justices of Constitutional Booker, minus Justice Ginsburg) or discarding the Guidelines altogether (a solution no Justice supported), Remedial Booker papered over the Guidelines’ Sixth Amendment infirmity by “severing] and excisfing]” two sections of Title 18 that made the Guidelines mandatory for sentencing and appellate courts. Id. at 245, 249, 125 S.Ct. 738. Doing so made the Guidelines “effectively advisory”. Id at 245, 125 S.Ct. 738. Section 3553(b)(1) of the U.S.Code required the district court to impose a sentence “of the kind[ ] and within the range” set forth in the Guidelines. Striking this Section, the Court ruled that what remained still “requires judges to take account of the Guidelines together with other sentencing goals.” Id. at 259, 125 S.Ct. 738 (citing 18 U.S.C. § 3553(a)). Thus, “[t]he district courts, while not bound by the Guidelines, must consult those Guidelines and take them into account when sentencing.” Id. at 264,125 S.Ct. 738. “It requires a sentencing court to consider the Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.” Id. at 245-46, 125 S.Ct. 738 (citations omitted). Further, the Court struck Section 3742(e). Id. at 260-67, 125 S.Ct. 738. That Section had given the Circuit Courts of Appeals de novo review of sentences falling outside the prescribed Guidelines range. See 18 U.S.C. § 3742(e)(3)(B)(ii). In its place, the Court established a standard of “reasonableness”. Stating that the appellate courts were “already familiar” with the standard from “the past two decades of appellate practice in cases involving departures”, the Court said that circuit courts should look to the factors set forth in Section 3553(a) to guide them, “as they have in the past”. Booker, 543 U.S. at 261, 125 S.Ct. 738. Disclaiming Justice Scalia’s “belief that use of a reasonableness standard ‘[would] produce a discordant symphony’ leading to ‘excessive sentencing disparities,’ and ‘wreak havoc’ on the judicial system”, the Remedial Booker majority concluded that, as the Sentencing Commission “continue[s] to modify its Guidelines”, it would “encourag[e] what it finds to be better sentencing practices.” Id. at 263, 125 S.Ct. 738. This tack would “thereby promote uniformity in the sentencing process”, id., and allow circuit courts to “iron out sentencing differences”, id. at 263, 125 S.Ct. 738. C. Contradictions “The Federal Sentencing Guidelines are dead. Long live the Federal Sentencing Guidelines.” As Judge Michael W. McConnell of the Tenth Circuit has noted, the two Booker opinions, “taken in tandem, do not get high marks for consistency or coherence.... The most striking feature of the Booker decision is that the remedy bears no logical relation to the constitutional violation.” Michael W. McConnell, The Booker Mess, 83 Denver U.L.Rev. 665, 677 (2006). The constitutional violation of the Guidelines was that judges, rather than juries, found the facts necessary for sentencing. Instead of focusing the remedy on who performed the fact-finding, however, Remedial Booker honed in on the “necessity” of the facts. It purported to make those facts “unnecessary” by making the Guidelines “effectively advisory”. As a result, “[t]he jury verdict is no more consequential after Booker than it was before”. McConnell, supra, at 677. “All the things that troubled Sixth Amendment purists about the pre-Booker Guidelines system are unchanged”, including reliance on uncharged and even acquitted conduct. Id.; see Booker, 543 U.S. at 302, 125 S.Ct. 738 (Stevens, J., dissenting in part) (“[T]he Court [in Remedial Booker ] has effectively eliminated the very constitutional right Apprendi sought to vindicate”). The way in which most circuit courts have decided to review the countless criminal sentences issued under the pre-Booker, mandatory Guidelines system illustrates this contradiction well. The First Circuit confronted the question in United States v. Antonakopoulos. 399 F.3d 68 (1st Cir.2005). The court first framed the issue: “The [Booker] error is not that a judge (by a preponderance of the evidence) determined facts under the Guidelines which increased a sentence beyond that authorized by the jury verdict or an admission by the defendant; the error is only that the judge did so in a mandatory Guidelines system.” Id. at 75. Formulating the error this way brings the contradiction of Booker into stark relief: Reading the Apprendi line of cases — including Constitutional Booker — one naively might have thought judicial fact-finding was precisely the constitutional error. Because Remedial Booker allowed the Guidelines’ unconstitutionality to be remedied by concocting an advisory system, however, it is hard to find fault with the ruling in Anto-nakopoulos. This premise then led the First Circuit to conclude that for a defendant to receive the benefits of Booker, he must “point to circumstances creating a reasonable probability that the district court would impose a different sentence more favorable to [him] under the new ‘advisory Guidelines’ Booker regime.” Id. The court said that “this is a necessary consequence of our view of the nature of the Booker error.” Id. at 79. The First Circuit is not alone. See United States v. Liner, 435 F.3d 920 (8th Cir.2006); United States v. Graham, 413 F.3d 1211 (10th Cir.2005); United States v. Ameline, 409 F.3d 1073 (9th Cir.2005); United States v. Mares, 402 F.3d 511 (5th Cir.2005); United States v. Lee, 399 F.3d 864 (7th Cir.2005); United States v. Rodriguez, 398 F.3d 1291 (11th Cir.2005); see also United States v. Crosby, 397 F.3d 103 (2d Cir.2005). The obvious disconnect between these decisions and the principle of Constitutional Booker was the earliest tangible indication that Booker is flawed. Even more than what circuit courts have done with pre-Booker sentences, however, the emerging jurisprudence of Remedial Booker’s “reasonableness” review in the circuit courts shows how that opinion necessarily is at war with Constitutional Booker. Two cases from the First Circuit will serve to illustrate. In