Is the Supreme Courts Booker Precedent Incoherent?
Alito’s second point deserves closer attention. He argues that “[e]ven if California did require that a sentencing court find some aggravating ‘fact’ before imposing the upper term sentence, that would not make this case constitutionally distinguishable” from what the Supreme Court upheld as constitutionally permissible in United States v. Booker. In Booker, the Court struck down the federal sentencing guidelines system under the Apprendi rule. But at the same time, in its remedial order, the Court allowed the guidelines to remain as an “advisory” system of rules. Alito suggests that this remedial order effectively limits the Apprendi rule, since an advisory system necessarily allows judges to impose sentences above the “maximum” based on the judges’ own fact-finding. How so? Alito suggests that the key here is to realize that sentences imposed under the advisory system are still to be reviewed by appellate courts for “reasonableness.” Alito argues that appellate reasonableness review
