IN SUPREME COURT
Court of Appeals
Concurring in part, dissenting in part, Anderson, G. Barry, J.
Filed: August 18, 2005
Amended: October 6, 2005
Office of Appellate Courts
Robert Allen Shattuck,
S Y L L A B U S
1. The district court’s imposition of an upward durational departure under Minn. Stat. § 609.109, subd. 4 (2004), from the Minnesota Sentencing Guidelines’ presumptive sentence violated appellant’s Sixth Amendment right to trial by jury.
2. For felonies other than first-degree murder, the presumptive sentence prescribed by the Minnesota Sentencing Guidelines is the maximum sentence that the district court may impose based solely on facts found by the jury or admitted by the defendant.
3. When this court strikes down a severable provision of a law as unconstitutional, we do not rewrite other provisions of that law that are not constitutionally infirm.
Reversed and remanded.
Heard, considered and decided by the court en banc.
O P I N I O N
an order issued last December, we determined that under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), the
district court’s imposition of an upward durational departure from the
presumptive sentence prescribed by the Minnesota Sentencing Guidelines violated
appellant Robert Shattuck’s Sixth Amendment right to trial by jury. State
v. Shattuck, 689 N.W.2d 785, 786 (
issues presented by this appeal arise out of the sexual assault of 17-year-old
R.E. At about 10:30 p.m. on January 30,
2001, R.E. was walking home after getting off a bus in south
police investigation quickly focused on Shattuck, who worked at a nearby
restaurant and had gotten off work shortly before the assault. After Shattuck’s picture was shown on a
televised report about the assault, he went to
the time of the offense, first-degree criminal sexual conduct and kidnapping
with great bodily harm were both severity level eight offenses under the
Minnesota Sentencing Guidelines.
The district court sentenced Shattuck to the presumptive 161-month prison term for kidnapping, and to an enhanced 360-month (30-year) term for first-degree criminal sexual conduct pursuant to section 609.109, subdivision 4, and ordered the sentences to be served concurrently. The court found four aggravating factors to justify the enhanced sentence: (1) the victim was particularly vulnerable; (2) the victim was treated with particular cruelty; (3) the victim suffered great emotional harm; and (4) the assault was planned.
court of appeals affirmed Shattuck’s conviction and sentence. State
v. Shattuck, No. C6-03-362, 2004 WL 772220 (
first issue before us is whether the imposition of an enhanced sentence under
Minn. Stat. § 609.109, subd. 4, which mandates a 30-year minimum sentence when
the district court determines at sentencing that “the crime involved an
aggravating factor that would provide grounds for an upward departure under the
Sentencing Guidelines,” violated Shattuck’s Sixth Amendment right to trial by
jury. In our earlier order in this case,
we answered this question in the affirmative, and stated that “because
imposition of the presumptive sentence is mandatory absent judicial findings
under the legislatively‑created Guidelines regime, the presumptive
sentence is the maximum penalty authorized solely by the jury’s verdict for
purposes of Apprendi v.
of constitutional interpretation are issues of law that we review de novo. Star
Tribune Co. v.
We begin the
analysis in this case by noting that the rule that has evolved in the Apprendi line of cases is based on the constitutional
right to jury trial and the requirement of proof beyond a reasonable doubt. Apprendi
Any fact (other than a prior conviction) which is necessary to support 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.
Apprendi, the defendant pleaded
guilty to possession of a firearm for an unlawful purpose, stemming from his
firing several gunshots into the home of an African-American family that had
recently moved into an all-white neighborhood.
Supreme Court reversed, holding that the
Apprendi, this court applied its rulein a number of cases. In Grossman,
we held that the patterned sex offender statute, which allowed the judge to
increase by 10 years the maximum prison sentence prescribed by the first-degree
criminal sexual conduct statute, based on the judge’s factual findings using a
preponderance-of-evidence standard, violated due process. 636 N.W.2d at 551. See
also O’Meara v. State, 679 N.W.2d 334, 340-41 (
Supreme Court subsequently extended Apprendi
to sentencing guidelines regimes. In Blakely, the defendant pleaded guilty to
kidnapping his estranged wife, an offense which, under the applicable criminal
statutes, carried a maximum penalty of 10 years’ imprisonment. 124
[T]he “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. * * * In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.
