UNITED STATES v. BOOKER

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220 OCTOBER TERM, 2004
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UNITED STATES v. BOOKER
certiorari to the united states court of appeals for
the seventh circuit
No. 04–104. Argued October 4, 2004—Decided January 12, 2005*
Under the Federal Sentencing Guidelines, the sentence authorized by the
jury verdict in respondent Booker’s drug case was 210-to-262 months in
prison. At the sentencing hearing, the judge found additional facts by
a preponderance of the evidence. Because these findings mandated a
sentence between 360 months and life, the judge gave Booker a 30-year
sentence instead of the 21-year, 10-month, sentence he could have im-
posed based on the facts proved to the jury beyond a reasonable doubt.
The Seventh Circuit held that this application of the Guidelines con-
flicted with the Apprendi v. New Jersey, 530 U. S. 466, 490, holding that
“[o]ther 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.” Relying
on Blakely v. Washington, 542 U. S. 296, the court held that the sentence
violated the Sixth Amendment and instructed the District Court either
to sentence Booker within the sentencing range supported by the jury’s
findings or to hold a separate sentencing hearing before a jury. In re-
spondent Fanfan’s case, the maximum sentence authorized by the jury
verdict under the Guidelines was 78 months in prison. At the sentenc-
ing hearing, the District Judge found by a preponderance of the evi-
dence additional facts authorizing a sentence in the 188-to-235-month
range, which would have required him to impose a 15- or 16-year sen-
tence instead of the 5 or 6 years authorized by the jury verdict alone.
Relying on Blakely’s majority opinion, statements in its dissenting opin-
ions, and the Solicitor General’s brief in Blakely, the judge concluded
that he could not follow the Guidelines and imposed a sentence based
solely upon the guilty verdict in the case. The Government filed a no-
tice of appeal in the First Circuit and a petition for certiorari before
judgment in this Court.
Held: The judgment of the Court of Appeals in No. 04–104 is affirmed,
and the case is remanded. The judgment of the District Court in
No. 04–105 is vacated, and the case is remanded.
*Together with No. 04–105, United States v. Fanfan, on certiorari be-
fore judgment to the United States Court of Appeals for the First Circuit.

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No. 04–104, 375 F. 3d 508, affirmed and remanded; and No. 04–105, vacated
and remanded.
Justice Stevens delivered the opinion of the Court in part, conclud-
ing that the Sixth Amendment as construed in Blakely applies to the
Federal Sentencing Guidelines. Pp. 230–244.
(a) In addressing Washington State’s determinate sentencing scheme,
the Blakely Court found that Jones v. United States, 526 U. S. 227; Ap-
prendi v. New Jersey, 530 U. S. 466; and Ring v. Arizona, 536 U. S. 584,
made clear “that the ‘statutory maximum’ for Apprendi purposes is the
maximum sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.” 542 U. S.,
at 303. As Blakely’s dissenting opinions recognized, there is no consti-
tutionally significant distinction between the Guidelines and the Wash-
ington procedure at issue in that case. This conclusion rests on the
premise, common to both systems, that the relevant sentencing rules are
mandatory and impose binding requirements on all sentencing judges.
Were the Guidelines merely advisory—recommending, but not requir-
ing, the selection of particular sentences in response to differing sets of
facts—their use would not implicate the Sixth Amendment. However,
that is not the case. Title 18 U. S. C. § 3553(b) directs that a court
“shall impose a sentence of the kind, and within the range” established
by the Guidelines, subject to departures in specific, limited cases. Be-
cause they are binding on all judges, this Court has consistently held
that the Guidelines have the force and effect of laws. Further, the
availability of a departure where the judge “finds . . . an aggravating or
mitigating circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that de-
scribed,” § 3553(b)(1), does not avoid the constitutional issue. Depar-
tures are unavailable in most cases because the Commission will have
adequately taken all relevant factors into account, and no departure will
be legally permissible. In those instances, the judge is legally bound
to impose a sentence within the Guidelines range. Booker’s case illus-
trates this point. The jury found him guilty of possessing at least 50
grams of crack cocaine, based on evidence that he had 92.5 grams.
Under those facts, the Guidelines required a possible 210-to-262-month
sentence. To reach Booker’s actual sentence—which was almost 10
years longer—the judge found that he possessed an additional 566 grams
of crack. Although the jury never heard any such evidence, the judge
found it to be true by a preponderance of the evidence. Thus, as in
Blakely, “the jury’s verdict alone does not authorize the sentence. The
judge acquires that authority only upon finding some additional fact.”
542 U. S., at 305. Finally, because there were no factors the Sentencing

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222 UNITED STATES v. BOOKER
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Commission failed to adequately consider, the judge was required to
impose a sentence within the higher Guidelines range. Pp. 230–237.
(b) The Government’s arguments for its position that Blakely’s rea-
soning should not be applied to the Federal Sentencing Guidelines are
unpersuasive. The fact that the Guidelines are promulgated by the
Sentencing Commission, rather than Congress, is constitutionally irrele-
vant. The Court has not previously considered the question, but the
same Sixth Amendment principles apply to the Sentencing Guidelines.
Further, the Court’s pre-Apprendi cases considering the Guidelines are
inapplicable, as they did not consider the application of Apprendi to the
Sentencing Guidelines. Finally, separation of powers concerns are not
present here, and were rejected in Mistretta v. United States, 488 U. S.
361. In Mistretta the Court concluded that even though the Com-
mission performed political rather than adjudicatory functions, Con-
gress did not exceed constitutional limitations in creating the Com-
mission. Id., at 388, 393. That conclusion remains true regardless of
whether the facts relevant to sentencing are labeled “sentencing fac-
tors” or “elements” of crimes. Pp. 237–244.
Justice Breyer delivered the opinion of the Court in part, conclud-
ing that 18 U. S. C. § 3553(b)(1), which makes the Federal Sentencing
Guidelines mandatory, is incompatible with today’s Sixth Amendment
“jury trial” holding and therefore must be severed and excised from the
Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends
upon the Guidelines’ mandatory nature, also must be severed and ex-
cised. So modified, the Act makes the Guidelines effectively advi-
sory, requiring a sentencing court to consider Guidelines ranges, see
§ 3553(a)(4), but permitting it to tailor the sentence in light of other
statutory concerns, see § 3553(a). Pp. 246–268.
(a) Answering the remedial question requires a determination of
what “Congress would have intended” in light of the Court’s constitu-
tional holding. E. g., Denver Area Ed. Telecommunications Consor-
tium, Inc. v. FCC, 518 U. S. 727, 767. Here, the Court must decide
which of two approaches is the more compatible with Congress’ intent
as embodied in the Act: (1) retaining the Act (and the Guidelines) as
written, with today’s Sixth Amendment requirement engrafted onto it;
or (2) eliminating some of the Act’s provisions. Evaluation of the con-
stitutional requirement’s consequences in light of the Act’s language,
history, and basic purposes demonstrates that the requirement is not
compatible with the Act as written and that some severance (and exci-
sion) is necessary. Congress would likely have preferred the total in-
validation of the Act to an Act with the constitutional requirement en-
grafted onto it, but would likely have preferred the excision of the Act’s
mandatory language to the invalidation of the entire Act. Pp. 246–249.

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(b) Several considerations demonstrate that adding the Court’s con-
stitutional requirement onto the Act as currently written would so
transform the statutory scheme that Congress likely would not have
intended the Act as so modified to stand. First, references to “[t]he
court” in § 3553(a)(1)—which requires “[t]he court” when sentencing to
consider “the nature and circumstances of the offense and the history
and characteristics of the defendant”—and references to “the judge” in
the Act’s history must be read in context to mean “the judge without
the jury,” not “the judge working together with the jury.” That is
made clear by § 3661, which removes typical “jury trial” limitations on
“the information” concerning the offender that the sentencing “court . . .
may receive.” Second, Congress’ basic statutory goal of diminishing
sentencing disparity depends for its success upon judicial efforts to de-
termine, and to base punishment upon, the real conduct underlying the
crime of conviction. In looking to real conduct, federal sentencing
judges have long relied upon a probation officer’s presentence report,
which is often unavailable until after the trial. To engraft the Court’s
constitutional requirement onto the Act would destroy the system by
preventing a sentencing judge from relying upon a presentence report
for relevant factual information uncovered after the trial. Third, the
Act, read to include today’s constitutional requirement, would create a
system far more complex than Congress could have intended, thereby
greatly complicating the tasks of the prosecution, defense, judge, and
jury. Fourth, plea bargaining would not significantly diminish the con-
sequences of the Court’s constitutional holding for the operation of the
Guidelines, but would make matters worse, leading to sentences that
gave greater weight not to real conduct, but rather to counsel’s skill,
the prosecutor’s policies, the caseload, and other factors that vary from
place to place, defendant to defendant, and crime to crime. Fifth, Con-
gress would not have enacted sentencing statutes that make it more
difficult to adjust sentences upward than to adjust them downward, yet
that is what the engrafted system would create. For all these reasons,
the Act cannot remain valid in its entirety. Severance and excision are
necessary. Pp. 249–258.
(c) The entire Act need not be invalidated, since most of it is perfectly
valid. In order not to “invalidat[e] more of the statute than is neces-
sary,” Regan v. Time, Inc., 468 U. S. 641, 652, the Court must retain
those portions of the Act that are (1) constitutionally valid, ibid.,
(2) capable of “functioning independently,” Alaska Airlines, Inc. v.
Brock, 480 U. S. 678, 684, and (3) consistent with Congress’ basic objec-
tives in enacting the statute, Regan, supra, at 653. Application of these
criteria demonstrates that only § 3553(b)(1), which requires sentencing
courts to impose a sentence within the applicable Guidelines range (ab-

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224 UNITED STATES v. BOOKER
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sent circumstances justifying a departure), and § 3742(e), which provides
for de novo review on appeal of departures, must be severed and ex-
cised. With these two sections severed (and statutory cross-references
to the two sections consequently invalidated), the rest of the Act satis-
fies the Court’s constitutional requirement and falls outside the scope of
Apprendi v. New Jersey, 530 U. S. 466. The Act still requires judges to
take account of the Guidelines together with other sentencing goals, see
§ 3553(a)(4); to consider the Guidelines “sentencing range established
for . . . the applicable category of offense committed by the applicable
category of defendant,” pertinent Sentencing Commission policy state-
ments, and the need to avoid unwarranted sentencing disparities and to
restitute victims, §§ 3553(a)(1), (3)–(7); and to impose sentences that re-
flect the seriousness of the offense, promote respect for the law, provide
just punishment, afford adequate deterrence, protect the public, and ef-
fectively provide the defendant with needed training and medical care,
§ 3553(a)(2). Moreover, despite § 3553(b)(1)’s absence, the Act contin-
ues to provide for appeals from sentencing decisions (irrespective of
whether the trial judge sentences within or outside the Guidelines
range). See §§ 3742(a) and (b). Excision of § 3742(e), which sets forth
appellate review standards, does not pose a critical problem. Appro-
priate review standards may be inferred from related statutory lan-
guage, the statute’s structure, and the “ ‘sound administration of jus-
tice.’ ” Pierce v. Underwood, 487 U. S. 552, 559–560. Here, these
factors and the past two decades of appellate practice in cases involving
departures from the Guidelines imply a familiar and practical standard
of review: review for “unreasonable[ness].” See, e. g., 18 U. S. C.
§ 3742(e)(3) (1994 ed.). Finally, the Act without its mandatory provision
and related language remains consistent with Congress’ intent to avoid
“unwarranted sentencing disparities . . . [and] maintai[n] sufficient flexi-
bility to permit individualized sentences when warranted,” 28 U. S. C.
§ 991(b)(1)(B), in that the Sentencing Commission remains in place to
perform its statutory duties, see § 994, the district courts must consult
the Guidelines and take them into account when sentencing, see 18
U. S. C. § 3553(a)(4), and the courts of appeals review sentencing deci-
sions for unreasonableness. Thus, it is more consistent with Congress’
likely intent (1) to preserve the Act’s important pre-existing elements
while severing and excising §§ 3553(b) and 3742(e) than (2) to maintain
all of the Act’s provisions and engraft today’s constitutional requirement
onto the statutory scheme. Pp. 258–265.
(d) Other possible remedies—including, e. g., the parties’ proposals
that the Guidelines remain binding in cases other than those in which
the Constitution prohibits judicial factfinding and that the Act’s pro-

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visions requiring such factfinding at sentencing be excised—are re-
jected. Pp. 265–267.
(e) On remand in respondent Booker’s case, the District Court should
impose a sentence in accordance with today’s opinions, and, if the sen-
tence comes before the Seventh Circuit for review, that court should
apply the review standards set forth in this Court’s remedial opinion.
In respondent Fanfan’s case, the Government (and Fanfan should he so
choose) may seek resentencing under the system set forth in today’s
opinions. As these dispositions indicate, today’s Sixth Amendment
holding and the Court’s remedial interpretation of the Sentencing Act
must be applied to all cases on direct review. See, e. g., Griffith v. Ken-
tucky, 479 U. S. 314, 328. That does not mean that every sentence will
give rise to a Sixth Amendment violation or that every appeal will lead
to a new sentencing hearing. That is because reviewing courts are
expected to apply ordinary prudential doctrines, determining, e. g.,
whether the issue was raised below and whether it fails the “plain-
error” test. It is also because, in cases not involving a Sixth Amend-
ment violation, whether resentencing is warranted or whether it will
instead be sufficient to review a sentence for reasonableness may de-
pend upon application of the harmless-error doctrine. Pp. 267–268.
Stevens, J., delivered the opinion of the Court in part, in which Scalia,
Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., delivered the
opinion of the Court in part, in which Rehnquist, C. J., and O’Connor,
Kennedy, and Ginsburg, JJ., joined, post, p. 244. Stevens, J., filed an
opinion dissenting in part, in which Souter, J., joined, and in which
Scalia, J., joined except for Part III and footnote 17, post, p. 272.
Scalia, J., post, p. 303, and Thomas, J., post, p. 313, filed opinions dissent-
ing in part. Breyer, J., filed an opinion dissenting in part, in which
Rehnquist, C. J., and O’Connor and Kennedy, JJ., joined, post, p. 326.
Acting Solicitor General Clement argued the cause for
the United States in both cases. With him on the brief were
Assistant Attorney General Wray, Deputy Solicitor General
Dreeben, James A. Feldman, Dan Himmelfarb, and Nina
Goodman.
T. Christopher Kelly argued the cause for respondent in
No. 04–104. With him on the brief was Dean A. Strang.
Rosemary Curran Scapicchio argued the cause for respond-
ent in No. 04–105. With her on the brief were Carter G.

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226 UNITED STATES v. BOOKER
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Phillips, Jeffrey T. Green, Eric A. Shumsky, and Martin
G. Weinberg.†
Justice Stevens delivered the opinion of the Court in
part.*
The question presented in each of these cases is whether
an application of the Federal Sentencing Guidelines violated
the Sixth Amendment. In each case, the courts below held
that binding rules set forth in the Guidelines limited the se-
verity of the sentence that the judge could lawfully impose
on the defendant based on the facts found by the jury at his
trial. In both cases the courts rejected, on the basis of our
decision in Blakely v. Washington, 542 U. S. 296 (2004), the
Government’s recommended application of the Sentencing
Guidelines because the proposed sentences were based on
additional facts that the sentencing judge found by a prepon-
derance of the evidence. We hold that both courts correctly
concluded that the Sixth Amendment as construed in
†Briefs of amici curiae urging reversal in both cases were filed for the
United States Sentencing Commission by James K. Robinson, Charles
R. Tetzlaff, and Pamela O. Barron; and for the Honorable Orrin G. Hatch
et al. by Gregory G. Garre.
Briefs of amici curiae urging affirmance in both cases were filed
for Families Against Mandatory Minimums by Gregory L. Poe, Roy T.
Englert, Jr., Max Huffman, and Mary Price; for the Federal Public
Defender, Northern District of Texas, by Ira R. Kirkendoll and Carlos
R. Cardona; for the National Association of Criminal Defense Lawyers by
Samuel J. Buffone, David O. Stewart, Thomas C. Goldstein, Amy Howe,
and David M. Porter; for the National Association of Federal Defenders
by Paul M. Rashkind, Carol A. Brook, Henry J. Bemporad, and Frances
H. Pratt; for the New York Council of Defense Lawyers by Alexandra
A. E. Shapiro and Lewis J. Liman; for the Washington Legal Foundation
et al. by Donald B. Verrilli, Jr., Elaine J. Goldenberg, Daniel J. Popeo,
and Paul D. Kamenar; and for Thomas F. Liotti, by Mr. Liotti, pro se.
John S. Martin, Jr., filed a brief for an Ad Hoc Group of Former Federal
Judges as amici curiae in both cases.
*Justice Scalia, Justice Souter, Justice Thomas, and Justice
Ginsburg join this opinion.

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Blakely does apply to the Sentencing Guidelines. In a sepa-
rate opinion authored by Justice Breyer, the Court con-
cludes that in light of this holding, two provisions of the Sen-
tencing Reform Act of 1984 (SRA) that have the effect of
making the Guidelines mandatory must be invalidated in
order to allow the statute to operate in a manner consistent
with congressional intent.
I
Respondent Booker was charged with possession with in-
tent to distribute at least 50 grams of cocaine base (crack).
Having heard evidence that he had 92.5 grams in his duf-
fel bag, the jury found him guilty of violating 21 U. S. C.
§ 841(a)(1). That statute prescribes a minimum sentence of
10 years in prison and a maximum sentence of life for that
offense. § 841(b)(1)(A)(iii).
Based upon Booker’s criminal history and the quantity of
drugs found by the jury, the Sentencing Guidelines required
the District Court Judge to select a “base” sentence of not
less than 210 nor more than 262 months in prison. See
United States Sentencing Commission, Guidelines Manual
§§ 2D1.1(c)(4), 4A1.1 (Nov. 2003) (USSG). The judge, how-
ever, held a post-trial sentencing proceeding and concluded
by a preponderance of the evidence that Booker had pos-
sessed an additional 566 grams of crack and that he was
guilty of obstructing justice. Those findings mandated that
the judge select a sentence between 360 months and life im-
prisonment; the judge imposed a sentence at the low end of
the range. Thus, instead of the sentence of 21 years and 10
months that the judge could have imposed on the basis of the
facts proved to the jury beyond a reasonable doubt, Booker
received a 30-year sentence.
Over the dissent of Judge Easterbrook, the Court of Ap-
peals for the Seventh Circuit held that this application of the
Sentencing Guidelines conflicted with our holding in Ap-
prendi v. New Jersey, 530 U. S. 466, 490 (2000), that “[o]ther
than the fact of a prior conviction, any fact that increases

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228 UNITED STATES v. BOOKER
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the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a rea-
sonable doubt.” 375 F. 3d 508, 510 (2004). The majority
relied on our holding in Blakely, 542 U. S. 296, that “the
‘statutory maximum’ for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant.”
Id., at 303. The court held that the sentence violated the
Sixth Amendment, and remanded with instructions to the
District Court either to sentence respondent within the sen-
tencing range supported by the jury’s findings or to hold a
separate sentencing hearing before a jury.
Respondent Fanfan was charged with conspiracy to dis-
tribute and to possess with intent to distribute at least 500
grams of cocaine in violation of 21 U. S. C. §§ 846, 841(a)(1),
and 841(b)(1)(B)(ii). He was convicted by the jury after it
answered “Yes” to the question “Was the amount of cocaine
500 or more grams?” App. C to Pet. for Cert. in No. 04–105,
p. 15a. Under the Guidelines, without additional findings of
fact, the maximum sentence authorized by the jury verdict
was imprisonment for 78 months.
A few days after our decision in Blakely, the trial judge
conducted a sentencing hearing at which he found additional
facts that, under the Guidelines, would have authorized a
sentence in the 188-to-235-month range. Specifically, he
found that respondent Fanfan was responsible for 2.5 kilo-
grams of cocaine powder, and 261.6 grams of crack. He also
concluded that respondent had been an organizer, leader,
manager, or supervisor in the criminal activity. Both find-
ings were made by a preponderance of the evidence. Under
the Guidelines, these additional findings would have required
an enhanced sentence of 15 or 16 years instead of the 5 or 6
years authorized by the jury verdict alone. Relying not
only on the majority opinion in Blakely, but also on the cate-
gorical statements in the dissenting opinions and in the Solic-

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itor General’s brief in Blakely, see App. A to Pet. for Cert.
in No. 04–105, pp. 6a–7a, the judge concluded that he could
not follow the particular provisions of the Sentencing Guide-
lines “which involve drug quantity and role enhancement,”
id., at 11a. Expressly refusing to make “any blanket deci-
sion about the federal guidelines,” he followed the provisions
of the Guidelines that did not implicate the Sixth Amend-
ment by imposing a sentence on respondent “based solely
upon the jury verdict in this case.” Ibid.
Following the denial of its motion to correct the sentence
in Fanfan’s case, the Government filed a notice of appeal in
the Court of Appeals for the First Circuit, and a petition in
this Court for a writ of certiorari before judgment. Because
of the importance of the questions presented, we granted
that petition, 542 U. S. 956 (2004), as well as a similar petition
filed by the Government in Booker’s case, ibid. In both pe-
titions, the Government asks us to determine whether our
Apprendi line of cases applies to the Sentencing Guidelines,
and if so, what portions of the Guidelines remain in effect.1
In this opinion, we explain why we agree with the lower
courts’ answer to the first question. In a separate opinion
for the Court, Justice Breyer explains the Court’s answer
to the second question.
1 The questions presented are:
“1. Whether the Sixth Amendment is violated by the imposition of an
enhanced sentence under the United States Sentencing Guidelines based
on the sentencing judge’s determination of a fact (other than a prior con-
viction) that was not found by the jury or admitted by the defendant.
“2. If the answer to the first question is ‘yes,’ the following question is
presented: whether, in a case in which the Guidelines would require the
court to find a sentence-enhancing fact, the Sentencing Guidelines as a
whole would be inapplicable, as a matter of severability analysis, such that
the sentencing court must exercise its discretion to sentence the defendant
within the maximum and minimum set by statute for the offense of convic-
tion.” E. g., Pet. for Cert. in No. 04–104, p. (I).

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II
It has been settled throughout our history that the Consti-
tution protects every criminal defendant “against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.”
In re Winship, 397 U. S. 358, 364 (1970). It is equally clear
that the “Constitution gives a criminal defendant the right
to demand that a jury find him guilty of all the elements of
the crime with which he is charged.” United States v. Gau-
din, 515 U. S. 506, 511 (1995). These basic precepts, firmly
rooted in the common law, have provided the basis for recent
decisions interpreting modern criminal statutes and sentenc-
ing procedures.
In Jones v. United States, 526 U. S. 227, 230 (1999), we
considered the federal carjacking statute, which provides
three different maximum sentences depending on the extent
of harm to the victim: 15 years in jail if there was no serious
injury to a victim, 25 years if there was “serious bodily in-
jury,” and life in prison if death resulted. 18 U. S. C. § 2119
(1988 ed., Supp. V). In spite of the fact that the statute “at
first glance has a look to it suggesting [that the provisions
relating to the extent of harm to the victim] are only sentenc-
ing provisions,” 526 U. S., at 232, we concluded that the harm
to the victim was an element of the crime. That conclusion
was supported by the statutory text and structure, and was
influenced by our desire to avoid the constitutional issues
implicated by a contrary holding, which would have reduced
the jury’s role “to the relative importance of low-level gate-
keeping.” Id., at 244. Foreshadowing the result we reach
today, we noted that our holding was consistent with a “rule
requiring jury determination of facts that raise a sentencing
ceiling” in state and federal sentencing guidelines systems.
Id., at 251–252, n. 11.
In Apprendi v. New Jersey, 530 U. S. 466 (2000), the de-
fendant pleaded guilty to second-degree possession of a
firearm for an unlawful purpose, which carried a prison term

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of 5-to-10 years. Thereafter, the trial court found that his
conduct had violated New Jersey’s “hate crime” law because
it was racially motivated, and imposed a 12-year sentence.
This Court set aside the enhanced sentence. We held:
“Other than the fact of a prior conviction, any fact that in-
creases the penalty for a crime beyond the prescribed stat-
utory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Id., at 490.
The fact that New Jersey labeled the hate crime a “sen-
tence enhancement” rather than a separate criminal act was
irrelevant for constitutional purposes. Id., at 478. As a
matter of simple justice, it seemed obvious that the proce-
dural safeguards designed to protect Apprendi from punish-
ment for the possession of a firearm should apply equally to
his violation of the hate crime statute. Merely using the
label “sentence enhancement” to describe the latter did not
provide a principled basis for treating the two crimes differ-
ently. Id., at 476.
In Ring v. Arizona, 536 U. S. 584 (2002), we reaffirmed
our conclusion that the characterization of critical facts is
constitutionally irrelevant. There, we held that it was im-
permissible for “the trial judge, sitting alone” to determine
the presence or absence of the aggravating factors required
by Arizona law for imposition of the death penalty. Id., at
588–589. “If a State makes an increase in a defendant’s au-
thorized punishment contingent on the finding of a fact, that
fact—no matter how the State labels it—must be found by a
jury beyond a reasonable doubt.” Id., at 602. Our opinion
made it clear that ultimately, while the procedural error in
Ring’s case might have been harmless because the necessary
finding was implicit in the jury’s guilty verdict, id., at 609,
n. 7, “the characterization of a fact or circumstance as an
‘element’ or a ‘sentencing factor’ is not determinative of the
question ‘who decides,’ judge or jury,” id., at 605.
In Blakely v. Washington, 542 U. S. 296 (2004), we dealt
with a determinate sentencing scheme similar to the Federal

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Sentencing Guidelines. There the defendant pleaded guilty
to kidnaping, a class B felony punishable by a term of not
more than 10 years. Other provisions of Washington law,
comparable to the Federal Sentencing Guidelines, mandated
a “standard” sentence of 49-to-53 months, unless the judge
found aggravating facts justifying an exceptional sentence.
Although the prosecutor recommended a sentence in the
standard range, the judge found that the defendant had acted
with “ ‘deliberate cruelty’ ” and sentenced him to 90 months.
Id., at 300.
For reasons explained in Jones, Apprendi, and Ring, the
requirements of the Sixth Amendment were clear. The ap-
plication of Washington’s sentencing scheme violated the de-
fendant’s right to have the jury find the existence of “ ‘any
particular fact’ ” that the law makes essential to his punish-
ment. 542 U. S., at 301. That right is implicated whenever
a judge seeks to impose a sentence that is not solely based
on “facts reflected in the jury verdict or admitted by the
defendant.” Id., at 303 (emphasis deleted). We rejected
the State’s argument that the jury verdict was sufficient to
authorize a sentence within the general 10-year sentence for
class B felonies, noting that under Washington law, the judge
was required to find additional facts in order to impose the
greater 90-month sentence. Our precedents, we explained,
make clear “that the ‘statutory maximum’ for Apprendi pur-
poses is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” Ibid. (emphasis in original).
The determination that the defendant acted with deliberate
cruelty, like the determination in Apprendi that the defend-
ant acted with racial malice, increased the sentence that the
defendant could have otherwise received. Since this fact
was found by a judge using a preponderance of the evidence
standard, the sentence violated Blakely’s Sixth Amendment
rights.

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As the dissenting opinions in Blakely recognized, there
is no distinction of constitutional significance between the
Federal Sentencing Guidelines and the Washington proce-
dures at issue in that case. See, e. g., 542 U. S., at 325 (opin-
ion of O’Connor, J.) (“The structure of the Federal Guide-
lines likewise does not, as the Government halfheartedly
suggests, provide any grounds for distinction. . . . If any-
thing, the structural differences that do exist make the Fed-
eral Guidelines more vulnerable to attack”). This conclu-
sion rests on the premise, common to both systems, that the
relevant sentencing rules are mandatory and impose binding
requirements on all sentencing judges.
If the Guidelines as currently written could be read as
merely advisory provisions that recommended, rather than
required, the selection of particular sentences in response to
differing sets of facts, their use would not implicate the Sixth
Amendment. We have never doubted the authority of a
judge to exercise broad discretion in imposing a sentence
within a statutory range. See Apprendi, 530 U. S., at 481;
Williams v. New York, 337 U. S. 241, 246 (1949). Indeed,
everyone agrees that the constitutional issues presented by
these cases would have been avoided entirely if Congress
had omitted from the SRA the provisions that make the
Guidelines binding on district judges; it is that circumstance
that makes the Court’s answer to the second question pre-
sented possible. For when a trial judge exercises his discre-
tion to select a specific sentence within a defined range, the
defendant has no right to a jury determination of the facts
that the judge deems relevant.
The Guidelines as written, however, are not advisory; they
are mandatory and binding on all judges.2 While subsection
2 In Mistretta v. United States, 488 U. S. 361 (1989), we pointed out that
Congress chose explicitly to adopt a “mandatory-guideline system” rather
than a system that would have been “only advisory,” and that the statute
“makes the Sentencing Commission’s guidelines binding on the courts.”
Id., at 367.

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234 UNITED STATES v. BOOKER
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(a) of § 3553 of the sentencing statute 3 lists the Sentencing
Guidelines as one factor to be considered in imposing a sen-
tence, subsection (b) directs that the court “shall impose a
sentence of the kind, and within the range” established by
the Guidelines, subject to departures in specific, limited
cases. (Emphasis added.) Because they are binding on
judges, we have consistently held that the Guidelines have
the force and effect of laws. See, e. g., Mistretta v. United
States, 488 U. S. 361, 391 (1989); Stinson v. United States,
508 U. S. 36, 42 (1993).
The availability of a departure in specified circumstances
does not avoid the constitutional issue, just as it did not in
Blakely itself. The Guidelines permit departures from the
prescribed sentencing range in cases in which the judge
“finds that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from
that described.” 18 U. S. C. § 3553(b)(1) (2000 ed., Supp. IV).
At first glance, one might believe that the ability of a district
judge to depart from the Guidelines means that she is bound
only by the statutory maximum. Were this the case, there
would be no Apprendi problem. Importantly, however, de-
partures are not available in every case, and in fact are un-
available in most. In most cases, as a matter of law, the
Commission will have adequately taken all relevant factors
into account, and no departure will be legally permissible.
In those instances, the judge is bound to impose a sentence
within the Guidelines range. It was for this reason that we
rejected a similar argument in Blakely, holding that al-
though the Washington statute allowed the judge to impose
a sentence outside the sentencing range for “ ‘substantial and
compelling reasons,’ ” that exception was not available for
Blakely himself. 542 U. S., at 299. The sentencing judge
3 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV).

