Ball can have no complaint here about the 19-year sentence that he received for distributing crack. So far as I can tell, there is no claim that this sentence was outside the statutory maximum for drug distribution. Once Ball chose to commit the crime of illegally distributing crack cocaine, he exposed himself to the possibility of a 19-year prison sentence if the sentencing judge thought that was appropriate.
[A]s Scalia explained at length in his concurrence in Rita, this is a problem. If appellate courts affirm a long sentence only because of the judge-found facts, then they are essentially creating a new common-law maximum sentence; they’re implying that a 19-year sentence for simple possession would be unreasonable, but that sentence for a massive conspiracy would be reasonable.That means that there’s a maximum sentence imposed on the district judge from above, unless the judge finds a fact that justifies a higher sentence. This kind of imposition, Apprendi and Blakely and Booker said, was unconstitutional. It’s not the district judge’s decision to issue a long sentence that’s the problem; it’s the requirement that the judge justify that sentence using judge-found facts.
This petition asks the Court to confirm that the Sixth Amendment as-applied doctrine of reasonableness review set forth in [Justice Scalia’s] concurrence in Rita v. United States (joined by Justice Thomas), governs the review of sentences which would be deemed unreasonably lengthy in the absence of judge-made factual findings. . . .
[The] judge-found facts were the “legally essential predicate” for Petitioners’ sentences, which are the demonstrable outliers meted out for the offense of conviction. Yet the Government never contended and no court ever found that those sentences would have been reasonable in the absence of the trial judge’s findings.
Although the constitutionality of basing sentences on acquitted conduct has been questioned in general, Petitioners seek certiorari here on a distinct question: does “the door remain open” for a defendant to demonstrate that a sentence would not be “upheld but for the existence of a fact found by the sentencing judge and not by the jury?”