United States v. Jimenez-Beltre, 440 F.3d 514 (2006), the First Circuit sitting en banc set forth its instructions to district courts regarding the role the Guidelines should play in sentencing. Affirming the procedure of Judge F. Dennis Saylor, who gave the Guidelines “substantial” (but not “controlling”) weight, the court held that a sentencing judge should “first calculate the guideline sentence, then determine whether departures were warranted under the guidelines, and finally determine whether a non-guideline sentence was warranted by the relevant factors set forth in 18 U.S.C. § 3553(a) (2000).” Id. at 516. Further, in United States v. Pho, 433 F.3d 53 (1st Cir.2006), the First Circuit articulated a significant limit on the acceptable justifications for a non-Guidelines sentence. In Pho the district court had sought to reduce the infamous 100:1 ratio between a Guidelines sentence for crack-versus powder-cocaine. Id. at 57-59. That the defendant’s sentencing took place post-Booker enabled that court, so it thought, to fashion a more just sentence. It applied a 20:1 ratio instead and derived a revised range within which the court then sentenced the defendant. Id. at 58, 59. Reviewing congressional and Commission history on the issue, the First Circuit concluded that because the ratio was a policy decision of the Congress, the district court had erred by “jerry-buil[ding]” its own Guidelines range. Id. at 58, 59, 64. “This approach [of the district court], which evinced a categorical, policy-based rejection of the 100:1 ratio, amounted to error as a matter of law.” Id. at 62. It was “a policy judgment, pure and simple.” Id. Any departure from the Guidelines is to be “based on case-specific eircum-stances, not on general, across-the-board policy considerations.” Id. To do otherwise would jeopardize the uniformity sought by the Sentencing Reform Act. Even a cursory glance at the plain language of Jimenez-Beltre and Pho indicates the continued significance of the Guidelines in criminal sentencing. Upon closer consideration, however, that significance proves functionally tantamount to a determinative (and thus unconstitutional) limitation on sentencing discretion. With regard to the prohibition on policy-based justifications announced in Pho, consider that the whole of the Guidelines — • albeit through its “junior-varsity Congress”, the Sentencing Commission, Mistretta v. United States, 488 U.S. 361, 427, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (Sca-lia, J., dissenting) — is but one big policy statement of Congress. The Guidelines express the relative weight Congress gives to various factors considered at sentencing. If a sentencing court may not depart from a Guidelines range for policy reasons contradictory to those expressed therein, then the only way to ensure respect for those policy choices is through enforcement of the Guidelines themselves. Pho accomplishes this. In Pho, the relevant policy expressed in the Guidelines was that persons guilty of “crack crimes” be eligible for the same sentences as those found guilty of mere “powder crimes”, though having possessed 100-times less cocaine. The 100:1 policy decision, however, is no different than any other Guidelines ratio. According to the Guidelines, it is 7 times worse if the loss from a robbery exceeds $5 million than if it is less than $10,000. See U.S.S.G. § 2B3.1(b)(7) (providing a 7-level enhancement for the former, but 1 level for the latter). It is twice as serious to cause a death while operating a common carrier while under the influence than it is if a less-than-serious injury resulted. See U.S.S.G. § 2D2.3(a) (providing a 26-level enhancement for the former, but 13 levels for the latter). Apparently, illegally receiving 1000 firearms is five times worse than receiving 5. See U.S.S.G. § 2K2.1(b)(l) (providing a 10-level enhancement for the former, but 2 levels for the latter). And it is 50 percent worse to discharge a toxic substance if you do so continuously as opposed to just once. See U.S.S.G. § 2Q1.2(b)(l) (providing a 6-level enhancement for the former, but 4 levels for the latter). There are also inherent policy judgments for incongruous facts: It is worse to mail obscene matter to a minor, see U.S.S.G. § 2G3.1(b)(l)(C) (5-level enhancement), than it is to discharge pollutants and cause disruption of public utilities, see U.S.S.G. § 2Q1.3(b)(3) (4 levels), or than it is to be a supervisor of a criminal activity, see U.S.S.G. § 3Bl.l(b) (3 levels), or than it is for the abetter in an escape to be a correctional employee, see U.S.S.G. § 2Pl.l(b)(4) (2 levels). Furthermore, though certain victims may think otherwise, it is worse to inflict permanent or life-threatening injury to someone while assaulting them, see U.S.S.G. § 2A2.2(b)(3)(C) (7-level enhancement), than while robbing them, see U.S.S.G. § 2B3.1(b)(3)(C) (6 levels), or while kidnapping them, see U.S.S.G. § 2A4.1 (b)(2)(A) (4 levels). None of this is to criticize the policy choices Congress, through the Commission, has made. The point merely is that these 7:1, 2:1, 5:1, 1.5:1, 5:4:3:2, and 7:6:4 Guidelines ratios are no different than the 100:1 Guidelines ratio for crack-versus non-crack-cocaine ruled controlling in Pho. If a sentencing court imposes a non-Guidelines sentence based on its own conclusions about the relevance or relative significance of facts deemed relevant by the Guidelines, it necessarily derogates policy choices of Congress. The First Circuit did leave open the possibility of imposing a non-Guidelines sentence “grounded in case-specific considerations”. Pho, 433 F.3d at 65. That court claimed it “d[id] not intend to diminish the discretion that, after Booker, district courts enjoy in sentencing matters.... [Its] goal [wa]s simply to channel the district courts’ newfound discretion in ways that both comport with the Booker Court’s remedial opinion and respect the separation of powers between the legislative and judicial branches of government.” Id. Upon examining the hundreds