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would have been reversed had he invoked the departure sec-
tion to justify the sentence.
Booker’s case illustrates the mandatory nature of the
Guidelines. The jury convicted him of possessing at least
50 grams of crack in violation of 21 U. S. C. § 841(b)(1)(A)(iii)
based on evidence that he had 92.5 grams of crack in his
duffel bag. Under these facts, the Guidelines specified an
offense level of 32, which, given the defendant’s criminal his-
tory category, authorized a sentence of 210-to-262 months.
See USSG § 2D1.1(c)(4). Booker’s is a run-of-the-mill drug
case, and does not present any factors that were inade-
quately considered by the Commission. The sentencing
judge would therefore have been reversed had he not im-
posed a sentence within the level 32 Guidelines range.
Booker’s actual sentence, however, was 360 months, almost
10 years longer than the Guidelines range supported by the
jury verdict alone. To reach this sentence, the judge found
facts beyond those found by the jury: namely, that Booker
possessed 566 grams of crack in addition to the 92.5 grams
in his duffel bag. The jury never heard any evidence of the
additional drug quantity, and the judge found it true by a
preponderance of the evidence. Thus, just as in Blakely,
“the jury’s verdict alone does not authorize the sentence.
The judge acquires that authority only upon finding some
additional fact.” 542 U. S., at 305. There is no relevant dis-
tinction between the sentence imposed pursuant to the
Washington statutes in Blakely and the sentences imposed
pursuant to the Federal Sentencing Guidelines in these
cases.
In his dissent, post, at 327–329, Justice Breyer argues
on historical grounds that the Guidelines scheme is constitu-
tional across the board. He points to traditional judicial au-
thority to increase sentences to take account of any unusual
blameworthiness in the manner employed in committing a
crime, an authority that the Guidelines require to be exer-
cised consistently throughout the system. This tradition,

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236 UNITED STATES v. BOOKER
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however, does not provide a sound guide to enforcement of
the Sixth Amendment’s guarantee of a jury trial in today’s
world.
It is quite true that once determinate sentencing had fallen
from favor, American judges commonly determined facts jus-
tifying a choice of a heavier sentence on account of the man-
ner in which particular defendants acted. Apprendi, 530
U. S., at 481. In 1986, however, our own cases first recog-
nized a new trend in the legislative regulation of sentencing
when we considered the significance of facts selected by leg-
islatures that not only authorized, or even mandated, heavier
sentences than would otherwise have been imposed, but in-
creased the range of sentences possible for the underlying
crime. See McMillan v. Pennsylvania, 477 U. S. 79, 87–88
(1986). Provisions for such enhancements of the permissi-
ble sentencing range reflected growing and wholly justified
legislative concern about the proliferation and variety of
drug crimes and their frequent identification with firearms
offenses.
The effect of the increasing emphasis on facts that en-
hanced sentencing ranges, however, was to increase the
judge’s power and diminish that of the jury. It became the
judge, not the jury, who determined the upper limits of sen-
tencing, and the facts determined were not required to be
raised before trial or proved by more than a preponderance.
As the enhancements became greater, the jury’s finding
of the underlying crime became less significant. And the
enhancements became very serious indeed. See, e. g., Jones,
526 U. S., at 230–231 ( judge’s finding increased the maximum
sentence from 15 to 25 years); respondent Booker’s case
(from 262 months to a life sentence); respondent Fanfan’s
case (from 78 to 235 months); United States v. Rodriguez, 73
F. 3d 161, 162–163 (CA7 1996) (Posner, C. J., dissenting from
denial of rehearing en banc) (from approximately 54 months
to a life sentence); United States v. Hammoud, 381 F. 3d 316,

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361–362 (CA4 2004) (en banc) (Motz, J., dissenting) (actual
sentence increased from 57 months to 155 years).
As it thus became clear that sentencing was no longer tak-
ing place in the tradition that Justice Breyer invokes, the
Court was faced with the issue of preserving an ancient
guarantee under a new set of circumstances. The new sen-
tencing practice forced the Court to address the question
how the right of jury trial could be preserved, in a meaning-
ful way guaranteeing that the jury would still stand between
the individual and the power of the government under the
new sentencing regime. And it is the new circumstances,
not a tradition or practice that the new circumstances have
superseded, that have led us to the answer first considered
in Jones and developed in Apprendi and subsequent cases
culminating with this one. It is an answer not motivated by
Sixth Amendment formalism, but by the need to preserve
Sixth Amendment substance.
III
The Government advances three arguments in support of
its submission that we should not apply our reasoning in
Blakely to the Federal Sentencing Guidelines. It contends
that Blakely is distinguishable because the Guidelines were
promulgated by a Commission rather than the Legislature;
that principles of stare decisis require us to follow four ear-
lier decisions that are arguably inconsistent with Blakely;
and that the application of Blakely to the Guidelines would
conflict with separation-of-powers principles reflected in
Mistretta v. United States, 488 U. S. 361 (1989). These argu-
ments are unpersuasive.
Commission v. Legislature:
In our judgment the fact that the Guidelines were promul-
gated by the Sentencing Commission, rather than Congress,
lacks constitutional significance. In order to impose the de-
fendants’ sentences under the Guidelines, the judges in these

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238 UNITED STATES v. BOOKER
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cases were required to find an additional fact, such as drug
quantity, just as the judge found the additional fact of seri-
ous bodily injury to the victim in Jones. As far as the de-
fendants are concerned, they face significantly higher sen-
tences—in Booker’s case almost 10 years higher—because
a judge found true by a preponderance of the evidence a
fact that was never submitted to the jury. Regardless of
whether Congress or a Sentencing Commission concluded
that a particular fact must be proved in order to sentence a
defendant within a particular range, “[t]he Framers would
not have thought it too much to demand that, before depriv-
ing a man of [ten] more years of his liberty, the State should
suffer the modest inconvenience of submitting its accusation
to ‘the unanimous suffrage of twelve of his equals and neigh-
bours,’ rather than a lone employee of the State.” Blakely,
542 U. S., at 313–314 (citation omitted).
The Government correctly notes that in Apprendi we re-
ferred to “ ‘any fact that increases the penalty for a crime
beyond the prescribed statutory maximum . . . .’ ” Brief for
United States 15 (quoting Apprendi, 530 U. S., at 490 (empha-
sis in Brief for United States)). The simple answer, of
course, is that we were only considering a statute in that
case; we expressly declined to consider the Guidelines. See
Apprendi, 530 U. S., at 497, n. 21. It was therefore appro-
priate to state the rule in that case in terms of a “statutory
maximum” rather than answering a question not properly
before us.
More important than the language used in our holding in
Apprendi are the principles we sought to vindicate. Those
principles are unquestionably applicable to the Guidelines.
They are not the product of recent innovations in our juris-
prudence, but rather have their genesis in the ideals our con-
stitutional tradition assimilated from the common law. See
Jones, 526 U. S., at 244–248. The Framers of the Constitu-
tion understood the threat of “judicial despotism” that could
arise from “arbitrary punishments upon arbitrary convic-

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tions” without the benefit of a jury in criminal cases. The
Federalist No. 83, p. 499 (C. Rossiter ed. 1961) (A. Hamilton).
The Founders presumably carried this concern from Eng-
land, in which the right to a jury trial had been enshrined
since the Magna Carta. As we noted in Apprendi:
“[T]he historical foundation for our recognition of these
principles extends down centuries into the common law.
‘[T]o guard against a spirit of oppression and tyranny
on the part of rulers,’ and ‘as the great bulwark of [our]
civil and political liberties,’ trial by jury has been under-
stood to require that ‘the truth of every accusation,
whether preferred in the shape of indictment, informa-
tion, or appeal, should afterwards be confirmed by the
unanimous suffrage of twelve of [the defendant’s] equals
and neighbours . . . .’ ” 530 U. S., at 477 (citations
omitted).
Regardless of whether the legal basis of the accusation is in
a statute or in guidelines promulgated by an independent
commission, the principles behind the jury trial right are
equally applicable.
Stare Decisis:
The Government next argues that four recent cases pre-
clude our application of Blakely to the Sentencing Guide-
lines. We disagree. In United States v. Dunnigan, 507
U. S. 87 (1993), we held that the provisions of the Guidelines
that require a sentence enhancement if the judge determines
that the defendant committed perjury do not violate the
privilege of the accused to testify on her own behalf. There
was no contention that the enhancement was invalid because
it resulted in a more severe sentence than the jury verdict
had authorized. Accordingly, we found this case indistin-
guishable from United States v. Grayson, 438 U. S. 41 (1978),
a pre-Guidelines case in which we upheld a similar sentence
increase. Applying Blakely to the Guidelines would invali-

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240 UNITED STATES v. BOOKER
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date a sentence that relied on such an enhancement if the
resulting sentence was outside the range authorized by the
jury verdict. Nevertheless, there are many situations in
which the district judge might find that the enhancement is
warranted, yet still sentence the defendant within the range
authorized by the jury. See post, at 276–279 (Stevens, J.,
dissenting in part). Thus, while the reach of Dunnigan may
be limited, we need not overrule it.
In Witte v. United States, 515 U. S. 389 (1995), we held that
the Double Jeopardy Clause did not bar a prosecution for
conduct that had provided the basis for an enhancement of
the defendant’s sentence in a prior case. “We concluded that
‘consideration of information about the defendant’s character
and conduct at sentencing does not result in “punishment”
for any offense other than the one of which the defendant
was convicted.’ Rather, the defendant is ‘punished only for
the fact that the present offense was carried out in a manner
that warrants increased punishment . . . .’ ” United States
v. Watts, 519 U. S. 148, 155 (1997) (per curiam) (quoting
Witte, 515 U. S., at 401, 403; emphasis deleted). In Watts,
relying on Witte, we held that the Double Jeopardy Clause
permitted a court to consider acquitted conduct in sentencing
a defendant under the Guidelines. In neither Witte nor
Watts was there any contention that the sentencing enhance-
ment had exceeded the sentence authorized by the jury ver-
dict in violation of the Sixth Amendment. The issue we con-
front today simply was not presented.4
Finally, in Edwards v. United States, 523 U. S. 511 (1998),
the Court held that a jury’s general verdict finding the de-
fendants guilty of a conspiracy involving either cocaine or
crack supported a sentence based on their involvement with
4 Watts, in particular, presented a very narrow question regarding the
interaction of the Guidelines with the Double Jeopardy Clause, and did
not even have the benefit of full briefing or oral argument. It is unsur-
prising that we failed to consider fully the issues presented to us in these
cases. See 519 U. S., at 171 (Kennedy, J., dissenting).

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both drugs. Even though the indictment had charged that
their conspiracy embraced both, they argued on appeal that
the verdict limited the judge’s sentencing authority. We
recognized that the defendants’ statutory and constitutional
claims might have had merit if it had been possible to argue
that their crack-related activities were not part of the same
conspiracy as their cocaine activities. But they failed to
make that argument, and, based on our review of the record
which showed “a series of interrelated drug transactions in-
volving both cocaine and crack,” we concluded that no such
claim could succeed.5 Id., at 515.
None of our prior cases is inconsistent with today’s deci-
sion. Stare decisis does not compel us to limit Blakely’s
holding.
Separation of Powers:
Finally, the Government and, to a lesser extent, Justice
Breyer’s dissent, argue that any holding that would require
Guidelines sentencing factors to be proved to a jury beyond
a reasonable doubt would effectively transform them into a
code defining elements of criminal offenses. The result, ac-
cording to the Government, would be an unconstitutional
grant to the Sentencing Commission of the inherently legis-
lative power to define criminal elements.
There is no merit to this argument because the Commis-
sion’s authority to identify the facts relevant to sentencing
5 We added: “Instead, petitioners argue that the judge might have made
different factual findings if only the judge had known that the law required
him to assume the jury had found a cocaine-only, not a cocaine-and-crack,
conspiracy. It is sufficient for present purposes, however, to point out
that petitioners did not make this particular argument in the District
Court. Indeed, they seem to have raised their entire argument for the
first time in the Court of Appeals. Thus, petitioners did not explain to
the sentencing judge how their ‘jury-found-only-cocaine’ assumption could
have made a difference to the judge’s own findings, nor did they explain
how this assumption (given the judge’s findings) should lead to greater
leniency.” Edwards, 523 U. S., at 515–516.

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decisions and to determine the impact of such facts on fed-
eral sentences is precisely the same whether one labels such
facts “sentencing factors” or “elements” of crimes. Our de-
cision in Mistretta, 488 U. S., at 371, upholding the validity
of the delegation of that authority, is unaffected by the char-
acterization of such facts, or by the procedures used to find
such facts in particular sentencing proceedings. Indeed, we
rejected a similar argument in Jones:
“Contrary to the dissent’s suggestion, the constitutional
proposition that drives our concern in no way ‘call[s] into
question the principle that the definition of the elements
of a criminal offense is entrusted to the legislature.’
The constitutional guarantees that give rise to our con-
cern in no way restrict the ability of legislatures to iden-
tify the conduct they wish to characterize as criminal or
to define the facts whose proof is essential to the estab-
lishment of criminal liability. The constitutional safe-
guards that figure in our analysis concern not the iden-
tity of the elements defining criminal liability but only
the required procedures for finding the facts that deter-
mine the maximum permissible punishment; these are
the safeguards going to the formality of notice, the iden-
tity of the factfinder, and the burden of proof.” 526
U. S., at 243, n. 6 (citation omitted).
Our holding today does not call into question any aspect
of our decision in Mistretta. That decision was premised on
an understanding that the Commission, rather than perform-
ing adjudicatory functions, instead makes political and sub-
stantive decisions. 488 U. S., at 393. We noted that the
promulgation of the Guidelines was much like other activities
in the Judicial Branch, such as the creation of the Federal
Rules of Evidence, all of which are nonadjudicatory activi-
ties. Id., at 387. We also noted that “Congress may dele-
gate to the Judicial Branch nonadjudicatory functions that
do not trench upon the prerogatives of another Branch and

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that are appropriate to the central mission of the Judiciary.”
Id., at 388. While we recognized that the Guidelines were
more substantive than the Rules of Evidence or other nonad-
judicatory functions delegated to the Judicial Branch, we
nonetheless concluded that such a delegation did not exceed
Congress’ powers.
Further, a recognition that the Commission did not exer-
cise judicial authority, but was more properly thought of as
exercising some sort of legislative power, ibid., was essential
to our holding. If the Commission in fact performed adjudi-
catory functions, it would have violated Article III because
some of the members were not Article III judges. As we
explained:
“[T]he ‘practical consequences’ of locating the Commis-
sion within the Judicial Branch pose no threat of under-
mining the integrity of the Judicial Branch or of expand-
ing the powers of the Judiciary beyond constitutional
bounds by uniting within the Branch the political or
quasi-legislative power of the Commission with the judi-
cial power of the courts. [The Commission’s] powers
are not united with the powers of the Judiciary in a way
that has meaning for separation-of-powers analysis.
Whatever constitutional problems might arise if the
powers of the Commission were vested in a court, the
Commission is not a court, does not exercise judicial
power, and is not controlled by or accountable to mem-
bers of the Judicial Branch.” Id., at 393.
We have thus always recognized the fact that the Commis-
sion is an independent agency that exercises policymaking
authority delegated to it by Congress. Nothing in our hold-
ing today is inconsistent with our decision in Mistretta.
IV
All of the foregoing supports our conclusion that our hold-
ing in Blakely applies to the Sentencing Guidelines. We

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244 UNITED STATES v. BOOKER
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recognize, as we did in Jones, Apprendi, and Blakely, that
in some cases jury factfinding may impair the most expedient
and efficient sentencing of defendants. But the interest in
fairness and reliability protected by the right to a jury
trial—a common-law right that defendants enjoyed for cen-
turies and that is now enshrined in the Sixth Amendment—
has always outweighed the interest in concluding trials
swiftly. Blakely, 542 U. S., at 313. As Blackstone put it:
“[H]owever convenient these [new methods of trial] may
appear at first, (as doubtless all arbitrary powers, well
executed, are the most convenient) yet let it be again
remembered, that delays, and little inconveniences in
the forms of justice, are the price that all free nations
must pay for their liberty in more substantial matters;
that these inroads upon this sacred bulwark of the na-
tion are fundamentally opposite to the spirit of our con-
stitution; and that, though begun in trifles, the prece-
dent may gradually increase and spread, to the utter
disuse of juries in questions of the most momentous con-
cerns.” 4 Commentaries on the Laws of England 343–
344 (1769).
Accordingly, we reaffirm our holding in Apprendi: Any
fact (other than a prior conviction) which is necessary to sup-
port a sentence exceeding the maximum authorized by the
facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a
reasonable doubt.
Justice Breyer delivered the opinion of the Court in
part.*
The first question that the Government has presented in
these cases is the following:
*The Chief Justice, Justice O’Connor, Justice Kennedy, and Jus-
tice Ginsburg join this opinion.

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“Whether the Sixth Amendment is violated by the impo-
sition of an enhanced sentence under the United States
Sentencing Guidelines based on the sentencing judge’s
determination of a fact (other than a prior conviction)
that was not found by the jury or admitted by the de-
fendant.” Pet. for Cert. in No. 04–104, p. (I).
The Court, in an opinion by Justice Stevens, answers this
question in the affirmative. Applying its decisions in Ap-
prendi v. New Jersey, 530 U. S. 466 (2000), and Blakely v.
Washington, 542 U. S. 296 (2004), to the Federal Sentencing
Guidelines, the Court holds that, in the circumstances men-
tioned, the Sixth Amendment requires juries, not judges, to
find facts relevant to sentencing. See ante, at 226–227, 244
(Stevens, J., opinion of the Court).
We here turn to the second question presented, a question
that concerns the remedy. We must decide whether or to
what extent, “as a matter of severability analysis,” the
Guidelines “as a whole” are “inapplicable . . . such that the
sentencing court must exercise its discretion to sentence the
defendant within the maximum and minimum set by statute
for the offense of conviction.” Pet. for Cert. in No. 04–104,
p. (I).
We answer the question of remedy by finding the provision
of the federal sentencing statute that makes the Guidelines
mandatory, 18 U. S. C. § 3553(b)(1) (Supp. IV), incompati-
ble with today’s constitutional holding. We conclude that
this provision must be severed and excised, as must one
other statutory section, § 3742(e) (2000 ed. and Supp. IV),
which depends upon the Guidelines’ mandatory nature.
So modified, the federal sentencing statute, see Sentenc-
ing Reform Act of 1984 (Sentencing Act), as amended, 18
U. S. C. § 3551 et seq., 28 U. S. C. § 991 et seq., makes the
Guidelines effectively advisory. It requires a sentencing
court to consider Guidelines ranges, see 18 U. S. C.
§ 3553(a)(4) (Supp. IV), but it permits the court to tailor the

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246 UNITED STATES v. BOOKER
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sentence in light of other statutory concerns as well, see
§ 3553(a).
I
We answer the remedial question by looking to legislative
intent. See, e. g., Minnesota v. Mille Lacs Band of Chip-
pewa Indians, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc.
v. Brock, 480 U. S. 678, 684 (1987); Regan v. Time, Inc., 468
U. S. 641, 653 (1984) (plurality opinion). We seek to de-
termine what “Congress would have intended” in light of
the Court’s constitutional holding. Denver Area Ed. Tele-
communications Consortium, Inc. v. FCC, 518 U. S. 727,
767 (1996) (plurality opinion) (“Would Congress still have
passed” the valid sections “had it known” about the constitu-
tional invalidity of the other portions of the statute? (inter-
nal quotation marks omitted)). In this instance, we must
determine which of the two following remedial approaches is
the more compatible with the Legislature’s intent as embod-
ied in the 1984 Sentencing Act.
One approach, that of Justice Stevens’ dissent, would
retain the Sentencing Act (and the Guidelines) as written,
but would engraft onto the existing system today’s Sixth
Amendment “jury trial” requirement. The addition would
change the Guidelines by preventing the sentencing court
from increasing a sentence on the basis of a fact that the jury
did not find (or that the offender did not admit).
The other approach, which we now adopt, would (through
severance and excision of two provisions) make the Guide-
lines system advisory while maintaining a strong connection
between the sentence imposed and the offender’s real con-
duct—a connection important to the increased uniformity of
sentencing that Congress intended its Guidelines system to
achieve.
Both approaches would significantly alter the system that
Congress designed. But today’s constitutional holding
means that it is no longer possible to maintain the judicial
factfinding that Congress thought would underpin the man-

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datory Guidelines system that it sought to create and that
Congress wrote into the Act in 18 U. S. C. §§ 3553(a) and 3661
(2000 ed. and Supp. IV). Hence we must decide whether we
would deviate less radically from Congress’ intended system
(1) by superimposing the constitutional requirement an-
nounced today or (2) through elimination of some provisions
of the statute.
To say this is not to create a new kind of severability anal-
ysis. Post, at 291 (Stevens, J., dissenting in part).
Rather, it is to recognize that sometimes severability ques-
tions (questions as to how, or whether, Congress would in-
tend a statute to apply) can arise when a legislatively un-
foreseen constitutional problem requires modification of a
statutory provision as applied in a significant number of in-
stances. Compare, e. g., Welsh v. United States, 398 U. S.
333, 361 (1970) (Harlan, J., concurring in result) (explaining
that when a statute is defective because of its failure to ex-
tend to some group a constitutionally required benefit, the
court may “either declare it a nullity” or “extend” the benefit
“to include those who are aggrieved by exclusion”); Heckler
v. Mathews, 465 U. S. 728, 739, n. 5 (1984) (“Although . . .
ordinarily ‘extension, rather than nullification, is the proper
course,’ the court should not, of course, ‘use its remedial pow-
ers to circumvent the intent of the legislature . . . ’ ” (quoting
Califano v. Westcott, 443 U. S. 76, 89 (1979), and id., at 94
(Powell, J., concurring in part and dissenting in part))); Sloan
v. Lemon, 413 U. S. 825, 834 (1973) (striking down entire
Pennsylvania tuition reimbursement statute because to elim-
inate only unconstitutional applications “would be to create a
program quite different from the one the legislature actually
adopted”). See also post, at 320, 323 (Thomas, J., dissenting
in part) (“[S]everability questions” can “arise from unconsti-
tutional applications” of statutes, and such a question “is
squarely presented” here); Vermeule, Saving Constructions,
85 Geo. L. J. 1945, 1950, n. 26 (1997).

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In today’s context—a highly complex statute, interrelated
provisions, and a constitutional requirement that creates fun-
damental change—we cannot assume that Congress, if faced
with the statute’s invalidity in key applications, would have
preferred to apply the statute in as many other instances
as possible. Neither can we determine likely congressional
intent mechanically. We cannot simply approach the prob-
lem grammatically, say, by looking to see whether the consti-
tutional requirement and the words of the Act are linguisti-
cally compatible.
Nor do simple numbers provide an answer. It is, of
course, true that the numbers show that the constitutional
jury trial requirement would lead to additional decision-
making by juries in only a minority of cases. See post, at
277 (Stevens, J., dissenting in part). Prosecutors and de-
fense attorneys would still resolve the lion’s share of criminal
matters through plea bargaining, and plea bargaining takes
place without a jury. See ibid. Many of the rest involve
only simple issues calling for no upward Guidelines adjust-
ment. See post, at 275. And in at least some of the remain-
der, a judge may find adequate room to adjust a sentence
within the single Guidelines range to which the jury verdict
points, or within the overlap between that range and the
next highest. See post, at 278–279.
But the constitutional jury trial requirement would none-
theless affect every case. It would affect decisions about
whether to go to trial. It would affect the content of plea
negotiations. It would alter the judge’s role in sentencing.
Thus we must determine likely intent not by counting pro-
ceedings, but by evaluating the consequences of the Court’s
constitutional requirement in light of the Act’s language, its
history, and its basic purposes.
While reasonable minds can, and do, differ about the out-
come, we conclude that the constitutional jury trial require-
ment is not compatible with the Act as written and that some
severance and excision are necessary. In Part II, infra, we

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explain the incompatibility. In Part III, infra, we describe
the necessary excision. In Part IV, infra, we explain why
we have rejected other possibilities. In essence, in what fol-
lows, we explain both (1) why Congress would likely have
preferred the total invalidation of the Act to an Act with the
Court’s Sixth Amendment requirement engrafted onto it,
and (2) why Congress would likely have preferred the exci-
sion of some of the Act, namely the Act’s mandatory lan-
guage, to the invalidation of the entire Act. That is to say,
in light of today’s holding, we compare maintaining the Act
as written with jury factfinding added (the dissenters’ pro-
posed remedy) to the total invalidation of the statute, and
conclude that Congress would have preferred the latter. We
then compare our own remedy to the total invalidation of the
statute, and conclude that Congress would have preferred
our remedy.
II
Several considerations convince us that, were the Court’s
constitutional requirement added onto the Sentencing Act as
currently written, the requirement would so transform the
scheme that Congress created that Congress likely would
not have intended the Act as so modified to stand. First,
the statute’s text states that “[t]he court” when sentencing
will consider “the nature and circumstances of the offense
and the history and characteristics of the defendant.” 18
U. S. C. § 3553(a)(1) (2000 ed. and Supp. IV). In con-
text, the words “the court” mean “the judge without the
jury,” not “the judge working together with the jury.” A
further statutory provision, by removing typical “jury trial”
evidentiary limitations, makes this clear. See § 3661 (ruling
out any “limitation . . . on the information concerning the
[offender’s] background, character, and conduct” that the
“court . . . may receive”). The Act’s history confirms it.
See, e. g., S. Rep. No. 98–225, p. 51 (1983) (the Guidelines
system “will guide the judge in making” sentencing decisions
(emphasis added)); id., at 52 (before sentencing, “the judge”

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must consider “the nature and circumstances of the offense”);
id., at 53 (“the judge” must conduct “a comprehensive exami-
nation of the characteristics of the particular offense and the
particular offender”).
This provision is tied to the provision of the Act that
makes the Guidelines mandatory, see § 3553(b)(1) (2000 ed.,
Supp. IV). They are part and parcel of a single, unified
whole—a whole that Congress intended to apply to all fed-
eral sentencing.
This provision makes it difficult to justify Justice
Stevens’ approach, for that approach requires reading the
words “the court” as if they meant “the judge working to-
gether with the jury.” Unlike Justice Stevens, we do not
believe we can interpret the statute’s language to save its
constitutionality, see post, at 286 (opinion dissenting in part),
because we believe that any such reinterpretation, even if
limited to instances in which a Sixth Amendment problem
arises, would be “plainly contrary to the intent of Congress.”
United States v. X-Citement Video, Inc., 513 U. S. 64, 78
(1994). Without some such reinterpretation, however, this
provision of the statute, along with those inextricably con-
nected to it, are constitutionally invalid, and fall outside of
Congress’ power to enact. Nor can we agree with Justice
Stevens that a newly passed “identical statute” would be
valid, post, at 283 (opinion dissenting in part). Such a new,
identically worded statute would be valid only if (unlike the
present statute) we could interpret that new statute (without
disregarding Congress’ basic intent) as being consistent with
the Court’s jury factfinding requirement. Compare post, at
283–284 (Stevens, J., dissenting in part). If so, the statute
would stand.
Second, Congress’ basic statutory goal—a system that di-
minishes sentencing disparity—depends for its success upon
judicial efforts to determine, and to base punishment upon,
the real conduct that underlies the crime of conviction.
That determination is particularly important in the federal

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system where crimes defined as, for example, “obstruct[ing],
delay[ing], or affect[ing] commerce or the movement of any
article or commodity in commerce, by . . . extortion,” 18
U. S. C. § 1951(a), or, say, using the mail “for the purpose of
executing” a “scheme or artifice to defraud,” § 1341 (2000 ed.,
Supp. II), can encompass a vast range of very different kinds
of underlying conduct. But it is also important even in re-
spect to ordinary crimes, such as robbery, where an act that
meets the statutory definition can be committed in a host of
different ways. Judges have long looked to real conduct
when sentencing. Federal judges have long relied upon a
presentence report, prepared by a probation officer, for infor-
mation (often unavailable until after the trial) relevant to the
manner in which the convicted offender committed the crime
of conviction.
Congress expected this system to continue. That is why
it specifically inserted into the Act the provision cited above,
which (recodifying prior law) says that
“[n]o limitation shall be placed on the information con-
cerning the background, character, and conduct of a per-
son convicted of an offense which a court of the United
States may receive and consider for the purpose of im-
posing an appropriate sentence.” 18 U. S. C. § 3661.
This Court’s earlier opinions assumed that this system
would continue. That is why the Court, for example, held
in United States v. Watts, 519 U. S. 148 (1997) (per curiam),
that a sentencing judge could rely for sentencing purposes
upon a fact that a jury had found unproved (beyond a reason-
able doubt). See id., at 157; see also id., at 152–153 (quoting
United States Sentencing Commission, Guidelines Manual
§ 1B1.3, comment., backg’d (Nov. 1995) (USSG), which “de-
scribes in sweeping language the conduct that a sentencing
court may consider in determining the applicable guideline
range,” and which provides that “ ‘[c]onduct that is not for-
mally charged or is not an element of the offense of con-

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viction may enter into the determination of the applicable
guideline sentencing range’ ”).
The Sentencing Guidelines also assume that Congress in-
tended this system to continue. See USSG § 1B1.3, com-
ment., backg’d (Nov. 2003). That is why, among other
things, they permit a judge to reject a plea-bargained sen-
tence if he determines, after reviewing the presentence re-
port, that the sentence does not adequately reflect the seri-
ousness of the defendant’s actual conduct. See § 6B1.2(a).
To engraft the Court’s constitutional requirement onto the
sentencing statutes, however, would destroy the system. It
would prevent a judge from relying upon a presentence re-
port for factual information, relevant to sentencing, uncov-
ered after the trial. In doing so, it would, even compared
to pre-Guidelines sentencing, weaken the tie between a sen-
tence and an offender’s real conduct. It would thereby un-
dermine the sentencing statute’s basic aim of ensuring simi-
lar sentences for those who have committed similar crimes
in similar ways.
Several examples help illustrate the point. Imagine
Smith and Jones, each of whom violates the Hobbs Act in
very different ways. See 18 U. S. C. § 1951(a) (forbidding
“obstruct[ing], delay[ing], or affect[ing] commerce or the
movement of any article or commodity in commerce, by . . .
extortion”). Smith threatens to injure a co-worker unless
the co-worker advances him a few dollars from the interstate
company’s till; Jones, after similarly threatening the co-
worker, causes far more harm by seeking far more money,
by making certain that the co-worker’s family is aware of
the threat, by arranging for deliveries of dead animals to the
co-worker’s home to show he is serious, and so forth. The
offenders’ behavior is very different; the known harmful con-
sequences of their actions are different; their punishments
both before, and after, the Guidelines would have been dif-
ferent. But, under the dissenters’ approach, unless prosecu-
tors decide to charge more than the elements of the crime,

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the judge would have to impose similar punishments. See,
e. g., post, at 303–304 (Scalia, J., dissenting in part).
Now imagine two former felons, Johnson and Jackson, each
of whom engages in identical criminal behavior: threatening
a bank teller with a gun, securing $50,000, and injuring an
innocent bystander while fleeing the bank. Suppose prose-
cutors charge Johnson with one crime (say, illegal gun pos-
session, see 18 U. S. C. § 922(g)) and Jackson with another
(say, bank robbery, see § 2113(a)). Before the Guidelines, a
single judge faced with such similar real conduct would have
been able (within statutory limits) to impose similar sen-
tences upon the two similar offenders despite the different
charges brought against them. The Guidelines themselves
would ordinarily have required judges to sentence the two
offenders similarly. But under the dissenters’ system, in
these circumstances the offenders likely would receive differ-
ent punishments. See, e. g., post, at 303–304 (Scalia, J., dis-
senting in part).
Consider, too, a complex mail fraud conspiracy where a
prosecutor may well be uncertain of the amount of harm and
of the role each indicted individual played until after convic-
tion—when the offenders may turn over financial records,
when it becomes easier to determine who were the leaders
and who the followers, when victim interviews are seen to
be worth the time. In such a case the relation between the
sentence and what actually occurred is likely to be consider-
ably more distant under a system with a jury trial require-
ment patched onto it than it was even prior to the Sentencing
Act, when judges routinely used information obtained after
the verdict to decide upon a proper sentence.
This point is critically important. Congress’ basic goal in
passing the Sentencing Act was to move the sentencing sys-
tem in the direction of increased uniformity. See 28 U. S. C.
§ 991(b)(1)(B); see also § 994(f). That uniformity does not
consist simply of similar sentences for those convicted of vio-
lations of the same statute—a uniformity consistent with the

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dissenters’ remedial approach. It consists, more impor-
tantly, of similar relationships between sentences and real
conduct, relationships that Congress’ sentencing statutes
helped to advance and that Justice Stevens’ approach
would undermine. Compare post, at 288 (opinion dissenting
in part) (conceding that the Sixth Amendment requirement
would “undoubtedly affect ‘real conduct’ sentencing in cer-
tain cases,” but minimizing the significance of that circum-
stance). In significant part, it is the weakening of this real-
conduct/uniformity-in-sentencing relationship, and not any
“[i]nexplicabl[e]” concerns for the “manner of achieving uni-
form sentences,” post, at 304 (Scalia, J., dissenting in part),
that leads us to conclude that Congress would have preferred
no mandatory system to the system the dissenters envisage.
Third, the sentencing statutes, read to include the Court’s
Sixth Amendment requirement, would create a system far
more complex than Congress could have intended. How
would courts and counsel work with an indictment and a jury
trial that involved not just whether a defendant robbed a
bank but also how? Would the indictment have to allege, in
addition to the elements of robbery, whether the defendant
possessed a firearm, whether he brandished or discharged it,
whether he threatened death, whether he caused bodily in-
jury, whether any such injury was ordinary, serious, perma-
nent or life threatening, whether he abducted or physically
restrained anyone, whether any victim was unusually vul-
nerable, how much money was taken, and whether he was an
organizer, leader, manager, or supervisor in a robbery gang?
See USSG §§ 2B3.1, 3B1.1. If so, how could a defendant
mount a defense against some or all such specific claims
should he also try simultaneously to maintain that the Gov-
ernment’s evidence failed to place him at the scene of the
crime? Would the indictment in a mail fraud case have to
allege the number of victims, their vulnerability, and the
amount taken from each? How could a judge expect a jury
to work with the Guidelines’ definitions of, say, “relevant con-

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duct,” which includes “all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant; and [in the case of a con-
spiracy] all reasonably foreseeable acts and omissions of oth-
ers in furtherance of the jointly undertaken criminal ac-
tivity”? §§ 1B1.3(a)(1)(A)–(B). How would a jury measure
“loss” in a securities fraud case—a matter so complex as to
lead the Commission to instruct judges to make “only . . .
a reasonable estimate”? § 2B1.1, comment., n. 3(C). How
would the court take account, for punishment purposes, of a
defendant’s contemptuous behavior at trial—a matter that
the Government could not have charged in the indictment?
§ 3C1.1.
Fourth, plea bargaining would not significantly diminish
the consequences of the Court’s constitutional holding for
the operation of the Guidelines. Compare post, at 273–274
(Stevens, J., dissenting in part). Rather, plea bargaining
would make matters worse. Congress enacted the sentenc-
ing statutes in major part to achieve greater uniformity in
sentencing, i. e., to increase the likelihood that offenders who
engage in similar real conduct would receive similar sen-
tences. The statutes reasonably assume that their efforts
to move the trial-based sentencing process in the direction of
greater sentencing uniformity would have a similar positive
impact upon plea-bargained sentences, for plea bargaining
takes place in the shadow of (i. e., with an eye toward the
hypothetical result of) a potential trial.
That, too, is why Congress, understanding the realities of
plea bargaining, authorized the Commission to promulgate
policy statements that would assist sentencing judges in de-
termining whether to reject a plea agreement after reading
about the defendant’s real conduct in a presentence report
(and giving the offender an opportunity to challenge the re-
port). See 28 U. S. C. § 994(a)(2)(E); USSG § 6B1.2(a), p. s.
This system has not worked perfectly; judges have often
simply accepted an agreed-upon account of the conduct at

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issue. But compared to pre-existing law, the statutes try to
move the system in the right direction, i. e., toward greater
sentencing uniformity.
The Court’s constitutional jury trial requirement, how-
ever, if patched onto the present Sentencing Act, would move
the system backwards in respect both to tried and to plea-
bargained cases. In respect to tried cases, it would effec-
tively deprive the judge of the ability to use post-verdict-
acquired real-conduct information; it would prohibit the
judge from basing a sentence upon any conduct other than
the conduct the prosecutor chose to charge; and it would put
a defendant to a set of difficult strategic choices as to which
prosecutorial claims he would contest. The sentence that
would emerge in a case tried under such a system would
likely reflect real conduct less completely, less accurately, and
less often than did a pre-Guidelines, as well as a Guidelines,
trial.
Because plea bargaining inevitably reflects estimates of
what would happen at trial, plea bargaining too under such
a system would move in the wrong direction. That is to say,
in a sentencing system modified by the Court’s constitutional
requirement, plea bargaining would likely lead to sentences
that gave greater weight not to real conduct, but rather to
the skill of counsel, the policies of the prosecutor, the case-
load, and other factors that vary from place to place, de-
fendant to defendant, and crime to crime. Compared to
pre-Guidelines plea bargaining, plea bargaining of this kind
would necessarily move federal sentencing in the direc-
tion of diminished, not increased, uniformity in sentencing.
Compare supra, at 250–252, with post, at 288 (Stevens, J.,
dissenting in part). It would tend to defeat, not to further,
Congress’ basic statutory goal.
Such a system would have particularly troubling conse-
quences with respect to prosecutorial power. Until now,
sentencing factors have come before the judge in the presen-
tence report. But in a sentencing system with the Court’s

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constitutional requirement engrafted onto it, any factor that
a prosecutor chose not to charge at the plea negotiation
would be placed beyond the reach of the judge entirely.
Prosecutors would thus exercise a power the Sentencing Act
vested in judges: the power to decide, based on relevant in-
formation about the offense and the offender, which defend-
ants merit heavier punishment.
In respondent Booker’s case, for example, the jury heard
evidence that the crime had involved 92.5 grams of crack
cocaine, and convicted Booker of possessing more than 50
grams. But the judge, at sentencing, found that the crime
had involved an additional 566 grams, for a total of 658.5
grams. A system that would require the jury, not the judge,
to make the additional “566 grams” finding is a system in
which the prosecutor, not the judge, would control the sen-
tence. That is because it is the prosecutor who would have
to decide what drug amount to charge. He could choose to
charge 658.5 grams, or 92.5, or less. It is the prosecutor
who, through such a charging decision, would control the sen-
tencing range. And it is different prosecutors who, in dif-
ferent cases—say, in two cases involving 566 grams—would
potentially insist upon different punishments for similar de-
fendants who engaged in similar criminal conduct involving
similar amounts of unlawful drugs—say, by charging one of
them with the full 566 grams, and the other with 10. As
long as different prosecutors react differently, a system with
a patched-on jury factfinding requirement would mean dif-
ferent sentences for otherwise similar conduct, whether in
the context of trials or that of plea bargaining.
Fifth, Congress would not have enacted sentencing stat-
utes that make it more difficult to adjust sentences upward
than to adjust them downward. As several United States
Senators have written in an amicus brief, “the Congress that
enacted the 1984 Act did not conceive of—much less estab-
lish—a sentencing guidelines system in which sentencing
judges were free to consider facts or circumstances not found