Booker, the Supreme Court held that
the Sixth Amendment as construed in Blakely
applies to the Federal Sentencing Guidelines.
now turn to the constitutionality of Shattuck’s sentence enhancement imposed
pursuant to the repeat sex offender statute.
As stated earlier, this statute mandates that the district court impose
a 30-year minimum sentence for certain repeat sex offenders if it finds, at the
time of sentencing, that an aggravating factor exists which provides grounds
for an upward departure under the Sentencing Guidelines.
state argues that the Sentencing Guidelines as written are advisory to the
district court and therefore do not implicate Sixth Amendment concerns. In support, the state points to statutory
language which specifies that the guidelines are advisory and that sentencing
pursuant to the guidelines is not a right that accrues to the defendant. See
the Minnesota Sentencing Guidelines were merely advisory – if they constituted
no more than a rough map to steer the district court in exercising sentencing
discretion – they would suffer from no constitutional infirmity. Booker,
Minnesota Sentencing Guidelines were promulgated by the Sentencing Guidelines
Commission (“Commission”), which was created by the legislature in 1978. Act of April 5, 1978, ch. 723, art. I, § 9,
subd. 5, 1978
legislature also set out certain procedures to be followed for deviations from
the Sentencing Guidelines.
1997, the legislature amended Minn. Stat. § 244.09, subd. 5, by adding language
that, “[a]lthough the sentencing guidelines are advisory to the district court,
the court shall follow the procedures
of the guidelines when it pronounces sentence * * *.” Act of May 6, 1997, ch. 96, § 1, 1997 Minn.
Laws 694, 695 (emphasis added). The 1997
amendment also provided that sentencing pursuant to the guidelines “is not a
right that accrues to a person convicted of a felony; it is a procedure based
on state public policy to maintain uniformity, proportionality, rationality,
and predictability in sentencing.”
Sentencing Guidelines promulgated by the Commission employ a grid to determine
the presumptive sentence for felonies.
Sentencing Guidelines II.D states that the sentencing judge “shall utilize the presumptive sentence”
unless the individual case involves “substantial and compelling circumstances”
(emphasis added). When such
circumstances are present, the judge “may depart from the presumptive sentence
and stay or impose any sentence authorized by law.”
this court’s first decision construing the Sentencing Guidelines, we stated:
“Underlying the Guidelines is the notion that the purposes of the law will not
be served if judges fail to follow the Guidelines in the ‘general’ case.” State
v. Garcia, 302 N.W.2d 643, 647 (
review the district court’s decision to depart from the guidelines’ presumptive
sentence for an abuse of discretion. Garcia, 302 N.W.2d at 647. But we have emphasized that the district court
has discretion to depart “only if aggravating or mitigating
circumstances are present;” if such circumstances are not present, “the trial
court has no discretion to depart.” State v. Best, 449 N.W.2d 426, 427 (
we have placed limitations on the length of durational sentencing
departures. As a general rule, the
maximum upward durational departure that can be justified by aggravating
circumstances is double the presumptive sentence. State
v. Evans, 311 N.W.2d 481, 483 (
basic tenet of Sentencing Guidelines jurisprudence is that the district court
may not base an upward durational departure on factors that the legislature has
already taken into account in determining the degree or seriousness of the
offense. See, e.g.,
survey of pertinent law makes clear that the district court has limited
sentencing discretion under the Minnesota Sentencing Guidelines. In particular, we conclude that in imposing
sentence for a felony, the district court is required to impose the presumptive
sentence set out in the Sentencing Guidelines Grid absent additional
findings. Section II.D of the guidelines
expressly provides that the court “shall utilize the presumptive sentence”
unless substantial and compelling circumstances are present. While the statute authorizing promulgation of
the Sentencing Guidelines states that they are advisory to the district court,
it expressly provides that the district court “shall follow the procedures of
the guidelines” in pronouncing sentence.