of pages constituting the Guidelines, however, there are few factors that remain case-specific; the Guidelines have considered, accounted for, and determined congressional policy for the relative treatment of countless facts that otherwise might be deemed case-specific. Many of these Guidelines are even conveniently labeled “Policy Statement^]”, instructing a court on how to handle factors “ordinarily not relevant”, “of a kind not adequately taken into consideration [by the Guidelines]” (whether identified by the Guidelines or not), or “present to a degree not adequately taken into consideration”. U.S.S.G. §§ 5H1.1-1.12, 5K2.0(a)(2)-(4). The Guidelines state that such deviations are warranted only in “exceptional” cases, U.S.S.G. § 5K2.0(a)(2)-(4), and are predicted to be “highly infrequent”, U.S.S.G. § 1A1.1 (Part A.4. (b)) (Editorial Note). Bj Pho’s standards, then, the Guidelines effectively make the treatment of every conceivable fact potentially relevant to sentencing an expressed policy decision of Congress. Perhaps recognizing this, the First Circuit seemingly has stepped back from the full implications of Pho and also ruled that simply because “a factor is discouraged or forbidden under the guidelines[, that] does not automatically make it irrelevant when a court is weighing the statutory factors [18 U.S.C. § 3553(a)(1)-(7) ] apart from the guidelines. The guidelines — being advisory — are no longer decisive as to factors any more than as to results.” United States v. Smith, 445 F.3d 1, 5 (2006). The court quickly added, however, that “reliance on a discounted or excluded factor may ... have some bearing on reasonableness.” Id.; see United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir.2006) (“Although this [Guidelines] policy statement is no longer binding, one of the seven factors a judge must consider in sentencing is ‘any pertinent policy statement issued by the Sentencing Commission.’ Therefore, while not controlling, the policy statement prohibiting reliance on arrest records must be duly considered by the district judge.” (citations omitted)). Respectfully, appellate guidance concerning when it is permissible for a sentencing court to deviate from the suggested Guideline range, based on what facts, is mind-numbingly incoherent. The First Circuit is not necessarily to blame; Remedial Booker, though, certainly is. Jimenez-Beltre, with its debate among the judges of the First Circuit, demonstrates Remedial Booker’s contradictions more clearly still. In ruling that the Guidelines are to receive “substantial” weight, the majority of the First Circuit stated that its “conclusion [wa]s rooted in both parts of the Booker decision”. Jimenez-Beltre, 440 F.3d at 518. The court first rejected the government’s argument that a sentence within the Guidelines was per se reasonable, id. at 517, before then declaring that “the guidelines continue in our view to be an important consideration in sentencing ... ”, id. at 518. The court acknowledged that even though “making the guidelines ‘presumptive’ or ‘per se reasonable’ does not make them mandatory, it tends in that direction”. Id. Still, the Guidelines “cannot be called just ‘another factor’ in the statutory list, 18 U.S.C. 3553(a) (2000), because they are the only integration of the multiple factors”. Id. The fact that the Guidelines are promulgated by an “expert” agency and that they were important to promoting remedial Booker’s “uniformity and fairness” concerns counseled in favor of their continued central role. Id. Judge Howard concurred in the result, but would have held within-Guidelines sentences per se reasonable. See id. at 523 (“[Tjhere is a range of ‘reasonable’ sentences which always will include within it the guidelines sentencing range.... ”). This, he reasoned, was because “ ‘[rjeason-ableness’ within the meaning of Booker ... is ‘reasonableness in light of Congress’s purposes in enacting the Sentencing Reform Act of 1984.’ ” Id. at 521-22. “The guidelines therefore are not only central to the uniformity that Congress sought to bring about in passing the Act; they also are the data-driven and experienced-based manifestations of Congress’s considered views on how, in the usual case, to accomplish the purposes of federal sentencing.” Id. at 522. Judge Howard observed that “the primary theme of Justice Breyer’s remedial opinion is that Congress’s purposes were and are valid, and that federal judges should strive to apply the Act (and the regime created by the Act, almost all of which was left intact) to further those purposes.” Id. “[T]he guidelines ... are the only conceivable centers of gravity around which some semblance of uniformity in federal sentencing might be maintained ....” Id. at 522-23. Judge Lipez, on the other hand, dissented and would have ruled that the Guidelines are merely an important first step. Beyond that, however, “[tjhere is scant difference between treating a guidelines sentence as presumptively controlling and stating that the court will depart from that sentence only for ‘clearly identified and persuasive reasons.’ ” Id. at 524 (quoting Judge Saylor at the sentencing hearing). By organizing sentencing decisions around the Guidelines and only focusing on the question of whether a non-Guidelines sentence is reasonable, courts “will effectively give the guidelines a controlling weight and a presumptive validity that is difficult to defend under the constitutional ruling in Booker.” Id. at 528. Having the sentencing court start the process by calculating the Guidelines is “sensible” because “[t]he guidelines are the only sentencing factor that yield a measure of time. That fact alone establishes their continuing importance .... With [the Guidelines’] focus on the bottom line, the prosecution and defense counsel will inevitably address their arguments to the appropriateness or inappropriateness of a guidelines sentence.” Id. at 525. Such a method would “steer a sensible course between” the two Booker opinions. Id. at 525. This display by