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by a jury or admitted in a plea agreement for the purpose of
adjusting a base-offense level down, but not up, within the
applicable guidelines range. Such a one-way lever would be
grossly at odds with Congress’s intent.” Brief for Sen.
Orrin G. Hatch et al. as Amici Curiae 22. Yet that is the
system that the dissenters’ remedy would create. Compare
post, at 291 (Stevens, J., dissenting in part) (conceding
asymmetry but stating belief that this “is unlikely to have
more than a minimal effect”).
For all these reasons, Congress, had it been faced with the
constitutional jury trial requirement, likely would not have
passed the same Sentencing Act. It likely would have found
the requirement incompatible with the Act as written.
Hence the Act cannot remain valid in its entirety. Sever-
ance and excision are necessary.
III
We now turn to the question of which portions of the sen-
tencing statute we must sever and excise as inconsistent
with the Court’s constitutional requirement. Although, as
we have explained, see Part II, supra, we believe that
Congress would have preferred the total invalidation of the
statute to the dissenters’ remedial approach, we neverthe-
less do not believe that the entire statute must be invali-
dated. Compare post, at 292 (Stevens, J., dissenting in
part). Most of the statute is perfectly valid. See, e. g., 18
U. S. C. § 3551 (2000 ed. and Supp. IV) (describing author-
ized sentences as probation, fine, or imprisonment); § 3552
(presentence reports); § 3554 (forfeiture); § 3555 (notifica-
tion to the victims); § 3583 (supervised release). And we
must “refrain from invalidating more of the statute than is
necessary.” Regan, 468 U. S., at 652 (plurality opinion).
Indeed, we must retain those portions of the Act that are (1)
constitutionally valid, id., at 652–653, (2) capable of “func-
tioning independently,” Alaska Airlines, 480 U. S., at 684,

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and (3) consistent with Congress’ basic objectives in enacting
the statute, Regan, supra, at 653.
Application of these criteria indicates that we must sever
and excise two specific statutory provisions: the provi-
sion that requires sentencing courts to impose a sentence
within the applicable Guidelines range (in the absence of
circumstances that justify a departure), see 18 U. S. C.
§ 3553(b)(1) (2000 ed., Supp. IV), and the provision that sets
forth standards of review on appeal, including de novo re-
view of departures from the applicable Guidelines range, see
§ 3742(e) (2000 ed. and Supp. IV) (see Appendix, infra, for
text of both provisions). With these two sections excised
(and statutory cross-references to the two sections conse-
quently invalidated), the remainder of the Act satisfies the
Court’s constitutional requirements.
As the Court today recognizes in its first opinion in these
cases, the existence of § 3553(b)(1) is a necessary condition
of the constitutional violation. That is to say, without this
provision—namely, the provision that makes “the relevant
sentencing rules . . . mandatory and impose[s] binding re-
quirements on all sentencing judges”—the statute falls out-
side the scope of Apprendi’s requirement. Ante, at 233
(Stevens, J., opinion of the Court); see also ibid. (“[E]very-
one agrees that the constitutional issues presented by these
cases would have been avoided entirely if Congress had omit-
ted from the [Sentencing Reform Act] the provisions that
make the Guidelines binding on district judges”). Cf. post,
at 314–320 (Thomas, J., dissenting in part).
The remainder of the Act “function[s] independently.”
Alaska Airlines, supra, at 684. Without the “mandatory”
provision, the Act nonetheless requires judges to take ac-
count of the Guidelines together with other sentencing goals.
See 18 U. S. C. § 3553(a) (2000 ed., Supp. IV). The Act none-
theless requires judges to consider the Guidelines “sentenc-
ing range established for . . . the applicable category of of-
fense committed by the applicable category of defendant,”

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§ 3553(a)(4)(A), the pertinent Sentencing Commission policy
statements, the need to avoid unwarranted sentencing dis-
parities, and the need to provide restitution to victims,
§§ 3553(a)(1), (3), (5)–(7) (2000 ed. and Supp. IV). And the
Act nonetheless requires judges to impose sentences that re-
flect the seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deterrence,
protect the public, and effectively provide the defendant
with needed educational or vocational training and medical
care. § 3553(a)(2) (2000 ed. and Supp. IV) (see Appendix,
infra, for text of § 3553(a)).
Moreover, despite the absence of § 3553(b)(1) (Supp. 2004),
the Act continues to provide for appeals from sentencing de-
cisions (irrespective of whether the trial judge sentences
within or outside the Guidelines range in the exercise of his
discretionary power under § 3553(a)). See § 3742(a) (2000
ed.) (appeal by defendant); § 3742(b) (appeal by Government).
We concede that the excision of § 3553(b)(1) requires the exci-
sion of a different, appeals-related section, namely, § 3742(e)
(2000 ed. and Supp. IV), which sets forth standards of review
on appeal. That section contains critical cross-references to
the (now-excised) § 3553(b)(1) and consequently must be sev-
ered and excised for similar reasons.
Excision of § 3742(e), however, does not pose a critical
problem for the handling of appeals. That is because, as we
have previously held, a statute that does not explicitly set
forth a standard of review may nonetheless do so implicitly.
See Pierce v. Underwood, 487 U. S. 552, 558–560 (1988)
(adopting a standard of review, where “neither a clear statu-
tory prescription nor a historical tradition” existed, based on
the statutory text and structure, and on practical considera-
tions); see also Cooter & Gell v. Hartmarx Corp., 496 U. S.
384, 403–405 (1990) (same); Koon v. United States, 518 U. S.
81, 99 (1996) (citing Pierce and Cooter & Gell with approval).
We infer appropriate review standards from related statu-
tory language, the structure of the statute, and the “ ‘sound

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administration of justice.’ ” Pierce, supra, at 559– 560.
And in this instance those factors, in addition to the past two
decades of appellate practice in cases involving departures,
imply a practical standard of review already familiar to ap-
pellate courts: review for “unreasonable[ness].” 18 U. S. C.
§ 3742(e)(3) (1994 ed.).
Until 2003, § 3742(e) explicitly set forth that standard.
See § 3742(e)(3) (1994 ed.). In 2003, Congress modified the
pre-existing text, adding a de novo standard of review for
departures and inserting cross-references to § 3553(b)(1).
Prosecutorial Remedies and Other Tools to end the Exploi-
tation of Children Today Act of 2003, Pub. L. 108–21,
§ 401(d)(1), 117 Stat. 670. In light of today’s holding, the rea-
sons for these revisions—to make Guidelines sentencing even
more mandatory than it had been—have ceased to be rele-
vant. The pre-2003 text directed appellate courts to review
sentences that reflected an applicable Guidelines range for
correctness, but to review other sentences—those that fell
“outside the applicable Guideline range”—with a view to-
ward determining whether such a sentence
“is unreasonable, having regard for . . . the factors to
be considered in imposing a sentence, as set forth in
chapter 227 of this title; and . . . the reasons for the
imposition of the particular sentence, as stated by the
district court pursuant to the provisions of section
3553(c).” 18 U. S. C. § 3742(e)(3) (1994 ed.) (emphasis
added).
In other words, the text told appellate courts to determine
whether the sentence “is unreasonable” with regard to
§ 3553(a). Section 3553(a) remains in effect, and sets forth
numerous factors that guide sentencing. Those factors in
turn will guide appellate courts, as they have in the past, in
determining whether a sentence is unreasonable.
Taking into account the factors set forth in Pierce, we read
the statute as implying this appellate review standard—a

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standard consistent with appellate sentencing practice dur-
ing the last two decades. Justice Scalia believes that only
in “Wonderland” is it possible to infer a standard of review
after excising § 3742(e). See post, at 309 (opinion dissenting
in part). But our application of Pierce does not justify that
characterization. Pierce requires us to judge the appropri-
ateness of our inference based on the statute’s language and
basic purposes. We believe our inference a fair one linguis-
tically, and one consistent with Congress’ intent to provide
appellate review. Under these circumstances, to refuse to
apply Pierce and thereby retreat to a remedy that raises the
problems discussed in Part II, supra (as the dissenters would
do), or thereby eliminate appellate review entirely, would cut
the statute loose from its moorings in congressional purpose.
Nor do we share the dissenters’ doubts about the practical-
ity of a “reasonableness” standard of review. “Reasonable-
ness” standards are not foreign to sentencing law. The Act
has long required their use in important sentencing circum-
stances—both on review of departures, see 18 U. S. C.
§ 3742(e)(3) (1994 ed.), and on review of sentences imposed
where there was no applicable Guideline, see §§ 3742(a)(4),
(b)(4), (e)(4). Together, these cases account for about 16.7%
of sentencing appeals. See United States Sentencing Com-
mission, 2002 Sourcebook of Federal Sentencing Statistics
107, n. 1, 111 (at least 711 of 5,018 sentencing appeals in-
volved departures), 108 (at least 126 of 5,018 sentencing ap-
peals involved the imposition of a term of imprisonment after
the revocation of supervised release). See also, e. g., United
States v. White Face, 383 F. 3d 733, 737–740 (CA8 2004);
United States v. Tsosie, 376 F. 3d 1210, 1218–1219 (CA10
2004); United States v. Salinas, 365 F. 3d 582, 588–590 (CA7
2004); United States v. Cook, 291 F. 3d 1297, 1300–1302 (CA11
2002 (per curiam); United States v. Olabanji, 268 F. 3d 636,
637–639 (CA9 2001); United States v. Ramirez-Rivera, 241
F. 3d 37, 40–41 (CA1 2001). That is why we think it fair
(and not, in Justice Scalia’s words, a “gross exaggera-

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tio[n],” post, at 311 (opinion dissenting in part)) to assume
judicial familiarity with a “reasonableness” standard. And
that is why we believe that appellate judges will prove capa-
ble of facing with greater equanimity than would Justice
Scalia what he calls the “daunting prospect,” post, at 312,
of applying such a standard across the board.
Neither do we share Justice Scalia’s belief that use of a
reasonableness standard “will produce a discordant sym-
phony” leading to “excessive sentencing disparities,” and
“wreak havoc” on the judicial system, post, at 312–313 (inter-
nal quotation marks omitted). The Sentencing Commission
will continue to collect and study appellate court decision-
making. It will continue to modify its Guidelines in light of
what it learns, thereby encouraging what it finds to be better
sentencing practices. It will thereby promote uniformity
in the sentencing process. 28 U. S. C. § 994 (2000 ed. and
Supp. IV).
Regardless, in this context, we must view fears of a “dis-
cordant symphony,” “excessive disparities,” and “havoc” (if
they are not themselves “gross exaggerations”) with a com-
parative eye. We cannot and do not claim that use of a “rea-
sonableness” standard will provide the uniformity that Con-
gress originally sought to secure. Nor do we doubt that
Congress wrote the language of the appellate provisions to
correspond with the mandatory system it intended to create.
Compare post, at 306–307 (Scalia, J., dissenting in part) (ex-
pressing concern regarding the presence of § 3742(f) in light
of the absence of § 3742(e)). But, as by now should be clear,
that mandatory system is no longer an open choice. And
the remedial question we must ask here (as we did in respect
to § 3553(b)(1)) is, which alternative adheres more closely to
Congress’ original objective: (1) retention of sentencing ap-
peals, or (2) invalidation of the entire Act, including its appel-
late provisions? The former, by providing appellate review,
would tend to iron out sentencing differences; the latter
would not. Hence we believe Congress would have pre-

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264 UNITED STATES v. BOOKER
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ferred the former to the latter—even if the former means
that some provisions will apply differently from the way
Congress had originally expected. See post, at 306–307
(Scalia, J., dissenting in part). But, as we have said, we
believe that Congress would have preferred even the latter
to the system the dissenters recommend, a system that has
its own problems of practicality. See supra, at 254–256.
Finally, the Act without its “mandatory” provision and re-
lated language remains consistent with Congress’ initial and
basic sentencing intent. Congress sought to “provide cer-
tainty and fairness in meeting the purposes of sentencing,
[while] avoiding unwarranted sentencing disparities . . . [and]
maintaining sufficient flexibility to permit individualized sen-
tences when warranted.” 28 U. S. C. § 991(b)(1)(B); see also
USSG § 1A1.1, application note (explaining that Congress
sought to achieve “honesty,” “uniformity,” and “proportional-
ity” in sentencing (emphasis deleted)). The system remain-
ing after excision, while lacking the mandatory features that
Congress enacted, retains other features that help to further
these objectives.
As we have said, the Sentencing Commission remains in
place, writing Guidelines, collecting information about actual
district court sentencing decisions, undertaking research,
and revising the Guidelines accordingly. See 28 U. S. C.
§ 994 (2000 ed. and Supp. IV). The district courts, while
not bound to apply the Guidelines, must consult those Guide-
lines and take them into account when sentencing. See 18
U. S. C. A. §§ 3553(a)(4), (5) (Supp. 2004). But compare post,
at 305 (Scalia, J., dissenting in part) (claiming that the sen-
tencing judge has the same discretion “he possessed be-
fore the Act was passed”). The courts of appeals review
sentencing decisions for unreasonableness. These features
of the remaining system, while not the system Congress
enacted, nonetheless continue to move sentencing in Con-
gress’ preferred direction, helping to avoid excessive sen-
tencing disparities while maintaining flexibility sufficient to

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individualize sentences where necessary. See 28 U. S. C.
§ 991(b). We can find no feature of the remaining system
that tends to hinder, rather than to further, these basic ob-
jectives. Under these circumstances, why would Congress
not have preferred excision of the “mandatory” provision to
a system that engrafts today’s constitutional requirement
onto the unchanged pre-existing statute—a system that, in
terms of Congress’ basic objectives, is counterproductive?
We do not doubt that Congress, when it wrote the Sen-
tencing Act, intended to create a form of mandatory Guide-
lines system. See post, at 291–296 (Stevens, J., dissenting
in part). But, we repeat, given today’s constitutional hold-
ing, that is not a choice that remains open. Hence we have
examined the statute in depth to determine Congress’ likely
intent in light of today’s holding. See, e. g., Denver Area
Ed. Telecommunications Consortium, Inc., 518 U. S., at 767.
And we have concluded that today’s holding is fundamentally
inconsistent with the judge-based sentencing system that
Congress enacted into law. In our view, it is more consist-
ent with Congress’ likely intent in enacting the Sentencing
Reform Act (1) to preserve important elements of that sys-
tem while severing and excising two provisions (§§ 3553(b)(1)
and 3742(e)) than (2) to maintain all provisions of the Act and
engraft today’s constitutional requirement onto that statu-
tory scheme.
Ours, of course, is not the last word: The ball now lies in
Congress’ court. The National Legislature is equipped to
devise and install, long term, the sentencing system, compat-
ible with the Constitution, that Congress judges best for the
federal system of justice.
IV
We briefly explain why we have not fully adopted the re-
medial proposals that the parties have advanced. First, the
Government argues that “in any case in which the Constitu-
tion prohibits the judicial factfinding procedures that Con-
gress and the Commission contemplated for implementing

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266 UNITED STATES v. BOOKER
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the Guidelines, the Guidelines as a whole become inapplica-
ble.” Brief for United States in No. 04–104, p. 44. Thus
the Guidelines “system contemplated by Congress and cre-
ated by the Commission would be inapplicable in a case in
which the Guidelines would require the sentencing court to
find a sentence-enhancing fact.” Id., at 66–67. The Guide-
lines would remain advisory, however, for § 3553(a) would
remain intact. Ibid. Cf. Brief for New York Council of
Defense Lawyers as Amicus Curiae 15, n. 9 (A “decision
that Section 3553(b) . . . is unconstitutional . . . would not
necessarily jeopardize the other reforms made by the Sen-
tencing Reform Act, including . . . 18 U. S. C. § 3553(a)”); see
also ibid. (recognizing that the remainder of the Act func-
tions independently); Brief for Families Against Mandatory
Minimums as Amicus Curiae 29, 30.
As we understand the Government’s remedial suggestion,
it coincides significantly with our own. But compare post,
at 282 (Stevens, J., dissenting in part) (asserting that no
party or amicus sought the remedy we adopt); post, at 309
(Scalia, J., dissenting in part) (same). The Government
would render the Guidelines advisory in “any case in which
the Constitution prohibits” judicial factfinding. But it ap-
parently would leave them as binding in all other cases.
We agree with the first part of the Government’s sug-
gestion. However, we do not see how it is possible to leave
the Guidelines as binding in other cases. For one thing,
the Government’s proposal would impose mandatory
Guidelines-type limits upon a judge’s ability to reduce sen-
tences, but it would not impose those limits upon a judge’s
ability to increase sentences. We do not believe that such
“one-way lever[s]” are compatible with Congress’ intent.
Cf. Brief for Sen. Orrin G. Hatch et al. as Amici Curiae
22; see also supra, at 253–254. For another, we believe that
Congress would not have authorized a mandatory system in
some cases and a nonmandatory system in others, given the
administrative complexities that such a system would create.

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Such a two-system proposal seems unlikely to further Con-
gress’ basic objective of promoting uniformity in sentencing.
Second, the respondents in essence would take the same
approach as would Justice Stevens. They believe that
the constitutional requirement is compatible with the Sen-
tencing Act, and they ask us to hold that the Act continues
to stand as written with the constitutional requirement en-
grafted onto it. We do not accept their position for the rea-
sons we have already given. See Part II, supra.
Respondent Fanfan argues in the alternative that we
should excise those provisions of the Sentencing Act that
require judicial factfinding at sentencing. That system,
however, would produce problems similar to those we have
discussed in Part II, supra. We reject Fanfan’s remedial
suggestion for that reason.
V
In respondent Booker’s case, the District Court applied
the Guidelines as written and imposed a sentence higher
than the maximum authorized solely by the jury’s verdict.
The Court of Appeals held Blakely applicable to the Guide-
lines, concluded that Booker’s sentence violated the Sixth
Amendment, vacated the judgment of the District Court,
and remanded for resentencing. We affirm the judgment of
the Court of Appeals and remand the case. On remand, the
District Court should impose a sentence in accordance with
today’s opinions, and, if the sentence comes before the Court
of Appeals for review, the Court of Appeals should apply the
review standards set forth in this opinion.
In respondent Fanfan’s case, the District Court held
Blakely applicable to the Guidelines. It then imposed a sen-
tence that was authorized by the jury’s verdict—a sentence
lower than the sentence authorized by the Guidelines as
written. Thus, Fanfan’s sentence does not violate the Sixth
Amendment. Nonetheless, the Government (and the de-
fendant should he so choose) may seek resentencing under
the system set forth in today’s opinions. Hence we vacate

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268 UNITED STATES v. BOOKER
Appendix to opinion of the Court
the judgment of the District Court and remand the case for
further proceedings consistent with this opinion.
As these dispositions indicate, we must apply today’s hold-
ings—both the Sixth Amendment holding and our remedial
interpretation of the Sentencing Act—to all cases on direct
review. See Griffith v. Kentucky, 479 U. S. 314, 328 (1987)
(“[A] new rule for the conduct of criminal prosecutions is to
be applied retroactively to all cases . . . pending on direct
review or not yet final, with no exception for cases in which
the new rule constitutes a ‘clear break’ with the past”). See
also Reynoldsville Casket Co. v. Hyde, 514 U. S. 749, 752
(1995) (civil case); Harper v. Virginia Dept. of Taxation, 509
U. S. 86, 97 (1993) (same). That fact does not mean that we
believe that every sentence gives rise to a Sixth Amendment
violation. Nor do we believe that every appeal will lead to
a new sentencing hearing. That is because we expect re-
viewing courts to apply ordinary prudential doctrines, deter-
mining, for example, whether the issue was raised below and
whether it fails the “plain-error” test. It is also because, in
cases not involving a Sixth Amendment violation, whether
resentencing is warranted or whether it will instead be suf-
ficient to review a sentence for reasonableness may depend
upon application of the harmless-error doctrine.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
Title 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV) provides:
“Factors to be considered in imposing a sentence.—The court
shall impose a sentence sufficient, but not greater than nec-
essary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the partic-
ular sentence to be imposed, shall consider—
“(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;

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269 Cite as: 543 U. S. 220 (2005)
Appendix to opinion of the Court
“(2) the need for the sentence imposed—
“(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
“(B) to afford adequate deterrence to criminal conduct;
“(C) to protect the public from further crimes of the de-
fendant; and
“(D) to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner;
“(3) the kinds of sentences available;
“(4) the kinds of sentence and the sentencing range estab-
lished for—
“(A) the applicable category of offense committed by
the applicable category of defendant as set forth in the
guidelines—
“(i) issued by the Sentencing Commission pursuant to
section 994(a)(1) of title 28, United States Code, subject to
any amendments made to such guidelines by act of Congress
(regardless of whether such amendments have yet to be in-
corporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28); and
“(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced; or
“(B) in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements issued
by the Sentencing Commission pursuant to section 994(a)(3)
of title 28, United States Code, taking into account any
amendments made to such guidelines or policy statements
by act of Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28);
“(5) any pertinent policy statement—
“(A) issued by the Sentencing Commission pursuant to
section 994(a)(2) of title 28, United States Code, subject to

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270 UNITED STATES v. BOOKER
Appendix to opinion of the Court
any amendments made to such policy statement by act of
Congress (regardless of whether such amendments have yet
to be incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28); and
“(B) that, except as provided in section 3742(g), is in
effect on the date the defendant is sentenced.
“(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct; and
“(7) the need to provide restitution to any victims of the
offense.”
Title 18 U. S. C. § 3553(b)(1) (Supp. IV) provides: “Ap-
plication of guidelines in imposing a sentence.—(1) In
general.—Except as provided in paragraph (2), the court
shall impose a sentence of the kind, and within the range,
referred to in subsection (a)(4) unless the court finds that
there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that de-
scribed. In determining whether a circumstance was ade-
quately taken into consideration, the court shall consider
only the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission. In the absence
of an applicable sentencing guideline, the court shall impose
an appropriate sentence, having due regard for the purposes
set forth in subsection (a)(2). In the absence of an applica-
ble sentencing guideline in the case of an offense other than
a petty offense, the court shall also have due regard for the
relationship of the sentence imposed to sentences prescribed
by guidelines applicable to similar offenses and offenders,
and to the applicable policy statements of the Sentencing
Commission.”

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Title 18 U. S. C. § 3742(e) (2000 ed. and Supp. IV) provides:
“Consideration.—Upon review of the record, the court of ap-
peals shall determine whether the sentence—
“(1) was imposed in violation of law;
“(2) was imposed as a result of an incorrect application of
the sentencing guidelines;
“(3) is outside the applicable guideline range, and
“(A) the district court failed to provide the written
statement of reasons required by section 3553(c);
“(B) the sentence departs from the applicable guideline
range based on a factor that—
“(i) does not advance the objectives set forth in sec-
tion 3553(a)(2); or
“(ii) is not authorized under section 3553(b); or
“(iii) is not justified by the facts of the case; or
“(C) the sentence departs to an unreasonable degree
from the applicable guidelines range, having regard for the
factors to be considered in imposing a sentence, as set forth
in section 3553(a) of this title and the reasons for the imposi-
tion of the particular sentence, as stated by the district court
pursuant to the provisions of section 3553(c); or
“(4) was imposed for an offense for which there is no appli-
cable sentencing guideline and is plainly unreasonable.
“The court of appeals shall give due regard to the opportu-
nity of the district court to judge the credibility of the wit-
nesses, and shall accept the findings of fact of the district
court unless they are clearly erroneous and, except with re-
spect to determinations under subsection (3)(A) or (3)(B),
shall give due deference to the district court’s application of
the guidelines to the facts. With respect to determinations
under subsection (3)(A) or (3)(B), the court of appeals shall
review de novo the district court’s application of the guide-
lines to the facts.”

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272 UNITED STATES v. BOOKER
Stevens, J., dissenting in part
Justice Stevens, with whom Justice Souter joins, and
with whom Justice Scalia joins except for Part III and
footnote 17, dissenting in part.
Neither of the two Court opinions that decide these cases
finds any constitutional infirmity inherent in any provision
of the Sentencing Reform Act of 1984 (SRA) or the Federal
Sentencing Guidelines. Specifically, neither 18 U. S. C.
§ 3553(b)(1) (Supp. IV), which makes application of the Guide-
lines mandatory, nor § 3742(e) (2000 ed. and Supp. IV), which
authorizes appellate review of departures from the Guide-
lines, is even arguably unconstitutional. Neither the Gov-
ernment, nor the respondents, nor any of the numerous
amici has suggested that there is any need to invalidate
either provision in order to avoid violations of the Sixth
Amendment in the administration of the Guidelines. The
Court’s decision to do so represents a policy choice that Con-
gress has considered and decisively rejected. While it is
perfectly clear that Congress has ample power to repeal
these two statutory provisions if it so desires, this Court
should not make that choice on Congress’ behalf. I re-
spectfully dissent from the Court’s extraordinary exercise
of authority.
Before explaining why the law does not authorize the
Court’s creative remedy, why the reasons it advances in sup-
port of its decision are unpersuasive, and why it is abun-
dantly clear that Congress has already rejected that very
remedy, it is appropriate to explain how the violation of the
Sixth Amendment that occurred in Booker’s case could
readily have been avoided without making any change in the
Guidelines. Booker received a sentence of 360 months’ im-
prisonment. His sentence was based on four factual deter-
minations: (1) the jury’s finding that he possessed 92.5 grams
of crack (cocaine base); (2) the judge’s finding that he pos-
sessed an additional 566 grams; (3) the judge’s conclusion
that he had obstructed justice; and (4) the judge’s evaluation
of his prior criminal record. Under the jury’s 92.5 grams
finding, the maximum sentence authorized by the Guidelines

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Stevens, J., dissenting in part
was a term of 262 months. See United States Sentencing
Commission, Guidelines Manual § 2D1.1(c)(4) (Nov. 2003)
(USSG).
If the 566 gram finding had been made by the jury based
on proof beyond a reasonable doubt, that finding would have
authorized a Guidelines sentence anywhere between 324 and
405 months—the equivalent of a range from 27 to nearly 34
years—given Booker’s criminal history. § 2D1.1(c)(2). Re-
lying on his own appraisal of the defendant’s obstruction of
justice, and presumably any other information in the presen-
tence report, the judge would have had discretion to select
any sentence within that range. Thus, if the two facts,
which in this case actually established two separate crimes,
had both been found by the jury, the judicial factfinding that
produced the actual sentence would not have violated the
Constitution. In other words, the judge could have consid-
ered Booker’s obstruction of justice, his criminal history, and
all other real offense and offender factors without violating
the Sixth Amendment. Because the Guidelines as written
possess the virtue of combining a mandatory determination
of sentencing ranges and discretionary decisions within those
ranges, they allow ample latitude for judicial factfinding
that does not even arguably raise any Sixth Amendment
issue.
The principal basis for the Court’s chosen remedy is its
assumption that Congress did not contemplate that the Sixth
Amendment would be violated by depriving the defendant
of the right to a jury trial on a factual issue as important as
whether Booker possessed the additional 566 grams of crack
that exponentially increased the maximum sentence that he
could receive. I am not at all sure that that assumption is
correct, but even if it is, it does not provide an adequate
basis for volunteering a systemwide remedy that Congress
has already rejected and could enact on its own if it
elected to.
When one pauses to note that over 95% of all federal crimi-
nal prosecutions are terminated by a plea bargain, and the

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274 UNITED STATES v. BOOKER
Stevens, J., dissenting in part
further fact that in almost half of the cases that go to trial
there are no sentencing enhancements, the extraordinary
overbreadth of the Court’s unprecedented remedy is mani-
fest. It is, moreover, unique because, under the Court’s rea-
soning, if Congress should decide to reenact the exact text
of the two provisions that the Court has chosen to invalidate,
that reenactment would be unquestionably constitutional.
In my judgment, it is therefore clear that the Court’s cre-
ative remedy is an exercise of legislative, rather than judi-
cial, power.
I
It is a fundamental premise of judicial review that all Acts
of Congress are presumptively valid. See Regan v. Time,
Inc., 468 U. S. 641, 652 (1984). “A ruling of unconstitutional-
ity frustrates the intent of the elected representatives of the
people.” Ibid. In the past, because of its respect for the
coordinate branches of Government, the Court has invali-
dated duly enacted statutes—or particular provisions of such
statutes—“only upon a plain showing that Congress has ex-
ceeded its constitutional bounds.” United States v. Mor-
rison, 529 U. S. 598, 607 (2000); see also El Paso & North-
eastern R. Co. v. Gutierrez, 215 U. S. 87, 97 (1909). The
exercise of such power is traditionally limited to issues pre-
sented in the case or controversy before the Court, and to
the imposition of remedies that redress specific constitu-
tional violations.
There are two narrow exceptions to this general rule. A
facial challenge may succeed if a legislative scheme is uncon-
stitutional in all or nearly all of its applications. That is
certainly not true in these cases, however, because most ap-
plications of the Guidelines are unquestionably valid. A sec-
ond exception involves cases in which an invalid provision
or application cannot be severed from the remainder of the
statute. That exception is inapplicable because there is no
statutory or Guidelines provision that is invalid. Neither
exception supports the majority’s newly minted remedy.

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Stevens, J., dissenting in part
Facial Invalidity:
Regardless of how the Court defines the standard for de-
termining when a facial challenge to a statute should suc-
ceed,1 it is abundantly clear that the fact that a statute, or
any provision of a statute, is unconstitutional in a portion of
its applications does not render the statute or provision in-
valid, and no party suggests otherwise. The Government
conceded at oral argument that 45% of federal sentences in-
volve no enhancements. Cf. United States Sentencing Com-
mission, 2002 Sourcebook of Federal Sentencing Statistics
39–40 (hereinafter Sourcebook).2 And, according to two
U. S. Sentencing Commissioners who testified before Con-
gress shortly after we handed down our decision in Blakely
v. Washington, 542 U. S. 296 (2004), the number of en-
hancements that would actually implicate a defendant’s
Sixth Amendment rights is even smaller. See Hearings on
Blakely v. Washington and the Future of the Federal Sen-
tencing Guidelines before the Senate Committee on the Judi-
ciary, 108th Cong., 2d Sess., 2 (2004) (hereinafter Hearings
on Blakely) (testimony of Commissioners John R. Steer and
Hon. William K. Sessions III) (“[A] majority of the cases sen-
tenced under the federal guidelines do not receive sentencing
enhancements that could potentially implicate Blakely”),
available at http://www.ussc.gov/hearings/BlakelyTest.pdf
(all Internet materials as visited Jan. 7, 2005, and available in
Clerk of Court’s case file). Simply stated, the Government’s
1 We have, on occasion, debated the proper interpretation of various
precedents concerning facial challenges to statutes. Compare Chicago v.
Morales, 527 U. S. 41, 54–55, n. 22 (1999) (plurality opinion), with id., at
78–83 (Scalia, J., dissenting), and United States v. Salerno, 481 U. S. 739,
745 (1987). That debate is immaterial to my conclusion here, because it
borders on the frivolous to contend that the Guidelines can be constitution-
ally applied “only in a fraction of the cases [they were] originally designed
to cover.” United States v. Raines, 362 U. S. 17, 23 (1960).
2 See also Lodging of Government, Estimate of Number of Cases Possi-
bly Impacted by the Blakely Decision, p. 2 (hereinafter Estimate).

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276 UNITED STATES v. BOOKER
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submissions to this Court and to Congress demonstrate that
the Guidelines could be constitutionally applied in their en-
tirety, without any modifications, in the “majority of the
cases sentenced under the federal guidelines.” Ibid. On
the basis of these submissions alone, this Court should have
declined to find the Guidelines, or any particular provisions
of the Guidelines, facially invalid.3
Accordingly, the majority’s claim that a jury factfinding
requirement would “destroy the system,” ante, at 252 (opin-
ion of Breyer, J.), would at most apply to a minority of
sentences imposed under the Guidelines. In reality, given
that the Government and judges have been apprised of the
requirements of the Sixth Amendment, the number of uncon-
stitutional applications would have been even smaller had we
allowed them the opportunity to comply with our constitu-
tional holding. This is so for several reasons.
First, it is axiomatic that a defendant may waive his Sixth
Amendment right to trial by jury. Patton v. United States,
281 U. S. 276, 312–313 (1930). In Blakely we explained that
“[w]hen a defendant pleads guilty, the State is free to seek
judicial sentence enhancements so long as the defendant
3 See, e. g., Webster v. Reproductive Health Services, 492 U. S. 490, 524
(1989) (O’Connor, J., concurring in part and concurring in judgment) (ar-
guing that a statute cannot be struck down on its face whenever the stat-
ute has “some quite straightforward applications [that] would be constitu-
tional”); Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947,
977 (1984) (Rehnquist, J., dissenting) (“When a litigant challenges the
constitutionality of a statute, he challenges the statute’s application to
him. . . . If he prevails, the Court invalidates the statute, not in toto,
but only as applied to those activities. The law is refined by preventing
improper applications on a case-by-case basis. In the meantime, the in-
terests underlying the law can still be served by its enforcement within
constitutional bounds”); cf. Raines, 362 U. S., at 21 (this Court should
never “ ‘formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied’ ”); Ohio v. Akron Center for
Reproductive Health, 497 U. S. 502, 514 (1990) (plurality opinion) (statutes
should not be invalidated “on a facial challenge based upon a worst-case
analysis that may never occur”).

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277 Cite as: 543 U. S. 220 (2005)
Stevens, J., dissenting in part
either stipulates to the relevant facts or consents to judicial
factfinding.” 542 U. S., at 310. Such reasoning applies with
equal force to sentences imposed under the Guidelines. As
the majority concedes, ante, at 248, only a tiny fraction of
federal prosecutions ever go to trial. See Estimate, at 2
(“In FY02, 97.1 percent of cases sentenced under the guide-
lines were the result of plea agreements”). If such proce-
dures were followed in the future, our holding that Blakely
applies to the Guidelines would be consequential only in the
tiny portion of prospective sentencing decisions that are
made after a defendant has been found guilty by a jury.
Second, in the remaining fraction of cases that result in a
jury trial, I am confident that those charged with complying
with the Guidelines—judges, aided by prosecutors and de-
fense attorneys—could adequately protect defendants’ Sixth
Amendment rights without this Court’s extraordinary rem-
edy. In many cases, prosecutors could avoid an Apprendi v.
New Jersey, 530 U. S. 466 (2000), problem simply by alleging
in the indictment the facts necessary to reach the chosen
Guidelines sentence. Following our decision in Apprendi,
and again after our decision in Blakely, the Department of
Justice advised federal prosecutors to adopt practices that
would enable them “to charge and prove to the jury facts
that increase the statutory maximum—for example, drug
type and quantity for offenses under 21 U. S. C. 841.” 4 En-
hancing the specificity of indictments would be a simple mat-
ter, for example, in prosecutions under the federal drug stat-
utes (such as Booker’s prosecution). The Government has
already directed its prosecutors to allege facts such as the
4 Memorandum from Christopher A. Wray, Assistant Attorney General,
U. S. Department of Justice, Criminal Division, to All Federal Prosecutors,
re: Guidance Regarding the Application of Blakely v. Washington to Pend-
ing Cases, p. 8, available at http://sentencing.typepad.com/sentencing_
law_and_policy/files/chris_wray_doj_memo.pdf (hereinafter Application of
Blakely); see also Brief for National Association of Federal Defenders as
Amicus Curiae 9–12.