follows from this holding that for purposes of the constitutional rule that has
evolved in the Apprendi line of
cases, for felonies other than first-degree murder
the presumptive sentence prescribed by the Minnesota Sentencing Guidelines is
“the maximum sentence a judge may impose solely on the basis of facts reflected
in the jury verdict or admitted by the defendant.” Blakely
state also makes the argument that Blakely
does not apply to sentencing under the Sentencing Guidelines because
state made this argument before the Supreme Court’s decision in Booker.
There the Court held that the fact the Federal Sentencing Guidelines
were promulgated by the Sentencing Commission rather than by Congress “lacks
same rationale applies to the Minnesota Sentencing Guidelines; the fact they
were promulgated by the Commission rather than by the legislature is not relevant
to the constitutional analysis. We note
that the legislature created the Commission and outlined in broad strokes what
the guidelines would ultimately look like.
the present case, under Apprendi and Blakely, the maximum sentence the
district court could have imposed for Shattuck’s first-degree criminal sexual
conduct conviction, based on the jury verdict alone, is the presumptive
sentence of 161 (156-166) months’ imprisonment.
Having determined that Shattuck’s enhanced sentence is unconstitutional, we turn to the question of the appropriate remedy. The answer to this question depends, at least in part, on whether the unconstitutional provision of Minn. Sent. Guidelines II.D can be severed from the remainder of the guidelines.
a court determines that a law is unconstitutional, it must invalidate only as
much of the law as is necessary to eliminate the unconstitutionality. Chapman
v. Comm’r of Revenue, 651 N.W.2d 825, 836 (
Statutes § 645.20 states that absent a provision in the law to the contrary,
the provisions of all laws are severable.
If any provision of a law is found to be unconstitutional, “the
remaining provisions of the law shall remain valid” unless the court makes
either of two findings: (1) the valid
provisions “are so essentially and inseparably connected with, and so dependent
upon, the void provisions” that the court cannot presume the remaining valid
provisions would have been enacted without the void one; or (2) the remaining
valid provisions, standing alone, are incomplete and incapable of being
executed in accordance with legislative intent.
Statutes § 244.09, subdivision 5, states that the Sentencing Guidelines are
“a procedure based on state public policy to maintain uniformity,
proportionality, rationality, and predictability in sentencing.” The Sentencing Guidelines themselves state
that the purpose of the guidelines “is to establish rational and consistent
sentencing standards which reduce sentencing disparity and ensure that
sanctions following conviction of a felony are proportional to the severity of
the offense of conviction and the extent of the offender’s criminal history.”
light of the overriding purposes of the Sentencing Guidelines system, we
conclude that the unconstitutional portion of Minn. Sent. Guidelines II.D may
be severed from the remaining provisions of the guidelines. Section II.D is unconstitutional only insofar
as it allows the district court to impose an upward durational departure based
on the court’s own findings. We do not
believe that the remaining provisions of the Sentencing Guidelines are “so
essentially and inseparably connected with, and so dependent upon” the
unconstitutional provision allowing a judge to make findings which would
justify an upward durational departure that the remaining provisions would not
have been enacted without it.
base this conclusion on a number of considerations. First, the Blakely decision narrowly focuses on the procedure of
judge-determined upward departures from the presumptive sentence, not the
substance or other procedural aspects of determinate sentencing. The Court expressly did not find determinate
sentencing schemes unconstitutional, and stated that Blakely was concerned only with “how [determinate sentencing] can
be implemented in a way that respects the Sixth Amendment.” 124
Second, to rule that section II.D cannot be severed from the remainder of the Sentencing Guidelines is to effectuate a return to an indeterminate sentencing system, in significantly different form than that which existed before the legislature supplanted it with a determinate Sentencing Guidelines system in 1978.