the First Circuit shows the judges of that court grappling with the inconsistency of Booker. Every judge was attempting faithfully to implement the mandates of that decision, yet doing so proved difficult in the face of its incoherence. When forced to reconcile the inconsistency, Judge Lipez placed more weight on Constitutional Booker , Judge Howard on Remedial Booker , and the majority somewhere in between. Is this but a manufactured debate? Indeed, the only clear mandate from the Supreme Court going forward is that sentencing courts “consult [the] Guidelines and take them into account when sentencing.” Booker, 543 U.S. at 264, 125 S.Ct. 738. From this language, why the Guidelines should receive any special emphasis over the other factors in Section 3553(a) is quite unclear. See D’Addio, supra, at 175-78 (“Booker imposes no legal obligation on judges to place any particular weight on the Sentencing Guidelines.”). This fact certainly was not lost on anyone: Both Judges Howard and Lipez acknowledged that nothing in Booker required his particular interpretation. If all that a sentencing judge must do, however, is “consult” the Guidelines — a concept straightforward enough — what is the source of this disagreement? • One of Judge Howard’s observations answers the question: “[T]he primary theme of Justice Breyer’s remedial opinion is that Congress’s purposes were and are valid, and that federal judges should strive to apply the Act (and the regime created by the Act, almost all of which was left intact) to further those purposes.” Jimenez-Beltre, 440 F.3d at 522. Countless courts and commentators have concluded the same. See, e.g., United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir.2005) (“But while a per se or conclusively presumed reasonableness test would undo the Supreme Court’s merits analysis in Booker, a clean slate that ignores the proper Guidelines range would be inconsistent with the remedial opinion.”); United States v. Crosby, 397 F.3d 103, 113 (2d Cir.2005) (“These principles change the Guidelines from being mandatory to being advisory, but it is important to bear in mind that Booker/Fanfan and section 3553(a) do more than render the Guidelines a body of casual advice, to be consulted or overlooked at the whim of a sentencing judge. Thus, it would be a mistake to think that, after Booker/Fanfan, district judges may return to the sentencing regime that existed before 1987 and exercise unfettered discretion to select any sentence within the statutory maximum and minimum.”); Bowman, supra, at 182 (“Some have been tempted to read advisory to mean that the Guidelines are no longer legally binding on trial judges and that [they] are now merely useful suggestions to trial courts. However, a closer reading of the opinion suggests something quite different.... [Remedial Booker] strongly intimates that the guideline ranges produced by applying the rules to the facts continue to constrain judicial discretion.”); D’Addio, supra, at 178 (“Justice Breyer’s [Remedial Booker ] opinion implies that reasonableness review will be more rigorous than simply determining whether the district courts checked the correct boxes.”). Justice Scalia made the point more forcefully in his dissent to Remedial Booker. See 543 U.S. at 306-13, 125 S.Ct. 738. He wrote, “Even the most casual reading of this section [of Remedial Booker, which discusses appellate review,] discloses that its purpose- — its only purpose — is to enable the courts of appeals to enforce conformity with the Guidelines .... If the Guidelines are no longer binding, one would think that the provision designed to ensure compliance with them would, in its totality, be inoperative.” Id. at 306, 125 S.Ct. 738 (Scalia, J., dissenting in part). Therefore, the intimations of Remedial Booker, which conflict with the rule of Constitutional Booker more squarely than even its incongruous remedy, necessitate debates such as those in Jimenez-Beltre. Judge McConnell has suggested that Remedial Booker could be viewed as “a pragmatic attempt by supporters of the Guidelines system, four of whom dissented from the Stevens majority, to patch together a workable sentencing system as close to the Guidelines as was possible under the circumstances. Responsibility for the inconsistency between violation and remedy, according to this theory, must lie with the remedial majority, which was unwilling to accede to the force of a Sixth Amendment holding with which they disagreed.” McConnell, supra, at 679; see also M.K.B. Darmer, The Federal Sentencing Guidelines after Blakely and Booker: The Limits of Congressional Tolerance and a Greater Role for Juries, 56 S.C. L.Rev. 533, 564 (2005) (“While [Constitutional Booker ] was a natural outgrowth of the Court’s recent jurisprudence, [Remedial Booker ] produced a jarring result in attempting to salvage as many current features of the Guidelines as possible while effectuating an end-run around the Sixth Amendment requirements [Constitutional Booker ] recognized.”). Though Judge McConnell is judicious in his critique, suggesting that “this is not the whole story” and finding fault with Constitutional Booker as well, id. , all indications are that his initial criticism of Remedial Booker is precisely on point. Justice Stevens said as much in his dissent to Remedial Booker: “In reality, the majority’s concerns ... are nothing more than an objection to Appren-di itself....” Booker, 543 U.S. at 288, 125 S.Ct. 738; see also Ring v. Arizona, 536 U.S. 584, 612, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (Sealia, J., concurring) (“Justice Breyer ... refuses to accept Apprendi ... ,”). As a result, the Guidelines — and their judge-made factual findings — are still the driving force behind federal sentencing. It must be so: “Reasonableness” has been defined in terms of the Guidelines. See D’Addio, supra, at 192-94. Nobody doubts that Remedial Booker contemplated just that. Neither should anyone doubt, however, that such a scheme violates the rule of Constitutional