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The two questions the U.S. Government has asked the Supreme Court to answer in Fanfan and Booker are:

(1) Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the UnitedStates 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 admittedby the defendant. (2) If the answer to the first question is “yes,” thefollowing question is presented: Whether, in a case inwhich the Guidelines would require the court to find asentence-enhancing fact, the Sentencing Guidelines as awhole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exerciseits discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

In other words, are the guidelines constitutional as historically applied; and if they are not, are they wholly unconstitutional?


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