the advent of the Sentencing Guidelines, except for certain mandatory sentences
such as for first-degree murder, “the length of a sentence was left almost
entirely to the sentencing judge’s discretion, within the maximum terms
established by the legislature” and constitutional limitations. 9 Henry W. McCarr & Jack S. Nordby,
Under the current statutory framework, the parole board that previously determined an inmate’s actual release date no longer exists, and the Commissioner of Corrections’ parole authority applies only to individuals sentenced before the Sentencing Guidelines took effect in 1980. Minn. Stat. §§ 243.05, subd. 1; 244.08, subd. 1 (2004). To strike down the Sentencing Guidelines regime in its entirety, as the dissent proposes, would give judges the discretion to impose a fixed prison sentence at any point within the statutory range for the particular offense. Minn. Stat. § 609.10, subd. 1(2) (2004). Thus, under the dissent’s proposed remedy, the judge at sentencing would both select a sentence within a broad range, and effectively determine the defendant’s actual release date. The representatives of the people have never voted for the indeterminate sentencing system the dissent proposes. To the extent it might be said that the legislature would not have enacted a determinate guidelines system without provision for upward durational departures, there is nothing to suggest that the legislature would have enacted the dissent’s proposed system.
invalidate the Sentencing Guidelines system would also be contrary to the
express sentencing policy of this state of maintaining uniformity,
proportionality, and predictability in sentencing.
state argues that without sufficient provision for upward departures to maintain
proportionality in sentencing, the Sentencing Guidelines would never have
become law. The argument is based on the
veto of an earlier version of determinate sentencing by then-Governor Wendell
in sentencing is not dependent upon the availability of upward durational
departures from the presumptive sentence.
Sentencing proportionality requires that more severe sanctions be
imposed for more serious offenses and offenders. Kay A. Knapp, Impact of the
We conclude that severing the unconstitutional portion of Minn. Sent. Guidelines II.D from the remainder of the guidelines best effectuates legislative intent. Severance of section II.D does the least damage, in terms of both keeping a sentencing structure in place close to what the legislature enacted, and the judiciary refraining from taking an active role in creating a sentencing scheme for the state. With the exception of that portion of section II.D, therefore, we leave the Sentencing Guidelines intact.
B. The Booker Remedy
state urges us to follow the lead of the Supreme Court in Booker and modify the Minnesota Sentencing Guidelines to make them
advisory. In Booker, the Court answered the question of remedy by finding the
provision of the federal Sentencing Act that made the Federal Sentencing
Guidelines mandatory to be “incompatible” with its constitutional holding that
the federal guidelines are subject to Sixth Amendment jury-trial requirements,
and severed that and another statutory provision relating to standards of
The state asserts that the Booker holding is applicable to the Minnesota Sentencing Guidelines and legislative intent. The state proposes that two provisions of the Sentencing Guidelines be severed: the requirement of section II.D that the sentencing judge “shall utilize the presumptive sentence,” and section I.4 in its entirety (“While the sentencing guidelines are advisory to the sentencing judge, departures from the presumptive sentences established in the guidelines should be made only when substantial and compelling circumstances exist.”).
decline to modify the guidelines as the state requests. Because Booker
was decided on purely federal law grounds, it does not mandate a similar result
here. The Federal Sentencing Guidelines
system is a complex one that differs significantly from
accept the state’s invitation would effectively return felony sentencing in
C. Other Remedies
In the earlier order in this case, we directed the parties to address the question whether this court has the inherent authority to authorize the use of sentencing juries and a bifurcated trial process. State v. Shattuck, 689 N.W.2d at 786. The parties agree that the court has the power to authorize both procedures.
inherent power of this court includes ‘the right to enable [the court] to
administer justice whether any previous form of remedy has been granted or
not.’” State v. Erickson, 589 N.W.2d 481, 485 (
this court has the authority to establish procedures to apply the requirements
of Apprendi and Blakely to sentencing in
We reverse the decision of the court of appeals and remand this case to the district court for resentencing consistent with this opinion.