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278 UNITED STATES v. BOOKER
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possession of a dangerous weapon or “that the defendant was
an organizer or leader of criminal activity that involved five
or more participants” in the indictment and prove them to
the jury beyond a reasonable doubt.5
Third, even in those trials in which the Guidelines require
the finding of facts not alleged in the indictment, such fact-
finding by a judge is not unconstitutional per se. To be
clear, our holding in Parts I–III, ante, at 243–244 (Stevens,
J., opinion of the Court), that Blakely applies to the Guide-
lines does not establish the “impermissibility of judicial fact-
finding.” Brief for United States 46. Instead, judicial fact-
finding to support an offense level determination or an
enhancement is only unconstitutional when that finding
raises the sentence beyond the sentence that could have law-
fully been imposed by reference to facts found by the jury
or admitted by the defendant. This distinction is crucial to
a proper understanding of why the Guidelines could easily
function as they are currently written.
Consider, for instance, a case in which the defendant’s ini-
tial sentencing range under the Guidelines is 130-to-162
months, calculated by combining a base offense level of 28
and a criminal history category of V. See USSG ch. 5, pt.
A (Table). Depending upon the particular offense, the sen-
tencing judge may use her discretion to select any sentence
within this range, even if her selection relies upon factual
determinations beyond the facts found by the jury. If the
defendant described above also possessed a firearm, the
Guidelines would direct the judge to apply a two-level en-
hancement under § 2D1.1, which would raise the defendant’s
total offense level from 28 to 30. That, in turn, would raise
the defendant’s eligible sentencing range to 151-to-188
months. That act of judicial factfinding would comply with
the Guidelines and the Sixth Amendment so long as the sen-
5 See Application of Blakely 9.

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279 Cite as: 543 U. S. 220 (2005)
Stevens, J., dissenting in part
tencing judge then selected a sentence between 151-to-162
months—the lower number (151) being the bottom of offense
level 30 and the higher number (162) being the maximum
sentence under level 28, which is the upper limit of the range
supported by the jury findings alone. This type of overlap
between sentencing ranges is the rule, not the exception,
in the Guidelines as currently constituted. See 1 Practice
Under the Federal Sentencing Guidelines § 6.01[B], p. 7 (P.
Bamberger & D. Gottlieb eds. 4th ed. 2003 Supp.) (noting
that nearly all Guidelines ranges overlap and that “because
of the overlap, the actual sentence imposed can theoretically
be the same no matter which guideline range is chosen”).
Trial courts have developed considerable expertise in em-
ploying overlapping provisions in such a manner as to avoid
unnecessary resolution of factual disputes, see § 7.03[B][2], at
34 (2004 Supp.), and lower courts have shown themselves
capable of distinguishing proper from improper applications
of sentencing enhancements under Blakely, see, e. g.,
United States v. Mayfield, 386 F. 3d 1301 (CA9 2004) (uphold-
ing a two-level enhancement for firearm possession from of-
fense level 34 to 36 because the sentencing judge selected a
sentence within the overlapping range between the two lev-
els). The interaction of these various Guidelines provisions
demonstrates the fallacy in the assumption that judicial fact-
finding can never be constitutional under the Guidelines.
The majority’s answer to the fact that the vast majority of
applications of the Guidelines are constitutional is that “we
must determine likely intent not by counting proceedings,
but by evaluating the consequences of the Court’s constitu-
tional requirement” on every imaginable case. Ante, at 248
(opinion of Breyer, J.). That approach ignores the lessons
of our facial invalidity cases. Those cases stress that this
Court is ill suited to the task of drafting legislation and that,
therefore, as a matter of respect for coordinate branches of

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280 UNITED STATES v. BOOKER
Stevens, J., dissenting in part
Government, we ought to presume whenever possible that
those charged with writing and implementing legislation will
and can apply “the statute consistently with the constitu-
tional command.” Time, Inc. v. Hill, 385 U. S. 374, 397
(1967). Indeed, this Court has generally refused to consider
“every conceivable situation which might possibly arise in
the application of complex and comprehensive legislation,”
Barrows v. Jackson, 346 U. S. 249, 256 (1953), because “[t]he
delicate power of pronouncing an Act of Congress unconstitu-
tional is not to be exercised with reference to hypothetical
cases thus imagined,” United States v. Raines, 362 U. S. 17,
22 (1960). The Government has already shown it can apply
the Guidelines constitutionally even as written, and Con-
gress is perfectly capable of redrafting the statute on its
own. Thus, there is no justification for the extreme judicial
remedy of total invalidation of any part of the SRA or the
Guidelines.
In sum, it is indisputable that the vast majority of federal
sentences under the Guidelines would have complied with
the Sixth Amendment without the Court’s extraordinary
remedy. Under any reasonable reading of our precedents,
in no way can it be said that the Guidelines are, or that any
particular Guidelines provision is, facially unconstitutional.
Severability:
Even though a statute is not facially invalid, a holding that
certain specific provisions are unconstitutional may make it
necessary to invalidate the entire statute. See generally
Stern, Separability and Separability Clauses in the Supreme
Court, 51 Harv. L. Rev. 76 (1937) (hereinafter Stern). Our
normal rule, however, is that the “unconstitutionality of a
part of an Act does not necessarily defeat or affect the valid-
ity of its remaining provisions. Unless it is evident that the
legislature would not have enacted those provisions which
are within its power, independently of that which is not, the
invalid part may be dropped if what is left is fully operative

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281 Cite as: 543 U. S. 220 (2005)
Stevens, J., dissenting in part
as a law.” Champlin Refining Co. v. Corporation Comm’n
of Okla., 286 U. S. 210, 234 (1932) (emphasis added).6
Our “severability” precedents, however, cannot support
the Court’s remedy because there is no provision of the SRA
or the Guidelines that falls outside of Congress’ power. See
Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987). Ac-
cordingly, severability analysis simply does not apply.
The majority concludes that our constitutional holding re-
quires the invalidation of §§ 3553(b)(1) and 3742(e). The first
6 There is a line of cases that some commentators have described as
standing for the proposition that the Court must engage in severability
analysis if a statute is unconstitutional in only some of its applications.
See Stern 82. However, these cases simply hold that a statute that may
apply both to situations within the scope of Congress’ enumerated powers
and also to situations that exceed such powers, the Court will sustain the
statute only if it can be validly limited to the former situations, and will
strike it down if it cannot be so limited. Compare United States v. Reese,
92 U. S. 214, 221 (1876) (invalidating in its entirety statute that punished
individuals who interfered with the right to vote, when the statute applied
to conduct that violated the Fifteenth Amendment and conduct outside
that constitutional prohibition), and Trade-Mark Cases, 100 U. S. 82, 98
(1879) (concluding that the Trade-Mark Act must be read to “establish a
universal system of trade-mark registration” and thus was invalid in its
entirety because it exceeded the bounds of the Commerce Clause), with
The Abby Dodge, 223 U. S. 166, 175 (1912) (construing language to apply
only to waters not within the jurisdiction of the States, and therefore
entirely valid), and NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1,
30–31 (1937) (holding that the National Labor Relations Act applied only
to interstate commerce, and upholding its constitutionality on that basis).
These cases are thus about constitutional avoidance, not severability.
In a separate dissent, Justice Thomas relies on this principle to con-
clude that the proper analysis is whether the unconstitutional applications
of the Guidelines are sufficiently numerous and integral to warrant invali-
dating the Guidelines in their entirety. See post, at 323. While I under-
stand the intuitive appeal of Justice Thomas’ dissent, I do not believe
that our cases support this approach. In any event, given the vast num-
ber of constitutional applications, see supra, at 276, it is clear that Con-
gress would, as Justice Thomas concludes, prefer that the Guidelines
not be invalidated. I therefore do not believe that any extension of our
severability cases is warranted.

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282 UNITED STATES v. BOOKER
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of these sections uses the word “shall” to make the substan-
tive provisions of the Guidelines mandatory. See Mistretta
v. United States, 488 U. S. 361, 367 (1989). The second au-
thorizes de novo review of sentencing judges’ applications of
relevant Guidelines provisions. Neither section is unconsti-
tutional. While these provisions can in certain cases, when
combined with other statutory and Guidelines provisions, re-
sult in a violation of the Sixth Amendment, they are plainly
constitutional on their faces.
Rather than rely on traditional principles of facial invalid-
ity or severability, the majority creates a new category of
cases in which this Court may invalidate any part or parts
of a statute (and add others) when it concludes that Congress
would have preferred a modified system to administering the
statute in compliance with the Constitution. This is entirely
new law. Usually the Court first declares unconstitutional
a particular provision of law, and only then does it inquire
whether the remainder of the statute can be saved. See,
e. g., Regan v. Time, 468 U. S., at 652; Alaska Airlines, 480
U. S., at 684. Review in this manner limits judicial power
by minimizing the damage done to the statute by judicial
fiat. There is no case of which I am aware, however, in
which this Court has used “severability” analysis to do what
the majority does today: determine that some unconstitu-
tional applications of a statute, when viewed in light of the
Court’s reading of “likely” legislative intent, justifies the in-
validation of certain statutory sections in their entirety, their
constitutionality notwithstanding, in order to save the parts
of the statute the Court deemed most important. The nov-
elty of this remedial maneuver perhaps explains why no
party or amicus curiae to this litigation has requested the
remedy the Court now orders. In addition, none of the fed-
eral courts that have addressed Blakely’s application to the
Guidelines has concluded that striking down § 3553(b)(1) is a
proper solution.

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Stevens, J., dissenting in part
Most importantly, the Court simply has no authority to
invalidate legislation absent a showing that it is unconstitu-
tional. To paraphrase Chief Justice Marshall, an “act of the
legislature” must be “repugnant to the constitution” in order
to be void. Marbury v. Madison, 1 Cranch 137, 177 (1803).
When a provision of a statute is unconstitutional, that provi-
sion is void, and the Judiciary is therefore not bound by it in
a particular case. Here, however, the provisions the major-
ity has excised from the statute are perfectly valid: Congress
could pass the identical statute tomorrow and it would be
binding on this Court so long as it were administered in com-
pliance with the Sixth Amendment.7 Because the statute
itself is not repugnant to the Constitution and can by its
terms comport with the Sixth Amendment, the Court does
not have the constitutional authority to invalidate it.
The precedent on which the Court relies is scant indeed.
It can only point to cases in which a provision of law was
unconstitutionally extended to or limited to a particular
class; in such cases it is necessary either to invalidate the
provision or to require the legislature to extend the benefit
to an excluded class.8 Given the sweeping nature of the
7 The predicate for the Court’s remedy is its assumption that Congress
would not have enacted mandatory Guidelines if it had realized that the
Sixth Amendment would require some enhancements to be supported by
jury factfinding. If Congress should reenact the statute following our
decision today, it would repudiate that premise. That is why I find the
Court’s professed disagreement with this proposition unpersuasive. See
ante, at 250 (opinion of Breyer, J.). Surely Congress could reenact the
identical substantive provisions if the reenactment included a clarifying
provision stating that the word “court” shall not be construed to prohibit a
judge from requiring jury factfinding when necessary to comply with the
Sixth Amendment. Indeed, because in my view such a construction of
the word “court” is appropriate in any event, see infra, at 286–287, there
would be no need to include the clarifying provision to save the statute.
8 In Sloan v. Lemon, 413 U. S. 825 (1973), the Court concluded that legis-
lation reimbursing parents for tuition paid to private schools ran afoul of
the Establishment Clause and struck down the law in its entirety, even as
applied to parents of students in secular schools. The Court did not, as

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284 UNITED STATES v. BOOKER
Stevens, J., dissenting in part
remedy ordained today, the majority’s assertions that it is
proper to engage in an ex ante analysis of congressional in-
tent in order to select in the first instance the statutory pro-
visions to be struck down is contrary to the very purpose of
engaging in severability analysis—the Court’s remedy ex-
pands, rather than limits, judicial power.
There is no justification for extending our severability
cases to cover this situation. The SRA and the Guidelines
can be read—and are being currently read—in a way that
complies with the Sixth Amendment. If Congress wished
to amend the statute to enact the majority’s vision of how
the Guidelines should operate, it would be perfectly free to
do so. There is no need to devise a novel and questionable
method of invalidating statutory provisions that can be con-
stitutionally applied.
II
Rather than engage in a wholesale rewriting of the SRA,
I would simply allow the Government to continue doing what
it has done since this Court handed down Blakely—prove
any fact that is required to increase a defendant’s sentence
the majority would have us do, strike down particular parts of the statute.
In Welsh v. United States, 398 U. S. 333, 361–363 (1970), Justice Harlan,
writing alone, concluded that a statutory provision that allowed conscien-
tious objectors to be exempt from military service only if their views were
religiously based violated the Establishment Clause. He then concluded
that, rather than deny the exception to religiously based objectors, it
should be extended to moral objectors, in large part because “the broad
discretion conferred by a severability clause” was not present in the case.
Id., at 365. Finally, in Heckler v. Mathews, 465 U. S. 728, 739, n. 6 (1984),
the Court stated the obvious rule that when a statute provides a benefit
to one protected class and not the other, the Court is faced with the choice
of requiring the Legislature to extend the benefits, or nullifying the bene-
fits altogether. None of these cases stands for the sweeping proposition
that where parts of a statute are invalid in certain applications, the Court
may opine as to whether Congress would prefer facial invalidation of some,
but not all, of the provisions necessary to the constitutional violation.

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Stevens, J., dissenting in part
under the Guidelines to a jury beyond a reasonable doubt.
As I have already discussed, a requirement of jury fact-
finding for certain issues can be implemented without diffi-
culty in the vast majority of cases. See supra, at 276–280.
Indeed, this already appears to be the case. “[T]he De-
partment of Justice already has instituted procedures which
would protect the overwhelming majority of future cases
from Blakely infirmity. The Department of Justice has is-
sued detailed guidance for every stage of the prosecution
from indictment to final sentencing, including alleging facts
that would support sentencing enhancements and requiring
defendants to waive any potential Blakely rights in plea
agreements.” Hearings on Blakely 1–2.9 Given this expe-
rience, I think the Court dramatically overstates the diffi-
culty of implementing this solution.
The majority advances five reasons why the remedy that
is already in place will not work. First, the majority points
to the statutory text referring to “the court” in arguing that
jury factfinding is impermissible. While this text is no
doubt evidence that Congress contemplated judicial fact-
finding, it does not demonstrate that Congress thought that
judicial factfinding was so essential that, if forced to choose
between a system including jury determinations of certain
facts in certain cases on the one hand, and a system in which
the Guidelines would cease to restrain the discretion of fed-
eral judges on the other, Congress would have selected the
latter.
9 The Commissioners went on to note that, “[e]ven if Blakely is found to
apply to the federal guidelines, the waters are not as choppy as some
would make them out to be. The viability of the [Guidelines] previously
was called into question by some after [Apprendi v. New Jersey, 530 U. S.
466 (2000)]. After an initial period of uncertainty, however, the circuit
courts issued opinions and the Department of Justice instituted procedures
to ensure that future cases complied with Apprendi’s requirements and
also left the guidelines system intact.” Hearings on Blakely 1.

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286 UNITED STATES v. BOOKER
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As a textual matter, the word “court” can certainly be read
to include a judge’s selection of a sentence as supported by
a jury verdict—this reading is plausible either as a pure mat-
ter of statutory construction or under principles of constitu-
tional avoidance. Ordinarily, “ ‘where a statute is suscepti-
ble of two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such
questions are avoided, our duty is to adopt the latter.’ ”
Jones v. United States, 526 U. S. 227, 239 (1999) (quoting
United States ex rel. Attorney General v. Delaware & Hud-
son Co., 213 U. S. 366, 408 (1909)). This principle, which
“has for so long been applied by this Court that it is beyond
debate,” Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U. S. 568, 575 (1988),
is intended to show respect for Congress by presuming it
“legislates in the light of constitutional limitations,” Rust v.
Sullivan, 500 U. S. 173, 191 (1991).
The Court, however, reverses the ordinary presumption.
It interprets the phrase “[t]he court . . . shall consider” in
18 U. S. C. § 3553(a) (Supp. IV) to mean: The judge shall
consider and impose the appropriate sentence, but the judge
shall not be constrained by any findings of a jury. See ante,
at 249 (opinion of Breyer, J.) (interpreting the word “court”
to mean “ ‘the judge without the jury’ ”). The Court’s nar-
row reading of the statutory text is unnecessary. Even as-
suming that the word “court” should be read to mean “judge,
and only the judge,” a requirement that certain enhance-
ments be supported by jury verdicts leaves the ultimate sen-
tencing decision exclusively within the judge’s hands—the
judge, and the judge alone, would retain the discretion to
sentence the defendant anywhere within the required Guide-
lines range and within overlapping Guidelines ranges when
applicable. See supra, at 278–279. The judge would, no
doubt, be limited by the findings of the jury in certain cases,
but the fact that such a limitation would be required by
the Sixth Amendment in those limited circumstances is not

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287 Cite as: 543 U. S. 220 (2005)
Stevens, J., dissenting in part
a reason to adopt such a constrained view of an Act of
Congress.10
In adopting its constrictive reading of “court,” the major-
ity has manufactured a broader constitutional problem than
is necessary, and has thereby made necessary the extraordi-
nary remedy it has chosen. I pause, however, to stress that
it is not this Court’s holding that the Guidelines must be
applied consistently with the Sixth Amendment that has
made the majority’s remedy necessary. Rather, it is the
Court’s miserly reading of the statutory language that re-
sults in “constitutional infirmities.” See ante, at 254 (opin-
ion of Breyer, J.)
Second, the Court argues that simply applying Blakely to
the Guidelines would make “real conduct” sentencing more
difficult. While that is perhaps true in some cases, judges
could always consider relevant conduct obtained from a pre-
sentence report pursuant to 18 U. S. C. § 3661 and USSG
§ 6A1.1 in selecting a sentence within a Guidelines range, and
of course would be free to consider any such circumstances
in cases in which the defendant pleads guilty and waives his
Blakely rights. Further, in many cases the Government
could simply prove additional facts to a jury beyond a rea-
sonable doubt—as it has been doing in some cases since Ap-
prendi—or the court could use bifurcated proceedings in
which the relevant conduct is proved to a jury after it has
convicted the defendant of the underlying crime.
10 This argument finds support in the Government’s successful adapta-
tion to our decision in Apprendi. After that decision, prosecutors began
to allege more and more “sentencing factors” in indictments. See supra,
at 277. The Government’s ability to do so suggests that the Guidelines
are far more compatible with “jury factfinding” than the Court admits.
And, the fact that Congress is presumably aware of the Government’s
practices in light of Apprendi, yet has not condemned the practices or
taken any actions to reform them, indicates that limited jury factfinding
is, contrary to the majority’s assertion, compatible with legislative intent.
See ante, at 250 (opinion of Breyer, J.).

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288 UNITED STATES v. BOOKER
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The majority is correct, however, that my preferred hold-
ing would undoubtedly affect “real conduct” sentencing in
certain cases. This is so because the goal of such sentenc-
ing—increasing a defendant’s sentence on the basis of con-
duct not proved at trial—is contrary to the very core of
Apprendi. That certain applications of “relevant conduct”
sentencing are unconstitutional should not come as a com-
plete surprise to Congress: The House Report recognized
that “real offense” sentencing could pose constitutional diffi-
culties. H. R. Rep. No. 98–1017, p. 98 (1984). In reality, the
majority’s concerns about relevant conduct are nothing more
than an objection to Apprendi itself, an objection that this
Court rejected in Parts I–III, ante (opinion of Stevens, J.).
Further, the Court does not explain how its proposed rem-
edy will ensure that judges take real conduct into account.
While judges certainly may do so in their discretion under
§ 3553(a), there is no indication as to how much or to what
extent “relevant conduct” should matter under the majority’s
regime. Nor is there any meaningful standard by which
appellate courts may review a sentencing judge’s “relevant
conduct” determination—only a general “reasonableness”
inquiry that may discourage sentencing judges from con-
sidering such conduct altogether. The Court’s holding thus
may do just as much damage to real conduct sentencing as
would simply requiring the Government to follow the Guide-
lines consistent with the Sixth Amendment.
Third, the majority argues that my remedy would make
sentencing proceedings far too complex. But of the very
small number of cases in which a Guidelines sentence would
implicate the Sixth Amendment, see supra, at 275–276, most
involve drug quantity determinations, firearm enhance-
ments, and other factual findings that can readily be made
by juries. I am not blind to the fact that some cases, such
as fraud prosecutions, would pose new problems for prosecu-
tors and trial judges. See ante, at 252–253 (opinion of
Breyer, J.). In such cases, I am confident that federal trial

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judges, assisted by capable prosecutors and defense attor-
neys, could have devised appropriate procedures to impose
the sentences the Guidelines envision in a manner that is
consistent with the Sixth Amendment. We have always
trusted juries to sort through complex facts in various areas
of law. This may not be the most efficient system imagin-
able, but the Constitution does not permit efficiency to be
our primary concern. See Blakely v. Washington, 542 U. S.,
at 312–313.
Fourth, the majority assails my reliance on plea bargain-
ing. The Court claims that I cannot discount the effect that
applying Blakely to the Guidelines would have on plea-
bargained cases, since the specter of Blakely will affect those
cases. However, the majority’s decision suffers from the
same problem to a much greater degree. Prior to the
Court’s decision to strike the mandatory feature of the
Guidelines, prosecutors and defendants alike could bargain
from a position of reasonable confidence with respect to the
sentencing range into which a defendant would likely fall.
The majority, however, has eliminated the certainty of ex-
pectations in the plea process. And, unlike my proposed
remedy, which would potentially affect only a fraction of plea
bargains, the uncertainty resulting from the Court’s regime
change will infect the entire universe of guilty pleas which
occur in 97% of all federal prosecutions.
The majority also argues that applying Blakely to the
Guidelines would allow prosecutors to exercise “a power the
Sentencing Act vested in judges,” ante, at 257 (opinion of
Breyer, J.), by giving prosecutors the choice whether to
“charge” a particular fact. Under the remedy I favor, how-
ever, judges would still be able to reject factually false plea
agreements under USSG § 6B1.2(a), and could still consider
relevant information about the offense and the offender in
every single case. Judges could consider such characteris-
tics as an aid in selecting the appropriate sentence within
the Guidelines range authorized by the jury verdict, deter-
mining the defendant’s criminal history level, reducing a de-

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290 UNITED STATES v. BOOKER
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fendant’s sentence, or justifying discretionary departures
from the applicable Guidelines range. The Court is there-
fore incorrect when it suggests that requiring a supporting
jury verdict for certain enhancements in certain cases would
place certain sentencing factors “beyond the reach of the
judge entirely.” See ante, at 257 (opinion of Breyer, J.).
Moreover, the premise on which the Court’s argument is
based—that the Guidelines as currently written prevent fact
bargaining and therefore diminish prosecutorial power—is
probably not correct. As one commentator has noted:
“[P]rosecutors exercise nearly as much control when
guidelines tie sentences to so-called ‘real-offense’
factors . . . . One might reasonably assume those fac-
tors are outside of prosecutors’ control, but experience
with the Federal Sentencing Guidelines suggests other-
wise; when necessary, the litigants simply bargain about
what facts will (and won’t) form the basis for sentencing.
It seems to be an iron rule: guidelines sentencing em-
powers prosecutors, even where the guidelines’ authors
try to fight that tendency.” Stuntz, Plea Bargaining
and Criminal Law’s Disappearing Shadow, 117 Harv.
L. Rev. 2548, 2559–2560 (2004) (footnote omitted).
Not only is fact bargaining quite common under the current
system, it is also clear that prosecutors have substantial bar-
gaining power.11 And surely, contrary to the Court’s re-
11 See M. Johnson & S. Gilbert, The U. S. Sentencing Guidelines: Results
of the Federal Judicial Center’s 1996 Survey 7–9 (1997) (noting that among
federal judges and probation officers, there is widespread “frustration
with the power and discretion held by prosecutors under the guidelines”
and that “guidelines are manipulated through plea agreements”); Saris,
Have the Sentencing Guidelines Eliminated Disparity? One Judge’s Per-
spective, 30 Suffolk U. L. Rev. 1027, 1030 (1997); see also Nagel & Schul-
hofer, A Tale of Three Cities: An Empirical Study of Charging and Bar-
gaining Practices Under the Federal Sentencing Guidelines, 66 S. Cal. L.
Rev. 501, 560 (1992) (arguing that fact bargaining is common under the
Guidelines and has resulted in substantial sentencing disparities).

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sponse to this dissent, ante, at 256–257 (opinion of Breyer,
J.), a prosecutor who need only prove an enhancing fact by
a preponderance of the evidence has more bargaining power
than if required to prove the same fact beyond a reason-
able doubt.
Finally, the majority argues that my solution would re-
quire a different burden of proof for enhancements above the
maximum authorized by the jury verdict and for reductions.
This is true because the requirement that guilt be estab-
lished by proof beyond a reasonable doubt is a constitutional
mandate. However, given the relatively few reductions
available in the Guidelines and the availability of judicial dis-
cretion within the applicable range, this is unlikely to have
more than a minimal effect.
In sum, I find unpersuasive the Court’s objections to allow-
ing Congress to decide in the first instance whether the
Guidelines should be converted from a mandatory into a dis-
cretionary system. Far more important than those objec-
tions is the overwhelming evidence that Congress has al-
ready considered, and unequivocally rejected, the regime
that the Court endorses today.
III
Even under the Court’s innovative approach to severabil-
ity analysis when confronted with unconstitutional applica-
tions of a statute, its opinion is unpersuasive. It assumes
that this Court’s only inquiry is to “decide whether we would
deviate less radically from Congress’ intended system (1) by
superimposing the constitutional requirement announced
today or (2) through elimination of some provisions of the
statute.” Ante, at 247 (opinion of Breyer, J.). I will as-
sume, consistently with the majority, that in this exercise we
should never use our “remedial powers to circumvent the
intent of the legislature,” Califano v. Westcott, 443 U. S. 76,
94 (1979) (Powell, J., concurring in part and dissenting in
part), and that we must not create “a program quite different

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292 UNITED STATES v. BOOKER
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from the one the legislature actually adopted,” Sloan v.
Lemon, 413 U. S. 825, 834 (1973).
In the context of this framework, in order to justify “excis-
ing” 18 U. S. C. §§ 3553(b)(1) (Supp. IV) and 3742(e) (2000 ed.
and Supp. IV), the Court has the burden of showing that
Congress would have preferred the remaining system of dis-
cretionary Sentencing Guidelines to not just the remedy I
would favor, but also to any available alternative, including
the alternative of total invalidation, which would give Con-
gress a clean slate on which to write an entirely new law.
The Court cannot meet this burden because Congress has
already considered and overwhelmingly rejected the system
it enacts today. In doing so, Congress revealed both an un-
mistakable preference for the certainty of a binding regime
and a deep suspicion of judges’ ability to reduce disparities
in federal sentencing. A brief examination of the SRA’s his-
tory reveals the gross impropriety of the remedy the Court
has selected.
History of Sentence Reform Efforts:
In the mid-1970’s, Congress began to study the numerous
problems attendant to indeterminate sentencing in the fed-
eral criminal justice system. After nearly a decade of re-
view, Congress in 1984 decided that the system needed a
comprehensive overhaul. The elimination of sentencing dis-
parity, which Congress determined was chiefly the result of
a discretionary sentencing regime, was unquestionably Con-
gress’ principal aim. See Feinberg, Federal Criminal Sen-
tencing Reform: Congress and the United States Sentencing
Commission, 28 Wake Forest L. Rev. 291, 295–296 (1993)
(“The first and foremost goal of the sentencing reform effort
was to alleviate the perceived problem of federal criminal
sentencing disparity. . . . Quite frankly, all other considera-
tions were secondary”); see also Breyer, Federal Sentencing
Guidelines Revisited, 2 Fed. Sentencing Rptr. 180 (1999) (“In
seeking ‘greater fairness,’ Congress, acting in bipartisan

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Stevens, J., dissenting in part
fashion, intended to respond to complaints of unreasonable
disparity in sentencing—that is, complaints that differences
among sentences reflected not simply different offense con-
duct or different offender history, but the fact that different
judges imposed the sentences” (emphasis added)). As Sena-
tor Hatch, a central participant in the reform effort, has ex-
plained: “The discretion that Congress had conferred for so
long upon the judiciary and the parole authorities was at
the heart of sentencing disparity.” The Role of Congress
in Sentencing: The United States Sentencing Commission,
Mandatory Minimum Sentences, and the Search for a Cer-
tain and Effective Sentencing System, 28 Wake Forest L.
Rev. 185, 187 (1993) (hereinafter Hatch) (emphasis added).
Consequently, Congress explicitly rejected as a model for
reform the various proposals for advisory guidelines that
had been introduced in past Congresses. One example of
such legislation was the bill introduced in 1977 by Senators
Kennedy and McClellan, S. 1437, 95th Cong., 1st Sess. (as
reported by the Senate Judiciary Committee on Nov. 15,
1977) (hereinafter S. 1437), which allowed judges to impose
sentences based on the characteristics of the individual de-
fendant and granted judges substantial discretion to depart
from recommended guidelines sentences. See Stith & Koh,
The Politics of Sentencing Reform: The Legislative History
of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev.
223, 238 (1993) (hereinafter Stith & Koh). That bill never
became law and was refined several times between 1977 and
1984: Each of those refinements made the regime more, not
less, restrictive on trial judges’ discretion in sentencing.12
12 Incidentally, the original version of S. 1437 looked much like the re-
gime that the Court has mandated today—it directed the sentencing judge
to consider a variety of factors, only one of which was the sentencing
range established by the Guidelines, and subjected the ultimately chosen
sentence to appellate review under a “clearly unreasonable” standard.
See S. 1437, § 101 (proposed 18 U. S. C. §§ 2003(a), 3725(e)). That law was

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Passage of the Sentencing Reform Act of 1984:
Congress’ preference for binding guidelines was evident in
the debate over passage of the SRA itself, which was predi-
cated entirely on the move from a discretionary guidelines
system to the mandatory system the Court strikes down
today. The SRA was the product of competing versions of
sentencing reform legislation: the House bill, H. R. 6012, 98th
Cong., 2d Sess., authorized the creation of discretionary
guidelines whereas the Senate bill, S. 668, 98th Cong., 2d
Sess., provided for binding guidelines and de novo appellate
review. The House was splintered regarding whether to
make the Guidelines binding on judges, but the vote in the
Senate was an overwhelming 85 to 3 in favor of binding
Guidelines. 130 Cong. Rec. 1649 (1984); see generally
Stith & Koh 261–266. Eventually, the House substituted the
Senate version for H. R. 6012, and the current system of
mandatory Guidelines became law. 130 Cong. Rec. 29730
(1984).
The text of the law that actually passed Congress (includ-
ing §§ 3553(b)(1) and 3742(e)) should be more than sufficient
to demonstrate Congress’ unmistakable commitment to a
binding Guidelines system. That text requires the sentenc-
ing judge to impose the sentence dictated by the Guidelines
(“[T]he court shall impose a sentence of the kind, and within
the range” provided in the Guidelines unless there is a cir-
cumstance “not adequately taken into consideration by the”
amended twice before it passed, the first time to include a mandatory
directive to trial judges to impose a sentence within the Guidelines range,
and the second time to change the standard of review from “ ‘clearly unrea-
sonable’ ” to “ ‘unreasonable.’ ” See Stith & Koh 245 (detailing amend-
ments to S. 1437 prior to passage). It is worth noting that Congress had
countless opportunities over the course of seven years of debate to enact
the law the Court creates today. Congress’ repeated rejection of pro-
posed legislation constitutes powerful evidence that Congress did not want
it to become law.

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Guidelines), and § 3742(e) gives § 3553(b)(1) teeth by instruct-
ing judges that any sentence outside of the Guidelines range
without adequate explanation will be overturned on appeal.13
Congress’ chosen regime was carefully designed to produce
uniform compliance with the Guidelines. Congress surely
would not have taken the pains to create such a regime had
it found the Court’s system of discretionary guidelines ac-
ceptable in any way.
The accompanying Senate Report and floor debate make
plain what should be obvious from the structure of the stat-
ute: Congress refused to accept the discretionary system
that the Court implausibly deems most consistent with con-
gressional intent.14 In other words, given the choice be-
tween the statute created by the Court today or a clean slate
13 See id., at 269–270; see also Wilkins, Newton, & Steer, Competing
Sentencing Policies in a “War on Drugs” Era, 28 Wake Forest L. Rev. 305,
313 (1993) (same).
14 See, e. g., 133 Cong. Rec. 33109 (1987) (remarks of Sen. Hatch) (“[T]he
core function of the guidelines and the underlying statute . . . is to reduce
disparity in sentencing and restore fairness and predictability to the sen-
tencing process. Adherence to the guidelines is therefore properly re-
quired under the law except in . . . rare and particularly unusual
instances . . . ”); id., at 33110 (remarks of Sen. Biden) (“That notion of
allowing the courts to, in effect, second-guess the wisdom of any sentenc-
ing guideline is plainly contrary to the act’s purpose of having a sentencing
guidelines system that is mandatory, except when the court finds a circum-
stance meeting the standard articulated in § 3553(b). It is also contrary
to the purpose of having Congress, rather than the courts, review the
sentencing guidelines for the appropriateness of authorized levels of pun-
ishment”); S. Rep. No. 98–223, p. 76 (1983) (noting that the Senate Judi-
ciary Committee “resisted [the] attempt to make the sentencing guidelines
more voluntary than mandatory, because of the poor record of States re-
ported in the National Academy of Science Report which have experi-
mented with ‘voluntary’ guidelines”); id., at 34–35 (citing the “urgent need
for” sentencing reform because of sentencing disparities caused “directly
[by] the unfettered discretion the law confers on [sentencing] judges and
parole authorities responsible for imposing and implementing the sen-
tence”); id., at 36–43, 62 (cataloging the “astounding” variations in federal
sentencing and criticizing the unfairness of sentencing disparities).