Booker. “[T]o the degree that ‘reasonableness’ cabins discretion, the Sixth Amendment problem resurfaces.” Id. at 192. Even Justice Breyer recognized that appellate restrictions on judicial discretion could offend Apprendi and Blakely. Booker; 543 U.S. at 332-33, 125 S.Ct. 738 (Breyer, J., dissenting). He quickly stated in conclusory fashion, though, that “[ajppellate courts’ efforts to define the limits of the ‘reasonable’ of course would fall outside Blakely’s scope.” Id. at 333, 125 S.Ct. 738; see D’Addio, supra, at 190-92. In this instance, Justice Breyer’s reasoning is more persuasive than his conclusion. Justice Scalia warned that “the remedial majority[ ] ... may lead some courts of appeals to conclude — may indeed be designed to lead courts of appeals to conclude — that little has changed.” Id. at 311-12, 125 S.Ct. 738 (emphasis added). He questioned whether “appellate review for ‘unreasonableness’ preserved de facto mandatory Guidelines by discouraging district courts from sentencing outside Guidelines ranges”. Id. at 313, 125 S.Ct. 738. Does anyone now doubt that Justice Scalia was correct? D. The Real Dispute As did the Sentencing Reform Act, Remedial Booker purports to be concerned most with uniformity in criminal sentencing. See, e.g., Booker, 543 U.S. at 250, 125 S.Ct. 738 (calling “a system that diminishes sentencing disparity” one of “Congress’[s] basic statutory goal[s]”); id. at 255, 125 S.Ct. 738 (“Congress enacted the sentencing statutes in major part to achieve greater uniformity in sentencing .... ”). One wonders, then, how removing the provision that makes the Guidelines mandatory for all judges promotes the goal of uniformity. Justice Sca-lia noted that it was “wonderfully ironic” that “[i]n order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, [Remedial Booker ] discarded the provisions that eliminate discretionary sentencing.” Id. at 304, 125 S.Ct. 738 (Scalia, J., dissenting in part). According to Justice Breyer, this criticism missed the point. When Congress sought “to move the sentencing system in the direction of increased uniformity”, it (oddly) did not mean “uniformity” in the sense of “similar sentences for those convicted of the same statute”. Booker, 543 U.S. at 253, 125 S.Ct. 738. The uniformity that mattered consisted “more importantly[ ] of similar relationships between sentenced and real conduct”. Id. at 254, 125 S.Ct. 738. From this premise, Remedial Booker proceeded to the solution announced. It eschewed the notion that a jury could determine the “real conduct that underlies the crime of conviction”, which was “Congresses] basic statutory goal”. Id. at 250, 125 S.Ct. 738. The Guidelines were too complex for juries to administer in a way that achieved this notion of uniformity, claimed the Remedial Booker majority as it posed a series of hypothetical defendants and crimes. See id. at 253-55, 125 S.Ct. 738. “How would a jury measure ‘loss’ in a securities fraud case — a matter so complex as to lead the Commission to instruct judges to make ‘only ... a reasonable estimate’?” Id. at 255, 125 S.Ct. 738 (citing U.S.S.G. § 2B1.1, comment (n.3(C))). No, it said, the system is “judge-based”, Booker, 543 U.S. at 268, 125 S.Ct. 738; requiring the jury to administer the Guidelines would not comport with goals of the Sentencing Reform Act, id. at 249-50, 125 S.Ct. 738. “[T]he constitutional jury trial requirement is not compatible with the Act as written....” Id. at 248, 125 S.Ct. 738. Remedial Booker argued that if a jury requirement were “engraft[ed]” onto the Guidelines it would “weaken the tie between a sentence and an offender’s real conduct.” 543 U.S. at 252, 125 S.Ct. 738. “The other approach, which we now adopt, would (through severance and excision of two provisions) make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender’s real conduct — a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.” Id. at 246, 125 S.Ct. 738. Justice Breyer is surely correct that a charge-offense system'would certainly, impede the Guidelines’ version of “real conduct” sentencing; but “increasing a defendant’s sentence on the basis of conduct not proved at trial[ ]is contrary to the very core of Apprendi.” Id. at 288, 125 S.Ct. 738 (Stevens, J., dissenting in part). Apprendi mandated that, rather than the “real conduct” of the defendant, a sentence must be tied to the jury verdict. See Apprendi 530 U.S. at 482, 120 S.Ct. 2348 (speaking of “[t]he historic link between verdict and judgment”); see also Blakely, 542 U.S. at 306, 124 S.Ct. 2531 (‘Apprendi carries out th[e] [constitutional] design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict." (emphasis added)); id. at 303, 124 S.Ct. 2531 (“Our precedents make clear ... 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. ” (some emphasis added)). Justice Stevens, in his dissent to Remedial Booker, made this very point: “The [remedial] majority is correct ... that my preferred holding would undoubtedly affect ‘real conduct’ sentencing in certain cases. This is so because the goal of such sentencing — increasing a defendant’s sentence on the basis of conduct not proved at trial — is contrary to the very core of Apprendi.” Booker, 543 U.S. at 288, 125 S.Ct. 738. Justice Breyer’s views were not new to him in Booker. Remedial Booker was simply the first time he could scrape together a majority of his colleagues to support it. In Apprendi Justice Breyer had complained that the rule announced in that case “would seem to promote a procedural ideal — that of juries, not judges, determining the existence of those facts upon which increased punishment turns. But the real world of criminal justice cannot hope to meet any such ideal.” 530 U.S. at 555, 120 S.Ct. 2348 (Breyer, J., dissenting). His dissent in Blakely likewise raised the issue: “How are juries to deal with highly complex or openended Sentencing Guidelines obviously written for application by an experienced trial judge?” 