                            IN THE
                UNITED STATES COURT OF APPEALS
                   FOR THE SEVENTH CIRCUIT
                          ________________________

No. 03–4225

UNITED STATES OF AMERICA,
                                                             Plaintiff-Appellee,
       v.

FREDDIE J. B OOKER,
                                                         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∗
                      __________________________

    Before POSNER, E ASTERBROOK, and KANNE, Circuit Judges.
    POSNER, Circuit Judge. A jury found the defendant guilty
of possessing with intent to distribute at least 50 grams of co-
caine base, for which the statute prescribes a minimum sen-
tence 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 defendant (1) had dis-
tributed 566 grams over and above the 92.5 grams that the
jury had to have found (for the defendant 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
∗
    The decision is being released in typescript. A printed version will follow.
No. 03–4225                                                       2


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 sen-
tencing 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 resentencing in the
light of Blakely v. Washington, 2004 WL 1402697 (U.S. June
24, 2004), which has cast a long shadow over the federal sen-
tencing 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
had of course long been held applicable to state criminal pro-
ceedings by an interpretation of the Fourteenth Amendment) a
statute of the State of Washington that authorized the sentenc-
ing judge to impose a sentence above the “standard range” set
forth in the statute punishing the offense if he found any ag-
gravating factors that justified such 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, 530 U.S. 466, 490 (2000). In Blakely it
No. 03–4225                                                      3


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 re-
flected in the jury verdict or admitted by the defendant.” Blakely
v. Washington, supra, at *4. “In other words, 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. When a judge in-
flicts punishment that the jury’s verdict alone does not allow,
the jury has not found all the facts ‘which the law makes essen-
tial to the punishment,’ and the judge exceeds his proper au-
thority.” Id. (citation omitted). “[W]ithout” is italicized in the
original; we have italicized “relevant” to underscore the differ-
ence 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 con-
test.
     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 obstruc-
tion of justice, would have been 262 months, given the defen-
dant’s base offense level of 32, U.S.S.G. § 2D1.1(c)(4) (32 is the
base offense level when the defendant 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 es-
tablish a “standard range” for possessing with intent to dis-
tribute at least 50 grams of cocaine base, and other provisions
of the guidelines 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
No. 03–4225                                                      4


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 guidelines against delega-
tion and separation of powers challenges, the Supreme Court
had stated that “although Congress granted the Commission
substantial discretion in formulating the guidelines, in actual-
ity it legislated a full hierarchy of punishment—from near
maximum imprisonment, to substantial imprisonment, to some
imprisonment, to alternatives—and stipulated the most impor-
tant offense and offender characteristics to place defendants
within these categories” and that “in contrast to a court’s exer-
cising judicial power, the Commission is fully accountable to
Congress, which can revoke or amend any or all of the Guide-
lines as it sees fit either within the 180-day waiting period or
at any time.” Mistretta v. United States, 488 U.S. 361, 377,
393–94 (1989) (citation omitted).
     It would seem to follow, therefore, as the four dissenting
Justices in Blakely warned, Blakely v. Washington, supra, at
*16–17 (O’Connor, J., dissenting); id. at *29 (Breyer, J., dis-
senting); and several district judges have already ruled, e.g.,
United States v. Croxford, 2004 WL 1521560, at *7, *13 (D.
Utah July 7, 2004); United States v. Medas, 2004 WL 1498183,
at *1 (E.D.N.Y. July 1, 2004); United States v. Shamblin, 2004
WL 1468561, 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 criti-
cal. Nothing in Blakely suggests that Congress cannot delegate
to the Sentencing Commission the authority to decree that pos-
session 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 defendant 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
No. 03–4225                                                      5