Reversed and remanded for resentencing.
C O N C U R R E N C E & D I S S E N T
ANDERSON, G. Barry, J. (concurring in part and dissenting in part).
I join the opinion
of the court in its application of Blakely
v. Washington to the Minnesota Sentencing Guidelines. When the district court may unilaterally find
facts that increase the defendant’s sentence beyond what would otherwise be
legally permissible based on the jury verdict or guilty plea alone, the jury
does not “stand between the individual and the power of the government.”
discussion of a remedy for Blakely-related
problems must begin by addressing severability issues. Severability is an analytical tool designed
to protect the separation of powers by preventing the court from substitution
of its judgment for the judgment of the elected representatives of the
people. See Regan v. Time Inc., 468
Minnesota Statutes § 645.20 (2004) lays out the statutory standard for severability:
Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with legislative intent.
There is a presumption of
severability. Chapman v. Commissioner of Revenue, 651 N.W.2d 825, 835 (
In the present case, we should ask the traditional severability question
this way: Would the legislature in 1978 have passed the remaining provisions
that constitute the sentencing guidelines regime without the unconstitutional
provision for departures from presumptive sentences? In asking this question, it is important to
note that the legislature cannot intend something unconstitutional. Thus, the fact that the legislature did pass
the guidelines system is irrelevant to the severability question, as is the
majority’s observation that failing to sever would return the state to
indeterminate sentencing and allow broad judicial discretion in sentencing. The court must not merely ask which possible
remedy seems to conform best to the intent of the legislature. See
By examining the legislative history of the original sentencing guidelines legislation, we can answer the severability question definitively, and the answer is no. The guidelines would never have become law but for the provision for upward departures.
In 1975, State Senator William McCutcheon introduced a determinate
sentencing bill that made imprisonment mandatory for all felonies, eliminated
“good time” and abolished the parole board. Research
believed that imposing identical sentences on all persons convicted of the same offense would ignore large differences in conduct leading to those convictions.
But this determinate sentencing bill never became law. Governor Wendell Anderson vetoed the bill on
April 13, 1976, expressing concerns along the lines of Rep. Moe. In particular, the Governor disagreed with
the omission of a clear provision for longer sentences for the most serious
But the legislative history does not end with the Governor’s veto. The bill was reintroduced in 1977, and was
drastically altered in the House to include the concept of the sentencing
Thus, after determinate sentencing was rejected by Governor Anderson specifically because it would lead to disproportionate sentencing for the worst offenders, the legislature reached a very delicate compromise creating the determinate guidelines but allowing judges to increase sentences based on factual findings. The final debate in conference committee focused on discretion in sentencing and a provision for extended sentences for the worst offenders was a key part of the compromise that ultimately emerged. The historical record is overwhelming that legislators would not have moved forward with the bill but for the provision for upward departures from presumptive sentences based on judicial discretion. So, from the history of the bill alone, we can answer the severability question in the negative.
The text of the legislation itself lends further support to the
proposition that the guidelines bill would not have been enacted without the
unconstitutional provisions. The
purpose of the legislation is explicitly detailed in the statutes promulgating
the guidelines regime. Section 244.09,
subdivision 5, although added to the guidelines statute in 1997, states that
the guidelines are “a procedure based on state public policy to maintain
uniformity, proportionality, rationality, and predictability in
sentencing.” Act of May 6, 1997, ch. 96,
§ 1, 1997
attempts to play down the irrationality of the system it creates, arguing that
the number of upward departures, 7.3% of felony sentences in 2003, is
But the actual number of upward departures is not constitutionally significant. What is significant is the fact that no sentencing system can be rational and proportional without a mechanism for departures. See Misquadace, 644 N.W.2d at 69. Upward departures and guidelines sentencing are so inextricably bound together in the pursuit of uniform and proportional sentencing that, under our severability jurisprudence, the one cannot be separated from the other. Today’s decision guts rational, proportionate sentencing and conflicts with the statutory command to consider public safety first. See Minn. Stat. § 244.09, subd. 5 (2004) (stating that the “primary consideration of the [sentencing guidelines] commission shall be public safety”).