542 U.S. at 346-47, 124 S.Ct. 2531. As the Supreme Court has itself noted, “Justice Breyer’s more general argument-that Apprendi undermines alternatives to adversarial factfinding [i.e., judicial fact-finding] — is not so much a criticism of Apprendi as an assault on jury trial generally.” Blakely, 542 U.S. at 312-13, 124 S.Ct. 2531. The Court has repeatedly refuted the premise from which Justice Breyer advances. “Our Constitution and the common-law traditions it entrenches ... do not admit of the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury. Justice Breyer may be convinced of the equity of the regime he favors, but his views are not the ones we are bound to uphold.” Id. at 313, 124 S.Ct. 2531 (citation omitted). Justice Scalia had further expounded on this theme in his Apprendi concurrence: [Justice Breyer] sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State.... The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial right was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free. As for fairness, which Justice Breyer believes “in modern times” the jury cannot provide: I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a jail sentence of 30 years____ In Justice Breyer’s bureaucratic realm of perfect equity, by contrast, the facts that determine the length of sentence to which the defendant is exposed will be determined to exist (on a more-likely-than-not basis) by a single employee of the State. It is certainly arguable (Justice Breyer argues it) that this sacrifice of prior protections is worth it. But it is not arguable that, just because one thinks it is a better system, it must be, or even is more likely to be, the system envisioned by a Constitution that guarantees trial by jury. 530 U.S. at 498, 120 S.Ct. 2348 (citation omitted). “We have always trusted juries to sort through complex facts in various areas of law. This may not be the most efficient system imaginable, but the Constitution does not permit efficiency to be our primary concern.” Booker, 543 U.S. at 289, 125 S.Ct. 738 (Stevens, J., dissenting in part). “The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours’ rather than a lone employee of the State.” Blakely, 542 U.S. at 313-14, 124 S.Ct. 2531 (citation omitted). III. The Constitutional Mandate That our laws routinely require a defendant’s sentence to be based upon what a judge believes an offender “really” did, as opposed to the actual crime of which he was convicted by the jury, is nothing less than offensive — let alone unconstitutional. “The notion that a defendant’s sentence is based upon his ‘real offense’ ... begs the question: ‘real’ according to whom, and according to what standard.” Darmer, supra, at 544. In truth, “real conduct” sentencing as embodied in the Guidelines, is simply punishment for acts not constitutionally proven. The system relies on “findings” that rest on “a mishmash of data[,] including blatantly self-serving hearsay largely served up by the Department [of Justice].” Green, 346 F.Supp.2d at 280. If the Sentencing Reform Act “depends for its success upon judicial efforts to” administer this scheme and its faux findings, then the Act’s success ought not be desired. See Jones, 526 U.S. at 252 n. 11, 119 S.Ct. 1215 (Souter, J., for the Court) (“[I]t should go without saying that, if [sentencing] policies conflict with safeguards enshrined in the Constitution for the protection of the accused, those policies have to yield to the constitutional guarantees.”). A fundamental premise of our Constitution is that it is not what one “really” does that can be punished, but only that conduct which is proven at trial. The mandate of the United States Constitution is simple and direct: If the law identifies a fact that warrants deprivation of a defendant’s liberty or an increase in that deprivation, such fact must be proven to a jury beyond a reasonable doubt. See U.S. Const, art. III. § 2, cl. 3. This rule has been articulated by the Supreme Court in essentially the same formula for over a century. See Davis v. United States, 160 U.S. 469, 493, 16 S.Ct. 353, 40 L.Ed. 499 (1895) (“No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them ... is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” (Harlan, J., for a unanimous Court)); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (“[W]e explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); Apprendi, 530 U.S. at 490,120 S.Ct. 2348 (“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.”); Ring, 536 U.S. at 602, 122 S.Ct. 2428 (“If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.”). The rule has three essential components: (1) every fact necessary to punishment; (2) proved to a jury; (3) beyond a reasonable doubt. Although the history and significance of every component has been reviewed thoroughly by each significant case on this issue, the importance of grasping these fundamental concepts has never been greater — nor their recognition less secure. I feel impelled to write a few lines to address them yet again. A. Every Fact Necessary to Punishment “The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.” Oliver Wendell Holmes, Jr., The Common Law 46 (Dover ed.1991). It follows from this that in order constitutionally to inflict those “pains”, the government must prove that one actually did those “things”. Anything less would make a farce of Due Process. As Blackstone wrote, [T]he founders of the English laws have with excellent forecast contrived, that no man should be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow subjects, the grand jury: and that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. 4 Blackstone, Commentaries on the Laws of England 343 (1769) (emphasis added). This principle was recognized in an important aspect of the Supreme Court’s decision in In re Winship, which applied its holding requiring proof beyond a reasonable doubt to “every fact necessary to constitute the crime”. 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Court’s first ruling on the scope of that statement came in Mullaney v. Wilbur and took a broad, functional view of the matter. 