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 States, supra, 488
U.S. at 395. If that were indeed all, that would be fine. And in-
deed to a great extent the system of the guidelines, with its
sentencing ranges and upward and downward departures, lim-
its rather than extinguishes sentencing discretion. But the is-
sue in Blakely was not sentencing discretion—it was the au-
thority 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 guide-
lines 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, 523 U.S. 511, 513–14
(1998); United States v. Bequette, 309 F.3d 448, 450–51 (7th
Cir. 2002); United States v. Jackson, 300 F.3d 740, 749 (7th
Cir. 2002); United States v. Guzman, 318 F.3d 1191, 1197–98
(10th Cir. 2003); United States v. Lopez, 219 F.3d 343, 348 (4th
Cir. 2000), and that the judge’s findings largely determine the
sentence, given the limits on upward and downward depar-
tures. 18 U.S.C. §§ 3553(b), (e), (f); U.S.S.G. § 5K2.0; Koon v.
United States, 518 U.S. 81, 92, 96 (1996); United States v.
Sherman, 53 F.3d 782, 788–89 (7th Cir. 1995); United States v.
Lafayette, 337 F.3d 1043, 1052 (D.C. Cir. 2003); cf. United
States v. Cruz, 317 F.3d 763, 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 resid-
ual discretion is vested in the sentencing judge; and to the ex-
tent 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 differ-
ence 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
No. 03–4225                                                     6


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, 418 U.S. 424, 431 (1974),
though sentences would occasionally be reversed because the
district judge had relied on an impermissible consideration,
e.g., United States v. Maples, 501 F.2d 985 (4th Cir. 1974),
failed to exercise discretion, or based the sentence on false in-
formation, e.g., Townsend v. Burke, 334 U.S. 736, 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 basis
for thinking that Blakely would have been decided differently
had the identical guidelines been promulgated, with the identi-
cal effect on sentences, by the Washington Sentencing Com-
mission. The Court in Blakely was well aware of the difference,
stating that factfinding by judges and parole boards under in-
determinate 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. Washington, supra, 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 inde-
terminate sentencing, might do informally in an effort to try 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 re-
sponsible, 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 States, supra, 488 U.S. at
No. 03–4225                                                      7


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 re-
versing the judgment below, we are not, as the State would
have it, ‘find[ing] determinate sentencing schemes unconstitu-
tional.’ 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. Washing-
ton, supra, at *7. No distinction between the Washington stat-
ute 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 deci-
sion even if it seems manifestly inconsistent with a subsequent
decision, unless the subsequent decision explicitly overruled
the earlier one. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).
The government argues that the guidelines were upheld
against a Sixth Amendment challenge in Edwards v. United
States, supra, 523 U.S. at 515, and if this is right we shall have
to affirm Booker’s sentence whatever our independent view of
the guidelines’ consistency with Blakely. (The government also
mentions United States v. Watts, 519 U.S. 148 (1997) (per cu-
riam), a double-jeopardy case, and other Supreme Court deci-
sions that rebuff various constitutional challenges to the guide-
lines—but not a Sixth Amendment challenge. Pre-Blakely deci-
No. 03–4225                                                      8


sions by lower federal courts rebuffing a Sixth Amendment
challenge are of course no longer authoritative.) We do not
think it is right. None of the opinions in Blakely cites Edwards.
The majority opinion in Blakely states that “the Federal Guide-
lines are not before us, and we express no opinion on them,”
Blakely v. Washington, supra, 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 per-
force 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 constitutional
claims.” 523 U.S. at 516. The Court did say that “petitioners’
statutory and constitutional claims would make a difference if
it were possible to argue, say, that the sentences imposed ex-
ceeded the maximum that the statutes permit for cocaine,” id.
at 515, which may mean that their constitutional claims (a
mishmash of claims under different provisions of the Constitu-
tion, 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 “statutory maximum.” An assumption is not
a holding.
    The Court in Edwards was affirming a decision by this
court, reported at 105 F.3d 1179 (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 opinion’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 sentencing judge, not the jury, to de-
termine both the kind and the amount of the drugs at issue in
a drug conspiracy.” 523 U.S. at 513. None of the other cases it
No. 03–4225                                                       9