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on which to write a wholly different law, Congress undoubt-
edly would have selected the latter.
Congress’ Method of Reducing Disparities:
The notion that Congress had any confidence that judges
would reduce sentencing disparities by considering relevant
conduct—an idea that is championed by the Court, ante, at
253–254 (opinion of Breyer, J.)—either ignores or misreads
the political environment in which the SRA passed. It is
true that the SRA instructs sentencing judges to consider
real offense and offender characteristics, 28 U. S. C. A. § 994
(2000 ed. and Supp. IV), but Congress only wanted judges to
consider those characteristics within the limits of a manda-
tory system.15 The Senate Report on which the Court re-
lies, see ante, at 249–250, clearly concluded that the exist-
ence of sentencing disparities “can be traced directly to the
unfettered discretion the law confers on those judges . . .
responsible for imposing and implementing the sentence.”
S. Rep. No. 98–225, p. 38 (1983). Even in a system in which
judges could not impose sentences based on “relevant con-
15 Indeed, the Court’s contention that real conduct sentencing was the
principal aim of the SRA finds no support in the legislative history. The
only authority the Court cites is 18 U. S. C. § 3661, which permits a judge
to consider any information she considers relevant to sentencing. See
ante, at 249–250 (opinion of Breyer, J.). That provision, however, was
enacted in 1970, see Pub. L. 91–452, § 1001(a), 84 Stat. 951 (there numbered
§ 3577), and thus provides no evidence whatsoever of Congress’ intent
when it passed the SRA in 1984. Clearly, Congress thought that real
conduct sentencing could not effectively address sentencing disparities
without a binding Guidelines regime. For this reason, traditional sen-
tencing goals have always played a minor role in the Guidelines system:
“While the thick-as-your-wrist Guideline Manual specifically directs sen-
tencing judges to make thousands of determinations on discrete points,
not once does it expressly direct that a specific decision leading to the
applicable guideline range on the 256-box grid should or must turn on an
individualized consideration of the traditional goals of sentencing.” Osler,
Uniformity and Traditional Sentencing Goals in the Age of Feeney, 16 Fed.
Sentencing Rptr. 253, 253–254 (2004).

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duct” determinations (absent a plea agreement or supporting
jury findings), sentences would still be every bit as certain
and uniform as in the status quo—at most, the process for
imposing those sentences would be more complex. The
same can hardly be said of the Court’s chosen system, in
which all federal sentencing judges, in all cases, regain the
unconstrained discretion Congress eliminated in 1984.
The Court’s conclusion that Congress envisioned a sen-
tencing judge as the centerpiece of its effort to reduce dis-
parities is remarkable given the context of the broader legis-
lative debate about what entity would be responsible for
drafting the Guidelines under the SRA. The House version
of the bill preferred the Guidelines to be written by the Judi-
cial Conference of the United States—the House Report ac-
companying that bill argued that judges had vast experience
in sentencing and would best be able to craft a system capa-
ble of providing sentences based on real conduct without ex-
cessive disparity. See H. R. Rep. No. 98–1017, at 93–94.
Those in the Senate majority, however, favored an independ-
ent Commission. They did so, whether rightly or wrongly,
based on a belief that federal judges could not be trusted to
impose fair and uniform sentences. See, e. g., 130 Cong. Rec.
976 (1984) (remarks of Sen. Laxalt) (“The present problem
with disparity in sentencing . . . stems precisely from the
failure of [f]ederal judges—individually and collectively—to
sentence similarly situated defendants in a consistent, rea-
sonable manner. There is little reason to believe that judges
will now begin to do what they have failed to do in the past”).
And, at the end of the debate, the few remaining Members
in the minority recognized that the battle to empower judges
with more discretion had been lost. See, e. g., id., at 973
(remarks of Sen. Mathias) (arguing that “[t]he proponents of
the bill . . . argue in essence that judges cannot be trusted.
You cannot trust a judge . . . you must not trust a judge”).
I find it impossible to believe that a Congress in which these

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sentiments prevailed would have ever approved of the dis-
cretionary sentencing regime the Court enacts today.
Congressional Activity Since 1984:
Congress has not wavered in its commitment to a binding
system of Sentencing Guidelines. In fact, Congress has re-
jected each and every attempt to loosen the rigidity of the
Guidelines or vest judges with more sentencing options.
See Hatch 189 (“In ensuing years, Congress would maintain
its adherence to the concept of binding guidelines by consist-
ently rejecting efforts to make the guidelines more discre-
tionary”). Most recently, Congress’ passage of the Prosecu-
torial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003 (PROTECT Act), Pub. L. 108–21,
117 Stat. 650, reinforced the mandatory nature of the Guide-
lines by expanding de novo review of sentences to include all
departures from the Guidelines and by directing the Com-
mission to limit the number of available departures. The
majority admits that its holding has made the PROTECT
Act irrelevant. See ante, at 261 (opinion of Breyer, J.) (ad-
mitting that after the Court’s remedy, the PROTECT Act’s
provisions “have ceased to be relevant”). Even a cursory
reading of the legislative history of the PROTECT Act re-
veals the absurdity of the claim that Congress would find
acceptable, under any circumstances, the Court’s restora-
tion of judicial discretion through the facial invalidation of
§§ 3553(b)(1) and 3742(e).16 In sum, despite Congress’ un-
16 Although there was no accompanying committee report attached to
the PROTECT Act, the floor debates over the PROTECT Act’s relevant
provisions belie the majority’s contention that a discretionary Guidelines
system is more consistent with Congress’ intent than the holding I
would adopt. See 149 Cong. Rec. 9345, 9353–9354 (2003) (remarks of
Sen. Hatch) (arguing that the PROTECT Act “says the game is over for
judges: You will have some departure guidelines from the Sentencing
Commission, but you are not going to go beyond those, and you are not
going to go on doing what is happening in our society today on children’s
crimes, no matter how softhearted you are. That is what we are trying

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Stevens, J., dissenting in part
equivocal demand that the Guidelines operate as a binding
system, and in the name of avoiding any reduction in the
power of the sentencing judge vis-a` -vis the jury (a subject
to which Congress did not speak), the majority has erased
the heart of the SRA and ignored in their entirety all of the
Legislative Branch’s postenactment expressions of how the
Guidelines are supposed to operate.
The majority’s answer to this overwhelming history is that
retaining a mandatory Guidelines system “is not a choice
that remains open” given our holding that Blakely applies to
the Guidelines. Ante, at 265. This argument—essentially,
that the Apprendi rule makes determinate sentencing un-
constitutional—has been advanced repeatedly since Ap-
prendi. See, e. g., 530 U. S., at 549–554 (O’Connor, J., dis-
senting); Blakely, 542 U. S., at 314 (O’Connor, J., dissenting);
id., at 345–346 (Breyer, J., dissenting). These prophecies
were self-fulfilling. It is not Apprendi that has brought an
end to determinate sentencing. This Court clearly had the
power to adopt a remedy that both complied with the Sixth
Amendment and also preserved a determinate sentencing re-
gime in which judges make regular factual determinations
regarding a defendant’s sentence. It has chosen instead to
exaggerate the constitutional problem and to expand the
scope of judicial invalidation far beyond that which is even
arguably necessary. Our holding that Blakely applies to the
Sentencing Guidelines did not dictate the Court’s unprece-
dented remedy.
to do here. . . . We say in this bill: We are sick of this, judges. You
are not going to do this anymore except within the guidelines set by the
Sentencing Commission”); id., at 9354 (“[T]rial judges systematically un-
dermine the sentencing guidelines by creating new reasons to reduce
these sentences”); id., at 12357 (2003) (remarks of Sen. Kennedy) (“The
Feeney Amendment effectively strips Federal judges of discretion to im-
pose individualized sentences, and transforms the longstanding sentencing
guidelines system into a mandatory minimum sentencing system. It lim-
its in several ways the ability of judges to depart downwards from the
guidelines”).

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IV
As a matter of policy, the differences between the regime
enacted by Congress and the system the Court has chosen
are stark. Were there any doubts about whether Congress
would have preferred the majority’s solution, these are
sufficient to dispel them. First, Congress’ stated goal of
uniformity is eliminated by the majority’s remedy. True,
judges must still consider the sentencing range contained in
the Guidelines, but that range is now nothing more than a
suggestion that may or may not be persuasive to a judge
when weighed against the numerous other considerations
listed in 18 U. S. C. § 3553(a) (2000 ed. and Supp. IV). The
result is certain to be a return to the same type of sentencing
disparities Congress sought to eliminate in 1984. Prior to
the PROTECT Act, rates of departure from the applicable
Guidelines sentence (via upward or downward departure)
varied considerably depending upon the Circuit in which one
was sentenced. See Sourcebook 53–55 (Table 26) (showing
that 76.6% of sentences in the Fourth Circuit were within
the applicable Guidelines range, whereas only 48.8% of sen-
tences in the Ninth Circuit fell within the range). Those
disparities will undoubtedly increase in a discretionary sys-
tem in which the Guidelines are but one factor a judge must
consider in sentencing a defendant within a broad statutory
range.
Moreover, the Court has neglected to provide a critical
procedural protection that existed prior to the enactment of
a binding Guidelines system. Before the SRA, the sentenc-
ing judge had the discretion to impose a sentence that desig-
nated a minimum term “at the expiration of which the pris-
oner shall become eligible for parole.” 18 U. S. C. § 4205(b)
(1982 ed.) (repealed by Pub. L. 98–473, § 218(a)(5), 98 Stat.
2027). Sentencing judges had the discretion to reduce a
minimum term of imprisonment upon the recommendation
of the Bureau of Prisons. § 4205(g). Through these provi-

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Stevens, J., dissenting in part
sions and others, see generally §§ 4201–4215, all of which
were effectively repealed in 1984, it was the Parole Commis-
sion—not the sentencing judge—who was ultimately respon-
sible for determining the length of each defendant’s real sen-
tence. See, e. g., S. Rep. No. 98–225, at 38. Prior to the
Guidelines regime, the Parole Commission was designed to
reduce sentencing disparities and to provide a check for de-
fendants who had received excessive sentences. Today, the
Court reenacts the discretionary Guidelines system that
once existed without providing this crucial safety net.
Other concerns are likely to arise. Congress’ demand in
the PROTECT Act that departures from the Guidelines be
closely regulated and monitored is eviscerated—for there can
be no “departure” from a mere suggestion. How will a
judge go about determining how much deference to give to
the applicable Guidelines range? How will a court of ap-
peals review for reasonableness a district court’s decision
that the need for “just punishment” and “adequate deter-
rence to criminal conduct” simply outweighs the considera-
tions contemplated by the Sentencing Commission? See 18
U. S. C. §§ 3553(a)(2)(A)–(B). What if a sentencing judge
determines that a defendant’s need for “educational or
vocational training, medical care, or other correctional
treatment in the most effective manner,” § 3553(a)(2)(D),
requires disregarding the stiff Guidelines range Congress
presumably preferred? These questions will arise in
every case in the federal system under the Court’s system.
Regrettably, these are exactly the sort of questions Con-
gress hoped that sentencing judges would not ask after the
SRA.
The consequences of such a drastic change—unaided by
the usual processes of legislative deliberation—are likely to
be sweeping. For example, the majority’s unnecessarily
broad remedy sends every federal sentence back to the
drawing board, or at least into the novel review for “reason-
ableness,” regardless of whether those individuals’ constitu-

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tional rights were violated. It is highly unlikely that the
mere application of “prudential doctrines” will mitigate the
consequences of such a gratuitous change.
The majority’s remedy was not the inevitable result of the
Court’s holding that Blakely applies to the Guidelines. Nei-
ther Apprendi, nor Blakely, nor these cases made deter-
minate sentencing unconstitutional.17 Merely requiring all
applications of the Guidelines to comply with the Sixth
Amendment would have allowed judges to distinguish harm-
less error from error requiring correction, would have re-
quired no more complicated procedures than the procedural
regime the majority enacts today, and, ultimately, would
have left most sentences intact.
Unlike a rule that would merely require judges and prose-
cutors to comply with the Sixth Amendment, the Court’s sys-
tematic overhaul turns the entire system on its head in every
case, and, in so doing, runs contrary to the central purpose
that motivated Congress to act in the first instance. More-
over, by repealing the right to a determinate sentence that
Congress established in the SRA, the Court has effectively
eliminated the very constitutional right Apprendi sought to
vindicate. No judicial remedy is proper if it is “not com-
mensurate with the constitutional violation to be repaired.”
Hills v. Gautreaux, 425 U. S. 284, 294 (1976). The Court’s
system fails that test, frustrates Congress’ principal goal in
17 Moreover, even if the change to an indeterminate system were neces-
sary, the Court could have minimized the consequences to the system by
limiting the application of its holding to those defendants on direct review
who actually suffered a Sixth Amendment violation. Griffith v. Ken-
tucky, 479 U. S. 314 (1987), does not require blind application of every part
of this Court’s holdings to all pending cases, but rather, requires that we
apply any new “rule to all similar cases pending on direct review.” Id.,
at 323. For obvious reasons, not all pending cases are made similar to
Booker’s and Fanfan’s merely because they involved an application of the
Guidelines.

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303 Cite as: 543 U. S. 220 (2005)
Scalia, J., dissenting in part
enacting the SRA, and violates the tradition of judicial re-
straint that has heretofore limited our power to overturn
validly enacted statutes.
I respectfully dissent.
Justice Scalia, dissenting in part.
I join the portions of the opinion of the Court that are
delivered by Justice Stevens. I also join Justice
Stevens’s dissent, with the exception of Part III 1 and foot-
note 17. I write separately mainly to add some comments
regarding the change that the remedial majority’s handiwork
has wrought (or perhaps—who can tell?—has not wrought)
upon appellate review of federal sentencing.
The remedial majority takes as the North Star of its analy-
sis the fact that Congress enacted a “judge-based sentencing
system.” Ante, at 265 (opinion of Breyer, J.). That seems
to me quite misguided. Congress did indeed expect judges
to make the factual determinations to which the Guidelines
apply, just as it expected the Guidelines to be mandatory.
But which of those expectations was central to the congres-
sional purpose is not hard to determine. No headline de-
scribing the Sentencing Reform Act of 1984 (Act) would have
read “Congress reaffirms judge-based sentencing” rather
than “Congress prescribes standardized sentences.” Jus-
tice Breyer’s opinion for the Court repeatedly acknowl-
edges that the primary objective of the Act was to reduce
1 Part III of Justice Stevens’s dissent relies in large part on legislative
history. I agree with his assertion that “[t]he text of the law that actually
passed Congress . . . should be more than sufficient to demonstrate Con-
gress’ unmistakable commitment to a binding Guidelines system.” Ante,
at 294. I would not resort to committee reports and statements by vari-
ous individuals, none of which constitutes action taken or interpretations
adopted by Congress. “One determines what Congress would have done
by examining what it did.” Legal Services Corporation v. Velazquez, 531
U. S. 533, 560 (2001) (Scalia, J., dissenting).

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304 UNITED STATES v. BOOKER
Scalia, J., dissenting in part
sentencing disparity.2 Inexplicably, however, the opinion
concludes that the manner of achieving uniform sentences
was more important to Congress than actually achieving uni-
formity—that Congress was so attached to having judges de-
termine “real conduct” on the basis of bureaucratically pre-
pared, hearsay-riddled presentence reports that it would
rather lose the binding nature of the Guidelines than adhere
to the old-fashioned process of having juries find the facts
that expose a defendant to increased prison time. See ante,
at 253–254, 265. The majority’s remedial choice is thus won-
derfully ironic: In order to rescue from nullification a stat-
utory scheme designed to eliminate discretionary sentenc-
ing, it discards the provisions that eliminate discretionary
sentencing.
That is the plain effect of the remedial majority’s deci-
sion to excise 18 U. S. C. § 3553(b)(1) (Supp. IV). See ante,
at 259. District judges will no longer be told they “shall
impose a sentence . . . within the range” established by the
Guidelines. § 3553(b)(1). Instead, under § 3553(a), they will
need only to “consider” that range as one of many factors,
including “the need for the sentence . . . to provide just pun-
ishment for the offense,” § 3553(a)(2)(A) (2000 ed.), “to afford
adequate deterrence to criminal conduct,” § 3553(a)(2)(B),
and “to protect the public from the further crimes of the
defendant,” § 3553(a)(2)(C). The statute provides no order
2 See, e. g., ante, at 246 (noting that Congress intended the Guidelines
system to achieve “increased uniformity of sentencing”); ante, at 250 (re-
ferring to “diminish[ing] sentencing disparity” as “Congress’ basic statu-
tory goal”); ante, at 255 (“Congress enacted the sentencing statutes in
major part to achieve greater uniformity in sentencing”); ante, at 267 (re-
ferring to “Congress’ basic objective of promoting uniformity in sentenc-
ing”); see also United States Sentencing Commission, Fifteen Years of
Guidelines Sentencing xvi (Nov. 2004) (“Sentencing reform has had its
greatest impact controlling disparity arising from the source at which the
guidelines themselves were targeted—judicial discretion”); id., at 140
(“[T]he guidelines have succeeded at the job they were principally de-
signed to do: reduce unwarranted disparity arising from differences
among judges”).

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of priority among all those factors, but since the three just
mentioned are the fundamental criteria governing penology,
the statute—absent the mandate of § 3553(b)(1)—authorizes
the judge to apply his own perceptions of just punishment,
deterrence, and protection of the public even when these dif-
fer from the perceptions of the Commission members who
drew up the Guidelines. Since the Guidelines are not bind-
ing, in order to comply with the (oddly) surviving require-
ment that the court set forth “the specific reason for the
imposition of a sentence different from that described” in the
Guidelines, § 3553(c)(2), the sentencing judge need only state
that “this court does not believe that the punishment set
forth in the Guidelines is appropriate for this sort of of-
fense.” 3 That is to say, district courts have discretion to
sentence anywhere within the ranges authorized by stat-
ute—much as they were generally able to do before the
Guidelines came into being. To be sure, factor (6) is “the
need to avoid unwarranted sentence disparities among de-
fendants with similar records who have been found guilty of
similar conduct,” § 3553(a)(6) (2000 ed.), but this would re-
quire a judge to adhere to the Guidelines only if all other
judges had to adhere to the Guidelines (which they certainly
do not, as the Court holds today) or if all other judges could
at least be expected to adhere to the Guidelines (which they
certainly cannot, given the notorious unpopularity of the
Guidelines with many district judges). Thus, logic compels
the conclusion that the sentencing judge, after considering
the recited factors (including the Guidelines), has full discre-
tion, as full as what he possessed before the Act was passed,
to sentence anywhere within the statutory range. If the
3 Although the Guidelines took pre-existing sentencing practices into ac-
count, they are the product of policy decisions by the Sentencing Commis-
sion—including, for instance, decisions to call for sentences “significantly
more severe than past practice” for the “most frequently sentenced of-
fenses in the federal courts.” Id., at 47. If those policy decisions are no
longer mandatory, the sentencing judge is free to disagree with them.

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306 UNITED STATES v. BOOKER
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majority thought otherwise—if it thought the Guidelines not
only had to be “considered” (as the amputated statute re-
quires) but had generally to be followed—its opinion would
surely say so.4
As frustrating as this conclusion is to the Act’s purpose of
uniform sentencing, it at least establishes a clear and com-
prehensible regime—essentially the regime that existed be-
fore the Act became effective. That clarity is eliminated,
however, by the remedial majority’s surgery on 18 U. S. C.
§ 3742 (2000 ed. and Supp. IV), the provision governing
appellate review of sentences. Even the most casual read-
ing of this section discloses that its purpose—its only pur-
pose—is to enable courts of appeals to enforce conformity
with the Guidelines. All of the provisions of that section
that impose a review obligation beyond what existed under
prior law 5 are related to the district judge’s obligations
under the Guidelines. If the Guidelines are no longer bind-
ing, one would think that the provision designed to ensure
compliance with them would, in its totality, be inoperative.
The Court holds otherwise. Like a black-robed Alexander
cutting the Gordian knot, it simply severs the purpose of the
review provisions from their text, holding that only subsec-
tion (e), which sets forth the determinations that the court
of appeals must make, is inoperative, whereas all the rest
of § 3742 subsists—including, mirabile dictu, subsection (f),
4 The closest the remedial majority dares come to an assertion that the
Guidelines must be followed is the carefully crafted statement that “[t]he
district courts, while not bound to apply the Guidelines, must consult those
Guidelines and take them into account when sentencing.” Ante, at 264.
The remedial majority also notes that the Guidelines represent what the
Sentencing Commission “finds to be better sentencing practices.” Ante,
at 263. True enough, but the Commission’s view of what is “better” is
no longer authoritative, and district judges are free to disagree—as are
appellate judges.
5 Paragraph (e)(1) requires a court of appeals to determine whether a
sentence “was imposed in violation of law.” 18 U. S. C. § 3742. Courts of
appeals had of course always done this.

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307 Cite as: 543 U. S. 220 (2005)
Scalia, J., dissenting in part
entitled “Decision and disposition,” which tracks the deter-
minations required by the severed subsection (e) and speci-
fies what disposition each of those determinations is to
produce. This is rather like deleting the ingredients portion
of a recipe and telling the cook to proceed with the prepara-
tion portion.6
Until today, appellate review of sentencing discretion has
been limited to instances prescribed by statute. Before the
Guidelines, federal appellate courts had little experience re-
viewing sentences for anything but legal error. “[W]ell-
established doctrine,” this Court said, “bars [appellate] re-
view of the exercise of sentencing discretion.” Dorszynski
v. United States, 418 U. S. 424, 443 (1974). “[O]nce it is de-
termined that a sentence is within the limitations set forth
in the statute under which it is imposed, appellate review is
at an end.” Id., at 431–432 (citing cases). When it estab-
lished the Guidelines regime, Congress expressly provided
for appellate review of sentences in specified circumstances,
but the Court has been appropriately chary of aggrandize-
ment, refusing to treat § 3742 as a blank check to appellate
courts. Thus, in 1992, the Court recognized that Congress’s
grant of “limited appellate review of sentencing decisions . . .
did not alter a court of appeals’ traditional deference to a
district court’s exercise of its sentencing discretion.” Wil-
liams v. United States, 503 U. S. 193, 205 (emphasis added).
6 In the face of this immense reality, it is almost captious to point out
that some of the text of the preserved subsection (f) plainly assumes
the binding nature of the Guidelines—for example, the reference to a
“sentence . . . imposed as a result of an incorrect application of the sentenc-
ing guidelines,” § 3742(f)(1) (Supp. 2004), and the reference to a “departure
. . . based on an impermissible factor,” § 3742(f)(2). Moreover, paragraph
(f)(1) requires the appellate court to “remand . . . for further sentencing
proceedings” any case in which the sentence was imposed “as a result of
an incorrect application of the sentencing guidelines.” It is incomprehen-
sible how or why this instruction can be combined with an obligation upon
the appellate court to conduct its own independent evaluation of the “rea-
sonableness” of a sentence.

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Notwithstanding § 3742, much remained off limits to the
courts of appeals: “The selection of the appropriate sentence
from within the guideline range, as well as the decision to
depart from the range in certain circumstances, are decisions
that are left solely to the sentencing court.” Ibid. (empha-
sis added). Similarly, in 1996, the Court took pains to note
that the § 3742 power to engage in “limited appellate review”
of Guidelines departures did not “vest in appellate courts
wide-ranging authority over district court sentencing deci-
sions.” Koon v. United States, 518 U. S. 81, 97. The Court
repeated its caution that “ ‘[t]he development of the guideline
sentencing regime’ ” did not allow appellate review “ ‘except
to the extent specifically directed by statute.’ ” Ibid. (quot-
ing Williams, supra, at 205).
Today’s remedial opinion does not even pretend to honor
this principle that sentencing discretion is unreviewable ex-
cept pursuant to specific statutory direction. The discussion
of appellate review begins with the declaration that, “despite
the absence of § 3553(b)(1) (Supp. 2004), the Act continues to
provide for appeals from sentencing decisions (irrespective
of whether the trial judge sentences within or outside the
Guidelines range . . . ),” ante, at 260 (citing §§ 3742(a) and
(b)); and the opinion later announces that the standard of
review for all such appeals is “unreasonableness,” ante, at
261, 264–265. This conflates different and distinct statutory
authorizations of appeal and elides crucial differences in the
statutory scope of review. Section 3742 specifies four differ-
ent kinds of appeal,7 setting forth for each the grounds of
7 The four kinds of appeal arise when, respectively,
(1) the sentence is “imposed in violation of law,” §§ 3742(a)(1), (b)(1),
(e)(1), (f)(1) (2000 ed. and Supp. IV);
(2) the sentence is “imposed as a result of an incorrect application of
the sentencing guidelines,” §§ 3742(a)(2), (b)(2), (e)(2), (f)(1);
(3) the sentence is either above or below “the applicable guideline
range,” §§ 3742(a)(3), (b)(3), (e)(3), (f)(2); and

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309 Cite as: 543 U. S. 220 (2005)
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appeal permitted to the defendant and the Government
(§§ 3742(a) and (b)), the manner in which each ground should
be considered (§ 3742(e)), and the permissible dispositions
(§ 3742(f)). There is no one-size-fits-all “unreasonableness”
review. The power to review a sentence for reasonableness
arises only when the sentencing court has departed from
“the applicable guideline range.” § 3742(f)(2); cf. United
States v. Soltero-Lopez, 11 F. 3d 18, 19 (CA1 1993) (Breyer,
C. J.) (“[T]he sentencing statutes . . . provide [a defendant]
with only a very narrow right of appeal” because the power
“to set aside a departure that is ‘unreasonable’ ” appears
“in the context of other provisions that permit defendants
to appeal only upward . . . departures”). This Court has
expressly rejected the proposition that there may be a “rea-
sonable[ness]” inquiry when a sentence is imposed as a result
of an incorrect application of the Guidelines. See Williams,
supra, at 201.
The Court claims that “a statute that does not explicitly
set forth a standard of review may nonetheless do so implic-
itly.” Ante, at 260 (opinion of Breyer, J.). Perhaps so.
But we have before us a statute that does explicitly set forth
a standard of review. The question is, when the Court has
severed that standard of review (contained in § 3742(e)), does
it make any sense to look for some congressional “implica-
tion” of a different standard of review in the remnants of the
statute that the Court has left standing? Only in Wonder-
land. (This may explain in part why, as Justice Stevens’s
dissent correctly observes, ante, at 282, none of the numer-
ous persons and organizations filing briefs as parties or
amici in these cases—all of whom filed this side of the
looking-glass—proposed, or I think even imagined, the reme-
dial majority’s wonderful disposition.) Unsurprisingly, none
of the three cases cited by the Court used the power of impli-
(4) no guideline is applicable and the sentence is “plainly unreasonable,”
§§ 3742(a)(4), (b)(4), (e)(4), (f)(2).

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310 UNITED STATES v. BOOKER
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cation to fill a gap created by the Court’s own removal of an
explicit standard.8 The Court’s need to create a new, “im-
plied” standard of review—however “linguistically” “fair,”
ante, at 262—amounts to a confession that it has exceeded
its powers. According to the “well established” standard for
severability, the unconstitutional part of a statute “may be
dropped if what is left is fully operative as a law.” Alaska
Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987) (emphasis
added and internal quotation marks omitted). Severance is
not possible “if the balance of the legislation is incapable
of functioning independently.” Ibid. The Court’s need to
supplement the text that remains after severance suggests
that it is engaged in “redraft[ing] the statute” rather than
just implementing the valid portions of it. United States v.
Treasury Employees, 513 U. S. 454, 479, and n. 26 (1995); see
also id., at 502, and n. 8 (Rehnquist, C. J., dissenting); Reno
v. American Civil Liberties Union, 521 U. S. 844, 884–885
(1997).
Even assuming that the Court ought to be inferring stand-
ards of review to stanch the bleeding created by its aggres-
sive severance of § 3742(e), its “unreasonableness” standard
is not, as it claims, consistent with the “related statutory
language” or with “appellate sentencing practice during the
last two decades.” Ante, at 260, 262. As already noted,
sentences within the Guidelines range have not previously
been reviewed for reasonableness. Indeed, the very concept
of having a unitary standard of review for all kinds of ap-
peals authorized by §§ 3742(a) and (b) finds no support in
statutory language or established practice of the last two
decades. Although a “reasonableness” standard did appear
in § 3742(e)(3) until 2003, it never extended beyond review
of deliberate departures from the Guidelines range. See 18
U. S. C. § 3742(e)(3) (2000 ed.); see also §§ 3742(f)(2)(A), (B)
(prescribing how to dispose on appeal of a sentence that
8 Pierce v. Underwood, 487 U. S. 552, 558–560 (1988), Cooter & Gell v.
Hartmarx Corp., 496 U. S. 384, 403–405 (1990), and Koon v. United States,
518 U. S. 81, 99 (1996).

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311 Cite as: 543 U. S. 220 (2005)
Scalia, J., dissenting in part
is “outside the applicable guideline range and is unreason-
able”). According to the statistics cited by the Court, that
standard applied to only 16.7% of federal sentencing appeals
in 2002, see ante, at 262 (opinion of Breyer, J.), but the
Court would now have it apply across the board to all sen-
tencing appeals, even to sentences within “the applicable
guideline range,” where there is no legal error or misapplica-
tion of the Guidelines.
There can be no doubt that the Court’s severability analy-
sis has produced a scheme dramatically different from any-
thing Congress has enacted since 1984. Sentencing courts
are told to “provide just punishment” (among other things),
and appellate courts are told to ensure that district judges
are not “unreasonable.” The worst feature of the scheme is
that no one knows—and perhaps no one is meant to know—
how advisory Guidelines and “unreasonableness” review will
function in practice. The Court’s description of what it an-
ticipates is positively Delphic: “These features of the remain-
ing system . . . continue to move sentencing in Congress’
preferred direction, helping to avoid excessive sentencing
disparities while maintaining flexibility sufficient to individu-
alize sentences where necessary. We can find no feature of
the remaining system that tends to hinder, rather than to
further, these basic objectives.” Ante, at 264–265 (citation
omitted).
As I have suggested earlier, any system which held it per
se unreasonable (and hence reversible) for a sentencing judge
to reject the Guidelines is indistinguishable from the manda-
tory Guidelines system that the Court today holds unconsti-
tutional. But the remedial majority’s gross exaggerations
(it says that the “practical standard of review” it prescribes
is “already familiar to appellate courts” and “consistent with
appellate sentencing practice during the last two decades,”
ante, at 261, 262) 9 may lead some courts of appeals to con-
9 Deciding whether a departure from a mandatory sentence (for a reason
not taken into account in the Guidelines) is “unreasonable” (as § 3742(e)(3)
required), or whether a sentence imposed for one of the rare offenses not

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312 UNITED STATES v. BOOKER
Scalia, J., dissenting in part
clude—may indeed be designed to lead courts of appeals to
conclude—that little has changed. Bear in mind that one of
the most significant features of the remedial majority’s
scheme of “unreasonableness” review is that it requires
courts of appeals to evaluate each sentence individually for
reasonableness, rather than apply the cookie-cutter stand-
ards of the mandatory Guidelines (within the correct Guide-
lines range, affirm; outside the range without adequate ex-
planation, vacate and remand). A court of appeals faced
with this daunting prospect might seek refuge in the familiar
and continue (as the remedial majority invites, though the
merits majority forbids) the “appellate sentencing practice
during the last two decades,” ante, at 262 (opinion of
Breyer, J.). At the other extreme, a court of appeals might
handle the new workload by approving virtually any sen-
tence within the statutory range that the sentencing court
imposes, so long as the district judge goes through the appro-
priate formalities, such as expressing his consideration of
and disagreement with the Guidelines sentence. What I an-
ticipate will happen is that “unreasonableness” review will
produce a discordant symphony of different standards, vary-
ing from court to court and judge to judge, giving the lie
to the remedial majority’s sanguine claim that “no feature”
of its avant-garde Guidelines system will “ten[d] to hinder”
the avoidance of “excessive sentencing disparities.” Ante,
at 265.
In Blakely v. Washington, 542 U. S. 296 (2004), the four
dissenting Justices accused the Court of ignoring “the havoc
it is about to wreak on trial courts across the country.” Id.,
at 324 (opinion of O’Connor, J.). And that harsh assess-
ment, of course, referred to just a temporary and unavoid-
covered by the Guidelines—though surrounded by mandatory sentences
for related and analogous offenses—is “plainly unreasonable” (as
§ 3742(e)(4) required), differs toto caelo from determining, in the absence
of any mandatory scheme, that a particular sentence is “unreasonable.”

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Thomas, J., dissenting in part
able uncertainty, until the Court could get before it a case
properly presenting the constitutionality of the mandatory
Guidelines. Today, the same Justices wreak havoc on fed-
eral district and appellate courts quite needlessly, and for
the indefinite future. Will appellate review for “unreason-
ableness” preserve de facto mandatory Guidelines by dis-
couraging district courts from sentencing outside Guidelines
ranges? Will it simply add another layer of unfettered judi-
cial discretion to the sentencing process? Or will it be a
mere formality, used by busy appellate judges only to ensure
that busy district judges say all the right things when they
explain how they have exercised their newly restored discre-
tion? Time may tell, but today’s remedial majority will not.
I respectfully dissent.
Justice Thomas, dissenting in part.
I join Justice Stevens’ opinion for the Court, but I dis-
sent from Justice Breyer’s opinion for the Court. While
I agree with Justice Stevens’ proposed remedy and much
of his analysis, I disagree with his restatement of severabil-
ity principles and reliance on legislative history, and thus
write separately.
The Constitution prohibits allowing a judge alone to make
a finding that raises the sentence beyond the sentence that
could have lawfully been imposed by reference to facts found
by the jury or admitted by the defendant. Application of
the Federal Sentencing Guidelines resulted in impermissible
factfinding in Booker’s case, but not in Fanfan’s. Thus
Booker’s sentence is unconstitutional, but Fanfan’s is not.
Rather than applying the usual presumption in favor of sev-
erability, and leaving the Guidelines standing insofar as they
may be applied without any constitutional problem, the re-
medial majority converts the Guidelines from a mandatory
system to a discretionary one. The majority’s solution fails
to tailor the remedy to the wrong, as this Court’s prece-
dents require.

