We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U. S. C. A. §3553(b)(1) (Supp. 2004), incompatible with today’s constitutional holding.

We conclude that this provision must be severed and excised, as must one other statutory section, §3742(e) (main ed. and Supp. 2004), which depends upon the Guidelines’ mandatory nature. So modified, the Federal Sentencing Act, see Sentencing Reform Act of 1984, 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. A. §3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see §3553(a) (Supp. 2004).

Next, Breyer moves on to what happens now. There were two options. One was proposed by Justice Stevens and rejected. It would have prevented the judge from ever increasing a sentence based on a fact not presented to a jury. [That would have been far better for defendants in my opinion.]

Instead, the Court chooses option 2 that allows the judge to consider increases proposed by the guidelines, but is not bound to apply them. This approach was reached by reading the Guidelines without the two excised unconsitutional provisions.

The other approach, which we now adopt, would (through severance and excision of two provisions) make the Guidelines system advisory while maintaining a strong connection between the sentence imposed and the offender's real conduct--a connection important to the increased uniformity of sentencing that Congress intended its Guidelines system to achieve.

Breyer said the Court settled on this option by considering what Congress would have wanted. He said the Court believes that Congress would have preferred the entire guideline system be scrapped rather than to have a rule that juries had to decide all facts pertinent to sentencing increases. He also says the Court believes Congress would prefer the Guidelines be made advisory rather than having the whole scheme thrown out.

That is to say, in light of today’s holding, we compare maintaining the Act as written with jury factfinding added (the dissenters’ proposed 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.

In deciding which provisions to strike from the sentencing statute, Breyer says:

We must retain those portions of the Act that are (1) constitutionally valid, id., at 652–653, (2) capable of 'functioning independently'; Alaska Airlines, 480 U. S., at 684, 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 provision 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) (Supp. 2004), and the provision that sets forth standards of review on appeal, including de novo review of departures from the applicable Guidelines range,
see §3742(e) (main ed. and Supp. 2004) (see Appendix, infra, for text of both provisions). With these two sections excised (and statutory cross-references to the two sections consequently invalidated), the remainder of the Act satisfies the Court's constitutional requirements.

With respect to the second provision invalidated, that of the standard of review to be used when appeals courts review departure rulings, Breyer again said the Court ruled based on its interpretation of what Congress would have wanted.

...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 appeals, or (2) invalidation of the entire Act, including its appellate provisions? The former, by providing appellate review, would tend to iron out sentencing differences; the latter would not. Hence we believe Congress would have preferred the former to the latter--even if the former means that some provisions will apply differently from the way Congress had originally expected. .... 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 11-12.

Next, Breyer discusses what happens from here on out:

The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing. .... The courts of appeals review sentencing decisions for unreasonableness.

In the next post, we'll talk about retroactivity and who the decision will affect.

Update: Scotus Blog has this analysis .