Part of Blakely Blog's comment is
During the hearing it was suggested that prior to 1987 a sentence could only be appealed if the sentence violated the constitution. I’ll go on the record as saying that I don’t think that’s right. I recall reading that sentences could be appealed if, for example, the judge relied on false information in the imposition of a sentence. I recall reading this somewhere. Any help would be appreciated.I wasn't around pre-guidelines but I'll take a hack at this.
I'll assume there was no requirement that a federal judge announce the reasoning for his decision (if someone can point to a requirement otherwise please drop me an e-mail). If so, sentencing would not be much different than it is here in Virginia. So I'll apply some of what I've seen happen in Virginia courts.
If a judge is worried about being overturned upon appeal one of the easiest things he can do is not develop a record. I've seen this in a number of cases where the judge thought that the issue was close. The judge just makes a bald announcement of the finding. Trying to get an elaboration usually ends up with a statement something along the lines of "Mr. Lammers, the facts here speak for themselves and I don't need to add anything to them."
This technique is especially devastating in a sentencing hearing. The prosecution has been standing at the podium for 30 minutes arguing for a stiff sentence based upon reasons which are clearly unconstitutional: "Rather than the five years normally imposed, Mr. Lammers should be sent to prison for the 75 year maximum because he's of German ethnicity, and he's white, and he grew up in Kentucky, and he's a Romanist, and he's male, and he voted Republican in the last election." You've been vigorously objecting but the prosecutor has been getting his point across. After both sides have had their say the judge looks down and simply states, "I impose a sentence of 70 years." He refuses to elaborate. You've got no grounds for appeal because the sentence is within the maximum possible. Appellate courts will uphold that sentence time after time after time.
So, yes technically you would have the right to argue an unconstitutional factor. However, in the real world you might not have a record upon which to base the argument. This is what pops into my mind when people talk about sentences under the maximum being unreviewable.