Whether the rule of Apprendi must apply to the Federal Sentencing Guidelines to comport with the constitutional protections of due process and jury trial

QUESTION PRESENTED FOR REVIEW The Court has made clear that, with one (major) exception, the Fifth and Sixth Amendments to the U.S. Constitution require that facts that increase the statutory range of punishment must be charged in the indictment and proved to the jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99, 115-66, 133 S. Ct. 2151 (2013); Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S. Ct. 2348 (2000). Application of that rule to statutory ranges for incarceration has remained steadfast. What has appeared to waiver is support for application of the rule to the Federal Sentencing Guidelines. The Court later recognized that the U.S. Constitution required the government to prove the “truth of every accusation” against a defendant “which the law makes essential to the punishment.” Blakely v. Washington, 542 U.S. 296, 301-02, 124 S. Ct. 2531 (2004). Jurists ’ interpreted the Blakely approach as requiring a jury to find beyond a reasonable doubt the conduct used to set or increase a defendant’s sentence in structured sentencing regimes such as the Guidelines. See, e.g., United States v. Bell, 808 F.3d 926, 927 (D.C. Cir. 2015) (Kavanaugh, : J., concurring in denial of rehearing en banc). A year later, the Court concluded that the same : Sixth Amendment principles noted in Blakely applied to the Guidelines. United States v. Booker, 543 U.S. 220, 243-44, 125 S. Ct. 738 (2005) (Stevens, J., joined by Scalia, Souter, Thomas, and Ginsburg, JJ.). But rather than applying the Apprendi rule to the Guidelines, the Court declared the Guidelines “advisory” in an attempt to avoid offending those same amendments. Jd. at 245-46, 260-61 (Breyer, J., joined by Rehnquist, C.J., and O’Connor, Kennedy, and Ginsburg, JJ.). Unfortunately, the remedial opinion in Booker was no remedy at all. The Court has noted that the Guidelines operate as law. They are the lodestone for federal sentencing and that remain the overwhelming source for and driving force behind establishing incarceration time and end up being the final determiner of the sentence in all but the rarest cases. Because of this reality, jurists and academics across the country have concluded that, as a practical matter, sentencing is right back where it started before Booker. See, e.g. United States v. Henry, 472 F.3d 910, 919 (D.C. Cir. 2007) (Kavanaugh, J., concurring). Separately, justices have expressed support for elimination of the exception to the Apprendi/Alleyne rule when it comes to the “fact of prior conviction.” Due to the number of federal defendants that appear after having at least one prior conviction, as a practical matter, the rule nearly swallows the rule. Moreover, justices have expressed that no logical reason exists for such an enormous exception to the Sixth Amendment. The first question for the Court is, in light of the Guidelines’ development into the de facto range of punishment in all but a very small percentage of cases, whether the rule of Apprendi must apply to the Guidelines to comport with the constitutional protections of due process and jury trial. The second question for the Court is whether Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998), was wrongly decided and must be overruled. i