It is also worth mentioning that the legislature has taken action to
address the Blakely problem. See Act
of June 2, 2005, ch. 136, art. 16, §§ 3-6, 2005
In light of the foregoing, we should have little problem answering the severability question in the negative – the legislature would never have passed the guidelines bill without provision for upward departures. Having found the guidelines non-severable, our precedents direct us to end our analysis of legislative intent. We should strike down the entire sentencing guidelines regime as unconstitutional and non-severable, and remand for resentencing under the statutory range for the offense committed. This would allow district courts to exercise discretion to impose sentences up to the statutory maximum and provide the legislature a clean slate from which to begin sentencing reform anew. For these reasons, I respectfully dissent.
 Under the guidelines currently in force, the offenses are severity level nine and the presumptive sentence is the same.
 The statute provides, in relevant part:
The court shall commit a person to the commissioner of corrections for not less than 30 years * * * if:
* * * *
(2) the court determines on the record at the time of sentencing that:
(i) the crime involved an aggravating factor that would provide grounds for an upward departure under the Sentencing Guidelines other than the aggravating factor applicable to repeat criminal sexual conduct convictions; and
(ii) the person has a previous sex offense conviction under sections 609.342, 609.343, or 609.344.
 We recently overruled Smith in light of Blakely. State v. Leake, 699 N.W.2d 312, 323 (
 The forms of first- and second-degree
criminal sexual conduct to which the repeat sex offender statute applies are
all severity level eight and nine offenses under the Sentencing Guidelines and
carry presumptively executed sentences. See Minn. Stat. § 609.109, subd.
 This provision was enacted following
our holding in State v. Givens, 544
N.W.2d 774, 777 (
 By statute, the presumptive range may
consist of an increase or decrease of up to 15% in the presumptive, fixed
 The district court’s sentencing
discretion under the Sentencing Guidelines is further constrained by the
statutory requirement that the court make written findings of fact as to the
reasons for departure from the presumptive sentence and the statute instituting
appellate review of sentences.
 In State
v. Misquadace, we noted that under the federal and
 First-degree murder is excluded from
the Sentencing Guidelines because it carries a mandatory sentence of life
 The traditional rule is that a law is facially unconstitutional only if
it is unconstitutional in all of its applications. See
United States v. Salerno, 481
 We note that the legislature has recently amended section 609.109, subdivision 4, and has adopted a revision of Minn. Sent. Guidelines II.D that was recommended by the Commission. Act of June 2, 2005, ch. 136, art. 16, §§ 9, 14, 2005 Minn. Laws ___, ___; see Minn. Sent. Guidelines Comm’n, Report to the Legislature 11-12 (Jan. 2005). The validity of those provisions is not before us here.
 Drawing on the statute, section I of the
guidelines and other sources, we have characterized
 In the case of first-degree criminal
sexual conduct, for example, it is conceivable that one judge could impose a
minimal year-and-a-day prison sentence for an individual who sexually
penetrates an infant, and another judge could sentence an 18-year-old to a
30-year prison term for having sexual intercourse with a nearly 16-year-old
non-relative who resides in the same home and who in fact consented but by law
is deemed incapable of consent. See
 The only reduction of a prison sentence
currently provided by statute is good time earned by the defendant. See
 In 2003, the last year for which statistics
have been reported, the number of aggravated sentencing departures, both
durational and dispositional, constituted 7.3% of felony sentences.