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Maine law defined “murder” as “killing] a human being with malice aforethought”. Id. at 686 & n. 3. The law provided a conclusive presumption of malice once the other elements were proven, unless the defendant proved by a preponderance of the evidence that he had acted in the heat of passion, which would reduce the offense to manslaughter. Id. The Supreme Court ruled that this scheme violated Due Process. [T]he criminal law of Maine ... is concerned not only with guilt or innocense in the abstract but also with the degree of criminal culpability. Maine has chosen to distinguish those who kill in the heat of passion from those who kill in the absence of this factor. Because the former are less blameworthy, they are subject to substantially less severe penalties. By drawing this distinction, while refusing to require the prosecution to establish beyond a reasonable doubt the fact upon which it turns, Maine denigrates the interests found critical in Winship. Id. at 697-98, 95 S.Ct. 1881 (alteration, citation, and internal quotation marks omitted). “If Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect without effecting a substantive change in its law.” Id. at 698, 95 S.Ct. 1881. ‘Winship is concerned with substance rather than this kind of formalism.” Id. at 699, 95 S.Ct. 1881. The robust protections affirmed in Mullaney, however, were somewhat circumscribed two years later in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). New York’s homicide statute was similar to Maine’s. It defined “murder” as “intentionally causing the death of anther person”, see id. at 198, 97 S.Ct. 2319, but provided a separate affirmative defense for those who “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” Id. Thus, the only difference between Maine’s statute and New York’s was that Maine’s definition of murder included “malice” and New York’s did not; New York did not employ a “presumption of malice” because malice was not part of the crime. This distinction was significant to the Supreme Court. “The death, the intent to kill, and causation are the facts that the State is required to prove beyond a reasonable doubt if a person is to be convicted of murder. No further facts are presumed or inferred in order to constitute the crime.” Id. at 205-06, 97 S.Ct. 2319. “The State itself was unwilling to undertake to establish the absence of [heat of passion] beyond a reasonable doubt....” Id. at 207, 97 S.Ct. 2319. “This view may seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative defenses at least some elements of the crimes now defined in their statutes. But there are obviously constitutional limits beyond which the States may not go.” Id. at 210, 97 S.Ct. 2319. The Court limited Mullaney’s holding, saying that it “should not be so broadly read” as to prohibit “the blameworthiness of an act or the severity of punishment authorized for its commission to depend on the presence or absence of an identified fact without assuming the burden of proving the presence or absence of that fact, as the case may be, beyond a reasonable doubt.” Id. at 214, 97 S.Ct. 2319. The Court added that though “[t]here is language in Mulla-ney that has been understood as perhaps construing the Due Process Clause to require the prosecution to prove beyond a reasonable doubt any fact affecting the degree of criminal culpability[,] ... [t]he Court did not intend Mullaney to have such far-reaching effect.” Id. at 214 n. 15, 97 S.Ct. 2319 (internal quotation marks and citation omitted). • The significant protections of Winship and Mullaney, then, were to be had only when the criminal code was constructed in such a way as to permit it. This might not have been such a problem had criminal sentencing ossified around 1977 criminal codes. Up to that point, all of the facts which the law identified as significant to punishment, whether part of the affirmative case or part of the defense, had been the subject of the trial and found by the jury to exist or not. In England, pre-revolutionary America, and for some time after our founding, the sentence imposed by the judge largely was non-discretionary and derivative wholly from the fact of conviction itself. Toward the end of the nineteenth century, however, as rehabilitation became the primary objective of criminal justice, legislatures granted more discretion to judges (and to the executive through parole boards) to determine the exact, length of. a convicted defendant’s sentence. Importantly, the limits of such discretion always were fixed by statute. Even in this discretionary system, the existence of facts necessary to the punishment provided by law were to be found in the very nature of the jury verdict. In 1984, to rectify the disparity in sentences that had resulted from unchecked judicial and executive discretion, Congress passed the Sentencing Reform Act. Pub.L. No. 98-473, 98 Stat. 1837 (codified as amended at 18 U.S.C. § 3551 et seq.). In addition to abolishing parole in the federal system, the Act also established the U.S. Sentencing Commission, whose primary mission was to create sentencing guidelines. The most significant feature of the Guidelines, as promulgated, was the many “sentencing factors” it established. These “factors” were the attempted codification of all those (legitimate) considerations that judges had used for decades when exercising their discretion in determining the length of a criminal sentence. As noted previously, Guidelines “factors” were to be found by the judge — after the jury verdict — and a sentence within the narrow range established by the Guidelines (and based on those findings) was essentially mandatory. The first case to consider the constitutionality of a sentencing scheme congruous with the Guidelines in important respects was McMillan v. Pennsylvania. 