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314 UNITED STATES v. BOOKER
Thomas, J., dissenting in part
I
When a litigant claims that a statute is unconstitutional as
applied to him, and the statute is in fact unconstitutional as
applied, we normally invalidate the statute only as applied
to the litigant in question. We do not strike down the stat-
ute on its face. In the typical case, “we neither want nor
need to provide relief to nonparties when a narrower remedy
will fully protect the litigants.” United States v. Treasury
Employees, 513 U. S. 454, 478 (1995); see also Renne v.
Geary, 501 U. S. 312, 323–324 (1991); Board of Trustees of
State Univ. of N. Y. v. Fox, 492 U. S. 469, 484–485 (1989);
Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 501–504
(1985). Absent an exception such as First Amendment
overbreadth, we will facially invalidate a statute only if the
plaintiff establishes that the statute is invalid in all of its
applications. United States v. Salerno, 481 U. S. 739, 745
(1987).
Booker’s case presents an as-applied challenge. Booker
challenges Guidelines enhancements that, based on fact-
finding by a judge alone, raised his sentence above the range
legally mandated for his base offense level, determined by
reference to the jury verdict. In effect, he contends that the
Guidelines supporting the enhancements, and the Sentencing
Reform Act of 1984 (SRA) that makes the Guidelines en-
hancements mandatory, were unconstitutionally applied to
him. (Fanfan makes no similar contention, as he seeks to
uphold the District Court’s application of the Guidelines.)
A provision of the SRA, 18 U. S. C. § 3553(b)(1) (Supp.
IV), commands that the court “shall impose a sentence of
the kind, and within the range, referred to in subsection
(a)(4),” which in turn refers to the Guidelines. (Emphasis
added.) The Court reasons that invalidating § 3553(b)(1)
would render the Guidelines nonbinding and therefore con-

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315 Cite as: 543 U. S. 220 (2005)
Thomas, J., dissenting in part
stitutional. Hence, it concludes, § 3553(b)(1) must fall on its
face.1
The majority’s excision of § 3553(b)(1) is at once too narrow
and too broad. It is too narrow in that it focuses only on
§ 3553(b)(1), when Booker’s unconstitutional sentence en-
hancements stemmed not from § 3553(b)(1) alone, but from
the combination of § 3553(b)(1) and individual Guidelines.
Specifically, in Booker’s case, the District Court increased
the base offense level 2 under these Guidelines: 3 USSG
§ 1B1.3(a)(2), which instructs that the base offense level shall
(for certain offenses) take into account all acts “that were
part of the same course of conduct or common scheme or
plan as the offense of conviction”; § 2D1.1(c)(2), which sets
the offense level for 500g to 1.5kg of cocaine base at 36; and
§ 3C1.1, which provides for a two-level increase in the offense
level for obstruction of justice. The court also implicitly ap-
plied § 1B1.1, which provides general instructions for apply-
ing the Guidelines, including determining the base offense
level and applying appropriate adjustments; § 1B1.11(b)(2),
1 Because the majority invalidates 18 U. S. C. § 3553(b)(1) (Supp. IV) on
its face, it is driven also to invalidate § 3742(e) (2000 ed. and Supp. IV),
which establishes standards of review for sentences and is premised on
the binding nature of the Guidelines. See, e. g., § 3742(e)(2) (2000 ed.) (di-
recting the court of appeals to determine whether the sentence “was im-
posed as a result of an incorrect application of the sentencing guidelines”);
§ 3742(e)(3) (directing the court of appeals to determine whether the
sentence “is outside the applicable guideline range” and satisfies other
factors). Given that (as I explain) there is no warrant for striking
§ 3553(b)(1) on its face, striking § 3742(e) as well only does further needless
violence to the statutory scheme.
2 Booker’s base offense level (supported by the facts the jury found) was
32. See United States Sentencing Commission, Guidelines Manual
§ 2D1.1(c)(4) (Nov. 2003) (USSG) (setting the base offense level for the
crime of possession with intent to sell 50 to 150 grams of cocaine base
at 32).
3 The District Court applied the version of the Guidelines effective
November 1, 2003.

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316 UNITED STATES v. BOOKER
Thomas, J., dissenting in part
which requires that “[t]he Guidelines Manual in effect on a
particular date shall be applied in its entirety”; § 6A1.3(b)
p. s.,4 which provides that “[t]he court shall resolve disputed
sentencing factors at a sentencing hearing in accordance
with Rule 32(c)(1), Fed. R. Crim. P.”; and Rule 32(c)(1),5
which in turn provided:
“At the sentencing hearing, the court . . . must rule on
any unresolved objections to the presentence report. . . .
For each matter controverted, the court must make
either a finding on the allegation or a determination that
no finding is necessary because the controverted matter
will not be taken into account in, or will not affect,
sentencing.”
Section 3553(b)(1), the listed Guidelines and policy state-
ment, and Rule 32(c)(1) are unconstitutional as applied to
Booker. Under their authority, the judge, rather than the
jury, found the facts necessary to increase Booker’s offense
level pursuant to the listed provisions; the judge found those
facts by a preponderance of the evidence, rather than beyond
a reasonable doubt; and, on the basis of these findings, the
judge imposed a sentence above the maximum legally per-
mitted by the jury’s findings. Thus, in Booker’s case, the
concerted action of § 3553(b)(1) and the operative Guidelines
and the relevant Rule of Criminal Procedure resulted in un-
4 I take no position on whether USSG § 6A1.3, a policy statement, bound
the District Court. Cf. Stinson v. United States, 508 U. S. 36, 42–43
(1993); Williams v. United States, 503 U. S. 193, 200–201 (1992). In any
case, Rule 32(c)(1), which had the same effect as § 6A1.3, certainly bound
the court.
5 In 2002, Rule 32(c)(1) was amended and replaced with Rule 32(i)(3).
The new Rule provides, in substantially similar fashion, that at sentencing,
the court “must—for any disputed portion of the presentence report or
other controverted matter—rule on the dispute or determine that a ruling
is unnecessary either because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing.” Fed. Rule
Crim. Proc. 32(i)(3)(B) (2003).

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317 Cite as: 543 U. S. 220 (2005)
Thomas, J., dissenting in part
constitutional judicial factfinding. The majority cannot pin-
point § 3553(b)(1) alone as the source of the violation.
At the same time, the majority’s remedy is far too broad.
We have before us only a single unconstitutional application
of § 3553(b)(1) (and accompanying parts of the sentencing
scheme). In such a case, facial invalidation is unprece-
dented. It is particularly inappropriate here, where it is ev-
ident that § 3553(b)(1) is entirely constitutional in numerous
other applications. Fanfan’s case is an example: The judge
applied the Guidelines to the extent supported by the jury’s
findings. This application of § 3553(b)(1) was constitutional.
To take another example, when the Government seeks a sen-
tence within the Guidelines range supported by the jury’s
verdict, applying § 3553(b)(1) to restrict the judge’s discre-
tion to that Guidelines range is constitutional.
Section 3553(b)(1) is also constitutional when the Gov-
ernment seeks a sentence above the Guidelines range
supported by the jury’s verdict, but proves the facts sup-
porting the enhancements to a jury beyond a reasonable
doubt. Section 3553(b)(1) provides that “the court shall im-
pose a sentence of the kind, and within the range,” set by
the Guidelines. (Emphasis added.) It says nothing, how-
ever, about the procedures the court must employ to deter-
mine the sentence it ultimately “impose[s].” It says nothing
about whether, before imposing a sentence, the court may
submit sentence-enhancing facts to the jury; and it says
nothing about the standard of proof. Because it does not
address at all the procedures for Guidelines sentencing pro-
ceedings, § 3553(b)(1) comfortably accommodates cases in
which a court determines a defendant’s Guidelines range by
way of jury factfinding or admissions rather than judicial
factfinding.
The Constitution does not prohibit what § 3553(b)(1) ac-
complishes—binding district courts to the Guidelines. It
prohibits allowing a judge alone to make a finding that raises
the sentence beyond the sentence that could have lawfully

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318 UNITED STATES v. BOOKER
Thomas, J., dissenting in part
been imposed by reference to facts found by the jury or ad-
mitted by the defendant. Many applications of § 3553(b)(1)
suffer from no such vice. Yet the majority, by facially invali-
dating the statute, also invalidates these unobjectionable ap-
plications of the statute and thereby ignores the longstand-
ing distinction between as-applied and facial challenges.
Just as there is no reason to strike § 3553(b)(1) on its face,
there is likewise no basis for striking any Guideline at issue
here on its face. Respondents have not established that
USSG § 1B1.3(a)(2), § 2D1.1(c)(2), § 3C1.1, or § 1B1.11(b)(2) is
invalid in all its applications, as Salerno requires. To the
contrary, numerous applications of these provisions are valid.
Such applications include cases in which the defendant
admits the relevant facts or the jury finds the relevant
facts beyond a reasonable doubt. Like § 3553(b)(1), USSG
§§ 1B1.3(a)(2), 2D1.1(c)(2), 3C1.1, and 1B1.11(b)(2) say noth-
ing about who must find the facts supporting enhancements,
or what standard of proof the prosecution must satisfy.
They simply attach effects to certain facts; they do not
prescribe procedures for determining those facts. Even
§ 1B1.1, which provides instructions for applying the Guide-
lines, directs an order in which the various provisions are to
be applied (“[d]etermine the base offense level,” § 1B1.1(b),
then “[a]pply the adjustments,” § 1B1.1(c)), but says nothing
about the specific procedures a sentencing court may em-
ploy in determining the base offense level and applying
adjustments.
Moreover, there is no basis for facially invalidating § 6A1.3
or Rule 32(c)(1). To be sure, § 6A1.3(b) and Rule 32(c)(1)
prescribe procedure: They require the judge, acting alone,
to resolve factual disputes. When Booker was sentenced,
§ 6A1.3(b) provided that “[t]he court shall resolve disputed
sentencing factors at a sentencing hearing in accordance
with Rule 32(c)(1), Fed. R. Crim. P.” At the time, the rele-
vant portions of Rule 32(c)(1) provided:

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319 Cite as: 543 U. S. 220 (2005)
Thomas, J., dissenting in part
“At the sentencing hearing, the court . . . must rule on
any unresolved objections to the presentence report. . . .
For each matter controverted, the court must make
either a finding on the allegation or a determination that
no finding is necessary because the controverted matter
will not be taken into account in, or will not affect, sen-
tencing.” (Emphasis added.)
The natural meaning of “the court . . . must rule” is that
the judge, without the jury, must resolve factual disputes as
necessary. This Rule of Criminal Procedure, as applied at
Booker’s sentencing hearing, required the judge to make
findings that increased Booker’s offense level beyond the
Guidelines range authorized by the jury. The application of
the Rule to Booker therefore was unconstitutional.
Nonetheless, the Rule has other valid applications. For
example, the Rule is valid when it requires the sentencing
judge, without a jury, to resolve a factual dispute in order to
decide where within the jury-authorized Guidelines range a
defendant should be sentenced. The Rule is equally valid
when it requires the judge to resolve a factual dispute in
order to support a downward adjustment to the defendant’s
offense level.6
Given the significant number of valid applications of all
portions of the current sentencing scheme, we should not
facially invalidate any particular section of the Federal Rules
of Criminal Procedure, the Guidelines, or the SRA. In-
stead, we should invalidate only the application to Booker,
6 The commentary to § 6A1.3 states that “[t]he Commission believes that
use of a preponderance of the evidence standard is appropriate to meet
due process requirements and policy concerns in resolving disputes re-
garding application of the guidelines to the facts of a case.” The Court’s
holding today corrects this mistaken belief. The Fifth Amendment re-
quires proof beyond a reasonable doubt, not by a preponderance of the
evidence, of any fact that increases the sentence beyond what could have
been lawfully imposed on the basis of facts found by the jury or admitted
by the defendant.

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320 UNITED STATES v. BOOKER
Thomas, J., dissenting in part
at his previous sentencing hearing, of § 3553(b)(1); USSG
§§ 1B1.3(a)(2), 2D1.1(c)(2), 3C1.1, 1B1.1, 1B1.11(b)(2), and
6A1.3(b); and Rule 32(c)(1).
II
Invalidating § 3553(b)(1), the Guidelines listed above, and
Rule 32(c)(1) as applied to Booker by the District Court
leaves the question whether the scheme’s unconstitutional
application to Booker can be severed from the scheme’s many
other constitutional applications to defendants like Fanfan.
Severability doctrine is grounded in a presumption that Con-
gress intends statutes to have effect to the full extent the
Constitution allows.7 Regan v. Time, Inc., 468 U. S. 641, 652
(1984); Vermeule, Saving Constructions, 85 Geo. L. J. 1945,
1959–1963 (1997) (hereinafter Vermeule). The severability
issue may arise when a court strikes either a provision of
a statute or an application of a provision. Severability of
provisions is perhaps more visible than severability of appli-
cations in our case law. See, e. g., Alaska Airlines, Inc.
v. Brock, 480 U. S. 678, 684–697 (1987) (severing uncon-
stitutional legislative veto provision from other provisions).8
However, severability questions arise from unconstitu-
tional applications of statutes as well. Congress often ex-
pressly provides for severance of unconstitutional applica-
7 I assume, without deciding, that our severability precedents—which
require a nebulous inquiry into hypothetical congressional intent—are
valid, a point the parties do not contest. I also assume that our doctrine
on severability and facial challenges applies equally to regulations and to
statutes. See Reno v. Flores, 507 U. S. 292, 300–301 (1993).
8 See also 2 U. S. C. § 454 (“If any provision of this Act, or the applica-
tion thereof to any person or circumstance, is held invalid, the validity of
the remainder of the Act and the application of such provision to other
persons and circumstances shall not be affected thereby” (emphasis
added)); 5 U. S. C. § 806(b) (similar); 6 U. S. C. § 102 (2000 ed., Supp. II)
(similar); 7 U. S. C. § 136x (similar); 15 U. S. C. § 79z–6 (similar); 29 U. S. C.
§ 114 (similar); 21 U. S. C. § 901 (“If a provision of this chapter is held in-
valid, all valid provisions that are severable shall remain in effect”).

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321 Cite as: 543 U. S. 220 (2005)
Thomas, J., dissenting in part
tions.9 This Court has acknowledged the severability of
applications in striking down some applications of a statute
while leaving others standing. In Brockett, 472 U. S., at
504–507, the Court invalidated a state moral nuisance stat-
ute only insofar as it reached constitutionally protected ma-
terials, relying on the statute’s severability clause. And in
Tennessee v. Garner, 471 U. S. 1, 4 (1985), the Court consid-
ered a state statute that authorized police to use “ ‘all the
necessary means to effect [an] arrest.’ ” The Court held the
statute unconstitutional insofar as it allowed the use of
deadly force against an unarmed, nondangerous suspect; but
it declined to invalidate the statute on its face, specifically
noting that the statute could be applied constitutionally in
other circumstances. Id., at 11–12. In Brockett and Gar-
ner, then, the Court recognized that the unconstitutional
applications of the statutes were severable from the con-
stitutional applications. The Court fashioned the rem-
edy narrowly, in keeping with the usual presumption of
severability.
9 See 2 U. S. C. § 454 (“If any provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the validity of the
remainder of the Act and the application of such provision to other per-
sons and circumstances shall not be affected thereby” (emphasis added));
5 U. S. C. § 806(b) (similar); 6 U. S. C. § 102 (2000 ed., Supp. II) (similar); 7
U. S. C. § 136x (similar); 15 U. S. C. § 79z–6 (similar); 29 U. S. C. § 114 (simi-
lar); 21 U. S. C. § 901 (in relevant part, “[i]f a provision of this chapter is
held invalid in one or more of its applications, the provision shall remain
in effect in all its valid applications that are severable”); see also Vermeule
1950, n. 26 (“There is a common misconception that severability analysis
refers only to the severance of provisions or subsections enumerated or
labeled independently in the official text of the statute. In fact, however,
severability problems arise not only with respect to different sections,
clauses or provisions of a statute, but also with respect to applications of
a particular statutory provision when some (but not all) of those applica-
tions are unconstitutional”); Stern, Separability and Separability Clauses
in the Supreme Court, 51 Harv. L. Rev. 76, 78–79 (1937) (“One [type of
severability question] relates to situations in which some applications of
the same language in a statute are valid and other applications invalid”).

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322 UNITED STATES v. BOOKER
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I thus disagree with Justice Stevens that severability
analysis does not apply. Ante, at 280–281, and n. 6 (opinion
dissenting in part).10 I acknowledge that, as a general mat-
ter, the Court often disposes of as-applied challenges to a
statute by simply invalidating particular applications of the
statute, without saying anything at all about severability.
See United States v. Grace, 461 U. S. 171, 183 (1983) (conclud-
ing that statute that prohibited carrying banners in the
United States Supreme Court Building and on its grounds
was unconstitutional as applied to the sidewalks surrounding
the building); Edenfield v. Fane, 507 U. S. 761, 763 (1993)
(striking down a solicitation ban on certified public account-
ants as applied “in the business context”); Treasury Employ-
ees, 513 U. S., at 501–503 (Rehnquist, C. J., joined by Scalia
and Thomas, JJ., dissenting) (expressing view that injunc-
tion against honoraria ban should be tailored to unconstitu-
tional applications).
Such decisions (in which the Court is silent as to applica-
tions not before it) might be viewed as having conducted
an implicit severability analysis. See id., at 485– 489
(O’Connor, J., concurring in judgment in part and dissenting
in part). A better view is that the parties in those cases
could have raised the issue of severability, but did not bother,
because (as is often the case) there was no arguable reason
to defeat the presumption of severability. The unconstitu-
tional applications of the statute were fully independent of
10 I do, however, agree with Justice Stevens that Justice Breyer
grossly distorts severability analysis by using severability principles to
determine which provisions the Court should strike as unconstitutional.
Ante, at 281–284 (Stevens, J., dissenting in part). Justice Breyer’s
severability analysis asks which provisions must be cut from the statute
to fix the constitutional problem. Ante, at 245–249, 258 (opinion of the
Court). Normally, however, a court (1) declares a provision or application
unconstitutional, using substantive constitutional doctrine (not severabil-
ity doctrine), and only then (2) asks (under severability principles) whether
the remainder of the Act can be left standing. Justice Breyer skips the
first step, which is a necessary precursor to proper severability analysis.

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323 Cite as: 543 U. S. 220 (2005)
Thomas, J., dissenting in part
and severable from the remaining constitutional applications.
Here, the question is squarely presented: The parties press
it, and there is extraordinary reason to clarify the remedy,
namely, that our decision potentially affects every sentencing
by the federal courts.
I therefore proceed to the severability question—whether
the unconstitutional application of § 3553( b)(1); USSG
§§ 1B1.3, 2D1.1(c)(2), 3C1.1, 1B1.1, 1B1.11(b)(2), and 6A1.3;
and Rule 32(c)(1) to Booker is severable from the constitu-
tional applications of these provisions. That is, even though
we have invalidated the application of these provisions to
Booker, may other defendants be sentenced pursuant to
them? We presume that the unconstitutional application is
severable. See, e. g., Regan, 468 U. S., at 653. This pre-
sumption is a manifestation of Salerno’s general rule that
we should not strike a statute on its face unless it is invalid
in all its applications. Unless the Legislature clearly would
not have enacted the constitutional applications independ-
ently of the unconstitutional application, the Court leaves the
constitutional applications standing. 468 U. S., at 653.
Here, the presumption of severability has not been over-
come. In light of the significant number of constitutional
applications of the scheme, it is far from clear that Congress
would not have passed the SRA or allowed Rule 32 to take
effect, or that the Commission would not have promulgated
the particular Guidelines at issue, had either body known
that the application of the scheme to Booker was unconstitu-
tional. Ante, at 274–279 (Stevens, J., dissenting in part).
As noted above, many applications of the Guidelines are con-
stitutional: The defendant may admit the necessary facts; the
Government may not seek enhancements beyond the offense
level supported by the jury’s verdict; the judge may find
facts supporting an enhancement but (taking advantage of
the overlap in Guidelines ranges) sentence the defendant
within the jury-authorized range; or the jury may find the
necessary facts.

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324 UNITED STATES v. BOOKER
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Certainly it is not obvious that Congress would have pre-
ferred the entirely discretionary system that the majority
fashions. The text and structure of the SRA show that Con-
gress meant the Guidelines to bind judges. One of the pur-
poses of the Commission, as set forth in the SRA, was to
“provide certainty and fairness in meeting the purposes
of sentencing, avoiding unwarranted sentencing dispar-
ities among defendants with similar records who have
been found guilty of similar criminal conduct while
maintaining sufficient flexibility to permit individualized
sentences when warranted by mitigating or aggravating
factors not taken into account in the establishment of
general sentencing practices.” 28 U. S. C. § 991(b)(1)(B)
(emphasis added).
Accordingly, Congress made the Guidelines mandatory and
closely circumscribed courts’ authority to depart from the
Guidelines range. 18 U. S. C. § 3553(b)(1) (Supp. IV). Con-
gress also limited appellate review of sentences imposed pur-
suant to the Guidelines to instances in which the sentence
was (1) in violation of law, (2) a result of an incorrect applica-
tion of the Guidelines, (3) outside the applicable Guidelines
range, or (4) in the absence of an applicable Guideline, plainly
unreasonable. § 3742(e) (2000 ed. and Supp. IV). Striking
down § 3553(b)(1) and the Guidelines only as applied to
Booker (and other defendants who have received uncon-
stitutional enhancements) would leave in place the essen-
tial framework of the mandatory system Congress created.
Applying the Guidelines in a constitutional fashion affords
some uniformity; total discretion, none. To suggest, as Jus-
tice Breyer does, that a discretionary system would do
otherwise, ante, at 249–253, 264 (opinion of the Court), either
supposes that the system is discretionary in name only or
overlooks the very nature of discretion. Either assumption
is implausible.

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325 Cite as: 543 U. S. 220 (2005)
Thomas, J., dissenting in part
The majority says that retaining the SRA and the Guide-
lines “engraft[s]” a jury trial requirement onto the sentenc-
ing scheme. Ante, at 246 (opinion of Breyer, J.). I am, of
course, aware that, though severability analysis may proceed
“by striking out or disregarding words [or, here, applications]
that are in the [challenged] section,” it may not proceed “by
inserting [applications] that are not now there”; that would
constitute legislation beyond our judicial power. United
States v. Reese, 92 U. S. 214, 221 (1876). By allowing jury
factfinding in some cases, however, we are no more “engraft-
ing” a new requirement onto the statute than we do every
time we invalidate a statute in some of the applications that
the statute, on its face, appears to authorize. See, e. g.,
Brockett v. Spokane Arcades, Inc., 472 U. S. 491 (1985). I
therefore do not find the “engraftment” label helpful as a
means of judging the correctness of our severability analysis.
Granted, part of the severability inquiry is “whether the
statute [as severed] will function in a manner consistent
with the intent of Congress.” Alaska Airlines, Inc., 480
U. S., at 685. Applying the Guidelines constitutionally (for
instance, when admissions or jury findings support all up-
ward enhancements) might seem at first glance to violate
this principle. But so would the Government’s proposal of
applying the Guidelines as a whole to some defendants, but
not others. The Court’s solution violates it even more
clearly by creating a system that eliminates the mandatory
nature of the Guidelines. In the end, nothing except the
Guidelines as written will function in a manner perfectly con-
sistent with the intent of Congress, and the Guidelines as
written are unconstitutional in some applications. While all
of the remedial possibilities are thus, in a sense, second best,
the solution Justice Stevens and I would adopt does the
least violence to the statutory and regulatory scheme.
* * *

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326 UNITED STATES v. BOOKER
Breyer, J., dissenting in part
I would hold that § 3553(b)(1), the provisions of the Guide-
lines discussed above, and Rule 32(c)(1) are unconstitutional
as applied to Booker, but that the Government has not over-
come the presumption of severability. Accordingly, the un-
constitutional application of the scheme in Booker’s case is
severable from the constitutional applications of the same
scheme to other defendants. I respectfully dissent from the
Court’s contrary conclusion.
Justice Breyer, with whom The Chief Justice, Jus-
tice O’Connor, and Justice Kennedy join, dissenting in
part.
The Court today applies its decisions in Apprendi v. New
Jersey, 530 U. S. 466 (2000), and Blakely v. Washington, 542
U. S. 296 (2004), to the Federal Sentencing Guidelines. The
Court holds that the Sixth Amendment requires a jury, not
a judge, to find sentencing facts—facts about the way in
which an offender committed the crime—where those facts
would move an offender from lower to higher Guidelines
ranges. I disagree with the Court’s conclusion. I find
nothing in the Sixth Amendment that forbids a sentencing
judge to determine (as judges at sentencing have tradition-
ally determined) the manner or way in which the offender
carried out the crime of which he was convicted.
The Court’s substantive holding rests upon its decisions in
Apprendi, supra, and Blakely, supra. In Apprendi, the
Court held that the Sixth Amendment requires juries to find
beyond a reasonable doubt the existence of “any fact that
increases the penalty for a crime” beyond “the prescribed
statutory maximum.” 530 U. S., at 490 (emphasis added).
In Blakely, the Court defined the latter term as “the maxi-
mum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the defend-
ant.” 542 U. S., at 303 (emphasis in original). Today, the
Court applies its Blakely definition to the Federal Sentenc-
ing Guidelines. I continue to disagree with the constitu-

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Breyer, J., dissenting in part
tional analysis the Court set forth in Apprendi and in
Blakely. But even were I to accept that analysis as valid,
I would disagree with the way in which the Court applies
it here.
I
The Chief Justice, Justice O’Connor, Justice Ken-
nedy, and I have previously explained at length why we can-
not accept the Court’s constitutional analysis. See Blakely,
542 U. S., at 314–326 (O’Connor, J., dissenting); id., at 326–
328 (Kennedy, J., dissenting); id., at 328–347 (Breyer, J.,
dissenting); Harris v. United States, 536 U. S. 545, 549–550
(2002) (Kennedy, J., opinion of the Court); id., at 569–572
(Breyer, J., concurring in part and concurring in judgment);
Apprendi, 530 U. S., at 523–554 (O’Connor, J., dissenting);
id., at 555–556 (Breyer, J., dissenting); Jones v. United
States, 526 U. S. 227, 264–272 (1999) (Kennedy, J., dissent-
ing); Monge v. California, 524 U. S. 721, 728–729 (1998)
(O’Connor, J., opinion of the Court); McMillan v. Pennsyl-
vania, 477 U. S. 79, 86–91 (1986) (Rehnquist, C. J., opinion
of the Court).
For one thing, we have found the Court’s historical argu-
ment unpersuasive. See Blakely, supra, at 323 (O’Connor,
J., dissenting); Apprendi, supra, at 525–528 (O’Connor, J.,
dissenting). Indeed, the Court’s opinion today illustrates
the historical mistake upon which its conclusions rest. The
Court reiterates its view that the right of “ ‘trial by jury has
been understood to require’ ” a jury trial for determination
of “ ‘the truth of every accusation.’ ” Ante, at 239 (opinion
of Stevens, J.) (quoting Apprendi, supra, at 477; emphasis
in original). This claim makes historical sense insofar as an
“accusation” encompasses each factual element of the crime
of which a defendant is accused. See, e. g., United States v.
Gaudin, 515 U. S. 506, 509–510, 522–523 (1995). But the key
question here is whether that word also encompasses sen-
tencing facts—facts about the offender (say, recidivism) or
about the way in which the offender committed the crime

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328 UNITED STATES v. BOOKER
Breyer, J., dissenting in part
(say, the seriousness of the injury or the amount stolen) that
help a sentencing judge determine a convicted offender’s
specific sentence.
History does not support a “right to jury trial” in respect
to sentencing facts. Traditionally, the law has distinguished
between facts that are elements of crimes and facts that are
relevant only to sentencing. See, e. g., Almendarez-Torres
v. United States, 523 U. S. 224, 228 (1998); Witte v. United
States, 515 U. S. 389, 399 (1995); United States v. Watts, 519
U. S. 148, 154 (1997) (per curiam); United States v. Dunni-
gan, 507 U. S. 87, 97 (1993); Mistretta v. United States, 488
U. S. 361, 396 (1989). Traditionally, federal law has looked
to judges, not to juries, to resolve disputes about sentencing
facts. See, e. g., Fed. Rule Crim. Proc. 32(a). Traditionally,
those familiar with the criminal justice system have found
separate, postconviction judge-run sentencing procedures
sensible given the difficulty of obtaining relevant sentencing
information before the moment of conviction. They have
found those proceedings practical given the impracticality of
the alternatives, say, two-stage (guilt, sentence) jury proce-
dures. See, e. g., Judicial Conference of the United States,
Committee on Defender Services, Subcommittee on Federal
Death Penalty Cases, Federal Death Penalty Cases: Recom-
mendations Concerning the Cost and Quality of Defense
Representation 9–10 (May 1998). And, despite the absence
of jury determinations, they have found those proceedings
fair as long as the convicted offender has the opportunity to
contest a claimed fact before the judge, and as long as the
sentence falls within the maximum of the range that a con-
gressional statute specifically sets forth.
The administrative rules at issue here, Federal Sentencing
Guidelines, focus on sentencing facts. They circumscribe a
federal judge’s sentencing discretion in respect to such facts,
but in doing so, they do not change the nature of those facts.
The sentencing courts continue to use those facts, not to con-
vict a person of a crime as a statute defines it, but to help

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329 Cite as: 543 U. S. 220 (2005)
Breyer, J., dissenting in part
determine an appropriate punishment. Thus, the Court
cannot ground today’s holding in a “constitutional tradition
assimilated from the common law” or in “the Magna Carta.”
Ante, at 238–239 (opinion of Stevens, J.). It cannot look to
the Framers for support, for they, too, enacted criminal stat-
utes with indeterminate sentences, revealing their own un-
derstanding and acceptance of the judge’s factfinding role at
sentencing. See Act of Apr. 30, 1790, ch. 9, 1 Stat. 112–118.
Indeed, it is difficult for the Court to find historical sup-
port other than in two recent cases, Apprendi and Blakely—
cases that we, like lower courts, read not as confirming, but
as confounding a pre-Apprendi, pre-Blakely legal tradition
that stretches back a century or more. See, e. g., Williams
v. New York, 337 U. S. 241, 246 (1949); cf., e. g., 375 F. 3d 508,
514 (CA7 2004) (case below) (“Blakely redefined ‘statutory
maximum’ ”); United States v. Ameline, 376 F. 3d 967, 973
(CA9 2004) (“Blakely court worked a sea change in the body
of sentencing law”); United States v. Pineiro, 377 F. 3d 464,
468–469 (CA5 2004) (same); see also United States v. Pena-
randa, 375 F. 3d 238, 243, n. 5 (CA2 2004) (same, collecting
cases).
For another thing, applied in the federal context of man-
datory Guidelines, the Court’s Sixth Amendment decision
would risk unwieldy trials, a two-tier jury system, a return
to judicial sentencing discretion, or the replacement of
sentencing ranges with specific mandatory sentences. Cf.
Blakely, 542 U. S., at 330–340 (Breyer, J., dissenting). The
decision would pose a serious obstacle to congressional ef-
forts to create a sentencing law that would mandate more
similar treatment of like offenders, that would thereby di-
minish sentencing disparity, and that would consequently
help to overcome irrational discrimination (including ra-
cial discrimination) in sentencing. See id., at 315–316
(O’Connor, J., dissenting). These consequences would seem
perverse when viewed through the lens of a Constitution
that seeks a fair criminal process.

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330 UNITED STATES v. BOOKER
Breyer, J., dissenting in part
The upshot is that the Court’s Sixth Amendment deci-
sions—Apprendi, Blakely, and today’s—deprive Congress
and state legislatures of authority that is constitutionally
theirs. Cf. Blakely, supra, at 326–328 (Kennedy, J., dis-
senting); Apprendi, 530 U. S., at 544–545 (O’Connor, J.,
dissenting); id., at 560–564 (Breyer, J., dissenting). The
“sentencing function long has been a peculiarly shared
responsibility among the Branches of Government.” Mis-
tretta, supra, at 390. Congress’ share of this joint responsi-
bility has long included not only the power to define crimes
(by enacting statutes setting forth their factual elements)
but also the power to specify sentences, whether by setting
forth a range of individual-crime-related sentences (say, 0-
to-10 years’ imprisonment for bank robbery) or by identify-
ing sentencing factors that permit or require a judge to im-
pose higher or lower sentences in particular circumstances.
See, e. g., Almendarez-Torres, supra, at 228; McMillan, 477
U. S., at 85.
This last mentioned power is not absolute. As the Court
suggested in McMillan, confirmed in Almendarez-Torres,
and recognized but rejected in Blakely, one might read the
Sixth Amendment as permitting “legislatures” to “estab-
lish legally essential [judge-determined] sentencing factors
within [say, due process] limits.” Blakely, supra, at 307
(emphasis in original); cf. Almendarez-Torres, supra, at 228
(distinguishing between “elements” and “factors relevant
only to . . . sentencing,” and noting that, “[w]ithin limits, the
question of which factors are which is normally a matter for
Congress” (citation omitted)); McMillan, supra, at 88 (up-
holding a Pennsylvania statute in part because it gave “no
impression of having been tailored to permit the [sentencing
factor] finding to be a tail which wags the dog of the substan-
tive offense”). But the power does give Congress a degree
of freedom (within constraints of fairness) to choose to char-
acterize a fact as a “sentencing factor,” relevant only to pun-
ishment, or as an element of a crime, relevant to guilt or

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331 Cite as: 543 U. S. 220 (2005)
Breyer, J., dissenting in part
innocence. The Court has rejected this approach appar-
ently because it finds too difficult the judicial job of managing
the “fairness” constraint, i. e., of determining when Congress
has overreached. But the Court has nowhere asked, “com-
pared to what?” Had it done so, it could not have found
the practical difficulty it has mentioned, Blakely, supra, at
307–308, sufficient to justify the severe limits that its ap-
proach imposes upon Congress’ legislative authority.
These considerations—of history, of constitutionally rele-
vant consequences, and of constitutional authority—have
been more fully discussed in other opinions. See, e. g.,
Blakely, 542 U. S., at 314–326 (O’Connor, J., dissenting);
id., at 327–328 (Kennedy, J., dissenting); id., at 328–347
(Breyer, J., dissenting); Harris, 536 U. S., at 549–550, 569–
572; Apprendi, supra, at 523–554, 555–556; McMillan, supra,
at 86–91. I need not elaborate them further.
II
Although the considerations just mentioned did not dis-
suade the Court from its holdings in Apprendi and Blakely,
I should have hoped they would have dissuaded the Court
from extending those holdings to the statute and Guidelines
at issue here. See Sentencing Reform Act of 1984, as
amended, 18 U. S. C. § 3551 et seq., 28 U. S. C. § 991 et seq.;
United States Sentencing Commission, Guidelines Manual
(Nov. 2003) (USSG). Legal logic does not require that ex-
tension, for there are key differences.
First, the Federal Guidelines are not statutes. The rules
they set forth are administrative, not statutory, in nature.
Members, not of Congress, but of a Judicial Branch Commis-
sion, wrote those rules. The rules do not “establis[h] mini-
mum and maximum penalties” for individual crimes, but
guide sentencing courts, only to a degree, “fetter[ing] the
discretion of sentencing judges to do what they have done
for generations—impose sentences within the broad limits
established by Congress.” Mistretta, 488 U. S., at 396; see

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332 UNITED STATES v. BOOKER
Breyer, J., dissenting in part
also USSG § 5G1.1; cf. Witte, 515 U. S., at 399 (explaining that
the Guidelines range “still falls within the scope of the legis-
latively authorized penalty”). The rules do not create a new
set of legislatively determined sentences so much as they
reflect, organize, rationalize, and modify an old set of judi-
cially determined pre-Guidelines sentences. See 28 U. S. C.
§ 994(a); USSG § 1A1.1, editorial note, § 3, pp. 2–4 (describing
the Commission’s empirical approach). Thus, the rules do
not, in Apprendi’s words, set forth a “prescribed statutory
maximum,” 530 U. S., at 490 (emphasis added), as the law has
traditionally understood that phrase.
I concede that Blakely defined “prescribed statutory maxi-
mum” more broadly as “the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” 542 U. S., at 303
(emphasis deleted). But the Court need not read this lan-
guage as extending the scope of Apprendi. Blakely pur-
ports to follow, not to extend, Apprendi. 542 U. S., at 301.
And Blakely, like Apprendi, involved sentences embodied in
a statute, not in administrative rules.
More importantly, there is less justification for applying
an Apprendi-type constitutional rule where administrative
guidelines, not statutes, are at issue. The Court applies its
constitutional rule to statutes in part to avoid what Blakely
sees as a serious problem, namely, a legislature’s ability to
make of a particular fact an “element” of a crime or a
sentencing factor, at will. See ante, at 230 (opinion of
Stevens, J.). That problem—that legislative temptation—
is severely diminished when Commission Guidelines are at
issue, for the Commission cannot create “elements” of
crimes. It cannot write rules that “bind or regulate the pri-
mary conduct of the public.” Mistretta, supra, at 396.
Rather, it must write rules that reflect what the law has
traditionally understood as sentencing factors. That is to
say, the Commission cannot switch between “elements” and
“sentencing factors” at will because it cannot write sub-

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333 Cite as: 543 U. S. 220 (2005)
Breyer, J., dissenting in part
stantive criminal statutes at all. See 28 U. S. C. § 994(a);
cf. Blakely, supra, at 301–302, 306–307.
At the same time, to extend Blakely’s holding to adminis-
tratively written sentencing rules risks added legal confu-
sion and uncertainty. Read literally, Blakely’s language
would include within Apprendi’s strictures a host of nonstat-
utory sentencing determinations, including appellate court
decisions delineating the limits of the legally “reasonable.”
(Imagine an appellate opinion that says a sentence for ordi-
nary robbery greater than five years is unreasonably long
unless a special factor, such as possession of a gun, is pres-
ent.) Indeed, read literally, Blakely’s holding would apply
to a single judge’s determination of the factors that make
a particular sentence disproportionate or proportionate.
(Imagine a single judge setting forth, as a binding rule of
law, the legal proposition about robbery sentences just men-
tioned.) Appellate courts’ efforts to define the limits of the
“reasonable” of course would fall outside Blakely’s scope.
But they would do so not because they escape Blakely’s lit-
eral language, but because they are not legislative efforts to
create limits. Neither are the Guidelines legislative efforts.
See Mistretta, supra, at 412.
Second, the sentencing statutes at issue in Blakely im-
posed absolute constraints on a judge’s sentencing discretion,
while the federal sentencing statutes here at issue do not.
As the Blakely Court emphasized, the Washington statutes
authorized a higher-than-standard sentence on the basis of a
factual finding only if the fact in question was a new fact—
i. e., a fact that did not constitute an element of the crime of
conviction or an element of any more serious or additional
crime. 542 U. S., at 301–302, 306–307. A judge applying
those statutes could not even consider, much less impose, an
exceptional sentence, unless he found facts “ ‘other than
those which are used in computing the standard range sen-
tence for the offense.’ ” Id., at 299 (quoting State v. Gore,
143 Wash. 2d 288, 315–316, 21 P. 3d 262, 277 (2001)).