 We note that the revision of Minn. Sent.
Guidelines II.D that the legislature adopted in 2005, see footnote 10, supra,
includes language that a sentence outside the applicable range on the grid “is
not controlled by the guidelines, but rather, is an exercise of judicial
direction,” and that aggravating departure factors “are advisory only.”
 We note that the legislature has
recently enacted significant new requirements for aggravated sentencing
departures, including sentencing juries and bifurcated trials, and that these
changes apply both prospectively and to resentencing hearings. Act of June 2, 2005, ch. 136, art. 16,
§§ 3-6, 2005
 The Supreme Court in Blakely expressly approved of judicial
discretion in sentencing and indeterminate sentencing. The issue is one of legal expectation. A defendant convicted or pleading guilty
under a system of mandatory presumptive sentences has an expectation of a
specific sentence. But under a system of
indeterminate sentencing, potential criminals are on notice that their behavior
risks a broad range of possible punishment.
Nothing about judicial discretion in sentencing offends the Sixth
Amendment unless it pushes an offender’s penalty above the presumptive punishment
the law provides. See Blakely, 124 S. Ct. at 2540;
 Prior to the sentencing reforms of the
late seventies, the district court sentenced felons to a maximum term of years
within the statutory range for the offense committed, and the parole board
determined the actual release date. See
 It is, of course, true that an indeterminate sentencing regime, as urged by the dissent, may adversely complicate the legislative goal of uniformity. But while that development is speculative, proportionality is a guaranteed casualty of the majority decision.
the majority’s remedy nor the legislature’s reforms resolve one potential
problem lurking beneath the surface of Blakely:
The United States Supreme Court has flirted with holding outright that all
facts that increase the ceiling in possible punishment beyond what is allowed
by the jury verdict or defendant’s admissions alone must be treated as elements
of the offense. See, e.g., Apprendi, 530 U.S.
466, 478 (2000) (majority opinion) (“Any possible distinction between an
‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the
practice of criminal indictment, trial by jury, and judgment by the court as it
existed during the years surrounding our Nation’s founding.”); id.
at 494 n. 19 (majority opinion) (“[W]hen the term ‘sentencing
enhancement’ is used to describe an increase beyond the authorized statutory
sentence, it is the functional equivalent of an element of a greater offense than
the one covered by the jury’s guilty verdict.”); id. at 521 (Thomas, J.,concurring) (exhaustively detailing the
common law history of the understanding that “if a fact is by law the basis for
imposing or increasing punishment * * * it is an element” of the crime being
punished); Ring v. Arizona,536
U.S. 584, 610 (2002) (Scalia, J., concurring) (“[A]ll facts essential to the
imposition of the level of punishment that the defendant receives – whether the
statute calls them elements of the offense, sentencing factors, or Mary Jane –
must be found by a jury beyond a reasonable doubt.”); Harris v. United States, 536 U.S. 545, 565 (2002)
(plurality opinion) (“[T]hose facts that determine the maximum sentence the law
allows, then, are necessarily elements of the crime.”) (citations omitted). Elements of a crime must
not only be submitted to the jury and proven beyond a reasonable doubt, but
must also be included in the initial charging instrument. See id.
at 557 (holding that the
legislature “may not manipulate the definition of a crime in a way that
relieves the Government of its constitutional obligations to charge each
element in the indictment, submit each element to the jury, and prove each
element beyond a reasonable doubt”).
 There are no perfect choices
here. Under the dissent’s proposed
remedy, the district court sets fixed-length sentences within the statutory
range for the offense committed, or if no range is fixed by statute, to a fixed
term within the default range for a felony.
 In the present case, remanding for
resentencing under the statutory range for the offense committed would give the
district court discretion to sentence Shattuck to a term of up to 360 months in
prison -- the very sentence he received by virtue of the district court’s
upward durational departure under Minn. Stat. § 609.109, subd. 4(a) (2004).