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, the Supreme Court considered the implications of Pennsylvania’s provision for a mandatory minimum sentence for a convicted felon if “the person ‘visibly possessed a firearm’ during the commission of the offense.” Id. at 81, 106 S.Ct. 2411 (citation omitted). Like the federal Guidelines, the fact of visible possession was to be found by the judge, after conviction, by a preponderance of the evidence. Id. McMillan challenged the procedure under the Due Process Clause as explicated in Winship and Mullaney. Rejecting the challenge, the Supreme Court relied on Patterson. That case, said the Court, stood for the proposition that “the state legislature’s definition of the elements of the offense is usually disposi-tive.” Id. at 85, 106 S.Ct. 2411. In the Pennsylvania statute, “the Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of the crimes enumerated in the mandatory sentencing statute, but instead is a sentencing factor.” Id. at 85-86, 106 S.Ct. 2411 (citation omitted). It was here that the Court first identified-and validated — these extra — verdict facts as “sentencing factors”, to be distinguished from “elements” of a crime. Laws such as Pennsylvania’s “operate[] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding”. Id. at 88, 106 S.Ct. 2411. As to Patterson’s “constitutional limits beyond which the States may not go”, Patterson, 432 U.S. at 210, 97 S.Ct. 2319, “the [Pennsylvania statute at issue in McMillan ] gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense.” McMillan, 477 U.S. at 88, 106 S.Ct. 2411 (emphasis added). And with that, the constitutional “limits” on the scope of “sentencing factors” were set. The significant proposition of McMillan was that legislatures could define “elements” of crimes and “sentencing factors” largely as they wished. The practical effect of endorsing this practice was to create a trial and sentencing procedure which separated the lawful punishment from the jury verdict. Unlike Mullaney and even Patterson, the sentence imposed with schemes like that in McMillan was now dependent not on the facts as found in the verdict, but on facts later found by the judge. Such a process forfeits significant constitutional protections for criminal defendants in the finding of material facts, including a sufficient standard of proof and jury fact-finding. Though supporters of McMillan would one day accuse the proponents of Apprendi of engaging in “meaningless formalism”, Apprendi, 530 U.S. at 539, 120 S.Ct. 2348 (O’Connor, J., dissenting), it is actually McMillan that hews the formalistic line. Under its rule, legislatures easily could draft their way around constitutional protections by declaring relevant facts to be “sentencing factors” instead of “elements” of a crime. Protection like that is no protection at all. It was fourteen years before the “historic link between verdict and judgment”, Apprendi, 530 U.S. at 482, 120 S.Ct. 2348, began to be restored. In Apprendi, the Court returned to its early functional approach regarding relevant facts: “Despite what appears to us the clear ‘elemental’ nature of the [sentencing] factor here, the relevant inquiry is not one of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494, 120 S.Ct. 2348. Citing Winship and Mullaney approvingly, the Court resurrected the language of Mullaney that Patterson had rejected: “Since Winship, we have made clear beyond peradventure that Winship’s due process and associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant’s guilt or innocense, but simply to the length of his sentence.’ This was the primary lesson of Mullaney.” Id. at 484, 120 S.Ct. 2348 (quoting Almendarez-Torres, 523 U.S. at 251, 118 S.Ct. 1219 (Scalia, J., dissenting)), “Criminal law ‘is concerned not only with guilt or innocense in the abstract, but also with the degree of criminal culpability’ assessed.” Id. at 485, 120 S.Ct. 2348 (quoting Mullaney, 421 U.S. at 697-98, 95 S.Ct. 1881). Patterson and Mullaney were not necessarily contradictory in this regard — only McMillan’s broad reading of Patterson (later endorsed by the Apprendi dissenters) made it so. In both cases, all the facts the law deemed essential to guilt and punishment had been decided by the jury and were represented in the verdict. See id. at 485 n. 12, 120 S.Ct. 2348. Throwing cold water on McMillan, the Court limited its holding “to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s verdict — a limitation identified in the McMillan opinion itself.... [W]e reserve for another day the question of whether stare decisis considerations preclude reconsideration of its narrower holding.” Id. at 487 n. 13, 120 S.Ct. 2348. The Court did not “suggest that the term ‘sentencing factor’ is devoid of meaning. The term appropriately describes a circumstance ... that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.” Id. at 494 n. 19, 120 S.Ct. 2348. This aspect of Apprendi caused the most consternation for the dissenting Justices. Justice Breyer wondered, if there was “no objection to traditional pre-Guidelines sentencing procedures under which judges, not juries, made the factual findings that would lead to an increase in an individual offender’s sentence”, why “legislative determination[s] differed] in any significant way[.]” Id. at 561, 120 S.Ct. 2348 (Breyer, J., dissenting). Justice O’Connor expressed the same sentiment: Under our precedent ..., a State may leave the determination of a defendant’s sentence to a judge’s discretionary decision within a prescribed range of penalties. When a judge, pursuant to that sentencing scheme, decides to increase a defendant’s sentence on the basis of certain contested facts, those facts need not be proved to a jury beyond a reasonable doubt. The judge’s findings, whether by proof beyond a reasonable doubt or less, suffice for the purposes of the Constitution. Under [Apprendi], however, it appears that once a legislature constrains judges’ sentencing discretion by prescribing certain sentences that may only be imposed (or must be imposed) in connection with the same determinations of the same contested facts instead be proved to a jury beyond a reaso