cited for the existence of the conflict mentions the Constitution
either. United States v. Bounds, 985 F.2d 188, 194–95 (5th Cir.
1993); United States v. Pace, 981 F.2d 1123, 1128–30 (10th Cir.
1992); United States v. Owens, 904 F.2d 411 (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 urg-
ing a statutory interpretation that would avoid a Sixth
Amendment issue. The Court did not opine on the guidelines’
consistency with the amendment because that consistency was
not challenged. It did not rebuff a Sixth Amendment challenge
to the guidelines because there was no Sixth Amendment chal-
lenge to the guidelines. We are obligated therefore to make our
own constitutional determination.
    We conclude that Booker has a right to have the jury de-
termine the quantity of drugs he possessed and the facts un-
derlying the determination that he obstructed justice. The
judgment must therefore be reversed and the case remanded
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 ex-
plained 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 premised. There is no novelty in a separate
jury trial with regard to the sentence, just as there is no nov-
elty in a bifurcated 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 sen-
tence is the norm in capital cases.
    Of course this will not work if the facts that the govern-
ment 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
No. 03–4225                                                    10


present a double-jeopardy issue. We can hardly attempt to re-
solve 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 announcement 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,”
Memorandum 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 guide-
lines that we believe to be unconstitutional, namely the re-
quirement 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 evidence,
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, 526 U.S. 172, 191
(1999). The practical effect just of upping the burden of persua-
sion in sentencing hearings will be to reduce the average sen-
tence, 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 severability is another issue that has not been
briefed or argued to us.
     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 fac-
tual findings by the judge increasing the sentence—there is no
No. 03–4225                                                    11


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 con-
sideration on remand should it be made an issue by the parties;
(4) if the guidelines are severable, the judge can use a sentenc-
ing 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.
                                       REVERSED AND REMANDED.
No. 03-4225                                                           Page 12



    Easteʀʙʀook, Circuit Judge, dissenting. My colleagues hold that, after
Blakely v. Washington, No. 02-1632 (U.S. June 24, 2004), judicial applica-
tion 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 con-
clusion; 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, 522 U.S. 3, 20 (1997); Rodriguez
de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). The
alternative is bedlam—which is the likely consequence 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 Su-
preme Court alone can make a definitive judgment.
    In order to reach the result they do, my colleagues must conclude that
Edwards v. United States, 523 U.S. 511 (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
contain 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
had been advanced. Edwards held that a judge nonetheless may ascertain
(using the preponderance standard) the type and amount of drugs in-
volved, and impose a sentence based on that conclusion, as long as the
sentence does not exceed the statutory maximum. According to my col-
leagues: “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 poi-
soned, so judicial opinions often survive what could be fatal blows. Think
of Lemon v. Kurtzman, 411 U.S. 192 (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,
523 U.S. 224 (1998), decided one month before Edwards and, like it, in ten-
sion with Apprendi v. New Jersey, 530 U.S. 466 (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 sentence. Four Justices, dissent-
ing in Almendarez-Torres, made the arguments that were to carry the day
No. 03-4225                                                                      Page 13



two years later in Apprendi, when they were joined by Justice Thomas,
who had been in the Almendarez-Torres majority. See 523 U.S. at 248–71
(Scalia, J., joined by Stevens, Souter & Ginsburg, JJ., dissenting). Justice
Thomas wrote that he now considers Almendarez-Torres wrongly decided.
Apprendi, 530 U.S. at 518–21 (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.
    To support the view that Edwards no longer is authoritative, the ma-
jority 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 ques-
tion I discuss later. The other is that the question was left undecided.
Blakely tells us: “The United States, as amicus curiae, urges us to affirm. It
notes differences between Washington’s sentencing regime and the Fed-
eral 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 express no opin-
ion on them.” Slip op. 9 n.9. Having disclaimed views about the Guidelines,
the Justices had no occasion to parse Edwards. I find it odd that my col-
leagues 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 disquisition on the benefits of de-
   terminate 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 already held. See, e.g., Edwards v. United States, 523 U.S. 511, 515 (1998)
   (opinion of Breyer, J., for a unanimous court) (noting that “[o]f course, petition-
   ers’ statutory and constitutional claims would make a difference if it were possi-
   ble to argue, say, that the sentences imposed exceeded the maximum that the
   statutes permit for a cocaine-only conspiracy. That is because a maximum sen-
   tence set by statute trumps a higher sentence set forth in the Guidelines. [United
   States Sentencing Commission, Guidelines Manual § 5G1.1 (Nov. 1994)]”).
530 U.S. at 497 n.21. So the Justices see the links connecting the sixth
amendment, Apprendi, Edwards, statutory maximums, 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, 519 U.S. 148 (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,
507 U.S. 87 (1993), which holds that to decide whether the defendant re-
ceives 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, 477 U.S. 79 (1986),
No. 03-4225                                                                    Page 14



