Page "United States v. Booker" Paragraph 22

The Court next confronted the question of a remedy for the constitutional violation.

A different majority of the Court concluded that 18 U. S. C.

§ 3553 ( b ) — the provision of the federal sentencing statute that required district courts to impose a sentence within the Guidelines range — was " incompatible " with the constitutional holding and therefore had to be " severed and excised " from the statute.

Likewise, 18 U. S. C.

§ 3742 ( e ), the provision that governed the handling of appeals from sentences, also had to be severed and excised, because that provision was inextricably linked with the provision that made the Guidelines mandatory.

The result of severing and excising these two provisions was to make the Guidelines " effectively advisory ," such that district courts could, after considering the Guidelines range, tailor a sentence that reflected the broader range of concerns set forth in the federal sentencing statute.