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334 UNITED STATES v. BOOKER
Breyer, J., dissenting in part
The federal sentencing statutes, however, offer a defend-
ant no such fact-related assurance. As long as “there exists
an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the
Sentencing Commission,” 18 U. S. C. § 3553(b)(1) (Supp. IV),
they permit a judge to depart from a Guidelines sentence
based on facts that constitute elements of the crime (say, a
bank robbery involving a threat to use a weapon, where
the weapon in question is nerve gas). Whether departure-
triggering circumstances exist in a particular case is a mat-
ter for a court, not for Congress, to decide.
Thus, as far as the federal statutes are concerned, the fed-
eral system, unlike the state system at issue in Blakely,
provides a defendant with no guarantee that the jury’s find-
ing of factual elements will result in a sentence lower than
the statutory maximum. Rather, the statutes put a poten-
tial federal defendant on notice that a judge conceivably
might sentence him anywhere within the range provided by
statute—regardless of the applicable Guidelines range. See
Witte, supra, at 399; see also Comment, Sixth Amendment—
State Sentencing Guidelines, 118 Harv. L. Rev. 333, 339–340
(2004). Hence as a practical matter, they grant a potential
federal defendant less assurance of a lower Guidelines sen-
tence than did the state statutes at issue in Blakely.
These differences distinguish these cases from Apprendi
and Blakely. They offer a principled basis for refusing to
extend Apprendi’s rule to these cases.
III
For these reasons, I respectfully dissent.

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335 OCTOBER TERM, 2004
Syllabus
JAMA v. IMMIGRATION AND CUSTOMS
ENFORCEMENT
certiorari to the united states court of appeals for
the eighth circuit
No. 03–674. Argued October 12, 2004—Decided January 12, 2005
Title 8 U. S. C. § 1231(b)(2) prescribes the procedure for selecting the coun-
try to which an alien ineligible to remain in the United States will be
removed. Petitioner had his refugee status in the United States termi-
nated for a criminal conviction. When he declined to designate a coun-
try to which he preferred to be removed, the Immigration Judge or-
dered him removed to Somalia, his country of birth, pursuant to
§ 1231(b)(2)(E)(iv). Petitioner filed a habeas petition to challenge the
designation, claiming that Somalia had no functioning government and
thus could not consent in advance to his removal, and that the Govern-
ment was barred from removing him there absent such advance consent.
The District Court agreed, but the Eighth Circuit reversed, holding that
§ 1231(b)(2)(E)(iv) does not require advance acceptance by the destina-
tion country.
Held: Section 1231(b)(2)(E)(iv) permits an alien to be removed to a coun-
try without the advance consent of that country’s government.
Pp. 338–352.
(a) Section 1231(b)(2) provides four consecutive removal commands:
(1) An alien shall be removed to the country of his choice (subparagraphs
(A) to (C)), unless a condition eliminating that command is satisfied;
(2) otherwise he shall be removed to the country of which he is a citizen
(subparagraph (D)), unless a condition eliminating that command is sat-
isfied; (3) otherwise he shall be removed to a country with which he has
a lesser connection (subparagraph (E), clauses (i) to (vi), including the
country of his birth (clause (iv))); or (4) if that is “impracticable, inadvis-
able, or impossible,” he shall be removed to another country whose gov-
ernment will accept him (subparagraph (E), clause (vii)). Here, the
question is whether the Attorney General was precluded from removing
petitioner to Somalia under subparagraph (E), clause (iv), because Soma-
lia had not consented. Pp. 338–341.
(b) In all of subparagraph (E), an acceptance requirement appears
only in clause (vii), the fourth step of the process, which the Attorney
General may invoke only after finding the third step “impracticable,
inadvisable, or impossible.” Clauses (i) through (vi) contain not a word

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336 JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT
Syllabus
about acceptance by the destination country. Including the word “an-
other” in clause (vii) does not import the acceptance requirement into
clauses (i)–(vi). Such a reading stretches the modifier too far, contrary
to “the grammatical ‘rule of the last antecedent,’ ” Barnhart v. Thomas,
540 U. S. 20, 26. Subparagraph (E)’s structure does not refute the infer-
ence derived from the last antecedent rule. Pp. 341–345.
(c) Nor is an acceptance requirement manifest in § 1231(b)(2)’s struc-
ture. First, the overlap between subparagraphs (D) and (E) is not so
complete as to justify imposing an acceptance requirement at the third
step in the name of preventing the Attorney General from “circumvent-
ing” the second step. Second, the statute expressly countenances re-
moval to a country notwithstanding its objections. Subparagraph
(C) provides that at the first step of the country-selection process, the
Attorney General “may” refrain from removing an alien to the country
of his choice if that country does not accept the alien; the Attorney
General thus has discretion to override any lack of acceptance. Finally,
the existence of an acceptance requirement at the fourth step does not
imply that such a requirement must exist at the third. To infer an
absolute rule of acceptance where Congress has not clearly set it forth
would run counter to this Court’s customary policy of deference to the
President in foreign affairs, and would not be necessary to ensure appro-
priate consideration to conditions in the country of removal, since aliens
facing persecution or other mistreatment have a number of available
remedies. Pp. 345–348.
(d) Contrary to petitioner’s argument, the acceptance requirement is
“neither settled judicial construction nor one which [the Court] would
be justified in presuming Congress, by its silence, impliedly approved,”
United States v. Powell, 379 U. S. 48, 55, n. 13, in its most recent reenact-
ment of § 1231(b)(2). Pp. 349–352.
329 F. 3d 630, affirmed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Souter, J.,
filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ.,
joined, post, p. 352.
Jeffrey J. Keyes argued the cause for petitioner. With
him on the briefs was Kevin M. Magnuson.
Malcolm L. Stewart argued the cause for respondent.
With him on the brief were Acting Solicitor General Clem-

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337 Cite as: 543 U. S. 335 (2005)
Opinion of the Court
ent, Assistant Attorney General Keisler, Deputy Solicitor
General Kneedler, Donald E. Keener, and Greg D. Mack.*
Justice Scalia delivered the opinion of the Court.
When an alien is found ineligible to remain in the United
States, the process for selecting the country to which he will
be removed is prescribed by 8 U. S. C. § 1231(b)(2). The
question in this case is whether this provision prohibits re-
moving an alien to a country without the explicit, advance
consent of that country’s government.
I
Petitioner Keyse Jama was born in Somalia and remains a
citizen of that nation. He was admitted to the United States
as a refugee, but his refugee status was terminated in 2000
by reason of a criminal conviction. See Jama v. INS, 329
F. 3d 630, 631 (CA8 2003). The Immigration and Naturaliza-
tion Service (INS) brought an action to remove petitioner
from the United States for having committed a crime
involving moral turpitude. Ibid.; see 8 U. S. C. §§ 1182(a)
(2)(A)(i)(I), 1229a(e)(2)(A). In the administrative hearing,
petitioner conceded that he was subject to removal, al-
though he sought various forms of relief from that determi-
nation (adjustment of status, withholding of removal, and
asylum relief under the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment). He declined to designate a country to
which he preferred to be removed. The Immigration Judge
ordered petitioner removed to Somalia, his country of birth
*Briefs of amici curiae urging reversal were filed for International
Human Rights Organizations et al. by Jonathan L. Hafetz and Lawrence
S. Lustberg; and for Yusuf Ali Ali et al. by Thomas L. Boeder and Nicholas
P. Gellert.
Daniel J. Popeo and Richard A. Samp filed a brief for the Washington
Legal Foundation et al. as amici curiae urging affirmance.

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338 JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT
Opinion of the Court
and citizenship. The Board of Immigration Appeals af-
firmed that determination, and petitioner did not seek re-
view in the Court of Appeals.
Instead, petitioner instituted collateral proceedings under
the habeas statute, 28 U. S. C. § 2241, to challenge the desig-
nation of Somalia as his destination. He filed his petition in
the United States District Court for the District of Minne-
sota, alleging that Somalia has no functioning government,
that Somalia therefore could not consent in advance to his
removal, and that the Government was barred from remov-
ing him to Somalia absent such advance consent. The Dis-
trict Court agreed that petitioner could not be removed to a
country that had not consented in advance to receive him,
Jama v. INS, Civ. File No. 01–1172 (JRT/AJB) (Mar. 31,
2002), p. 10, App. to Pet. for Cert. 51a, but a divided panel of
the Court of Appeals for the Eighth Circuit reversed, holding
that § 1231(b)(2) does not require acceptance by the destina-
tion country, 329 F. 3d, at 633–635. We granted certiorari.
540 U. S. 1176 (2004).
II
Title 8 U. S. C. § 1231(b)(2), which sets out the procedure
by which the Attorney General 1 selected petitioner’s desti-
nation after removal was ordered, was enacted as follows:
“(2) Other aliens.—Subject to paragraph (3)—
“(A) Selection of country by alien.—Except as
otherwise provided in this paragraph—
1 On March 1, 2003, the Department of Homeland Security and its Bu-
reau of Border Security assumed responsibility for the removal program.
Homeland Security Act of 2002, §§ 441(2), 442(a), 116 Stat. 2192–2194, 6
U. S. C. §§ 251(2), 252(a) (2000 ed., Supp. II). Accordingly, the discretion
formerly vested in the Attorney General is now vested in the Secretary
of Homeland Security. See § 551(d)(2). Because petitioner’s removal
proceedings, including the designation of Somalia as the country of re-
moval, occurred before this transfer of functions, we continue to refer to
the Attorney General as the relevant decisionmaker.

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Opinion of the Court
“(i) any alien not described in paragraph (1) who has
been ordered removed may designate one country to
which the alien wants to be removed, and
“(ii) the Attorney General shall remove the alien to
the country the alien so designates.
“(B) Limitation on designation.—An alien may
designate under subparagraph (A)(i) a foreign territory
contiguous to the United States, an adjacent island, or
an island adjacent to a foreign territory contiguous to
the United States as the place to which the alien is to
be removed only if the alien is a native, citizen, subject,
or national of, or has resided in, that designated terri-
tory or island.
“(C) Disregarding designation.—The Attorney
General may disregard a designation under subpara-
graph (A)(i) if—
“(i) the alien fails to designate a country promptly;
“(ii) the government of the country does not inform
the Attorney General finally, within 30 days after the
date the Attorney General first inquires, whether the
government will accept the alien into the country;
“(iii) the government of the country is not willing to
accept the alien into the country; or
“(iv) the Attorney General decides that removing the
alien to the country is prejudicial to the United States.
“(D) Alternative country.—If an alien is not re-
moved to a country designated under subparagraph
(A)(i), the Attorney General shall remove the alien to a
country of which the alien is a subject, national, or citi-
zen unless the government of the country—
“(i) does not inform the Attorney General or the alien
finally, within 30 days after the date the Attorney Gen-
eral first inquires or within another period of time the
Attorney General decides is reasonable, whether the
government will accept the alien into the country; or
“(ii) is not willing to accept the alien into the country.

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340 JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT
Opinion of the Court
“(E) Additional removal countries.—If an alien
is not removed to a country under the previous subpara-
graphs of this paragraph, the Attorney General shall re-
move the alien to any of the following countries:
“(i) The country from which the alien was admitted
to the United States.
“(ii) The country in which is located the foreign port
from which the alien left for the United States or for a
foreign territory contiguous to the United States.
“(iii) A country in which the alien resided before the
alien entered the country from which the alien entered
the United States.
“(iv) The country in which the alien was born.
“(v) The country that had sovereignty over the alien’s
birthplace when the alien was born.
“(vi) The country in which the alien’s birthplace is lo-
cated when the alien is ordered removed.
“(vii) If impracticable, inadvisable, or impossible to
remove the alien to each country described in a previous
clause of this subparagraph, another country whose gov-
ernment will accept the alien into that country.
“(F) Removal country when United States is at
war.—When the United States is at war and the Attor-
ney General decides that it is impracticable, inadvisable,
inconvenient, or impossible to remove an alien under
this subsection because of the war, the Attorney General
may remove the alien—
“(i) to the country that is host to a government in
exile of the country of which the alien is a citizen or
subject if the government of the host country will per-
mit the alien’s entry; or
“(ii) if the recognized government of the country of
which the alien is a citizen or subject is not in exile, to
a country, or a political or territorial subdivision of a
country, that is very near the country of which the alien
is a citizen or subject, or, with the consent of the govern-

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341 Cite as: 543 U. S. 335 (2005)
Opinion of the Court
ment of the country of which the alien is a citizen or
subject, to another country.” Immigration and Nation-
ality Act, § 241(b)(2), as added by the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996
(IIRIRA), § 305(a)(3), 110 Stat. 3009–600.
The statute thus provides four consecutive removal com-
mands: (1) An alien shall be removed to the country of his
choice (subparagraphs (A) to (C)), unless one of the condi-
tions eliminating that command is satisfied; (2) otherwise he
shall be removed to the country of which he is a citizen (sub-
paragraph (D)), unless one of the conditions eliminating that
command is satisfied; (3) otherwise he shall be removed to
one of the countries with which he has a lesser connection
(clauses (i) to (vi) of subparagraph (E)); or (4) if that is “im-
practicable, inadvisable, or impossible,” he shall be removed
to “another country whose government will accept the alien
into that country” (clause (vii) of subparagraph (E)). Peti-
tioner declined to designate a country of choice, so the first
step was inapplicable. Petitioner is a citizen of Somalia,
which has not informed the Attorney General of its willing-
ness to receive him (clause (i) of subparagraph (D)), so the
Attorney General was not obliged to remove petitioner to
Somalia under the second step. The question is whether the
Attorney General was precluded from removing petitioner
to Somalia under the third step (clause (iv) of subparagraph
(E)) because Somalia had not given its consent.
A
We do not lightly assume that Congress has omitted from
its adopted text requirements that it nonetheless intends to
apply, and our reluctance is even greater when Congress has
shown elsewhere in the same statute that it knows how to
make such a requirement manifest. In all of subparagraph
(E), an acceptance requirement appears only in the terminal
clause (vii), a clause that the Attorney General may invoke
only after he finds that the removal options presented in the

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342 JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT
Opinion of the Court
other six are “impracticable, inadvisable, or impossible.”
Clauses (i) through (vi) come first—in the statute and in the
process of selecting a country. And those six clauses contain
not a word about acceptance by the destination country; they
merely direct that “the Attorney General shall remove the
alien” to any one of them.
Effects are attached to nonacceptance throughout the rest
of paragraph (2), making the failure to specify any such effect
in most of subparagraph (E) conspicuous—and more likely
intentional. Subparagraph (C) prescribes the consequence
of nonacceptance in the first step of the selection process;
subparagraph (D) does the same for the second step; and
clause (vii) of subparagraph (E) does the same for the fourth
step.2 With respect to the third step, however, the Attor-
ney General is directed to move on to the fourth step only if
it is “impracticable, inadvisable, or impossible to remove the
alien to each country described in” the third step. Non-
acceptance may surely be one of the factors considered in
determining whether removal to a given country is imprac-
ticable or inadvisable, but the statute does not give it the
dispositive effect petitioner wishes.
Petitioner seizes upon the word “another” in clause (vii)
as a means of importing the acceptance requirement into
clauses (i) through (vi). He argues that if the last resort
country is “another country whose government will accept
the alien,” then the countries enumerated in clauses (i)
through (vi) must also be “countries whose governments
will accept the alien.” That stretches the modifier too far.
2 The dissent contends that there are only three steps, with all of subpar-
agraph (E) constituting only a single step, and that clause (vii)’s acceptance
requirement therefore covers the entire subparagraph. Post, at 353, n. 2
(opinion of Souter, J.). We think not. Clause (vii) applies only after the
options set out in the third step are exhausted; it is nothing if not a dis-
crete, further step in the process. That step four is a separate clause
rather than a separate subparagraph is immaterial: Step one, which is
indisputably set out in three subparagraphs, belies the dissent’s theory
that steps must precisely parallel subparagraphs.

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Just last Term, we rejected an argument much like petition-
er’s, noting that it ran contrary to “the grammatical ‘rule of
the last antecedent,’ according to which a limiting clause or
phrase . . . should ordinarily be read as modifying only the
noun or phrase that it immediately follows.” Barnhart v.
Thomas, 540 U. S. 20, 26 (2003). There, a statute referred
first to a claimant’s “previous work” and then to “any other
kind of substantial gainful work which exists in the national
economy”; under the rule of the last antecedent, we declined
to read the limiting clause “which exists in the national econ-
omy” into the term “previous work.” Id., at 26–28 (empha-
sis deleted; internal quotation marks omitted); accord, FTC
v. Mandel Brothers, Inc., 359 U. S. 385, 389–390 (1959). We
thus did not treat “any other” as the “apparently connecting
modifier” that the dissent here thinks “another” to be, post,
at 355.3
3 Indeed, both “other” and “another” are just as likely to be words of
differentiation as they are to be words of connection. Here the word
“another” serves simply to rule out the countries already tried at the
third step and referred to in the conditional prologue of clause (vii)
(“If impracticable, inadvisable, or impossible to remove the alien to each
country described in a previous clause of this subparagraph, another
country . . . ”). It is the fact of that close earlier reference that makes it
natural to say “another country” here, whereas “[a] country” is used at
the outset of § 1231(b)(1)(C)(iv), in which the reference to “each country
described in a previous clause of this subparagraph” comes later and hence
cannot serve as an antecedent for “another.” The dissent makes a moun-
tain of this molehill, see post, at 356–357.
The dissent also finds profound meaning in the fact that Congress
changed the text from “any country” in the 1996 legislation to “another
country” in the current version. “The Court cannot be right,” it says, “in
reducing the 1996 amendment to this level of whimsy.” Post, at 358. But
if one lays the pre-1996 version of the statute beside the current version,
he will find numerous changes that are attributable to nothing more than
stylistic preference. To take merely one example: Clause (E)(ii) of the
current law, which reads “The country in which is located the foreign port
from which the alien left for the United States or for a foreign territory
contiguous to the United States,” previously read “the country in which
is located the foreign port at which such alien embarked for the United

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Nor does the structure of subparagraph (E) refute the in-
ference derived from the last antecedent rule. Each clause
is distinct and ends with a period, strongly suggesting that
each may be understood completely without reading any fur-
ther.4 And as we have already noted, it is not necessary to
turn to the acceptance language of clause (vii) to find the
conditions under which the Attorney General is to abandon
the third step and move to the fourth, the last resort option
of any willing country. The Attorney General must do so if
in his judgment it would be “impracticable, inadvisable, or
impossible to remove the alien to each country described in”
clauses (i) to (vi). This allows the Attorney General to take
both practical and geopolitical concerns into account when
selecting a destination country (and accords with the similar
flexibility to pass over inappropriate countries that the stat-
ute gives the Attorney General at the other steps, see infra,
at 348). Petitioner’s reading would abridge that exercise of
executive judgment, effectively deeming the removal of an
alien to any country to be per se “impracticable, inadvisable,
or impossible” absent that country’s advance acceptance,
even though in many cases—such as this one—it is nothing
of the sort. (Removing an alien to Somalia apparently in-
volves no more than putting the alien on one of the regularly
States or for foreign contiguous territory.” 8 U. S. C. § 1253(a)(2) (1994
ed.). The dissent must explain why these changes were insignificant
whereas the change from “any country” to “another country” was a mo-
mentous limitation upon executive authority.
4 By contrast, in the cases on which the dissent relies to rebut the last
antecedent inference, see post, at 354–356, the structure cut the other way:
The modifying clause appeared not in a structurally discrete statutory
provision, but at the end of a single, integrated list—for example, “ ‘re-
ceives, possesses, or transports in commerce or affecting commerce.’ ”
United States v. Bass, 404 U. S. 336, 337, 339 (1971); see also United States
v. Standard Brewery, Inc., 251 U. S. 210, 218 (1920); United States v.
United Verde Copper Co., 196 U. S. 207, 213 (1905). We do not dispute
that a word is known by its fellows, but here the structure refutes the
premise of fellowship.

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scheduled flights from Dubai or Nairobi, and has been ac-
complished a number of times since petitioner’s removal pro-
ceeding began. App. 36–40 (declaration of detention en-
forcement officer Eric O’Denius).) Even without advance
consultation, a country with a functioning government may
well accept a removed alien when he is presented at the bor-
der or a port of entry; the absence of advance consent is
hardly synonymous with impracticability or impossibility.5
B
Petitioner contends that even if no acceptance requirement
is explicit in the text, one is manifest in the entire structure
of § 1231(b)(2). The Attorney General may not remove an
alien to a country under subparagraph (A) or (D) without
that country’s consent, petitioner reasons, so he must be
barred from circumventing that limitation by removing the
same alien to the same country under subparagraph (E).
The dissent rests its argument only on the existence of an
acceptance requirement in step two (subparagraph (D)) and
not in step one (subparagraphs (A) through (C)).6
5 The Government argued below that even if clauses (i) through (vi) of
subparagraph (E) require some form of consent, the destination coun-
try’s acceptance of the alien at the port of entry suffices. Brief for
Respondent-Appellant in No. 02–2324 (CA8), pp. 43–46; Jama v. INS, Civ.
File No. 01–1172 (JRT/AJB) (D. Minn., Mar. 31, 2002), p. 14, App. to Pet.
for Cert. 54a. Because clauses (i) through (vi) contain no acceptance
requirement, we need not pass on petitioner’s contention that when
§ 1231(b)(2) requires acceptance, only advance acceptance will do.
6 The dissent asserts that we misdescribe petitioner’s argument when
we say it rests on both steps one and two. Post, at 364, and n. 10. We
note that petitioner heads the relevant argument “The Plain Language Of
The Statute Requires Acceptance At Every Step,” Brief for Petitioner 23
(emphasis added), and concludes his description of the country-selection
process with the assertion that “[t]he outer limit of the Attorney General’s
authority, . . . which circumscribes the selection of any country, is that the
government of the country of removal must be willing to accept the alien,”
id., at 18 (emphasis added); see also id., at 19–20.

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We note initially a point that applies to both petitioner’s
and the dissent’s positions: The “circumvention” argument
requires that the country the Attorney General selects at
step three—here, the country of birth under clause (iv)—also
be the country of citizenship that was disqualified at step
two for failure to accept the alien. That will sometimes be
true, yet the reason step three exists at all is that it will not
always be true. (Indeed, in petitioner’s case, several of the
clauses of subparagraph (E) describe Kenya, not Somalia.)
Despite this imperfect overlap, petitioner and the dissent
seek to impose an acceptance requirement on all removals
under step three, in the name of preventing the Attorney
General from “circumventing” step two in the cases where a
step-three country is also the country of citizenship.
The more fundamental defect in petitioner’s argument,
which appeals to a presumed uniformity of acceptance re-
quirement throughout § 1231(b)(2), is that its premise is false.
It is simply not true that the Attorney General may not
remove an alien to a country under subparagraph (A) or
(D) without that country’s consent. Subparagraph (C)
specifies that the Attorney General “may disregard” the
alien’s subparagraph (A) designation if the designated coun-
try’s government proves unwilling to accept the alien or fails
to respond within 30 days. The word “may” customarily
connotes discretion. See, e. g., Haig v. Agee, 453 U. S. 280,
294, n. 26 (1981). That connotation is particularly apt
where, as here, “may” is used in contraposition to the word
“shall”: The Attorney General “shall remove” an alien to the
designated country, except that the Attorney General “may”
disregard the designation if any one of four potentially coun-
tervailing circumstances arises. And examining those four
circumstances reinforces the inappropriateness of reading
“may” to mean “shall” in subparagraph (C): Would Congress
really have wanted to preclude the Attorney General from
removing an alien to his country of choice, merely because
that country took 31 days rather than 30 to manifest its ac-

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ceptance? (Subparagraph (C), unlike subparagraph (D), of-
fers no “reasonable time” exception to the 30-day rule.)
Petitioner insists that a lack of advance acceptance is an ab-
solute bar to removal, but offers no plausible way of squaring
that insistence with the text of subparagraph (C).7
Nor does the existence of an acceptance requirement at
the fourth and final step create any structural inference that
such a requirement must exist at the third. It would be a
stretch to conclude that merely because Congress expressly
directed the Attorney General to obtain consent when re-
moving an alien to a country with which the alien lacks the
ties of citizenship, nativity, previous presence, and so on,
Congress must also have implicitly required him to obtain
advance acceptance from countries with which the alien does
have such ties. Moreover, if the Attorney General is unable
to secure an alien’s removal at the third step, all that is left
is the last resort provision allowing removal to a country
with which the alien has little or no connection—if a country
can be found that will take him. If none exists, the alien is
left in the same removable-but-unremovable limbo as the
aliens in Zadvydas v. Davis, 533 U. S. 678 (2001), and Clark
v. Martinez, post, p. 371, and under the rule announced in
those cases must presumptively be released into American
7 The same incompatibility may exist with regard to subparagraph (D),
which prescribes that the Attorney General “shall remove the alien” to
his country of citizenship “unless” that country’s government declines to
accept the alien or fails to manifest its acceptance within a reasonable
time. The Government urges that the two exceptions preserve discretion
for the Attorney General: If one of those conditions exists, the Attorney
General is no longer required to remove the alien to that country, but he
may still do so. We need not resolve whether subparagraph (D) affords
this residual level of discretion; subparagraph (C) is more than enough to
demonstrate that an acceptance requirement does not pervade the selec-
tion process in the way petitioner claims, and other factors suffice to refute
the dissent’s more limited contention. Rejection of the Government’s ar-
gument is essential, however, to the dissent’s position, see post, at 365–
368—and the proper resolution is far from clear.

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society after six months. If this is the result that obtains
when the country-selection process fails, there is every rea-
son to refrain from reading restrictions into that process that
do not clearly appear—particularly restrictions upon the
third step, which will often afford the Attorney General his
last realistic option for removal.
To infer an absolute rule of acceptance where Congress
has not clearly set it forth would run counter to our custom-
ary policy of deference to the President in matters of foreign
affairs. Removal decisions, including the selection of a re-
moved alien’s destination, “may implicate our relations with
foreign powers” and require consideration of “changing polit-
ical and economic circumstances.” Mathews v. Diaz, 426
U. S. 67, 81 (1976). Congress has already provided a way
for the Attorney General to avoid removals that are likely to
ruffle diplomatic feathers, or simply to prove futile. At each
step in the selection process, he is empowered to skip over a
country that resists accepting the alien, or a country that has
declined to provide assurances that its border guards will
allow the alien entry.
Nor is it necessary to infer an acceptance requirement in
order to ensure that the Attorney General will give appro-
priate consideration to conditions in the country of removal.
If aliens would face persecution or other mistreatment in the
country designated under § 1231(b)(2), they have a number
of available remedies: asylum, § 1158(b)(1); withholding of re-
moval, § 1231(b)(3)(A); relief under an international agree-
ment prohibiting torture, see 8 CFR §§ 208.16(c)(4), 208.17(a)
(2004); and temporary protec ted st atus, 8 U. S. C.
§ 1254a(a)(1). These individualized determinations strike a
better balance between securing the removal of inadmissible
aliens and ensuring their humane treatment than does peti-
tioner’s suggestion that silence from Mogadishu inevitably
portends future mistreatment and justifies declining to re-
move anyone to Somalia.

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C
Petitioner points to what he describes as the “settled con-
struction” of § 1231(b)(2), and asserts that Congress, in its
most recent reenactment of the provision, should be deemed
to have incorporated that construction into law. We think
not. Neither of the two requirements for congressional rati-
fication is met here: Congress did not simply reenact
§ 1231(b)(2) without change, nor was the supposed judicial
consensus so broad and unquestioned that we must presume
Congress knew of and endorsed it.
Removal is a new procedure created in 1996 through the
fusion of two previously distinct expulsion proceedings, “de-
portation” and “exclusion.” IIRIRA, § 304(a)(3), 110 Stat.
3009–589, 8 U. S. C. § 1229a. Our immigration laws histori-
cally distinguished between aliens who have “entered” the
United States and aliens still seeking to enter (whether or
not they are physically on American soil). See Leng May
Ma v. Barber, 357 U. S. 185, 187 (1958). “The distinction
was carefully preserved in Title II” of the Immigration and
Nationality Act (INA): expelling an alien who had already
entered required a deportation proceeding, whereas expel-
ling an alien still seeking admission could be achieved
through the more summary exclusion proceeding. Ibid.; see
Landon v. Plasencia, 459 U. S. 21, 25–27 (1982) (cataloging
differences between the two proceedings). Aliens who, like
petitioner, were allowed into the United States as refugees
were subject to exclusion proceedings rather than deporta-
tion proceedings when their refugee status was revoked. 8
CFR § 207.8 (1995).8
8 Petitioner’s application for admission was deemed to have been made
after his criminal conviction, because he had not applied previously. See
8 U. S. C. § 1159(a)(1) (1994 ed.) (a refugee must appear for “inspection
and examination for admission to the United States as an immigrant in
accordance with [§ 1227, the former exclusion provision]” one year after
entry). The district director conducted petitioner’s examination for ad-
mission and found him inadmissible by reason of his conviction. Record

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The cases on which petitioner relies pertained to the INA’s
deportation provision, the former 8 U. S. C. § 1253 (1952 ed.).
United States ex rel. Tom Man v. Murff, 264 F. 2d 926 (CA2
1959); Rogers v. Lu, 262 F. 2d 471 (CADC 1958) (per cu-
riam).9 In the two cited cases, the Courts of Appeals
barred deportation of aliens to the People’s Republic of
China, a nation with which the United States at the time had
no diplomatic relations, without that nation’s prior consent.
Tom Man, supra, at 928 (reading the acceptance requirement
in clause (vii) to cover clauses (i) to (vi) as well); Rogers,
supra, at 471.10 During the same period, however, courts—
including the Court of Appeals that decided Tom Man—were
refusing to read an acceptance requirement into the exclu-
sion provision, the former 8 U. S. C. § 1227 (1952 ed.). E. g.,
Menon v. Esperdy, 413 F. 2d 644, 654 (CA2 1969). Likewise,
when Congress amended the exclusion provision to expand
the list of possible destinations—adding three new catego-
ries and a fourth, last resort provision virtually identical to
the last resort provision in current § 1231(b)(2)(E)(vii), see 8
U. S. C. § 1227(a)(2) (1982 ed.)—courts were generally skepti-
97, 99 (Exh. F). This finding, under the pre-1996 law, would have sub-
jected petitioner to expulsion “in accordance with” the exclusion provision,
not the deportation provision.
9 Rogers v. Lu in fact involved the existence of an acceptance require-
ment at step two, not step three. See Lu v. Rogers, 164 F. Supp. 320, 321
(DC 1958).
10 The dissent asserts that the Board of Immigration Appeals adhered
to a similar position. Post, at 359. With rare exceptions, the BIA follows
the law of the circuit in which an individual case arises, see Matter of K—
S—, 20 I. & N. Dec. 715, 718 (1993); Matter of Anselmo, 20 I. & N. Dec.
25, 30–32 (1989). Thus, in a case arising in the Second Circuit, the BIA
adhered (in dictum) to that court’s decision in Tom Man. See Matter of
Linnas, 19 I. & N. Dec. 302, 306–307 (1985). But in a case decided after
Tom Man and Rogers but not controlled by those decisions, the BIA held
to the contrary: “When designating a country in step three as a place of
deportation, there is no requirement that preliminary inquiry be ad-
dressed to the country to which deportation is ordered . . . .” Matter of
Niesel, 10 I. & N. Dec. 57, 59 (1962) (emphasis added).