which Blakely distinguished, but which on my colleagues’ view is a dead
letter.)
    Now to substance. Apprendi establishes, 530 U.S. at 490, 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, 236 F.3d 820, 824–25 (7th
Cir. 2000), we held that the thresholds (500 grams and 5 kilograms) 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 determined that the defendant distributed at least 500 grams or 5 kilo-
grams, 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, 226 F.3d 866, 869–70 (7th Cir.
2000).
    Blakely is the Supreme Court’s analog to Nance. Just as §841 provides
a maximum of life imprisonment for distributing cocaine only if the de-
fendant 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 rele-
vant “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 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 author-
   ity.
No. 03-4225                                                             Page 15



Slip op. 7 (emphasis in original). I do not see here the startling conse-
quences my colleagues find. This says exactly what we held in Nance: one
must start with the lowest statutory 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 guide-
lines,” but names do not change facts. Nonetheless, the reading my col-
leagues give to this passage is that it does not matter whether the maxi-
mum is statutory; any legal rule, of any source (statute, regulation, guide-
line) 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 exclu-
sively. 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 maxi-
mum” 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 leg-
islature can make a difference. The Commission is exercising power dele-
gated to it by Congress, and if a legislature cannot evade what the Su-
preme 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 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 substitutes for authority in the Constitution’s text or interpretive his-
tory.
    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 sen-
tencing, 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 prob-
lem 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 commits 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.
No. 03-4225                                                           Page 16



    “Statutory” in the phrase “statutory maximum” is not an inept short-
hand. 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 al-
lowed to affect the defendant’s rights. Example: the statutory quantity
thresholds in §841 are not “elements” of that offense, see United States v.
Bjorkman, 270 F.3d 482 (7th Cir. 2001), because 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 first-degree
murder (such as malice aforethought) must be proved to a jury’s satisfac-
tion, so the distinctions between simple and aggravated distribution must
be shown. Blakely treated Washington has having established three de-
grees of kidnapping: the distinction between second- and third-degree
kidnapping was deliberate cruelty. Having embedded 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 ex-
ample 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 im-
prisonment. 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 minimum sentences, see Harris v. United
States, 536 U.S. 545 (2002), why regulations and guidelines that affect sen-
tencing 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 pun-
ishment aside) Apprendi and Blakely are irrelevant if the jury’s verdict
authorizes life imprisonment. See United States v. Smith, 223 F.3d 554 (7th
Cir. 2000).
    Think of the indeterminate sentence: zero-to-life with release in the
discretion of parole officials. The federal Parole Commission eventually
developed a set of release guidelines designed to ensure consistent treat-
ment of offenders. See United States v. Addonizio, 442 U.S. 178 (1979). Pa-
role-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 sub-
tract) time from these presumptive numbers to reflect the size of the
heist.” If my colleagues are right, then such a system violates the sixth
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 distributed, 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 execu-
No. 03-4225                                                           Page 17



tive officials constitutionally 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 ma-
trix-like nature of the system and the possibility of departure, see 18 U.S.C.
§3553(b); U.S.S.G. §5K2.0; Koon v. United States, 518 U.S. 81 (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 interactions 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 quan-
tity?” 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
upward departure is appropriate. Even if Blakely’s definition reaches
regulations adopted by a body such as the Sentencing Commission, it re-
quires 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 commits to ju-
ries 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 jurors.
But Blakely does not take that step, nor does its intellectual framework
support it—and Edwards holds that the current structure is valid provided
that juries make all decisions 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 criminal-law docket. I
trust that our superiors will have something to say about this. Soon.
