In United States v. Booker, the U.S. Supreme Court held that the mandatory nature of the Federal Sentencing Guidelines violated the Sixth Amendment because they required a judge to enhance a defendant’s sentence based on facts that were neither found by a jury nor admitted by the defendant. The remedial portion of the opinion deemed the Guidelines “effectively advisory,” thereby permitting judges to tailor defendants’ sentences in light of certain statutory factors. The Court, however, limited the scope of the advisory Guidelines regime by requiring judges to “consult those Guidelines and take them into account when sentencing.” The Booker opinion did not explain what it meant to “consult” the Guidelines, an omission that has led to a “discordant symphony” of sentencing approaches in the federal judiciary.
In a criminal justice system in which sentencing helps legitimize our constitutional order, few have attempted to articulate a comprehensive framework explaining how the newly advisory Guidelines should operate in a post-Booker world. In order to provide guidance to the federal judges who sentence over 65,000 defendants each year, this Comment aims to create such a framework by utilizing existing constitutional doctrine. More specifically, I argue that a rubric for understanding the advisory role of the Guidelines can be articulated using the language of rational basis, strict scrutiny, and intermediate scrutiny standards of review. After examining the deficiencies of the rational basis and strict scrutiny approaches, I conclude that an intermediate scrutiny model for understanding the advisory Guidelines system would provide the proper balance between Congress’s intent in formulating a uniform sentencing system and Booker’s requirement that the Guidelines not act as a mandatory constraint on judges.