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cal of efforts to read the acceptance requirement back into
the other clauses. E. g., Walai v. INS, 552 F. Supp. 998, 1000
(SDNY 1982); Amanullah v. Cobb, 862 F. 2d 362, 369 (CA1
1988) (Aldrich, J., concurring). But see id., at 365, and n. 4
(opinion of Pettine, J.).
In other words, IIRIRA forged the new removal proce-
dure out of two provisions, only one of which had been con-
strued as petitioner wishes.11 And even the supposed judi-
cial consensus with respect to that one provision boils down
to the decisions of two Courts of Appeals—one of which was
only a two-sentence per curiam that considered step two,
not step three. Rogers, supra, at 471; see n. 9, supra.12 In
the context of new § 1231(b)(2), the acceptance requirement
is “neither a settled judicial construction nor one which we
would be justified in presuming Congress, by its silence, im-
pliedly approved.” United States v. Powell, 379 U. S. 48, 55,
n. 13 (1964) (citation omitted). Even notwithstanding the
11 The dissent’s assertion, post, at 361–362, that § 1231(b)(2) descends
solely from the former deportation provision is, in the relevant respect,
erroneous. To be sure, the former exclusion provision has its own exclu-
sive descendant in § 1231(b)(1), but that applies only to aliens placed in
removal proceedings immediately upon their arrival at the border, see
§§ 1231(b)(1)(A), (c)(1), not to formerly excludable aliens who, like peti-
tioner, were paroled or otherwise allowed into the country. Whereas pre-
viously some aliens who had been allowed into the country were excluded
and some deported, see §§ 1227(a)(1), 1253(a) (1994 ed.), now all are re-
moved and their destination chosen under § 1231(b)(2), not (b)(1). Section
1231(b)(2) is thus a descendant of the exclusion provision as well as the
deportation provision, and cases decided under the former represent the
relevant prior law no less than cases decided under the latter.
The dissent repeatedly contends that Congress intended to make no
substantive change to the prior law when it enacted § 1231(b)(2). E. g.,
post, at 361–362. But on the dissent’s view the 1996 amendment worked
rather a large change: Refugees like petitioner, who previously could
be expelled without acceptance (under former § 1227), now cannot. See
n. 8, supra.
12 The additional dicta cited by the dissent, post, at 359, do not lend any
additional weight to the argument that Congress ratified a settled judicial
construction. Dictum settles nothing, even in the court that utters it.

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Souter, J., dissenting
contradictory interpretation of the BIA, see n. 10, supra,
petitioner’s Circuit authority is too flimsy to justify presum-
ing that Congress endorsed it when the text and structure
of the statute are to the contrary.13
* * *
For the foregoing reasons, the judgment of the Court of
Appeals is affirmed.
It is so ordered.
Justice Souter, joined by Justice Stevens, Justice
Ginsburg, and Justice Breyer, dissenting.
Title 8 U. S. C. § 1231(b) prescribes possible destinations
for aliens removable from the United States. Paragraph
(1) of that subsection governs aliens found excludable from
the United States in the first place, whereas paragraph (2),
which is at issue in this case, governs those once admitted
for residence but since ordered to be deported (for criminal
conduct while here, for example).1 As to the latter, para-
graph (2) sets out three options or successive steps for pick-
ing the recipient country. At step one, the alien himself des-
ignates the country, § 1231(b)(2)(A), subject to conditions set
13 In his brief on the merits, petitioner raises the additional contention—
not presented to, or decided by, the Court of Appeals—that removal to
Somalia is impermissible at any step of § 1231(b)(2) because the lack of a
functioning central government means that Somalia is not a “country” as
the statute uses the term. The question on which we granted certiorari
in this case, as phrased by petitioner himself, was as follows: “Whether the
Attorney General can remove an alien to one of the countries designated in
8 U. S. C. § 1231(b)(2)(E) without obtaining that country’s acceptance of the
alien prior to removal.” Pet. for Cert. i. That question does not fairly
include whether Somalia is a country any more than it fairly includes
whether petitioner is an alien or is properly removable; we will not decide
such issues today. See this Court’s Rule 14.1(a); Lexecon Inc. v. Milberg
Weiss Bershad Hynes & Lerach, 523 U. S. 26, 42, n. 5 (1998).
1 Paragraph (2) is quoted in the Court’s opinion. Ante, at 338–341.
Paragraph (1) is quoted in an appendix to this dissent. Infra, at 369–370.

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out in subparagraphs (B) and (C). If no removal to a step-
one choice occurs, the Secretary of Homeland Security at
step two designates the country of which the alien “is a
subject, national, or citizen” as the place to send him.
§ 1231(b)(2)(D). If no such removal occurs, the Secretary at
step three names a country with which the alien has some
prior connection, or (as a last resort) one with which he has
no connection at all. § 1231(b)(2)(E).2
The provision for step three describes six countries with
various connections to an alien (“[t]he country in which the
alien was born,” for example, § 1231(b)(2)(E)(iv)), as well as
the choice of last resort, “another country whose government
will accept the alien into that country,” § 1231(b)(2)(E)(vii).
The question is whether not only the seventh, last-resort
country but also the prior six are subject to the condition
2 The Court contends that the statute actually contains four steps rather
than three, with the third consisting of the first six clauses of subpara-
graph (E) and the fourth being the seventh clause of that same subpara-
graph. Ante, at 341. But while the seventh clause is in a sense sepa-
rated from the first six, it seems odd to view them as entirely distinct
since Congress saw fit not only to put them in the same subparagraph, but
also to limit the scope of the “impracticable, inadvisable, or impossible”
phrase in clause (vii) to the countries “described in a previous clause of
this subparagraph.” 8 U. S. C. § 1231(b)(2)(E)(vii). This difficulty with
the Court’s reading may explain why no other court has taken a four-step
view of the statute and why even the Government describes the law as
“ ‘set[ting] forth a progressive, three-step process for determining a re-
movable alien’s destination country.’ ” Brief for Respondent 5 (quoting
Jama v. INS, 329 F. 3d 630, 633 (CA8 2003)). The Court apparently takes
the four-step view so that it can go on to say that three of the four steps,
but not step three, expressly address “the consequence of nonacceptance.”
Ante, at 342. (Since it separates clause (vii) from clauses (i)–(vi), the
four-step view also makes it easier to undermine Jama’s argument that
the acceptance requirement in clauses (i)–(vi) is grounded in the text of
clause (vii).)
The Court’s response that “[s]tep one, which is indisputably set out in
three subparagraphs, belies the dissent’s theory that steps must precisely
parallel subparagraphs,” ante, at 342, n. 2 (emphasis deleted), misses the
mark because that is not in fact my contention.

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that the “government will accept the alien into that country.”
In my judgment, the acceptance requirement applies to all
seven; the Court’s contrary conclusion is at war with the
text, structure, history, and legislative history of the statute,
and I respectfully dissent.
I
The Court remarks that “[w]e do not lightly assume that
Congress has omitted from its adopted text requirements
that it nonetheless intends to apply.” Ante, at 341. Indeed
we do not, but the question in this case is whether Congress
really has left out an acceptance requirement covering the
entire “adopted text,” that is, the provision governing all
seven choices at step three. Jama says that the text con-
tains just that requirement, in the seventh and final clause
of § 1231(b)(2)(E). As noted, that clause provides a last pos-
sible destination for aliens who cannot (or, in the Govern-
ment’s view, should not) be removed under subparagraphs
(A) through (D) or the first six clauses of subparagraph (E);
it does so by authorizing removal to “another country whose
government will accept the alien,” § 1231(b)(2)(E)(vii).
Jama contends that the description of “another” willing
country applies an acceptance requirement to clauses (i)
through (vi) of the same subparagraph, (E). If Congress
had not intended this, it would have written clause (vii) dif-
ferently, as by saying, for example, “a country whose govern-
ment will accept the alien” or “any country whose govern-
ment will accept the alien” or “another country, if that
country will accept the alien.” Congress, in other words,
had some simple drafting alternatives that would not have
indicated any intent to attach an acceptance requirement to
clauses (i) through (vi), but instead used language naturally
read as alluding to a common characteristic of all the coun-
tries in the series, a willingness to take the alien. Jama
would therefore have us draw the straightforward conclusion
that all step-three designations are subject to acceptance by
the country selected, just as we have reasoned before when

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construing comparable statutory language. United States v.
Standard Brewery, Inc., 251 U. S. 210, 218 (1920) (“The pro-
hibitions extend to the use of food products for making ‘beer,
wine, or other intoxicating malt or vinous liquor for beverage
purposes.’ . . . It is elementary that all of the words used in
a legislative act are to be given force and meaning, and of
course the qualifying words ‘other intoxicating’ in this act
cannot be rejected. It is not to be assumed that Congress
had no purpose in inserting them or that it did so without
intending that they should be given due force and effect.
The Government insists that the intention was to include
beer and wine whether intoxicating or not. If so the use of
this phraseology was quite superfluous, and it would have
been enough to have written the act without the qualifying
words” (citation omitted)).
The Court dodges the thrust of the congressional language
by invoking the last antecedent rule as a grammatical reason
for confining the requirement of a receiving country’s will-
ingness strictly to the seventh third-step option, where it
is expressly set out. Under the last antecedent rule, “a
limiting clause or phrase . . . should ordinarily be read as
modifying only the noun or phrase that it immediately fol-
lows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003), quoted
ante, at 343. If the rule applied here, it would mean that
the phrase “whose government will accept . . . ” modified
only the last choice “country” in clause (vii), to the exclusion
of each “country” mentioned in the immediately preceding
six clauses, notwithstanding the apparently connecting mod-
ifier, “another.”
But the last antecedent rule fails to confine the willing-
government reference to clause (vii). The rule governs
interpretation only “ordinarily,” and it “can assuredly be
overcome by other indicia of meaning . . . .” Barnhart,
supra, at 26. Over the years, such indicia have counseled
us against invoking the rule (often unanimously) at least as
many times as we have relied on it. See Nobelman v. Amer-

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ican Savings Bank, 508 U. S. 324, 330–331 (1993); United
States v. Bass, 404 U. S. 336, 340, n. 6 (1971); Standard Brew-
ery, supra, at 218 (citing United States v. United Verde Cop-
per Co., 196 U. S. 207 (1905)). And here, the other indicia of
meaning point with one accord to applying the acceptance
requirement to each third-step option.
The first of these indicia is the contrast between the text
of clause (vii), which is the last resort for “deportation,” and
the wording of the corresponding provision in the adjacent
and cognate paragraph of the same subsection that deals
with “exclusion.” As the Court explains, ante, at 349, the
1996 amendments addressing removal of aliens gathered into
one statute prior provisions dealing with the two different
varieties of removal: what the earlier law called exclusion,
that is, the removal of an excludable alien “with respect to
whom [removal] proceedings . . . were initiated at the time
of such alien’s arrival,” § 1231(b)(1), and what the earlier law
called deportation, that is, the removal of all other aliens.
Exclusion is the sole subject of paragraph (1) of the current
statute, while deportation is the sole subject of paragraph
(2), the one at issue here. See supra, at 352.
The separate attention to the two classes of removable
aliens includes separate provisions for selecting the country
to which an alien may be removed. Paragraph (1) sets out
several options for excludable aliens, much as paragraph
(2) does for those who are deportable. And just like the
final clause of the final subparagraph of paragraph (2) (clause
(vii)), the final clause of the final subparagraph of paragraph
(1) provides a last resort that is available when removal
of an excludable alien to any of the previously described
countries “is impracticable, inadvisable, or impossible.”
§ 1231(b)(1)(C)(iv). The two last-resort provisions differ in
one important way, however. The provision for deportable
aliens in paragraph (2) speaks of “another country whose
government will accept the alien into that country, ”
§ 1231(b)(2)(E)(vii), while the one for excludable aliens in

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paragraph (1) reads, “[a] country with a government that
w i l l accept the a l ien i nto the country’s terr itory, ”
§ 1231(b)(1)(C)(iv). Congress thus used two different words
(“another” and “a”) in parallel provisions of two immediately
adjacent and otherwise similar paragraphs. Whereas “an-
other country” with a willing government is readily read to
imply that the country described is like one or more other
countries already identified, “a country” with a willing gov-
ernment carries no such implication.
Although this textual difference between simultaneously
enacted provisions that address the same subject makes no
sense unless Congress meant different things by its different
usage, the Court treats the “a country” and “another coun-
try” provisions as if they were exactly the same. In doing
so, it “runs afoul of the usual rule that ‘when the legislature
uses certain language in one part of the statute and different
language in another, the court assumes different meanings
were intended.’ ” Sosa v. Alvarez-Machain, 542 U. S. 692,
711, n. 9 (2004) (quoting 2A N. Singer, Statutes and Statutory
Construction § 46:06, p. 194 (6th ed. 2000)); accord, United
States v. Gonzales, 520 U. S. 1, 5 (1997) (“ ‘Where Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion’ ”); Russello v. United
States, 464 U. S. 16, 23 (1983) (“We refrain from concluding
here that the differing language in the two subsections has
the same meaning in each. We would not presume to as-
cribe this difference to a simple mistake in draftsmanship”).
Jama’s contrasting interpretation, which I would adopt, is
consistent with Congress’s distinct choices of words.3
3 The Court responds to this textual difference by asserting that “the
word ‘another’ serves simply to rule out the countries already tried at the
third step . . . .” Ante, at 343, n. 3. But the word “another” is not needed
to rule out other countries; they are already ruled out by the phrase in
clause (vii), “[i]f impracticable, inadvisable, or impossible to remove the

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Our long-held view that distinct words have distinct mean-
ings is, if anything, all the stronger here because the choice
to use “another” was unmistakably deliberate. The prior
statute governing deportable aliens like Jama described the
country of last resort with a neutral modifier, providing that
if no other suitable destination could be found then deporta-
tion had to be “to any country which is willing to accept such
alien into its territory.” Immigration and Nationality Act
of 1952, § 243(a)(7), 66 Stat. 213 (codified from 1952 to 1996
at 8 U. S. C. § 1253(a)); see also Internal Security Act of 1950,
§ 23, 64 Stat. 1010 (nearly identical text). But in 1996 Con-
gress went to the trouble of changing “any” to “another,”
legislative action that can neither be dismissed as inadver-
tent nor discounted as a waste of time and effort in merely
exchanging two interchangeable modifiers.
The Court cannot be right in reducing the 1996 amend-
ment to this level of whimsy. And if there were any doubt
about what Congress was getting at when it changed “any
country” to “another country,” legislative history and prior
case law combine to show what Congress had in mind. At
least one House of Congress intended various 1996 amend-
ments (including “any country” to “another country”) to
make no substantive change in the law. H. R. Conf. Rep.
No. 104–828, p. 216 (1996); H. R. Rep. No. 104–469, pt. 1,
p. 234 (1995) (Judiciary Committee Report) (both describing
the relevant section as merely “restat[ing]” the earlier pro-
vision). Accordingly, the change from “any” to “another”
makes most sense as a way to bring the text more obviously
into line with an understanding on the part of Congress that
alien to each country described in a previous clause of this subparagraph.”
§ 1231(b)(2)(E)(vii). Even had Congress used “a country” or “any country”
instead of “another country,” that is, the “countries already tried at the
third step,” ante, at 343, n. 3, would still be “rule[d] out,” ibid., by the
“impracticable, inadvisable, or impossible” language.

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an acceptance requirement applied to all options for deport-
ing all aliens at step three.4
This is also the understanding that fits with what we know
about the view of the law outside of Congress. In an early
decision by Judge Learned Hand, the Second Circuit
squarely held that the pre-1996 designations of receiving
countries were all subject to the country’s acceptance.
United States ex rel. Tom Man v. Murff, 264 F. 2d 926 (CA2
1959). Other Circuit opinions took the same position in
dicta. E. g., Amanullah v. Cobb, 862 F. 2d 362, 365–366
(CA1 1988) (opinion of Pettine, J.); id., at 369 (Aldrich, J.,
concurring) (both citing Tom Man, supra); Chi Sheng Liu v.
Holton, 297 F. 2d 740, 743 (CA9 1961) (citing Tom Man and
describing the predecessor to § 1231(b)(2) as “provid[ing]
that an alien cannot be deported to any country unless its
government is willing to accept him into its territory” (inter-
nal quotation marks omitted)). Nor was the consensus con-
fined to the courts, for the Board of Immigration Appeals
read the predecessor to subparagraphs (E)(i)–(vi) as having
an acceptance requirement. Matter of Linnas, 19 I. & N.
Dec. 302, 307 (1985) (“[T]he language of that section ex-
pressly requires, or has been construed to require, that the
‘government’ of a country selected under any of the three
steps must indicate it is willing to accept a deported alien
into its ‘territory’ ”); but cf. Matter of Niesel, 10 I. & N. Dec.
57, 59 (BIA 1962).5 And even within the Government, this
4 The point is simply that Congress changed the text to make it reflect
more clearly what Congress understood the law to be already, an under-
standing I explain in the text following this note. There is no suggestion
that the change created “a momentous limitation upon executive author-
ity,” ante, at 344, n. 3; quite the contrary.
5 The Court contends that in Linnas the Board of Immigration Appeals
was simply “adher[ing]” to the relevant circuit precedent. Ante, at 350,
n. 10. But the Board never stated that it was merely following circuit
precedent, a notable omission when contrasted with the BIA decisions the
Court cites, in which discussion of the Board’s policy of honoring circuit

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understanding seems to have survived right up to the time
this case began to draw attention, for just last year the Jus-
tice Department’s Office of Legal Counsel rendered an opin-
ion (albeit one not directly addressing § 1231(b)(2)) stat-
ing that an acceptance requirement attaches to clauses (i)
through (vi). Memorandum Opinion for the Deputy Attor-
ney General: Limitations on the Detention Authority of the
Immigration and Naturalization Service 27, n. 11 (Feb. 20,
2003), available at http://www.usdoj.gov/olc/INSDetention.
htm (as visited Dec. 7, 2004, and available in Clerk of Court’s
case file).
The Government, like today’s Court, is fighting uphill
when it tries to show that these authorities failed to express
the consensus view of the law at the time Congress re-
arranged the statutes, and neither Government nor Court
cites a single judicial ruling, prior to the Eighth Circuit’s
decision here, that held or stated in dicta or even implied
that the acceptance requirement did not apply throughout
the third step. The District Court in this case, echoing the
Magistrate Judge, stressed this very point, saying that “in
fifty pages of briefing, the government has not cited a single
case in which a federal court has sanctioned the removal of
a legally admitted alien to a country that has not agreed to
accept him.” App. to Pet. for Cert. 52a (emphasis and inter-
nal quotation marks omitted).6 The Court similarly cites
“not . . . a single case.” The fair conclusion is that when
precedent was explicit. Matter of K— S—, 20 I. & N. Dec. 715, 718–720
(1993); Matter of Anselmo, 20 I. & N. Dec. 25, 31 (1989).
6 The absence of contrary case law also knocks out the sole authority the
Court relies on to reject Jama’s argument that the prior law enjoyed a
settled construction requiring consent. Ante, at 351. The Court cites
United States v. Powell, 379 U. S. 48 (1964), which denied that there was
any settled construction precisely because there was a case taking a con-
trary viewpoint, id., at 55, n. 13 (citing In re Keegan, 18 F. Supp. 746
(SDNY 1937)). Powell is thus beside the point here given the unanimity
of the courts that construed the former deportation provision to require
acceptance.

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Congress amended the statute, it understood the law to re-
quire a country’s consent and chose language suited to that
understanding.
The Court’s attempt to undercut this evidence founders on
a mistake of fact. The Court describes the 1996 amendment
as creating the current removal scheme “through the fusion
of two previously distinct expulsion proceedings, ‘depor-
tation’ and ‘exclusion.’ ” Ante, at 349. According to the
Court, this fusion neutralizes Jama’s contention that the set-
tled understanding of the prior law, expressed in consistent
judicial treatment, was meant to be carried forward into sub-
paragraphs (E)(i)–(vi). Because the current statute was
“forged . . . out of two provisions [one on exclusion and one
on deportation], only one of which [on deportation] had been
construed as petitioner wishes,” ante, at 351, the Court says
it is unsound to argue that Congress meant to preserve an
acceptance requirement when the statute merged the old ex-
clusion and deportation laws.
The Court goes wrong here, and we have already seen
how. It is true that the 1996 law uses the word “removal”
to cover both exclusion and deportation, e. g., Calcano-
Martinez v. INS, 533 U. S. 348, 350, n. 1 (2001), and places
the former exclusion and deportation provisions in a single
section (indeed, a single subsection) of the U. S. Code. The
statutory provision now before us, however, in no way re-
sulted from a textual merger of two former provisions. As
noted, the language of the prior exclusion provision appears
(with very few changes from its predecessor) in one para-
graph, compare § 1231(b)(1) 7 with 8 U. S. C. § 1227(a) (1994
ed.), while the language on deportation appears in a separate
paragraph, § 1231(b)(2), which tracks almost exactly the text
of the former deportation provision, compare § 1231(b)(2)
with 8 U. S. C. § 1253(a) (1994 ed.). The provision to be con-
strued, then, is not a “fusion” of old fragments on different
7 This is the paragraph that contains a last-resort provision using “[a]
country” instead of “another country.”

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subjects, but language unchanged in any way helpful to the
Government from the text of the prior law, with its settled
judicial and administrative construction.
The Court responds that § 1231(b)(2) must descend from
the prior exclusion provision because the old exclusion provi-
sion would have been used to send an alien in Jama’s situa-
tion out of the country, whereas now § 1231(b)(2) is used.
Ante, at 351, n. 11. But this is beside the point. The issue
before us concerns the process (laid out in § 1231(b)(2)) by
which certain aliens are sent out of the country. We are
considering what that process requires. The Court’s obser-
vation, by contrast, involves the separate issue of who is cov-
ered by that process. Put simply, whether or not changes to
other sections of the Act or to the implementing regulations
enlarged the class of aliens subject to the process is irrele-
vant to the question of what the process is, that is, the ques-
tion of what § 1231(b)(2) provides.
In sum, we are considering text derived from earlier law
understood to require a receiving country’s acceptance of any
alien deported to it at step three. The only significant tex-
tual change helps to express that understanding of the law’s
requirements, and two House Reports stated that the
amending legislation was not meant to change substantive
law. Text, statutory history, and legislative history support
reading the clause (vii) language, “another country whose
government will accept the alien,” as providing that any
“country” mentioned in the six preceding clauses, (i) through
(vi), must also be willing to accept the alien before deporta-
tion thence may be ordered.
II
I mentioned how reference to § 1231(b)(1), governing ex-
clusion, illuminates the choice to speak of “another country”
in § 1231(b)(2). A different cross-reference within the stat-
ute confirms the reading that all step-three choices are sub-
ject to an acceptance requirement. Jama argues that sub-
paragraph (D), laying out step two, contains an acceptance

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requirement that in most cases the Government will be able
to circumvent under the Court’s interpretation of subpara-
graphs (E)(i)–(vi) as lacking any such requirement.8 The
point is well taken.
Subparagraph (D) provides that if an alien is not removed
to the country designated at step one, the Secretary “shall
[at step two] remove the alien to a country of which the alien
is a subject, national, or citizen unless the government of the
country” is unwilling to accept the alien or fails to inform
the Secretary within a certain time that it is willing.
§ 1231(b)(2)(D). On the Court’s reading of subparagraph (E),
however, anytime an alien’s country of citizenship (the desig-
nee at step two) is the same as his country of birth (a possible
designee at step three, under subparagraph (E)(iv)), the
country’s refusal to accept the alien, precluding removal at
step two, will be made irrelevant as the Government goes to
step three and removes to that country under subparagraph
(E)(iv). This route to circumvention will likewise be open
to the Government whenever, as will almost always be the
case, an alien’s country of citizenship is also described in one
of the other clauses of subparagraph (E). If an alien, for
example, resided in his country of citizenship at any time
prior to his arrival in the United States (as is undoubtedly
true in virtually every case), the Government could get
around the acceptance requirement of subparagraph (D) by
removing him at step three: under clause (i) if he came di-
rectly from his country of citizenship or clause (iii) if he came
by way of another country or countries.9
8 The Government contends that subparagraph (D) actually contains
no acceptance requirement, but as discussed below this argument is
untenable.
9 The Court misses the point in saying that “it will not always be true”
that “the country the [Secretary] selects at step three . . . also [is] the
country of citizenship . . . .” Ante, at 346 (emphasis deleted). The point
is not that under the Court’s reading the Government will necessarily
select a country at step three that allows it to circumvent the step-two

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The Court’s attempt to deflect this objection, like its at-
tempt to deflect the pre-1996 consensus, runs into a mistake.
As the Court inaccurately characterizes Jama’s argument, he
contends that reading a general acceptance requirement out
of subparagraph (E) would permit circumvention of the ac-
ceptance requirement in “subparagraph (A) or (D).” Ante,
at 346. The Court then goes on to answer the argument
as thus restated by (correctly) pointing out that there is no
unconditional acceptance requirement at every stage before
step three; this is so because subparagraph (A) imposes no
absolute acceptance requirement at step one. Instead, sub-
paragraph (C) provides that the Government “may,” but
need not, refrain from deporting an alien to his country des-
ignated at step one if that country is unwilling to accept
him. Ante, at 346–347.
But the acceptance provision governing subparagraph
(A) (step one) is beside the point. Jama’s argument rests
not on some common feature of “subparagraph[s] (A) [and]
(D),” ante, at 346, but on the text of subparagraph (D), that
is, on step two alone. He argues that the Government’s
power under that step is subject to an acceptance require-
ment, which the Government’s reading would allow it to
skirt.10
acceptance requirement, but rather that it will always, or almost always,
have the option to do so.
Here again, as with the Court’s four-step interpretation of the statute,
see supra, at 353, n. 2, not even the Government can subscribe to the
Court’s view, instead acknowledging forthrightly that in all or almost all
cases, the alien’s country of nationality will also be described in one of the
clauses of subparagraph (E). Tr. of Oral Arg. 47 (“[T]he state of national-
ity is . . . always or virtually always going to be covered [in subparagraph
(E)] because [the clauses of that subparagraph] include country of birth,
country from which the alien departed to enter the United States, country
in which he previously resided, country . . . that exercises sovereignty
over the country in which he was born”).
10 This is the argument in Jama’s brief: “This proposed interpretation of
the removal statute, by which the [Government] can avoid the explicit
acceptance requirement of step two by removing the alien to the same

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As for the argument that Jama actually makes about the
step-two acceptance requirement, the Court says only that it
“need not resolve whether subparagraph (D)” contains such a
requirement. Ante, at 347, n. 7. But that is precisely what
we do need to resolve, for if step two does contain an accept-
ance requirement, then the Court’s interpretation allows the
Government to evade it in nearly if not actually all cases,
simply by proceeding to step three. All the Court can mus-
ter in response to Jama’s actual argument (an argument it
ascribes to me) is the statement that “other [unnamed] fac-
tors suffice to refute the dissent’s more limited contention.”
Ibid.
The Government at least joins issue with Jama, when it
claims step two has no acceptance requirement to evade.
country without acceptance in step three, . . . would make the second step
of the statute, which requires acceptance by the government of which the
alien is a subject, national, or citizen, superfluous and thus would violate
a basic principle of statutory construction. As the district court ob-
served, ‘a removable alien will almost invariably be a “subject, national, or
citizen” of the country in which he was born. As a result, the acceptance
requirement of § 1231(b)(2)(D) is easily circumvented by § 1231(b)(2)(E)(iv)
if the latter clause is read not to require acceptance.’ ” Brief for Peti-
tioner 27 (citation omitted); see also id., at 28 (“The Ninth Circuit relied
in part on this [circumvention] argument in ruling that the acceptance
requirement also applies in step three. It noted that if respondent’s inter-
pretation were upheld, then even though a government has actually re-
fused acceptance of a removable person in step two, the person could be
airdropped surreptitiously into that same country if it met the require-
ments of one of the subparts [of step three]” (second alteration in original;
internal quotation marks omitted)).
The Court responds by pointing to the heading for a different section of
Jama’s brief and to isolated statements that appear in still other sections.
Ante, at 345, n. 6. But the most the Court could say based on these
references is that Jama advances alternative challenges: first that accept-
ance is required at every step (in which case it should be required in
subparagraphs (E)(i)–(vi)) and second that acceptance is at least required
at step two, in which case the Government’s interpretation allows the
step-two acceptance requirement to be circumvented. Parties making al-
ternative arguments do not forfeit either one, yet the Court ignores Jama’s
second argument.

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The Government says that subparagraph (D) imposes the ac-
ceptance condition only on the Secretary’s mandate to re-
move to the country of citizenship; it does not so condition
the Secretary’s discretionary authority. When acceptance is
not forthcoming, the Government insists, the Secretary still
has discretion to do what is merely no longer obligatory.
But for at least two reasons, this reading is unsound.
The first is the textual contrast between steps one and
two. As noted, subparagraph (C) can be read to give the
Government express permission to ignore at step one a coun-
try’s refusal to accept an alien: “The [Secretary] may disre-
gard [an alien’s] designation [of a country] if . . . the govern-
ment of the country is not willing to accept the alien . . . .”
§ 1231(b)(2)(C). No such express grant of discretion appears
in subparagraph (D), which provides that at step two, “the
[Secretary] shall remove the alien to a country of [citizenship]
unless the government of the country . . . is not willing to
accept the alien . . . .” § 1231(b)(2)(D). The first of these
ostensibly gives authority supplemented with discretion in
the event that the acceptance condition is not satisfied; the
second gives authority only if the acceptance condition is sat-
isfied. The discretionary sounding language governing step
one tends to show that Congress knew how to preserve the
discretion to act in disregard of a country’s nonacceptance;
since it omitted any such provision suggesting discretion just
a few lines later in subparagraph (D), the better inference is
that Congress had no intent to allow the Government to ig-
nore at step two a failure to accept by an alien’s country of
citizenship.11 Once again in this case, then, drafting differ-
11 Both the Court and the Government rely on such reasoning in another
context, contending that because other parts of § 1231(b)(2) contain ex-
press acceptance requirements, no such requirement should be deemed to
attach to subparagraphs (E)(i)–(vi). Ante, at 341 (“[O]ur reluctance [to
imply an acceptance requirement] is even greater when Congress has
shown elsewhere in the same statute that it knows how to make such a
requirement manifest”); Brief for Respondent 13 (“[T]he express refer-
ences to acceptance in other parts of Section 1231(b)(2) simply highlight
the absence of any such reference in Section 1231(b)(2)(E)(i)–(vi)”). As I

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ences between provisions that address a similar subject may
fairly be read to express differences in congressional intent.
The second reason to reject the Government’s position fol-
lows from the text of the predecessor statute, which clearly
provided that when acceptance was not forthcoming at step
two, the Government had to move on to step three. The
relevant language of the prior version (a version that con-
sisted of one paragraph instead of the current five subpara-
graphs) read:
“If the government of [the] country [of citizenship] fails
finally to advise the Attorney General or the alien
within three months . . . whether that government will
or will not accept such alien into its territory, then such
deportation shall be directed by the Attorney General
within his discretion and without necessarily giving any
priority or preference because of their order as herein
set forth [to one of the countries now listed in subpara-
graph (E)].” Immigration and Nationality Act of 1952,
§ 243(a), 66 Stat. 212.
Under this statute, the Government obviously lacked the dis-
cretion it now claims, of removing an alien at step two with-
out the consent of the country of citizenship. This is sig-
nificant for our purposes because, as already mentioned, two
House Reports on the bill that transformed the old law into
the new one indicate that no substantive changes were in-
have discussed, of course, the Court’s and the Government’s application of
this reasoning is misguided because the phrasing of subparagraph (E)(vii)
expressly (through its use of the word “another”) attaches an acceptance
requirement to clauses (i)–(vi).
Notably, the Court embraces precisely the opposite reasoning elsewhere
in its opinion, stating that the discretion given to the Secretary in subpar-
agraph (E)(vii) “accords with the similar flexibility to pass over inappropri-
ate countries that the statute gives the [Secretary] at the other steps . . . .”
Ante, at 344. Why the Court is willing to find an implied grant of flexibil-
ity in subparagraph (D) even though “Congress has shown elsewhere in
the same statute that it knows how to make such a [grant] manifest,” ante,
at 341, is something of a mystery.

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368 JAMA v. IMMIGRATION AND CUSTOMS ENFORCEMENT
Souter, J., dissenting
tended. See supra, at 358. Given this documented intent,
together with the absence of any contrary indication in the
text or legislative history, the current version should be read
as its predecessor was. See Koons Buick Pontiac GMC,
Inc. v. Nigh, ante, at 63 (rejecting an asserted substan-
tive change because of “scant indication” that Congress in-
tended it).
In sum, subparagraph (D) provides no authority to remove
at step two without the consent of the country of citizenship.
Jama is consequently correct that unless all of the options at
step three are read as being subject to the same consent
requirement, the requirement at step two will be nullified.
III
At the last ditch, the Court asserts that Jama’s position
would “abridge th[e] exercise of executive judgment,” ante,
at 344, and “run counter to our customary policy of deference
to the President in matters of foreign affairs,” ante, at 348.
The Government similarly contends (throughout its brief)
that Jama’s approach would improperly limit the discretion
of the Executive Branch. E. g., Brief for Respondent 13
(“[C]onstruing Section 1231(b)(2)(E)(i)–(vi) not to require ac-
ceptance preserves the traditional authority of the Executive
Branch to make case-by-case judgments in matters involving
foreign relations”). But here Congress itself has signifi-
cantly limited executive discretion by establishing a detailed
scheme that the Executive must follow in removing aliens.
This of course is entirely appropriate, since it is to Congress
that the Constitution gives authority over aliens. Art. I,
§ 8, cl. 4; see also, e. g., INS v. Chadha, 462 U. S. 919, 940
(1983) (“The plenary authority of Congress over aliens under
Art. I, § 8, cl. 4, is not open to question”). Talk of judicial
deference to the Executive in matters of foreign affairs, then,
obscures the nature of our task here, which is to say not how
much discretion we think the Executive ought to have, but
how much discretion Congress has chosen to give it.

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369 Cite as: 543 U. S. 335 (2005)
Appendix to opinion of Souter, J.
* * *
I would reverse the judgment of the Court of Appeals.
APPENDIX TO OPINION OF SOUTER, J.
Paragraph (1) of 8 U. S. C. § 1231(b) reads as follows:
“(1) Aliens arriving at the United States.
“Subject to paragraph (3)—
“(A) In general
“Except as provided by subparagraphs (B) and (C), an
alien who arrives at the United States and with respect
to whom proceedings under section [240] were initiated
at the time of such alien’s arrival shall be removed to
the country in which the alien boarded the vessel or air-
craft on which the alien arrived in the United States.
“(B) Travel from contiguous territory
“If the alien boarded the vessel or aircraft on which
the alien arrived in the United States in a foreign terri-
tory contiguous to the United States, an island adjacent
to the United States, or an island adjacent to a foreign
territory contiguous to the United States, and the alien
is not a native, citizen, subject, or national of, or does
not reside in, the territory or island, removal shall be to
the country in which the alien boarded the vessel that
transported the alien to the territory or island.
“(C) Alternative countries
“If the government of the country designated in sub-
paragraph (A) or (B) is unwilling to accept the alien into
that country’s territory, removal shall be to any of
the following countries, as directed by the Attorney
General:
“(i) The country of which the alien is a citizen, sub-
ject, or national.
“(ii) The country in which the alien was born.
“(iii) The country in which the alien has a residence.

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Appendix to opinion of Souter, J.
“(iv) A country with a government that will accept
the alien into the country’s territory if removal to each
country described in a previous clause of this subpara-
graph is impracticable, inadvisable, or impossible.”